The National Boards and AHPRA have jointly revised the guidelines for advertising a regulated health service.

The revised guidelines took effect on 14 December 2020.

We have reviewed the revised guidelines and can inform you that they are very similar to those previously in effect.

However, there have been changes regarding:

  • the evidence required for claims about the effectiveness of a regulated health service and what is acceptable evidence; and
  • testimonials, protected titles and claims about qualifications etc.

Importantly, the revised guidelines do not reflect any variance or addition to the relevant provisions of the Health Practitioner Regulation National Law relating to advertising a regulated health service.

The National Boards and the Australian Health Practitioner Regulation Agency (AHPRA), have noted that the revised guidelines are intended to clearly explain how advertising for a regulated health service should be conducted.

These requirements are important for public protection and help to ensure the public receives accurate and honest information about healthcare services.

What You Need To Know Now?

Most of the revisions to the AHPRA guidelines for advertising are focused on improving readability and making it easier to find information.

It's no surprise that you may have been uncertain of your obligations when reading the previous guidelines as it was written in the language of the law.

AHPRA recognised this and so the revised Guidelines are expressed in plain language and explains rather than re-states the legislation.

AHPRA Advertising Guidelines Updates

Acceptable Levels of Evidence

There's a difference between acceptable evidence for claims made in health advertisement and the evidence used for clinical decisions, according to AHPRA.

You must be prudent in order to advertise medical treatments fairly, relying on relevant and thoroughly researched information.

It's okay to discuss a proposed treatment with your patient and talk about the good and the bad side of it. This is deemed as being helpful to your patient as it is on a one-on-one basis and the opportunity for an open and honest conversation is there. An informed decision by the patient can be made.

Advertising is simply one-sided as a person cannot discuss their options or gain any clarification that will help them to make a decision that is in their best interest.

Section 133 of the National Law states:

  • 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
  • Creates an unreasonable expectation of beneficial treatment.

Substantiating claims under the new guidance

AHPRA and the National Boards have developed a framework for assessing acceptable evidence for any claims made in their advertising. The quality of medical evidence will be assessed as follows:

  1. Source, which should be publicly accessible and reliable
  2. Relevance to your advertising claim
  3. Inclusion of all relevant evidence
  4. Study design, which should be at a level high enough to support your advertising claim
  5. Quality and appropriateness of methodology
  6. Strength - does the evidence show a meaningful effect that supports your advertising claim?

The new ahpra guidelines for advertising state that the following types of studies will generally not be considered acceptable evidence for advertising claims:

  • Studies involving no human subjects
  • Before and after studies with few or no controls
  • Self-assessment studies
  • Anecdotal evidence based on observations in practice
  • Outcome studies or audits, unless bias or other factors that may influence the results are carefully controlled
  • Studies that are not applicable to the target population.

Keeping A Finger On The Pulse of Compliance Advertising Compliance

The revised Advertising Guidelines specifies that AHPRA will not be sitting on the sidelines, only springing into action if and when there is a complaint to investigate.

Instead, they will be taking a proactive approach in the following manner:

  • You will have to sign a declaration stating that your advertising is compliant each time you renew your registration
  • Conduct regular audits of a sufficient sample size to generalise the outcomes to the entire profession so it can advise the National Boards of the overall advertising and non-compliance rates for their profession to determine whether any profession-wide education interventions are needed to improve compliance.

If you find yourself on the wrong side of being compliant, these are the key points that AHPRA will be looking at:

  • The severity of a breach based on the risk it poses to consumers (see below)
  • Whether the breach represents an unwitting error or a deliberate intent to circumvent the guidelines.

High-risk advertising practices, according to AHPRA:

  • Raise concerns of actual harm to consumers
  • Make misleading claims about curing serious illnesses, such as cancer or public health emergencies e.g. COVID-19
  • Target vulnerable groups, such as health advertisement directed at consumers with serious illnesses or parents of children with certain childhood conditions that are not easily treated
  • Are widespread in a profession, and have potential to have significant adverse impacts on healthcare choices, and/or
  • May also involve allegations of a person holding themselves out to be a registered health practitioner or unlawfully using a protected title. We will periodically review and update this list as needed

AHPRA has the ability to take disciplinary action, so it's in your best interest to comply in every way possible.

Unlike criminal courts where because you are presumed to be innocent until proven guilty and so sanction only comes after a guilty verdict, the Australian Health Practitioner Regulation Agency has the power to suspend a Health Care professional's ability to work on merely the preference of a charge or certain types of complaints.

Unfortunately for the practitioner suffering that fate, the sanction is immediate but the complaint or charge might take years to be resolved or determined in court. That sort of timeframe without work will prove calamitous to almost any health care professional

Protect your practice from risks associated with breaching the AHPRA Guidelines and National Laws relating to marketing your practice with YouLegal advertising framework

There Are Rules To Using Titles

AHPRA has provided information to help you further understand the rules on using titles, specialities and qualifications - the rules, however, have not changed.

The key things to remember here are:

  • In an everyday situation, Dr means a medical doctor. If you're not a medical doctor but you do have a PhD or other qualification that allows you to use the title of 'Dr' then it's important to be clear about your registration category.
  • You cannot call yourself a specialist unless you are registered within an approved specialist category. Having a special interest in a certain area of practice is okay but you cannot use this as part of your title.

What's New with Testimonials and Reviews?

You cannot use testimonials in your advertising, this has not changed. You also cannot be held accountable for reviews on third-party sites, so long as you do not repost them or reply to them.

AHPRA has, however, indicated that they will be focusing their compliance and enforcement on testimonials that pose a greater risk and they will take a different approach to testimonials that involve a negligible risk to the public.

It is best to strictly adhere to all of these rules as you don't want to be left in a sticky situation that could well have been avoided.