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Advertising Obligations for Health Practitioners

Newsletter Article 01 November 2016

Advertising of health services is an area that has been fraught with difficulty and where care needs to be taken to ensure, amongst other matters, that the advertising does not compromise health care choices of patients.

This was reinforced in the case of Sydney Medical Service Co-operative Limited v Lakemba Medical Pty Ltd [2016] FCA 763 where the Federal Court decided that a medical practice by trading and promoting itself as ‘Sydney Medical Services 2020’, a name that is very similar to the long established medical practice called ‘Sydney Medical Services’:

  1. engaged in misleading and deceptive conduct under the Australian Consumer Law; and
  2. made a false and misleading representation that it was affiliated with a separate long established medical practice

The Federal Court concluded that the infringing medical practice had engaged in conduct that was intentionally set out to mislead or deceive the general public because both medical practices offered patients with after-hours access to general practitioners in the same geographical areas.  The Federal Court ordered the infringing medical practice to cease using the words ‘Sydney Medical Services 2020’ and the words ‘Sydney Medical Services’ within 7 days of the judgement (the time for compliance was later extended).  

It should be noted that the Federal Court may also order other remedies including damages and compensatory orders however in this case the Federal Court only ordered the infringing medical practice pay the costs of the long established medical practice.        

Whilst the Federal Court was not required to consider the Health Practitioner Regulation National Law (the National Law) it is conceivable that the infringing medical practice has also contravened its advertising obligations under the National Law.  Section 133 of the National Law relevantly provides that a person must not advertise a regulated health service in a way that is ‘misleading or deceptive’ or is likely to be so.  To assist in understanding the requirements of the National Law, the Australian Health Practitioner Regulation Agency has published Guidelines for Advertising Regulated Health Services which a Court or the relevant State Medical Council may have regard to in proceedings for an offence under section 133 of the National Law.  

This case is a reminder to health practitioners that, in addition to their adverting obligations under the National Law and the Guidelines for Advertising Regulated Health Services, health practitioners should also be mindful of their obligations under the Australian Consumer Law when advertising their medical practice.       


Karen Keogh, Partner
Sydney
 

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Newsletter Article 01 November 2016
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