Australia: Social media and health practice – can they mix?

Industry Focus: Insurance, Life Sciences & Healthcare

What you need to know

• The social media landscape can be tricky for health practitioners to navigate in light of their ethical and professional responsibilities, as well as strict obligations in relation to advertising and the use of client testimonials.
• Negative comments or reviews on social media platforms can understandably be confronting, but trouble may also lurk in the way a practitioner reacts or responds to such content. Even positive comments posted by patients, which at first blush may seem harmless or even helpful, have the potential to cause problems in ways that may not be immediately apparent.
• We outline some of the critical things a practitioner should be aware of when engaging with social media, including some of the most important things to avoid.

For any user, social media platforms have the potential to be both friend and foe from time to time. In the health sphere, the use of social media by patients and practitioners alike gives rise to a plethora of unique issues including ethical considerations arising from the doctor-patient relationship, confidentiality, reputation, as well as a possible breach of obligations in relation to advertising.

An increasing number of patients are using social networking sites and forums to comment on their healthcare and treatment. In most instances the comments are favourable, but there are also occasions when patients use the opportunity to negatively comment on or rate their healthcare practitioners.

The reality is that both positive and negative comments on social media can be problematic in different ways. Mindful of the difficulties that health practitioners might face when navigating the social media landscape, we have identified some of the critical issues to be considered when dealing with both positive and negative posts.

Pitfalls of positive posts

When a patient shares a flattering review or positive comment on a social media platform, it might be somewhat tempting to let it stand – after all, it is always nice to receive good feedback.

However, positive posts by patients can in some instances amount to a testimonial, particularly where the post includes recommendations about the practitioner or their business.

The use of testimonials by health practitioners, including in their own advertising on their website or on social media, is prohibited and amounts to an offence under the National Law. ¹ Section 133 provides as follows:

The Australian Health Practitioner Regulation Agency (AHPRA) and the various Medical Boards that regulate registered health practitioners in Australia have also published Guidelines for Advertising Regulated Health Services, which provide some guidance to practitioners in relation to patient testimonials. In particular, they suggest that:

• there are opportunities for patients to express their views on social media which are not restricted under the National Law, such as on their personal social media accounts or on information sharing websites
• practitioners should not encourage patients to leave testimonials on websites that they control (and the same logic could reasonably be applied to social media profiles that they own as well, such as LinkedIn profiles or Facebook pages which enable others to write on a 'wall' that is public)
• if a testimonial is posted on a website or social media profile that the practitioner controls, then that practitioner should take steps to remove the testimonial ²
• a practitioner is not responsible for removing or trying to have removed unsolicited testimonials published on social media over which the practitioner has no control.

We suggest that where a practitioner's website or social media page enables comments to be posted by other people, and the practitioner has control over the platform or profile, two distinct but related actions should be taken:

• first, the practitioner should take steps to remove any positive online posts when they appear, to reduce the risk that the practitioner might be considered to be breaching section 133 of the National Law.
• second, but related to the first, the practitioner should also actively monitor and regularly review the material placed onto their websites or profiles so they can ensure they will be able to promptly identify 'offending' material.

Negative posts: practical considerations

Most practitioners would naturally find a negative post or review to be distressing, and no practitioner would want unfavourable information about their expertise or services to remain open and constantly available for others to see.

However, once information is placed into the public domain on a social media platform or profile controlled by someone else, it can often be difficult to have that information removed or controlled, particularly since the online world allows even the most fleeting of content to be re-posted, copied or downloaded.

The question then becomes: what options are available to a practitioner when he or she comes across a negative post on social media, such as a network or website allowing patients to comment on the care they have received?

In some instances, it is preferable for the practitioner to simply ignore the post. However, where the practitioner finds the post to be particularly distressing or potentially harmful to his or her reputation, the logical starting point would be to consider contacting the person to see whether they would be prepared to remove the post. This approach does have its drawbacks:

• the patient's personality may make this option problematic
• if the request for the post's removal is not well received, it could potentially lead the patient to post a follow-up comment citing the practitioner's approach
• the patient may not even be identifiable if the comment has been posted anonymously.

Some websites and site administrators have policies or procedures which can be followed to seek the removal of posts that are considered to be potentially defamatory. However, our experience suggests that in the absence of a court order, this avenue is generally futile.

Whatever the circumstances, it is recommended that the practitioner should not:

• respond online, or
• approach or solicit others to counter the negative comment with any positive posts.

The posting of a response from the practitioner, or a positive comment in response that has been solicited by that practitioner, could potentially constitute a contravention of the National Law.

Key takeaways

• The social media landscape can change incredibly quickly, as it only takes a matter of seconds for a comment or review to be posted online. For practitioners with websites or active social media profiles, it is important for practitioners to ensure they are regularly monitored and reviewed for material which could amount to a testimonial and may need to be addressed (or if they cannot conduct the monitoring themselves, then have a member of their administrative staff provide assistance).
• In any use of social media platforms, practitioners should be mindful of the professional and ethical obligations that they owe to their patients (and in some instances to their colleagues as well).
• Social media and health practice can be a tricky mix. When confronted with the types of issues canvassed here, healthcare practitioners are encouraged to be proactive in seeking assistance to help them navigate their way forward.

Footnotes
¹The Health Practitioner National Law, as in force in each state and territory
² Practitioners can also obtain guidance from AHPRA's social media policy, as well as the Medical Board's Good Medical Practice: A Code of Conduct for Doctors in Australia

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories