As regulated health service providers should be aware, the advertising of health services is regulated under the Health Practitioner Regulation National Law 2009 (‘the National Law’). Traditional forms of advertising are now competing with advertisements on the internet, and this form of advertising has become more common as more people make enquiries about and access goods and services over the internet. The promotion of group buying and discounted services on the internet has recently become popular and presents a risk for health service providers.
Under section 133 of the National Law, a person must not advertise a regulated health service or a business that provides a regulated health service in a way that:
- is false, misleading or deceptive or is likely to mislead or deceive; or
- offers a gift, discount or other inducement to attract a person to use the service or the business unless the advertisement also states the terms and conditions of the offer; or
- uses testimonials or purported testimonials about the service of business; or
- creates an unreasonable expectation of beneficial treatment; or
- directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.
A regulated health service means a service provided by, or usually provided by, a registered health practitioner.
In proceedings for an offence under the National Law a person may be fined $5,000 or in the case of a corporation $10,000. Further, a registered health practitioner who advertises a regulated health service in contravention of the provisions of the National Law may have engaged in unprofessional conduct (or unsatisfactory professional conduct in New South Wales) and be subject to disciplinary proceedings in relation to same.
There is a National Board for each regulated health profession under the National Law. Each of those Boards has issued Guidelines regarding the advertising of health services. Under the National Law, regard may be had to such Guidelines when determining whether a health practitioner has complied with the provisions of the National Law with respect to advertising.
Health practitioners should familiarise themselves with the Guidelines issued by their National Board. The Guidelines are easily accessible by accessing the Australian Health Practitioner Regulation Agency website ahpra.gov.au and following the relevant links.
In terms of the advertising of a health service, care must be taken as to the nature of the statements made in the advertisement so as to not induce people to indiscriminately use health services, advertisements must not promote an unrealistic expectation of beneficial treatment, and should not mislead, intentionally or otherwise.
Care must be taken when an invitation is made to a health practitioner to participate in the advertising of time-limited offers, discounted offers and/or group buying promotions (which are usually time-limited and discounted). The Guidelines issued by the National Boards stipulate that practitioners or other persons must not advertise time-limited or special offers.
The Guidelines go on to state that the use of gifts or discounts is inappropriate because such inducements may encourage the unnecessary use of health services. In our view it would be prudent to refrain from advertising gifts and discounts. If inducements are to be used in advertising then the advertisement must clearly set out the terms and conditions of the offer being made.
In addition to the need to ensure compliance with the National Law, health practitioners, including those who are not covered under the National scheme, should take care when advertising as advertisements may contravene the provisions of the Competition and Consumer Law 2010 (Cth), and/or fair-trading laws in a State or Territory (‘competition laws’). Advertising that is misleading may contravene competition laws. Under the competition laws, advertising must not be misleading, statements about price must be accurate and truthful, and the terms and conditions of offers must be clearly stated. Penalties apply for failure to comply.
If in doubt about whether an advertisement complies with the law, health practitioners should seek advice about the terms of the advertisement before placing same to avoid difficulties at a later date.
In addition to the legal framework governing advertising, practitioners should also be mindful of their professional ethical obligations when advertising their services.
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