Case scenario: Dr Blog recently revamped the clinic’s website. He engaged a marketing company to perform the task, and was largely guided by their suggestions on how best to draw business to the clinic. The website contained statements from the clinic’s patients about their favourable treatment experience. The website also contained a link through to other customer feedback sites such as Word of Mouth Online (WOMO) and his personal Facebook. These sites also contained patients’ favourable statements about their treatment outcomes at the clinic.
The patients’ statements are likely to be regarded as testimonials. The Health Practitioner Regulation National Law (National Law) expressly prohibits the use of testimonials in the advertising of regulated health services. Dr Blog has likely breached the law and committed an offence by including the patient statements on his website, and by providing a link to feedback sites that contain patients’ testimonials.
Does the legal position change if:
The statements are actual statements of real patients?
Dr Blog relied upon a professional marketing company to develop the website?
The clinic is owned by a corporation of which Dr Blog is merely an employee?
Many other clinics operating in the nearby area have websites containing similar patient statements?
The simple answer is ‘no’. However, the corporation may also be prosecuted under the advertising provisions of the National Law. The ban on using testimonials in advertising of regulated health services extends to all types of advertising including social media pages.
The term ‘social media’ has been defined by the National Boards in a jointly developed Social Media Policy (published March 2014) as described:
…the online and mobile tools that people use to share opinions, information, experiences, images and video or audio clips and includes websites and applications used for social networking. Common sources of social media include, but are not limited to, social networking sites such as Facebook and LinkedIn, blogs (personal, professional and those published anonymously), WOMO, True Local and microblogs such as Twitter, content-sharing websites such as YouTube and Instagram and discussion forums and messages boards.
The Guidelines published by the Australia Health Practitioner Regulation Agency (AHPRA) for Advertising Regulated Health Services describe a ‘testimonial’ as including recommendations or positive statements about the clinical aspects of a regulated health service. Favourable statements by patients on their treatment experience or treatment outcomes are likely to be regarded as testimonial. The example that was provided in the Guidelines is: ‘Practitioner was quick to diagnose my illness and gave excellent treatment’.
Lessons to be learned
If the clinic maintains a social media website, such as Facebook, you need to keep a careful lookout and remove testimonials or statements that patients make on Facebook. The same warning applies to comments that are made on sites such as WOMO, and where there is a link to the clinic’s website. AHPRA readily acknowledges that people are free to discuss their experiences of health services and their comments are not something ordinarily within a practitioner’s control. But recent claims experiences have revealed that AHPRA will raise concerns where it considers a testimonial to have been endorsed by a health practitioner through being linked to or ‘shared’ on their website, and even though the post may not have been originally posted on the clinic or practitioner’s page itself.
AHPRA is becoming increasing intolerant of practitioners trying to get around the Guidelines by, for example, advocating WOMO using widgets or banners on their clinic’s web page and without necessarily linking the testimonials contained therein. Even though by doing so you may not be specifically highlighting or linking the testimonials to your page, you run the risk that AHPRA will consider your promotion of WOMO or other social media sites as an endorsement of any or all testimonials that may be present on the WOMO page.
Before advertising your clinic it is extremely important that you first familiarise yourself with the Guidelines for Advertising Regulated Health Services, which were published by AHPRA in 2014. If you are outsourcing the website development be sure to bring to the developer’s attention the Guidelines and you should carefully review and approve the finished product because you personally risk facing the consequences of any breach. Health practitioners are responsible for all of the content on social networking pages that they control or administer.
What many practitioners do not realise is that a breach of advertising laws is a criminal offence. A court may impose a penalty of up to $5,000 for an individual and $10,000 for a body corporate. This outcome is in addition to possible disciplinary action under Part 8 of the National Law for unprofessional conduct (described as “unsatisfactory professional conduct” in New South Wales) in relation to advertising.
For further information please contact Kellie Dell’Oro, Principal, Meridian Lawyers.