In Australia, when it comes to health professionals marketing their services, medical practitioners have to adhere to the rules set by the Australian Health Practitioner Regulation Agency (AHPRA).

The full guidelines can be found here, but below an explanation with my own comments for those who are interested in marketing. I have a bit of a unique perspective of this given that I both run websites and eCommerce businesses, and have run Facebook ads/done Facebook ad consulting for businesses in the past, and am a doctor. So I’d like to talk about it from my perspective.

Disclaimer: I’m not a lawyer nor should this document be used as legal advice. It aims only to give some general guidelines, distilling down some of the more important bits from the AHPRA document.

In summary

• Factual information is okay. Health information of a factual nature is also okay, provided you explicitly say the peer reviewed or high evidence resources.
• Testimonials are not okay; however, information on review websites are (since they help the public).
• You can’t claim to “specialise” in something unless you have an official degree passed to you that is an actual specialty.
• As a medical professional, you are not allowed to give a recommendation from yourself to recommend a specific product.
• There’s a whole bunch of promotional offers that one would typically use in their digital marketing arsenal, that cannot be used for promoting your healthcare business. Examples include limited time sales, discounts, and bulk purchases/discounts.
• You cannot fake prices, and this includes “buy one get one free” or even “free consultations” where the second consultation’s price makes up for the first one. You have to state the Terms and Conditions clearly in the advertisement.
• These laws apply to anyone advertising healthcare products.

A summary of what this means for doctors who want to digitally market their services

• SEO driven information articles relating to healthcare are great and should be fine, so long as you’re not recommending a specific product to buy.
• With display advertising - such as Google Ads, Facebook Ads, Instagram Ads, TikTok Ads, Snapchat Ads - you really need to be quite careful with.
  – You can advertise information of a factual nature. – You cannot encourage unnecessary consumption of healthcare, meaning you cannot run limited time promotions like what you might do in other digital marketing. You also have to be wary that you cannot use phrases related to changing appearances e.g. “achieve the look you want”. – If using evidence, you have to use reputable sources (e.g. peer reviewed) and state them.
• Public reviews are fine (e.g. Google Reviews), but testimonials on your website are not. Fundamentally, if you control the website where your reviews appear on, this is not allowed.

Perhaps more recently, a lot of companies like Google and Facebook have also banned advertisements on healthcare items in the CoVID pandemic. So not only will you have to think about regulation issues, but also the fact that your advertisement may not actually make it past your advertising vendors in the first place.

Details

First of all, what happens if you break the rules?

A breach of advertising requirements is a criminal offence. A court may impose a penalty up to $5,000 for an individual and $10,000 for a body corporate.

So it’s up to us to adhere to them. By “us”, I refer to anyone who advertises a regulated health service or a business that provides a regulated health service. This includes:

• registered health practitioners

• non-registered health practitioners

• individuals, and

• bodies corporate.

What do you need to do to adhere to it?

Keep in mind that the wording in the guidelines is actually quite broad, but here is some general guidance.

Strictly factual information is okay, so long as it doesn’t fall under those things in the “prohibited” advertising category. The examples that AHPRA lists that are good to keep are these:

• Office details
  – contact details– office hours, availability of after-hours services– accessibility (such as wheelchair access)– languages spoken (this does not affect other guidance provided by the National Board about use of qualified interpreters where appropriate)– emergency contact details
• Fees
  – a statement about fees charged (price information must be exact), bulk-billing arrangements, or other insurance plan arrangements and instalment fee plans regularly accepted
• Qualifications and experience
  – a statement of the names of schools and training programs from which the practitioner has graduated and the qualifications received, subject to the advice in Section 6.2 of these guidelines on advertising of qualifications and memberships– whether the practitioners have specialist registration or endorsement under the National Law and their area of specialty or endorsement– what positions, currently or in the past, the practitioners have held, together with relevant dates– whether the practitioner is accredited by a public board or agency, including any affiliations with hospitals or clinics– whether the practice is accredited and by whom
• For any surgical and/or invasive procedures, the appropriate warning statement in a clearly visible position
• Photos or drawings of the practitioner or their office
• Any statement providing public health information that helps consumers to improve their health (this information should be based on reputable evidence wherever possible)

Any advertising assumes that you are directing information towards laypeople with little to no knowledge of the professional service you are selling.

From an advertiser’s perspective, probably the most interesting is this:

Any statement providing public health information that helps consumers to improve their health (this information should be based on reputable evidence wherever possible)

But then, it’s important to understand what’s not allowed.

Prohibited advertising under the National Law

Section 133 of the National Law prohibits advertising that:

• is false, misleading or deceptive or is likely to be so
• offers a gift, discount or other inducement to attract a user of the health service without stating the terms and conditions of the offer
• uses testimonials or purported testimonials
• creates an unreasonable expectation of beneficial treatment, and/or
• encourages the indiscriminate or unnecessary use of health services.

If you break down each of the parts into further detail…

- Do not say anything false, misleading or deceptive or is likely to be so. Rather than just straight out lying, there’s actually quite a few unintentional traps here that honest practitioners could fall into.

• You can’t use phrases like ‘as low as’ or ‘lowest prices’, or similar words or phrases when advertising fees for services.
  – You can’t use words, letters or titles that may mislead or deceive a health consumer into thinking that the provider of a regulated health service is more qualified or more competent than a holder of the same registration category (e.g. ‘specialising in XX’ when there is no specialist registration category for that profession).– You can’t compare different regulated health professions or practitioners, in the same profession or across professions, in a way that may mislead or deceive.– You can’t imply that the regulated health services can be a substitute for public health vaccination or immunisation.
• If offering a discount, you must also directly state the Terms and Conditions of the offer within the same advertisement. I’ll just copy and paste this bit here:
  – A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that…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.– Consumers generally consider the word ‘free’ to mean absolutely free. When the costs of a ‘free offer’ are recouped through a price rise elsewhere, the offer is not actually free.
     – An example is an advertisement which offers ‘make one consultation appointment, get one free’, but raises the price of the first consultation to largely cover the cost of the second (free) appointment. This type of advertising could also be misleading or deceptive.– The terms and conditions should be in plain English, readily understandable, accurate and not in themselves misleading about the conditions and limitations of the offered service. Advertising may contravene the National Law when it:
     – contains price information that is inexact– contains price information that does not specify any terms and conditions or variables to an advertised price, or that could be considered misleading or deceptive– states an instalment amount without stating the total cost (which is a condition of the offer), and/or– does not state the terms and conditions of offers of gifts, discounts or other inducements.
• You cannot use testimonials. Not on your website, not on social media (including Facebook or Instagram), not on TV, not in print, nowhere. See section 6.2.3 (page 8).
  – In fact, AHPRA goes so far to say “Health practitioners should therefore not encourage patients to leave testimonials on websites health practitioners control that advertise their own regulated health services, and should remove any testimonials that are posted there.”
• However, AHPRA are aware that patients express their views online publicly, and this helps consumers make informed decisions and are NOT considered advertising. So public feedback/reviews on patient information sharing websites is okay, it seems. To directly quote them:
  The National Law does not directly regulate social media. However, testimonials used in advertising a regulated health service through social media may contravene the National Law.
  There are many opportunities for consumers or patients to express their views online that are not affected by the National Law restriction on testimonials in advertising. Patients can share views through their personal social media such as Facebook or Twitter accounts or on information sharing websites or other online mechanisms that do not involve using testimonials in advertising a regulated health service.
  For example, consumer and patient information sharing websites that invite public feedback/reviews about experience of a regulated health practitioner, business and/or service are generally intended to help consumers make more informed decisions and are not considered advertising of a regulated health service.
  To clarify, practitioners 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.

What am I allowed to offer? What am I allowed to promote?

This section has some of the biggest overlap between “what digital marketers do” and “what AHPRA says you can’t do by the law”, so is probably one of the most important sections of this entire article - for those who are digital marketers in a previous life.

• Do not advertise anything and create unreasonable expectations for it. This can range from falsely advertising “beneficial treatment (that) can range from unsubstantiated scientific claims, through to miracle cures”. Examples of what not to do:
  – creates an unreasonable expectation (such as by exaggerating or by providing incomplete or biased information) of recovery time after providing a regulated health service– fails to disclose the health risks associated with a treatment– omits the necessary warning statement about a surgical or invasive procedure– contains any inappropriate or unnecessary information or material that is likely to make a person believe their health or wellbeing may suffer from not taking or undertaking the health service, and/or– contains a claim, statement or implication that is likely to create an unreasonable expectation of beneficial treatment by:
     – either expressly, or by omission, indicating that the treatment is infallible, unfailing, magical, miraculous or a certain, guaranteed or sure cure, and/or– a practitioner has an exclusive or unique skill or remedy, or that a product is ‘exclusive’ or contains a ‘secret ingredient’ that will benefit the patient.
• Do not encourage indiscriminate or unnecessary use of health services. For example:
  – Do not advertise anything that encourages a person to improve their physical appearance together with the use of phrases such as ‘don’t delay’, ‘achieve the look you want’ and ‘looking better and feeling more confident’.– Do not provide a patient or client with an unsolicited appointment time– Do not used prizes, bonuses, bulk purchases, bulk discounts or other endorsements to encourage the unnecessary consumption of health services that are unrelated to clinical need or therapeutic benefit. This is an important one, especially given that promoting like this is such a common part of digital marketing! – Do not use promotional techniques that are likely to encourage consumers to use health services regardless of clinical need or therapeutic benefit. Do not use offers or discounts, online/internet deals, vouchers, and/or coupons.– Do not make use of time-limited offers which influence a consumer to make decisions under the pressure of time and money rather than about their health care needs. An offer is considered time-limited if it is made to purchase for a limited or specific period of time, or available for use within a limited period of time or by a specific date, without an option to exit the arrangement.

So as you can see, standard promotional tactics often have to be thrown out the window. You really can only provide information about things, or advertise services so long as they don’t lead to unnecessary consumption.

Advertising qualifications or memberships is okay and may be a useful way to provide the public with information about the experience and expertise of health practitioners. However, it may be misleading or deceptive if the advertisement implies that the practitioner has more skill or experience than is the case.

Am I allowed to use my name when advertising a product?

If you’re advertising a therapeutic good, and you’re a medical health practitioner, you absolutely cannot do this.

Including professional qualifications in an advertisement that also promotes the use or supply of therapeutic goods may be interpreted as a professional endorsement. Professional endorsements of therapeutic goods are prohibited under the Therapeutic goods advertising code 2007.

Patients or clients are best protected when advertisers promote practitioners’ qualifications that are:

• approved for the purposes of registration, including specialist registration and endorsement of registration

• conferred by approved higher education providers10, or

• conferred by an education provider that has been accredited by an accreditation authority.

Note that, obviously, you can’t just make up a title for yourself. There’s some weird specifics here:

There is no provision in the National Law that prohibits a practitioner from using titles such as ‘doctor’ but there is potential to mislead or deceive if the title is not applied clearly. If practitioners choose to adopt the title ‘Dr’ in their advertising and they are not registered medical practitioners, then (whether or not they hold a Doctorate degree or PhD) they should clearly state their profession.
Advertisers should avoid developing abbreviations of protected titles as these may mislead the public (e.g. ‘pod’, ‘psych’, ‘RN’). It may also be misleading to use symbols, words or descriptions associated with titles.

Importantly for actual medical practitioners, you cannot claim to be a specialist unless you actually are. Even using the words “specialises in” would be bad, unless you actually have gone to the specific medical college for it.

The National Law allows for and protects specialist titles and endorsements (an endorsement on a practitioner’s registration indicates that the practitioner is qualified to engage, for example, in a wider scope of practice than other registrants).
A registered health practitioner who does not hold specialist registration may not use the title ‘specialist’, or through advertising or other means, present themselves to the public as holding specialist registration in a health profession.
These words should be used with caution and need to be supported by fact. Words such as ‘substantial experience in’ or ‘working primarily in’ are less likely to be misunderstood as a reference to endorsement or specialist registration.

Information in advertisements that’s allowed or not allowed

Some specifics on price, scientific information, and the advertisement of therapeutic goods. In summary:

• When advertising price information, all costs and out of pocket must be included.
• Scientific evidence should identify the information source which it stems from.
• Advertising medicines has additional things you need to look at from the TGA. In particular, you have to comply with Therapeutic goods advertising code 2007.

7.5 Advertising price information

Any information about the price of procedures in advertising of regulated health services must be clear and not misleading.

It is often difficult to provide an accurate price for a regulated health service in an advertisement due to

the individual nature of services and the number of variables involved in the treatment. If fees and price information are to be advertised, then price information should be clear, with all costs involved and out of pocket expenses clearly identifiable, and any conditions or other variables to an advertised price or fee disclosed. This is to avoid misleading consumers and ensure they are fully informed and able to provide their full consent about health services.

Use of phrases like ‘as low as’ or ‘lowest prices’, or similar words, phrases or questions when advertising fees for services, prices for products or price information, or stating an instalment amount without stating the

total cost may be misleading and could contravene the advertising provisions of the National Law.

7.6 Use of scientific information in advertising

To not mislead or create false impressions, caution should be taken when using scientific information in advertising.

When a practitioner chooses to include scientific information in advertising, the information should:

• be presented in a manner that is accurate, balanced and not misleading

• use terminology that is understood readily by the target audience

• identify clearly the relevant researchers, sponsors and the academic publication in which the results appear, and

• be from a reputable (e.g. peer reviewed) and verifiable source.

7.7 Advertising therapeutic goods

The Therapeutic Goods Administration (TGA) is responsible for regulating therapeutic goods including medicines, medical devices, biologicals, blood and blood products.

• If the advertising only comprises pricing for prescription-only (Schedule 4 and 8) and certain pharmacist-only (Schedule 3 of the Poisons Standard) medicines, then the advertisement must comply with the Therapeutic Goods Act 1989, Therapeutic Goods Regulations 1990, the Therapeutic goods advertising code 2007 and the Price information code of practice.
• A list of practitioners permitted to advertise price information for certain Schedule 3, Schedule 4 and Schedule 8 medicines is included in the Price information code of practice, available via the TGA website: www.tga.gov.au.
• If the advertising promotes one or more therapeutic goods (under the Therapeutic Goods Act 1989), then the advertising must comply with the Therapeutic Goods Act 1989, Therapeutic Goods Regulations 1990, the Therapeutic goods advertising code 2007 and, where relevant, the Price information code of practice.

Conclusion

Unlike traditional digital marketing, the advertisement of healthcare in Australia is bound by a bunch of rules meant fundamentally to protect consumers. Not only is misleading bad and unethical, but perhaps more important it’s actually kind of easy to accidentally slip even when you’re trying to ethically advertise your business.