Guidelines for advertising aregulated health serviceDecember 2020Guidelines for advertising a regulated health service2 Guidelines for advertising a regulated health service December 2020ContentsBackground 3Executive summary 4Advertising requirements 41. Purpose and advertising breaches 51.1 Purpose of the guidelines 51.2 How to make a complaint about anadvertising breach under the National Law 51.3 Process for managing advertising breachesunder the National Law 51.4 What penalties apply for advertisingbreaches under the National Law? 62. What do the guidelines not cover? 72.1 Advice about whether advertisingis compliant 72.2 Advertising therapeutic goods and AustralianConsumer Law 72.3 Public health publications or advice 73. Scope and application 83.1 What is considered advertising? 83.2 Who is an advertiser? 83.3 What must an advertiser do? 84. What are the advertising requirementsof the National Law? 94.1 False, misleading or deceptive advertising 94.1.1 Evidence required for claims made inadvertising about the effectivenessof a regulated health service 104.1.2 What is acceptable evidence? 104.1.3 Making comparisons with otherregulated health services 114.1.4 Titles and claims about registration,competence and qualifications 114.1.4.a Use of endorsements and recognisedspecialist titles in advertising 114.1.4.b Other uses of specialisations,specialties and specialist termsin advertising 124.1.4.c Overstating specialist area of practice 124.1.4.d Qualifications 124.1.4.e Position titles in employment contexts 134.1.4.f Protected titles with descriptive term 134.1.4.g Use of the title doctor 134.2 Gifts, discounts or inducements 144.3 Testimonials 144.3.1 What is a testimonial? 154.3.2 Are patient reviews permitted inadvertising? 154.3.3 Who is responsible for compliancewith the prohibition on the use oftestimonials in advertising? 164.4 Advertising that creates an unreasonableexpectation of beneficial treatment 174.4.1 Images and photographs 174.5 Encouraging indiscriminate or unnecessaryuse of regulated health services 18Definitions 19Advertiser 19Advertising 19Regulated health service 20Review 20Appendix 1: Obligations under theNational Law 21Appendix 2: Title protection 22Appendix 3: Associated legislation andagencies 25Australian Consumer Law 25Therapeutic Goods Administration 25Poisons Standard (Standard for the UniformScheduling of Medicines and Poisons) 25Drugs and poisons legislation 25Guidelines for advertising a regulated health service3 Guidelines for advertising a regulated health service December 2020BackgroundThe Australian Health Practitioner Regulation Agency (Ahpra) works in partnership with 15 national healthpractitioner boards (the National Boards) to implement the National Registration and Accreditation Scheme (theNational Scheme) and administer the Health Practitioner Regulation National Law, as in force in each state andterritory (the National Law).The National Boards regulate registered health practitioners in Australia. They: set the standards that practitioners must meet through the development of registration standards, codes andguidelines register health practitioners and students manage notifications about the health, conduct or performance of practitioners.1The core role of the National Boards and Ahpra is to protect the public.The National Law states that the National Boards can develop and approve codes and guidelines includingguidelines about the advertising of a regulated health service by registered health practitioners or others.2 TheGuidelines for advertising a regulated health service (the guidelines) were jointly developed by all NationalBoards.A note on terminologyThese guidelines use both patient and consumer to mean a person or persons accessing healthcare, whichincludes clients and healthcare consumers. These terms can also include families, carers, groups and/orcommunities.1 In NSW notifications about health, performance and conduct are managed by the Health Care Complaints Commission and the HealthProfessional Councils Authority. In Qld they are managed jointly by the Office of the Health Ombudsman and the National Boards andAhpra. Complaints about advertising are managed according to the Advertising compliance and enforcement strategy for the NationalScheme.2 Sections 39, 40 and 133 of the National LawGuidelines for advertising a regulated health service4 Guidelines for advertising a regulated health service December 2020Executive summaryThe National Law establishes the requirements for advertising a regulated health service. These requirements areimportant for public protection and help to ensure the public receives accurate and honest information abouthealthcare services. These guidelines have been developed to explain those obligations.As the guidelines are established under the National Law, a court or tribunal may consider them when hearingadvertising offences against section 133 of the National Law (see Appendix 1).Anyone (registered health practitioners, individuals who are not registered as health practitioners and bodycorporates) advertising a regulated health service must ensure their advertising complies with the National Lawand other relevant legislation (see Appendix 3).Advertising requirementsThe guidelines explain the obligations under the National Law that apply to any person or business advertising aregulated health service.The guidelines set out: who is defined as an advertiser what is considered advertising how an advertiser can meet their legal obligations when advertising.It is not possible to provide an exhaustive list of advertising that will or will not breach the National Law. Theguidelines aim to explain legal obligations when advertising and to provide practical examples to help thisunderstanding. Resources to supplement these guidelines are available on the Ahpra website to further helpadvertisers understand their obligations.As a risk-based regulator, Ahpra will only take regulatory action where there is a risk to the public and will onlyapply the necessary regulatory force appropriate to manage the risk.As regulators, Ahpra and the National Boards cannot provide advice about whether specific advertising iscompliant. Advertisers should seek their own independent advice such as from their legal adviser or indemnityinsurer.If you are advertising a regulated health service, your advertising must not: be false, misleading or deceptive, or likely to be misleading or deceptive offer a gift, discount or other inducement, unless the terms and conditions of the offer are also stated use testimonials or purported testimonials about the service or business create an unreasonable expectation of beneficial treatment directly or indirectly encourage the indiscriminate or unnecessary use of regulated health services.Guidelines for advertising a regulated health service5 Guidelines for advertising a regulated health service December 20201. Purpose and advertising breaches1.1 Purpose of the guidelinesThese guidelines were developed to help advertisers understand their obligations when they are advertising aregulated health service. The guidelines, together with the resources published on Ahpra and National Boardwebsites, support compliance with the National Laws advertising requirements. Compliance with the advertisingrequirements is in the public interest as it protects the public from unlawful advertising. The public are entitledto receive accurate, clear information about regulated health services. Unlawful advertising may compromise thehealthcare choices of the public.The guidelines do not prevent regulated health service providers from informing the public about the servicesthey provide or stop members of the community from discussing their experiences online in forums outside theproviders control, or in person.The guidelines are developed in recognition that: advertising can be a helpful and effective way to communicate services that are available to the public advertising can be misinterpreted or taken out of context meaning it can be misleading, so advertisers have aresponsibility to take steps to prevent this from happening false, misleading or deceptive advertising can cause harm to the public if it results in poorly informedhealthcare choices.1.2 How to make a complaint about an advertising breach under the National LawA complaint about advertising can be made by using the complaint form on the Ahpra website. You can also callAhpra on 1300 419 495 for further information on making a complaint about advertising.The Ahpra website also has information about how complaints about advertising are managed.1.3 Process for managing advertising breaches under the National LawA breach of an advertising requirement is a criminal offence for which a court may impose a monetary penalty. Ifyou are a current or previously registered health practitioner, you may also be subject to disciplinary action.Ahpra has published an Advertising compliance and enforcement strategy for the National Scheme (the strategy)that sets out how the National Boards and Ahpra monitor and enforce compliance with the National Lawsadvertising requirements. The strategy adopts a risk-based, proportionate approach to enforcing the advertisingrequirements of the National Law. Please refer to the strategy for more information about how complaints aboutbreaches and potential breaches of the advertising requirements are managed.Compliance and enforcement action will escalate depending on the ongoing assessment of risk and whether theadvertiser is willing to comply.The compliance and enforcement tools available to the National Boards and Ahpra vary depending on whetherthe advertiser is a registered health practitioner (or a previously registered health practitioner), individual,business, or a corporate entity.For registered health practitioners the enforcement tools available under the National Law include the power to: investigate a practitioners conduct impose conditions on the practitioners registration, such as restricting their ability to advertise their services take disciplinary action in a panel or tribunal prosecute, which may lead to a financial penalty.For corporate entities, business and individuals who are not registered health practitioners, the tools availableunder the National Law include the power to prosecute which may lead to a financial penalty.Guidelines for advertising a regulated health service6 Guidelines for advertising a regulated health service December 20201.4 What penalties apply for advertising breaches under the National Law?Section 133 of the National Law includes financial penalties for offences which breach the advertisingrequirements of the National Law (see Appendix 1).Advertisers whose advertising breaches the National Law may be prosecuted and ordered by a court to pay apenalty for each offence which breaches the National Law. The financial penalties vary depending on the type ofadvertiser. In the case of: an individual, there may be a financial penalty of up to $5,000 per offence a body corporate, there may be a financial penalty of up to $10,000 per offence.If an advertising breach is related to an unlawful use of a protected title (see Appendix 2) this is also an offenceunder the National Law for which penalties can apply.3 In the case of: an individual, there may be a financial penalty of up to $60,000 per offence, imprisonment of up to three yearsper offence or both a body corporate, a financial penalty of up to $120,000 per offence may apply.3 In Western Australia different penalties apply. In the case of an individual the maximum penalty is $30,000, or in the case of a bodycorporate $60,000.Guidelines for advertising a regulated health service7 Guidelines for advertising a regulated health service December 20202. What do the guidelines not cover?2.1 Advice about whether advertising is compliantThe guidelines do not provide advice about how to advertise. Ahpra and the National Boards cannot giveadvertisers legal advice about their advertising and they cannot approve advertising. This is because as statutoryregulators our role is to enforce the law and not to provide legal advice to advertisers about their advertising.These guidelines are not a substitute for legal advice. Anyone requiring advice about advertising a regulatedhealth service should seek appropriate independent advice from their legal adviser or indemnity insurer.2.2 Advertising therapeutic goods and Australian Consumer LawAdvertising a regulated health service often involves the advertising of therapeutic goods (e.g. medicines andmedical devices) and requires compliance with the Australian Consumer Law. Advertisers must comply withall relevant legislation. The Australian Competition and Consumer Commission (ACCC) is responsible for lawsgoverning Australian Consumer Law and the Therapeutic Goods Administration (TGA) is responsible for lawsgoverning the advertising of therapeutic goods. More information about this is included in Appendix 3.If a complaint about advertising may be of interest to another Australian regulatory authority, such as the TGA orACCC, Ahpra may refer the matter to the appropriate regulator.2.3 Public health publications or adviceThe National Laws advertising requirements do not apply to public health information, advice and publicationsabout or from public health services. This information is often provided as part of a public health program led bypublic health agencies such as Commonwealth, state or territory government health departments.Example: Public health campaignA regulated health service displaying a National Immunisation Program poster produced by the AustralianGovernment that promotes the influenza vaccine would not breach the advertising requirements of theNational Law.44 Advertisers who generate independent advertising material promoting a service involving the use or supply of therapeutic goods(including vaccines) should be aware that the therapeutic goods advertising legislation is likely to apply (see Appendix 3).Guidelines for advertising a regulated health service8 Guidelines for advertising a regulated health service December 20203. Scope and application3.1 What is considered advertising?The meaning of advertising for the purpose of these guidelines is set out in the Definitions.In the context of advertising a regulated health service, advertising includes all forms of verbal, printed andelectronic communication that promotes and seeks to attract a person to a regulated health service providerand/or to attract a person to use the regulated health service. Social media is also often used to advertise aregulated health service. The meaning of social media for the purpose of these guidelines is set out in theDefinitions.A practitioner providing information about treatment or costs in a consultation, whether in person, by telephoneor video or via other digital means, is not considered to be advertising a regulated health service.3.2 Who is an advertiser?Anyone (person, business or corporate entity) who advertises a regulated health service, is consideredan advertiser and must comply with the advertising requirements of the National Law (see below and theDefinitions).The person or entity who controls part or all of the advertising (i.e. who authorises the content) is the advertiser.An advertiser has control of the advertising if: they publish or authorise content or direct someone to publish or draft content (including a third party, staffmember or marketing agency) or there is a mechanism for the advertiser to modify or remove content published by an unrelated publisher.Advertisers are responsible for their advertising, so they need to check any content produced by others on theirbehalf.Advertisers can include: registered health practitioners individuals who are not registered health practitioners businesses, partnerships and corporate entities.A regulated health service is a service provided by, or usually provided by a registered health practitioner.3.3 What must an advertiser do?All advertisers of regulated health services must comply with: The National Law, including: the advertising requirements under section 133 (see Appendix 1) title and practice protection provisions under sections 113 to 120 (see Appendix 2). All other applicable legislation, such as laws
related to Australian Consumer Law and therapeutic goods.The National Law does not regulate therapeutic goods, such as medicine and medical devices. These areregulated by the TGA. See the TGA website for further explanation of its regulatory scope. For informationabout Australian Consumer Law and the TGA see Appendix 3.All registered health practitioners who advertise should be aware that: They must comply with other codes and guidelines published by the National Boards that describe theprofessional standards expected for each regulated health profession, including when advertising. EachNational Board has published a code of conduct or equivalent which registered health practitioners mustcomply with or face possible disciplinary action. Although the National Boards do not enforce the legislation of other government departments or agenciessuch as therapeutic goods legislation or drugs and poisons legislation, a breach of this legislation may formthe basis for disciplinary action under the National Law.Guidelines for advertising a regulated health service9 Guidelines for advertising a regulated health service December 20204. What are the advertising requirements of theNational Law?Section 133 of the National Law establishes the requirements for advertising a regulated health service and is setout in Appendix 1. This section of the guidelines provides further explanation about these requirements.4.1 False, misleading or deceptive advertising133 (1) A person must not advertise a regulated health service, or a business that provides a regulated healthservice, in a way that(a) is false, misleading or deceptive or is likely to be misleading or deceptiveAdvertisers must not make false, misleading or deceptive claims in their advertising. To avoid being misleadingand deceptive when advertising, advertisers should aim for the following: sell your professional services on their merits be honest about what you do and say in relation to your business practices be able to identify when published material falls under the definition of advertising be able to regularly check and maintain compliance of all your advertising look at the overall impression of your advertising.5 Consider who the audience is, what the advertisementis likely to say or mean to them, and how easy it is for your audience to navigate and understand youradvertising.Advertising may be false, misleading or deceptive when it: misleads, either directly or by implication through the use of emphasis, comparison, contrast or omission provides partial information and/or omits important details uses scientific information that is inaccurate, unbalanced, not easily understood by the public, or does notclearly identify researchers, sponsors and the academic publication in which the results appeared makes statements about the effectiveness of the treatment that are not supported by acceptable evidence makes unqualified claims about the effectiveness of treatment by listing health conditions that a treatment orservice can assist with or treat suggests a practitioner is a registered health practitioner or holds specialist registration, qualifications or anendorsement when they do not, by using a title and/or other means minimises, underplays or under-represents the risk or potential risk associated with a treatment or procedure compares health outcomes, regulated health professions or practitioners or prices without completeinformation makes claims about providing a superior regulated health service.5 See www.accc.gov.au/business/advertising-promoting-your-business/false-or-misleading-statementsGuidelines for advertising a regulated health service10 Guidelines for advertising a regulated health service December 20204.1.1 Evidence required for claims made in advertising about the effectiveness of aregulated health serviceAdvertisers of a regulated health service must be able to substantiate claims made in advertising. This is referredto as acceptable evidence in these guidelines. Acceptable evidence mostly includes empirical data from formalresearch or systematic studies in the form of peer-reviewed publications. Figure 1 on page 10 provides furtherguidance about when claims made in advertising need to be supported by acceptable evidence.The evidence required for claims in advertising and the evidence for clinical decisions about the servicesprovided are different.There is an important difference between acceptable evidence for claims made in advertising and theevidence used for clinical decisions. When providing healthcare services, practitioners must obtain informedconsent and are expected to discuss the evidence for different treatment options. This means patients havean opportunity to consider a proposed treatment, benefits and potential negative effects, ask questions oftheir practitioner(s) and make informed decisions about their healthcare.Advertising does not provide this opportunity as the claims are generic and practitioners are not available toclarify whether a treatment is appropriate for an individual.4.1.2 What is acceptable evidence?Ahpra and the National Boards assess the evidence for claims made in advertising consistent with approachesused by the wider scientific and academic community. Primary sources of evidence should be used whereverpossible. Advertisers should consult the Ahpra and National Boards framework for assessing acceptable evidencefor any claims made in their advertising. The framework is available on the Ahpra website.The evidence required to support a therapeutic claim will depend on the specific claim made in theadvertisement. A well-conducted systematic review of relevant randomised controlled trials represents thehighest level of evidence where it includes and identifies all studies on a given topic and the review is systematic,reproducible and representative of the totality of evidence. Where a systematic review is unavailable, it isimportant that all relevant sources of evidence are considered (i.e. the research is not cherry picked).Examples of unacceptable evidence could include a comparative study without concurrent controls or a singlecase study. Such evidence has a higher risk of biased (or inaccurate) findings because of the studys design.The following types of studies will generally not be considered acceptable evidence for advertising claims: studies involving no human subjects before and after studies with few or no controls self-assessment studies anecdotal evidence based on observations in practice outcome studies or audits, unless bias or other factors that may influence the results are carefully controlled studies that are not applicable to the target population.Guidelines for advertising a regulated health service11 Guidelines for advertising a regulated health service December 2020Figure 1: When advertising claims need to be supported by acceptable evidence Is the claim about a regulated health service?Is the claim used in advertising?Is the claim supported by acceptable evidence?YesYesYes Not permitted in advertising.Check that the claim is not otherwise false,misleading or deceptive and meets the otheradvertising requirements of the National Lawbefore using in advertising.The claim is not covered by s.133 of the NationalLaw. However, consider if the claim is relevant toother codes, guidelines, standards or legislation.NoNoNo4.1.3 Making comparisons with other regulated health servicesComparative advertising that is used to promote a regulated health service over another can be misleading and/or deceptive because it can be difficult to include complete information when making comparisons.If comparative claims are used in advertising of regulated health services they must be clear, accurate andsupported by acceptable evidence where relevant. Examples of comparative advertising include: comparisons between health outcomes and quality of care offered by different regulated health services comparing professions, or the competency, skill or experience of practitioners price comparisons of regulated health services.4.1.4 Titles and claims about registration, competence and qualificationsThe National Law regulates the use of certain titles (protected titles). Misuse of a protected title is an offenceunder the National Law. Advertisers should be aware of the protected titles for the profession that they areadvertising. Penalties can apply for a breach of National Law title protection provisions. In the case of anindividual, there may be a financial penalty, imprisonment or both. In the case of a body corporate a financialpenalty may apply (see section 1.4 What penalties apply for advertising breaches under the National Law?).A summary of title protection under the National Law is set out in Appendix 2. This also provides lists of protectedtitles, recognised specialties, divisions, and endorsements, or links to those lists.Further information and examples of non-compliant advertising about titles, claims about registration,competence and qualifications are on the Ahpra website.4.1.4.a Use of endorsements and recognised specialist titles in advertisingThe National Law protects endorsements and recognised specialist titles. A specialist title indicates thata practitioner holds specialist registration in one of the recognised specialties for certain professions. Anendorsement on a practitioners registration indicates that the practitioner is qualified to practise in an approvedarea of practice.Under the National Law, only the Ministerial Council can approve a recognised specialty in a health profession orapprove an area of practice in a health profession for endorsement.Only a registered health practitioner who holds specialist registration in a recognised specialty or anendorsement may use the relevant specialist title or a title relating to an endorsement in advertising. This includesin the name of the business or other advertising to the public.The National Law prohibits claims of: holding a type of registration, including specialist registration or endorsement, if the person does not holdthis type of registration being qualified to practise as a specialist health practitioner, or to hold an endorsement, if the person doesnot hold this type of registration.Guidelines for advertising a regulated health service12 Guidelines for advertising a regulated health service December 2020A registered health practitioner may not, through advertising or other means: claim to be a specialist or use a recognised specialty title to present themselves to the public as holdingspecialist registration, when they do not hold specialist registration in the relevant recognised specialty claim to hold an endorsement or use a title related to an endorsement to present themselves to the publicas holding an endorsement in relation to approved areas of practice in a health profession, when they do nothold the relevant endorsement claim to be qualified to practise as a specialist health practitioner when they are not registered in the relevantspecialty claim to be qualified to hold an endorsement when they do not hold the relevant endorsement.An unlawful claim about specialist registration or endorsement by a registered health practitioner may also raiseconcerns about the practitioners health, performance or conduct for which the National Board may take actionto protect the public.4.1.4.b Other uses of specialisations, specialties and specialist terms in advertisingOther uses of titles and specialist claims in advertising may not necessarily breach title protection provisions ofthe National Law, but may be considered false, misleading or deceptive under the advertising requirements.When a practitioner does not hold specialist registration, the National Boards consider that any advertisingusing words or titles related to specialty is likely to mislead the public to believe the practitioner holds a type ofspecialist registration approved under the National Law.This includes advertising that uses the words, or variations of the words or phrases specialist, specialises in,specialty, or specialised. Words such as substantial experience in or working primarily in are less likely to bemisleading.Example Use of specialist, specialises in, specialty, specialisedPotential breach: Dr Lopez (Chiropractor) is a specialist in paediatric chiropractic care.Correct: Dr Lopez (Chiropractor) has substantial experience working with musculoskeletal issues in children.4.1.4.c Overstating specialist area of practiceWhere a practitioner holds specialist registration in a recognised specialty, they should ensure their use ofspecialist, specialises in, specialty, or specialised in their advertising is restricted to the specialty they areregistered in and does not misrepresent their specialist registration.Example Overstating specialist area of practicePotential breach: Dr Chan, Specialist paediatric general practitioner.Correct: Dr Chan, Specialist general practitioner with substantial experience working with children.A medical practitioner who holds specialist registration in general practice should not claim they are apaediatric specialist, as this may mislead the public into the belief that they hold specialist registration inpaediatrics.4.1.4.d QualificationsAdvertising of qualifications or memberships can provide the public with useful information about a practitionerseducation and experience. It can help the public make informed decisions about accessing regulated healthservices. If a practitioner holds further or postgraduate qualifications, or has specific experience, or hascompleted specific courses it is acceptable to advertise that in an accurate and factual manner. It is alsoacceptable to refer to where the qualification was issued.Example: Postgraduate qualificationsCorrect: Master of Public Health.Guidelines for advertising a regulated health service13 Guidelines for advertising a regulated health service December 2020Example Specific experienceCorrect: 10 years experience working at clinic XY.When a National Board acknowledges further education awarded by a professional college, as in physiotherapy,any reference to the further qualification must clearly specify the relevant educational award.Example A National Board acknowledges further educationCorrect: P Smith, Specialist Musculoskeletal Physiotherapist (as awarded by the Australian College ofPhysiotherapists in 2008).Advertisers should ensure that abbreviations or post-nominal letters to indicate membership of a body orassociation are not misleading by implying the practitioner has more qualifications, skill or experience than is thecase.4.1.4.e Position titles in employment contextsWhen considering whether a title may be in breach of section 133 of the National Law it is important to considerthe context in which the title is used. A title is unlikely to be considered advertising when it is used within theemployment context only (i.e. the title is not used externally to promote the service to the public) and: is recognised under an industrial award (e.g. Psychiatric Registered Nurse), or is determined by the employer and appears in the position description (e.g. Intensive Care Nurse), or the role does not involve providing healthcare.However, it must be clear to the public that the title relates specifically to the position held and the practitionermust not use this title outside the context of their employment.4.1.4.f Protected titles with descriptive termIn some contexts, individuals might use a title that includes some or all of a protected title together with adescriptive term. Use of a descriptive term with a protected title might provide useful information to the publicabout the subset of the population, area of practice or specific setting the practitioner works in.However, advertisers must take care that the title does not over-represent the practitioners skills, experience orqualifications, or imply specialist registration or endorsement.Example Recognised specialist title with a descriptive termPotential breach: Dr Taylor, GP Oncologist.If a medical practitioner who holds registration as a general practitioner uses this title this would bemisleading as it implies the practitioner holds registration as a medical oncologist, a recognised