Process for managing advertising complaints

How we manage complaints about advertising

We apply a risk based approach to advertising compliance and enforcement, and use a range of regulatory tools to keep the public protected.

Our goal is to ensure advertising about regulated health services is done responsibly to keep the public safe from false or misleading claims. Advertising must be compliant with the National Law, so that the public has access to clear and correct information to help them make informed choices about their healthcare.

What do we do when we receive a complaint?

We carefully consider all complaints we receive about advertising.

The action we take depends on our assessment of the risk to the public and the response of the advertiser.

When we receive a complaint about advertising we:

  1. review the advertising to check whether it is compliant with the advertising requirements
  2. do a risk assessment to help us determine the best way to manage the complaint, and
  3. identify who the advertiser is such as a registered health practitioner, an unregistered person or a corporate entity.

All these factors will inform how we manage the complaint.

How we manage low – moderate risk advertising complaints about advertising by health practitioners

Most complaints we receive relate to advertising by individual registered health practitioners and most are assessed as low or moderate risk.

We also know that most practitioners want to comply with their professional and legal obligations, and that many may not realise that their advertising is non-compliant.

If we have not received an advertising complaint before about a practitioner’s advertising and the complaint we receive has been assessed as low-moderate risk, we write to them asking that they check all their advertising against the requirements of the National Law. We identify where they are in breach and request them to correct any advertising that does not comply within 60 days of when we first contact them.

Compliance is then checked by targeted and random audits (depending on the initial risk assessment).

To comply a practitioner needs to correct their advertising, which includes but is not limited to all forms of printed and electronic media that promotes a regulated health service. A definition of advertising is on our website.

If we audit a practitioner’s advertising and they have corrected their advertising to comply, the complaint is closed and closure letters are sent. We expect that most practitioners will become compliant at this stage.

If we audit a practitioner’s advertising and they have not corrected their advertising, an enforcement action is started.

In most cases this involves writing to a practitioner providing notice that their National Board is proposing to impose conditions on their registration.

The practitioner is given 60 days to correct their advertising and respond to the notice.

As part of their submission, practitioners can provide any acceptable evidence in support of their advertising claims.

If the practitioner’s advertising is still non-compliant and they do not provide acceptable evidence to support their advertising claims, their National Board considers further action. In most cases this involves disciplinary action to impose conditions on the practitioner’s registration restricting the way they can advertise. Conditions on a practitioner’s registration are published on the public online Register of practitioners.

Before the conditions are removed from the register the practitioner needs to demonstrate their understanding of the advertising requirements.

If we have received a complaint about a practitioner’s advertising before and they have not corrected their advertising, even after receiving an earlier letter from AHPRA, the enforcement action will usually be more serious from the outset. This will depend on the issues raised in the earlier advertising complaints, and when the previous complaint was received.

In most cases this involves a written notice to a practitioner that their National Board is proposing to impose conditions on their registration. This will be the process for all practitioners who receive a further complaint after we have written to them under our new Advertising compliance and enforcement strategy (see process for first time complaints above).

The practitioner is given 60 days to correct their advertising and respond to the notice. As part of their submission, practitioners can provide any acceptable evidence in support of their advertising claims.

If the practitioner’s advertising remains non-compliant and they do not provide acceptable evidence to support their advertising claims, their National Board considers further action. In most cases this involves disciplinary action to impose conditions on the practitioner’s registration restricting the way they can advertise. Conditions on a practitioner’s registration are published on the public online Register of practitioners.

Before the conditions are removed from the register the practitioner needs to demonstrate their understanding of the advertising requirements.

Enforcement action escalates depending on the ongoing assessment of risk to the public and the response of the advertiser. Continued non-compliance after the imposition of conditions may result in referral to a tribunal.

Complaint received

Repeat offence

Assessment

Assessed as compliant
(no action required)

Assessed as non-compliant
(letter sent)

Practitioner has 60 days to check and correct advertising

 

Audit
(random or targeted)

Assessed as compliant
(no further action required)

Escalated enforcement approach

Assessed as non-compliant
(propose to impose conditions)

Assessed as compliant
(no further action required)

 

Practitioner has 60 days to check and correct advertising, provide submission

Assessed as compliant
(no further action required)

Assessed as non-compliant
(conditions imposed)

Practitioner to be monitored for compliance with conditions

 

How we manage high risk advertising complaints about advertising by health practitioners

We prioritise all complaints assessed as high risk. Certain high-risk matters are identified as suitable for prosecution or disciplinary action from the outset. These are managed on a case by case basis depending on the risk identified and the circumstances of each case.

Types of advertising complaints we have identified as high risk include advertising practices that:

  • raise concerns of actual harm to consumers
  • make misleading claims about curing serious illnesses, such as cancer
  • are targeted at patient groups that may be particularly vulnerable, such as advertising directed at consumers with serious illnesses or parents of children with certain childhood conditions that are not easily treated
  • are widespread in a profession, and have potential to have significant adverse affects on health care choices, and/or
  • may also involve allegations of a person claiming to be a registered health practitioner (holding out) when they are not or unlawfully using a protected title.
 

How we manage complaints about advertising by non-registered people

Complaints about advertising by non-registered people are managed on a case by case basis, depending on the risk identified and the circumstances of each case. These complaints may also raise issues of other offences, including that the person has unlawfully used a protected title and/or is holding themselves out to be registered as a health practitioner.

The main enforcement tool open to AHPRA and National Boards in dealing with non-registered people is prosecution in a court.

Find out more about holding out and misuse of protected titles.

 

How we manage advertising complaints about advertising by corporate entities

Complaints about advertising by corporate entities are managed on a case by case basis, depending on the risk identified and the circumstances of each case.

It is open to AHPRA and National Boards to prosecute corporate entities under the advertising provisions in the National Law.

If a corporate entity is also in breach of other consumer regulation laws, we work together with other regulators such as the Australian Competition and Consumer Commission (ACCC) or Therapeutic Goods Administration (TGA) to determine the most appropriate enforcement action.

 
 
 
Page reviewed 16/06/2017