Going Online: Your Legal Obligations

Communications online have become the standard way in which we get our information. For most medical practices, it is a fundamental way to engage, and broadcast to a wider audience. However, some medical practitioners are still mystified as to their obligations particularly when it comes to embracing online and social media advertising, and knowing whether positive feedback from patients can form part of their next advertising campaign. While online marketing can appear intimidating, it has the potential to be a great way to attain more exposure, if it is done correctly and in accordance with the law.

The Guidelines

The Guidelines for Advertising Regulated Health Services (Guidelines) developed by the National Boards regulating registered health professionals in Australia and located on the Australian Health Practitioner Regulation Agency (AHPRA) website, explain some of the restrictions placed on advertising imposed by the Health Practitioner Regulation National Law Act 2009 (the National Law). The Guidelines apply to any person or business that provides a regulated health service. However, the Guidelines will not explain to you how to advertise. For instance, there is no exhaustive list of advertising examples that may or may not breach the National Law.

The starting point, therefore, is section 133 of the National Law, which prohibits advertising that:

A person is responsible for content on their social networking accounts even if they were not responsible for the initial posting of the information or testimonial

• 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; or
• encourages the indiscriminate or unnecessary use of health services.

Testimonials

The Guidelines note that the National Law does not define ‘testimonial’ and that it is understood that ‘the word has its ordinary meaning of a positive statement about a person or thing’. A testimonial, therefore, includes recommendations or statements about the clinical aspects of a regulated health service and would include a medical practice promoting positive feedback from patients in relation to a particular regulated health service. It is not acceptable to use testimonials in a medical practitioner’s own advertising, or on any social media site that he or she controls, such as a Facebook or LinkedIn page, in print, a television advertisement, or on a website. Breaching section 133 of the National Law could amount to a criminal offence and a court may impose a financial penalty of up to AU$5,000 for an individual, and $10,000 for a body corporate. Therefore, it is crucial that medical practitioners and practices understand what they can and cannot do.

Patient Feedback

The Guidelines apply only to registered health practitioners and are not intended to stop members of the community and patients from discussing their experiences online or in person. There are various ways for consumers or patients to express their views online that are not affected by the restrictions in the National Law on testimonials in advertising. For example, a patient can share their views through their own personal social media pages, information sharing websites, or through other online mediums that do not involve using testimonials in advertising a regulated health service. There are also consumer information sharing websites that invite the public to provide feedback about their experiences with products and services (including regulated health practitioners) to assist consumers in making informed decisions. Reviews provided on these sites are not considered as advertising regulated health services. However, a medical practitioner should be cautious to not be seen to encourage patients to provide reviews as this may be interpreted as soliciting testimonials.

Medical practitioners also need to be cautious if an unsolicited comment appears on their website or social media page. The Guidelines state that, ‘A person is responsible for content on their social networking accounts even if they were not responsible for the initial posting of the information or testimonial. This is because a person responsible for a social networking account is said to accept responsibility for any comment published on it, once alerted to the comment. Medical practitioners advertising through social media should therefore carefully review content regularly to ensure that all material complies with their obligations under the National Law.’ While the National Law does not directly regulate social media, it is important to note that consumer reviews on social media channels for regulated health services are at risk of contravening the National Law.

Advertising and Social Media

Using social media as a marketing tool requires meaningful consideration in order to determine whether there is a likely return on investment. It is essential that a medical practice considers whether it has the capacity and skill to develop the right content, adopt the correct tone, and use social media marketing in a way that complies with the Guidelines. In addition, with the swiftness of social media comes the reality that content must be reviewed regularly and appropriate policies put in place regarding what appropriate content is, who is responsible for reviewing that content, responding to complaints, and responding to social media enquiries and messages. As it is the medical practitioner who is responsible for comments that are posted on their social networking accounts, practitioners must ensure that they develop a robust social media policy available to staff and patients.

Social Media Policy

We recommend that all employers (including medical practices) have a comprehensive social media policy which regulates not only the use of social media as a marketing tool but also the use of social media at work. Types of matters that should be addressed within a policy include:

• who will monitor the social media account;
• who has access to the social media account;
• defining the parameters of social media use during working hours;
• access to social media sites for business networking;
• prohibiting confidential information, discriminatory, negative or defamatory comments from being posted online; and
• prohibiting harassment and bullying.

We encourage all medical practitioners to embrace the brave new world of online advertising including utilising social media. It is important that practitioners regularly review the content of any advertising of their services and take reasonable steps to prevent non-compliance. If you are unsure about the applicability of the Guidelines, it would be wise to contact your insurer or legal representative.

Scott Chapman is the Executive Chairman of TressCox Lawyers, an appointment he has held since October 2014, in addition to his 26 years specialising in Health Law. Mr. Chapman is also a lead Partner in the Firm’s National Health and Aged Care team. His technical expertise and experience includes negotiations with government health departments, professional conduct and administrative law matters, risk management, business structures and governance, as well as advising clients with respect to legislative interpretation and amendment, coronial inquests, Medicare investigations and policy advice. Mr. Chapman was actively involved in drafting significant amendments to Health Legislation following the recommendations of the Walker Special Commission of Inquiry.

Angela Pale works alongside Scott Chapman and advises health professionals in professional conduct matters including responding to complaints, disciplinary investigations, dispute resolution, hospital investigations, and assisting in disciplinary proceedings. Ms. Pale’s years of experience working for Health Care Complaints Commission and the Law Society of NSW allows her to provide clients with an insightful understanding of complaints management processes, risk assessment, dispute resolution and obligations under the National Law.