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AHPRA updates the rules: Testimonials and social media are in the regulator's sights

NewsFlash 13 March 2014

UPDATE: On 26 March 2014, the Medical Board of Australia announced that it intends to change the updated advertising guidelines that came into effect on 17 March 2014.

The Medical Board has explained that it will amend section 6.2.3 of the updated advertising guidelines. This is the section that regulates the use of testimonials.

Please see the Medical Board’s media release by clicking here.


On Monday 17 March 2014, a series of updated guidelines drafted by the Australian Health Practitioner Regulation Agency (AHPRA) and the National Boards will come into effect. This includes a major overhaul of the guidelines for advertising health services and the introduction of a social media policy for registered health practitioners [1]. The guidelines for mandatory notifications and the Code of Conduct for Doctors in Australia have also been updated. This article examines the most significant changes in the updated guidelines and explores the potential focus areas for AHPRA and the National Boards.

Background

A National Board has the authority to establish guidelines pursuant to section 39 of the Health Practitioner Regulation National Law. As per section 41 of the National Law, guidelines established by a National Board can be used to determine what constitutes appropriate professional conduct. This means that the professional conduct of a registered health practitioner can be assessed against the standards set out in relevant guidelines during an investigation or disciplinary proceeding.

Advertising

The most substantial changes made by AHPRA and the National Boards are in the updated guidelines for advertising regulated health services. Substantial sections of the guidelines have been rewritten and there is a clear focus on testimonials and advertising on social media.

As per section 133(1)(c) of the National Law, a health practitioner cannot use a testimonial in an advertisement for a health service. A testimonial is defined in the updated guidelines as a ‘positive statement’ that may include a recommendation or a patient’s personal experience with a practitioner or a health service. The example of a testimonial used in the updated guidelines is ‘Practitioner was quick to diagnose my illness and gave excellent treatment’.

The updated guidelines take a very broad approach to the ban on the use of testimonials, including the following requirement at paragraph 6.2.3:

‘A practitioner must take reasonable steps to have any testimonials associated with their health service or business removed when they become aware of them, even if they appear on a website that is not directly associated and/or under the direct control or administration of that health practitioner...this includes unsolicited testimonials’.

The updated guidelines explain that ‘reasonable steps’ include ‘requesting removal’ of the testimonial from a website. The Medical Board of Australia sought to clarify this requirement in a statement on 7 March 2014 which included the following comments [2]:

‘The Board expects practitioners to take reasonable steps to remove testimonials they are using to advertise or promote regulated health services they provide...but the Board recognises that practitioners are unable to control what is written about them in a public forum’.

However, this statement is arguably inconsistent with the wording of the updated advertising guidelines. This is because the updated guidelines clearly state that health practitioners are required to take reasonable steps to remove unsolicited testimonials on websites they do not control, such as ratemds.com or doctorscorecard.com. The wording of the updated guidelines does not limit this requirement to ‘testimonials they are using to advertise’, as suggested in the Medical Board’s statement.

In our view, the very broad wording in paragraph 6.2.3 of the updated advertising guidelines potentially exposes all health practitioners to a risk of breaching section 133(1)(c) of the National Law. This is because when health practitioners become aware of a testimonial ‘associated with their health service’, they must actively seek to have the content removed from a website over which they have no control. Aside from being notoriously difficult to have content removed, this requirement potentially places an onerous burden on all health practitioners. We note the report in Australian Doctor that the Medical Board has expressed an intention to include an addendum to the guidelines on this issue, but will not amend the wording of paragraph 6.2.3 [3].

The updated advertising guidelines also contain a new section on social media. Paragraph 7.1 makes it clear that health practitioners are responsible for all of the content on social networking pages that they control or administer. This standard applies regardless of who posted the content. This means that health practitioners are required to remove a testimonial or any other content from their own social networking page if it breaches the updated advertising guidelines or the National Law.

In light of these changes, we encourage all health practitioners to read the updated guidelines very carefully before publishing any type of advertising. Given the significant penalties for advertisements that contravene the guidelines and the National Law, health practitioners should contact their medical indemnity insurer if they have any concerns.

Code of Conduct

The Medical Board’s updated Code of Conduct contains a small number of potentially significant changes. In a general sense, the Medical Board has made it clear that the Code of Conduct applies to all doctor-patient situations, including technology-based consultations.

When responding to an ‘adverse event’ the Medical Board now provides the following guidance at paragraph 3.10 of the Code of Conduct:

‘When something goes wrong you should seek advice from your colleagues and from your medical indemnity insurer’.

This is a clear acknowledgment by the Medical Board that insurers have an important role to play in the immediate aftermath of an incident involving a doctor, such as a patient complaint. Accordingly, doctors are now actively encouraged by the Medical Board to notify their insurer of an incident or potential claim.

The original version of the Code of Conduct explains that good medical practice includes informing a patient about the involvement of medical students and ‘encouraging their consent for student participation’. The term ‘encouraging’ has now been replaced by the word ‘obtaining’. This may suggest that a doctor is no longer required to actively encourage a patient to allow a medical student to participate in his or her treatment.

Social Media

The new social media policy introduced by AHPRA and the National Boards complements the updated guidelines for advertising and the Code of Conduct. The key message of the new social media policy is clear:

Health practitioners must be aware that their professional obligations apply to their online activities in exactly the same way as a face-to-face consultation with a patient.

When using websites such as Facebook, Twitter and LinkedIn, health professionals must ensure that patient confidentiality is not breached. For example, a dermatologist cannot post unauthorised ‘before and after’ photographs of a patient on a Facebook page. The new social media policy makes it very clear that this conduct is unacceptable even if the social networking site has the highest possible privacy settings in place.

The new policy also reminds health practitioners that the guidelines for advertising health services apply to social media. For example, a cosmetic surgeon cannot post a testimonial on his or her Facebook page from a former patient. This means that a Facebook page or Twitter account is no different to a health practitioner’s own website for the purposes of advertising health services.

Mandatory Notifications

AHPRA and the National Boards have amended the guidelines for making a mandatory notification on the basis of sexual misconduct. When deciding whether to make a mandatory notification in relation to sexual misconduct, a health practitioner must now consider ‘the cultural context.’ This is in addition to factors such as the vulnerability of the patient and the extent of the treating relationship. It is not clear what is meant by the term ‘cultural context’ and AHPRA has not provided any additional guidance on the issue.

The requirement to make a mandatory notification if a health practitioner is practising whilst intoxicated by drugs or alcohol has been clarified. The updated guidelines make it clear that a mandatory notification is not required if the period of intoxication is confined to the health practitioner’s private life. This confirms that the requirement to make a mandatory notification will only be triggered if the health practitioner is practising their profession whilst under the influence of drugs or alcohol.

The updated guidelines now contain a clarified warning to health practitioners that they may be subject to disciplinary action if they make a frivolous or vexatious notification. The updated guidelines also make it clear that it is preferable for the person with the most direct knowledge of the relevant conduct to make a notification. For example, if a patient tells a health practitioner about the notifiable conduct of another health practitioner, then the patient should generally be encouraged to make a notification to AHPRA.

Conclusion

As of 17 March 2014, AHPRA and the National Boards can rely on the updated guidelines when investigating the professional conduct of health practitioners. Accordingly, all health practitioners should be aware of their obligations under the updated guidelines. This particularly applies to the updated advertising guidelines because of the new sections on testimonials and the use of social media. Health practitioners should contact their medical indemnity insurer to discuss any concerns about the operation of the updated guidelines.

[1] The updated guidelines and new social media policy can be found at http://www.medicalboard.gov.au/Codes-Guidelines-Policies.aspx.
[2] The statement of the Medical Board dated 7 March 2014 can be found at http://www.medicalboard.gov.au/News/2014-04-07-online-comment-not-always-advertising.aspx.
[3] The Australian Doctor article can be found at http://www.australiandoctor.com.au/news/latest-news/backdown-board-folds-on-social-media-fines.


John Petts, Partner
Melbourne

Cindy Tucker, Partner
Melbourne

NewsFlash 13 March 2014
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