Australian Health Practitioner Regulation Agency
 

Further information on advertising and the National Law

The following are common questions and queries that consumers and registered health practitioner or healthcare providers have had about advertising regulated health services.

If this information does not provide you with what you are looking for, please contact us on 1300 419 495.

Image of advertising billboard  FAQ about advertising

Advertising is actions by people or businesses to draw attention to their services. The ways people and businesses can promote services are almost limitless and include all forms of printed and electronic media.

These include:

  • any public communication using television, radio, motion pictures, newspapers, billboards, books, lists, pictorial representations, designs, mobile communications or other displays 
  • professional websites, the internet or directories, and 
  • business cards, announcement cards, office signs, letterhead, telephone directory listings, professional lists, professional directory listings and similar professional notices.

The focus is on the promotional quality of advertising, it also includes situations in which registered health practitioners give information for media reports, magazine articles or advertorials, including where they make comment or provide information on particular products or services, or about other health practitioners.

A 'registered health practitioner’ means an individual who is registered to practise (other than as a student) or holds non-practising registration under the National Law, in a health profession.

‘Health profession’ under the National Law means one of the 14 professions (including recognised specialties) regulated under the National Scheme (and identified under the National Law).

‘Regulated health service’ means a service provided by, or usually provided by, a registered health practitioner, as defined in the National Law. The advertising provisions of the National Law cover the advertising of a regulated health service, or a business that provides a regulated health service.

A number of health services are not regulated under the National Law. For example the National Law does not regulate:

  • supply or sale of glasses frames, and 
  • kinesiology services.

The advertising provisions of the National Law apply to anyone who advertises a regulated health service, including registered health practitioners, non-registered health practitioners, individuals and bodies corporate.

The requirements of the National Law about advertising apply to anyone advertising a regulated health service. This includes that your organisation has an obligation to not use testimonials (comments about clinical care) when it is advertising a regulated health service.

Advertisers are not expected to proactively monitor sites that they do not control for comments other people have made about its clinical services. Unsolicited comments/reviews about anything other than clinical care and/or which are not used to advertise a regulated health service are not covered in the National Law, and need not be a concern for the organisation, regardless of where they are published.

No. AHPRA and the National Boards cannot give you advice or an opinion about advertising and cannot ‘vet’ or pre-approve your advertisements for compliance with the National Law and the advertising guidelines. If you are in doubt about whether your advertisement might be in breach of the National Law, you should leave a claim out, or seek your own advice (e.g. from professional associations, insurers or lawyers) before placing the advertisement.

However, we have published more information to help advertisers meet their obligations.

Your clinical expertise, education and continuing professional development (CPD) as a registered health practitioner makes you well placed to understand whether your advertising gives a fair and correct impression of the services that you offer.

Reading the information on the AHPRA and National Board websites can help you make your advertising as clear as possible for the public.

When preparing or reviewing advertising, you should make sure that you:

  • remain mindful that your audience does not have this professional background or expertise 
  • are honest and sell your services on their merits, and 
  • look at the overall impression of their advertisements, rather than whether each individual statement is correct.

For further information, look at using inappropriate claims of benefit in your advertising and review the guidelines.

Anyone who advertises a regulated health service is responsible for ensuring that their advertising (including their websites and social media) meets the requirements in the National Law. The best way to do this is to be familiar with the National Law and advertising guidelines and understand your legal obligations.

If you have inadvertently breached the advertising requirements, you should address the problem as soon as possible, especially if you have received a warning letter from AHPRA or your National Board.

 

Responsibilities when advertising

The advertising requirements in the National Law and advertising guidelines apply only to the advertising of regulated health services. Individuals (including practitioners) and organisations are not responsible for removing (or trying to have removed) unsolicited testimonials published on a website or in social media over which they do not have control.

You are responsible for the advertising that you publish or that is in your control. The Boards do not expect you to monitor social media for things that may be written about you in forums you don’t control.

If you are a registered health practitioner, the National Boards do expect you to:

  • ensure that your own advertising, or advertising you have requested be done by others on your behalf, meets the requirements of the National Law 
  • take steps to correct your advertising if you are advised by AHPRA that your advertising does not comply with the National Law 
  • comply with the Boards’ social media policy and code of conduct if you are active on social media, and 
  • keep a close eye on any form of advertising you control.

If you are using your social media page to advertise regulated health services you provide, then you need to remove any testimonial that is part of your advertising.

If a patient posts something about your practice/services that could be seen to be promoting you and your regulated health service/s on a website or in social media you don’t control, you should not share or re-tweet the comment to promote a regulated health service on your own page, as this could be considered advertising.

Social media is part of everyday life and these guidelines do not stop people engaging online or via social media. National Boards have a Social media policy that applies to all registered health practitioners and provides further guidance about what the National Boards expect from practitioners when they use social media. Anyone using social media to advertise a regulated health service needs to meet the advertising requirements of the National Law.

 

What type of advertising is not allowed?

Advertising that is false, misleading or deceptive, or advertising that is likely to be misleading or deceptive, is prohibited under section 133 of the National Law. Misleading someone may include lying to them, leading them to a wrong conclusion, creating a false impression, leaving out (or hiding) important information, and/or making false or inaccurate claims.

The ways in which advertising can be false, misleading or deceptive are almost limitless.

Both specific claims and the overall impression of advertising have potential to be misleading. In some cases we may identify a specific claim or claims that are concerning. In assessing whether advertising claims are misleading or deceptive or create an unreasonable expectation of beneficial treatment we will assess specific claims, and where relevant will also consider the advertising as a whole from the perspective of a member of the public.

If you, or any other person advertising a regulated health service, use a discount, gift or any other inducement to attract patients or clients to a service, the offer must be truthful, and the full terms and conditions of that offer must be set out clearly in the advertisement.

See clause 6.2.2 of the Board’s Guidelines for advertising of regulated health services.

Time-limited offers are not specifically prohibited by the National Law. However, Boards are concerned that time limited offers may place people under pressure to make a decision about their healthcare which may not be in their best interest. This advertising may also encourage indiscriminate and unnecessary use of health services, which is banned under the National Law. Section 6.2.5 of the Guidelines for advertising regulated health services provides more information about this area of advertising.

Testimonials are statements, stories and anecdotes about clinical care from past patients or clients making a recommendation about a health service or its quality.

Many businesses use testimonials or purported testimonials on their websites as a means of attracting new customers. However, the National Law prohibits the use of testimonials or purported testimonials in the advertising of regulated health services as it is considered inappropriate and they have the potential to wrongly influence the buying decisions of consumer.

Advertising is something that intends to promote or encourage the use of a regulated health service. Social media used to promote a business, such as a business Facebook page, is considered advertising and must therefore not include testimonials (or purported testimonials such as fake testimonials patient stories, patient experiences, or success stories). A patient social media page, such as a bulletin board or Facebook group, where patients discuss their personal experiences, is not considered advertising.

The ACCC has successfully prosecuted several business for misleading and deceptive conduct for use of fake testimonials.

There are several reasons why testimonials are likely to mislead consumers and aren’t allowed in advertising, including because:

  • they are personal opinions from former clients and have no scientific or objective basis as a recommendation of a health practitioner’s services. 
  • the outcomes experienced by one patient do not necessarily reflect outcomes available to all consumers or the likely outcomes 
  • they are not usually a balanced source of information, as they typically include a narrow selection of positive comments from patients, and therefore don’t tell the whole story about a practitioner's services (ie they can be misleading) 
  • patients may place too much weight on testimonials because they do not have the expert knowledge to accurately assess their validity.

This means it is not acceptable to use testimonials in your own advertising, such as on your Facebook page, in a print ad or on your website.

Information-sharing or rating websites may give awards on the basis of customer reviews. The National Law does not apply to awards published on third party websites which do not involve advertising a regulated health service.

Publishing an award symbol or rating on a website advertising a regulated health service will not breach the ban on using testimonials in the National Law, unless it involves republishing the testimonials on which the award or rating is based.

This is because a symbol, rating or title of an award from an information sharing or rating website does not fit the ordinary meaning of a testimonial, which is a statement of recommendation, implying a narrative or descriptive quality.

There are a few factors that affect whether or not a story about a birth is considered a testimonial that is captured by the National Law’s ban on testimonials to advertise a regulated health service.

There is no restriction on consumers sharing their birth stories if they are not being used to advertise a regulated health service. Consumers can share their birth stories in many ways, including on their Facebook pages and patient information sharing websites.

The ban on using testimonials to advertise a regulated health service means that practitioners or health services shouldn't provide an opportunity for testimonials on their websites or Facebook pages that advertise regulated health services.

Accordingly, a birth story on a patient or consumer group's blog/site/Facebook page is not a testimonial used in advertising. It only becomes one if the practitioner/business shares/retweets or otherwise re-publishes or promotes the story to advertise a regulated health service.

The key issue is whether the fundraising involves advertising a regulated health service. This may vary in individual cases.

Fundraising and advertising have different purposes, but there is a potential overlap. Advertising involves promoting a product or service to increase sales or use. Fundraising involves seeking donations or financial support for a charity, cause or other enterprise. If the overriding purpose of fundraising is to raise money, then the fundraising material is unlikely to be advertising and the National Law ban on using testimonials in advertising a regulated health service is unlikely to apply.

Unreasonable claims of beneficial treatment can range from unsupported claims about therapeutic benefit, through to miracle cures. Many misleading claims will also create an unreasonable expectation of beneficial treatment.

For further guidance see using inappropriate claims of benefit in your advertising , or see clause 6.2.4 of the guidelines.

 

Misuse of protected titles

'Dr’ is not a protected title, but registered health practitioners need to be careful about how they use ‘Dr’ in their advertising because many patients historically associate ‘Dr’ with medical practitioners. For example, when people say ‘I’m going to see the doctor’ this usually refers to a medical practitioner rather than a health practitioner from a different profession.

If you choose to use the title ‘Dr’ in your advertising and you are not a registered medical practitioner, then (whether or not you hold a Doctorate degree or PhD) you should make it clear what profession you are and be careful you don’t give the impression you are a medical practitioner. For example, by including a reference to your health profession whenever the title is used, for example ‘Dr John Citizen (chiropractor)’.

Advertising qualifications or memberships may be useful in providing the public with information about experience and ability to help consumers make informed decisions about accessing regulated health services. You must make sure that any information included in advertising is not misleading and does not imply that you are more skilled or have greater experience than is the case.

Section 117 of the National Law prohibits a practitioner from knowingly or recklessly taking or using any title that could be reasonably understood to create a belief that the practitioner is registered in a health profession or a division of a health profession in which the practitioner is not registered.

Use of titles such as ‘neurology’ and ‘paediatrics’ to describe the skill set of a registered health practitioner may breach this provision of the National Law and may also be misleading and deceptive if the profession has no recognised specialist categories for registration.

If you hold post graduate qualifications, or have specific experience it would be acceptable for you to advertise that in an accurate and factual manner, for example, ‘Master of XXXX’, or ‘ten years’ experience working at clinic XY’.

The National Law protects ‘titles’ rather than ‘acts’ (with some exceptions: see sections 121-123 which describe restricted dental acts, restriction on prescription of optical appliances and restriction on spinal manipulation). Some professions under the National Law have approved specialties whose titles are protected.

If there are no recognised specialties for your profession, you must not use the term’ specialist’ in any advertising because of the likelihood that such advertising would mislead or deceive the general public about the your professional skills, qualifications and experience.

Although a registered health practitioner may have years of experience in a particular area, they may only call themselves a ‘specialist’, or give the impression they are a specialist, if they are registered as a specialist by the relevant National Board.

The overarching theme throughout the Advertising guidelines is about taking care to avoid misleading or deceiving potential users of the health service. Whether or not something misleads an audience depends on the overall impression created. See sections 7.3 and 7.4 for more detailed information on the use of titles.

 

A complaint has been made about my advertising - what to do next

AHPRA is responsible for prosecuting breaches of the advertising requirements in the National Law.

This means that AHPRA with National Boards needs to decide whether there has been a breach of your advertising obligations. As part of this process, we will use objective criteria to assess whether there is acceptable evidence to substantiate therapeutic claims in your advertising. We will use appropriate experts to help us evaluate evidence where needed.

Anyone who advertises a regulated health service is responsible for ensuring that their advertising (including their websites and social media) meets the requirements in the National Law. The best way to do this is to be familiar with the National Law and advertising guidelines and understand your legal obligations.

If you have inadvertently breached the advertising requirements, you should address the problem as soon as possible, If you do not address the issues, the National Board or AHPRA may take further action against you such as filing criminal charges against you in the Magistrates’ or Local Court, or taking disciplinary action against you.

No. AHPRA and the National Boards cannot give advice or an opinion about advertising and cannot ‘vet’ or pre-approve advertisements for compliance with the National Law and the advertising guidelines. If you are in doubt about whether your advertisement might be in breach of the National Law, you should seek your own advice (e.g. from a lawyer) before placing the advertisement.

 

Advertising and evidence

This information is intended to help registered practitioners and other advertisers understand more about using evidence for claims they make in advertising.

The information in this section uses i scientific and academic language as this is appropriate when referencing evidence and research.

AHPRA and the National Boards approach to assessing the evidence to support health claims is consistent with the wider scientific and academic community.

Evidence will be assessed according to:

  1. Level of evidence, referring to the study design used by investigators including to minimise bias. 
  2. Quality of evidence, referring to the methods used by investigators to minimise bias in study design and in the conduct of the study; 
  3. Relevance of evidence, referring to the study question’s similarity to the clinical question and the extent to which the finding from the study can be generalised. 
  4. Strength of evidence, referring to the magnitude of the treatment effect seen in the clinical studies. Provided the studies are good quality, stronger evidence will provide better support for therapeutic claims.

Level of evidence refers to the study design used by investigators to minimise bias.

Claims of health benefits should be based on acceptable evidence. A systematic review of randomised controlled clinical trials is the highest level of evidence and should be relied on if available. At lowest, evidence to support a therapeutic claim should include at least one adequately controlled experimental human study.

Low level evidence such as a comparative study without concurrent controls has a higher risk of biased (or inaccurate) findings as a consequence of how the research is designed.

The level of evidence required will depend on what you are claiming the health service advertised will do – for example if you are claiming a treatment may improve certain symptoms you will need acceptable evidence to support this claim, whereas if you claim a treatment cures an illness, you will need support from a higher level of evidence.

Questions that will help identify types of evidence that are more likely to be acceptable:

  • Has the evidence been obtained from a systematic review of a randomised controlled trial with human subjects? 
  • Has the evidence been obtained from a randomised controlled trial with human subjects?
  • Does the evidence relate to a pseudo randomised controlled trial? 
  • Does the evidence relate to comparative studies with concurrent controls- allocation of not randomised (cohort studies), case studies, or interrupted times serious with a control group? 
  • Does the evidence relate to comparative studies without concurrent controls – historical control study, two or more single arm study, interrupted time series without a parallel control group? 
  • Are the results consistent across multiple studies, replicated on independent populations, and reported in peer-reviewed publications?

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 little or no control 
  • 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, and/or 
  • studies that should not be generalised to the advertising audience.

Quality of evidence refers to the methods used by investigators to minimise bias in study design and in the conduct of the study.

Assessing if the studies relied on are well-designed includes considering whether:

  • the sample size is large enough to minimise the effects of natural variation or measurement error 
  • the studies control for the effects being due to chance or other variables 
  • the studies use a control ie. a group that is dealt with in exactly the same way as the experimental group, except that the treatment is not applied. Without a control, it is difficult to know whether the treatment really had the claimed effect.
 
 
 
 
Page reviewed 13/02/2017