Should doctors disable Facebook comments? What if a patient comments about a doctor on a third party website? With AHPRA fines expected to increase tenfold, and a landmark review in 2022, it’s important to stay abreast of compliance.
Follow this 9 tip checklist to help ensure you meet your compliance obligations.
A recent high profile media case by Four Corners, The Sydney Morning Herald and The Age, has triggered a landmark AHPRA and Medical Board of Australia review on the cosmetic surgery sector, which will examine the role of medical advertising and social media.
But what will this cover and what will it mean for other specialties?
Some of the issues raised in the media investigation include:
– Currently anyone with a basic medical degree can call themselves a “cosmetic surgeon.”
– Health ministers also propose to ban false or misleading testimonials, as well as those that create an unreasonable expectation of beneficial treatment.
– There are also plans for AHPRA breach fines, currently $5000 for individuals and $10,000 for body corporates, to increase to $60,000 for individuals and $120,000 for body corporate breaches of the code.*
The review findings are expected to be handed down mid-2022.*
Here are our main take-aways to help medical practitioners of any specialty to help ensure AHRPRA compliance in 2022
1 Consider disabling “positive” Facebook comments/testimonials
If a patient endorses a practitioner’s treatment on Facebook page, the practitioner is legally liable for the comment and must either ask the patient to remove it or delete the post themselves.
Red flags include discussion about anything to do with CLINICAL aspects of the treatment, such as symptoms, diagnosis and outcomes.
2 Watch out for “missed” posts
But what about if a practice misses seeing a breach-worthy post?
Since March 2021, when Facebook offered businesses the ability to turn off comments for the first time, and doctors can have better ability to control comments, many health and legal professionals feel the best approach to avoid any AHPRA compliance breaches is to simply disable comments on Facebook all together.
The upside to this is that you won’t miss seeing a positive post that may be a breach – and damaging negative reviews do not have to be monitored for removal either. But do doctors HAVE to disable Facebook? A spokesman for AHPRA says the regulatory body has published guidance to help registered health practitioners understand and meet their legal obligations around advertising via the AHPRA advertising hub.
“If practitioners are still unsure what they need to do to ensure they meet the requirements, they are advised to contact their professional association or seek independent legal advice,” says a spokesperson for the Australian Health Practitioner Regulation Agency (AHPRA).
3 Don’t mislead patients with “the science”
When reporting evidence of a treatment, it is not acceptable to include the following says AHPRA:
- Studies involving no human subjects
- Before and after studies with few or no controls
- Self-assessment studies
- Studies that are not applicable to the target population (e.g., a treatment may have a lot of evidence for efficacy on shoulders, but not for use in knees).
4 Understand clinical v non-clinical
AHPRA says that a testimonial is a positive statement about the “clinical aspects” of a regulated health service issues – which in a nutshell, generally includes any discussion of symptoms, diagnosis and outcomes.
Other red flags may be comments that imply the doctor provides a superior service over other doctors “e.g., he is the only one who could fix my headaches,” or “he is the most experienced doctor in Australia” to do this procedure, “the best,” “the first” etc.
These are all opinions (often hard to prove), rather than facts that can be proven.
Comments that are less likely to be considered a testimonial breach include discussion about friendliness or integrity of staff, affordability, ease of booking, patient after care (eg foods to eat after a bariatric surgery) service and customer experience and waiting times.
5 Understand what the word specialist means
A breach of AHPRA would include a sentence for instance, such as “Dr Smith specialises in osteopathy.”
“Unless you have specialist registration under the National Law, you cannot use the term ‘specialist’ or ‘specialises’ when referring to your practice or registration in your advertising,” says the AHPRA guidelines.
“Even if you have extra training and experience, you cannot give the impression or advertise that you specialise in or are a registered specialist in osteopathy.”
There are no recognised specialist categories for the osteopathy profession.
As osteopaths can only apply for general registration, this advertising would need to be corrected by removing the line about specialising in osteopathy and stating that Dr Smith has a “special interest in musculoskeletal medicine.”
6 Words and phrases to avoid; disclaimers to include
- Avoid using the terms “safe” and “effective” in your marketing – as nothing is 100% safe, and nothing is 100% effective.
- Other phrases AHPRA’s guidelines advise to avoid include “don’t delay,” “achieve the look you want” and “look better and feel more confident”
- If you are using real patients in posts or videos, you must have consent and include a disclaimer such as “these results illustrate the types of procedures we do at our clinic, but results may vary depending on the individual. Any surgical or invasive procedure has risks so seek a second opinion.”
7 Know there is usually an educative approach for minor breaches
Should there be a complaint made about your practice, AHPRA initially takes an “educative approach” and how a complaint and generally starts with the advertiser being given 30 days to correct the breach.*
However, regardless of whether the advertiser is registered, very serious breaches of the advertising requirements that placed the public at significant risk of harm may be subject to prosecution, “even if the advertising is corrected,” the guidelines stipulated.
AHPRA also works with other regulators such as the ACC or TGA if there is a breach of consumer regulation laws.
Source *: How AHPRA manages advertising complaints
8 Be wary of “other” websites
While doctors have liability for any positive testimonials that appear on their own website or social media, they do not currently have control over positive reviews that people put on websites such as Google My Business or RateMD.
According to AHPRA Guidelines: “Practitioners are not responsible for removing or for trying to have removed, unsolicited testimonials published on a website or in social media of which they have no control.”
But they can be actionable for how they RESPOND on other websites, even those not controlled by the health professional.
If the review states something like: “The results were utterly amazing and Dr X made me look 10 years younger”, it is safest not to reply.
AHPRA has a clear position on this stating that: “Advertisers are not responsible for testimonials published on a third-party website that they do not control.
“However, advertisers should take care if they choose to engage with testimonials on third-party websites as they may be considered using a testimonial to advertise a regulated health service, which is prohibited,” warns the regulator.
9 Don’t inadvertently breach privacy
Doctors and other health professionals also need to ensure that they do not inadvertently breach privacy or health practitioner regulations, regardless of what the patient has stated.
If you respond to a review confirming the positive nature of the patient’s experience, you might be breaching the law in other ways too, for instance if the patient is not even a legitimate patient – and leaves a fake review.
Article by Russell Lee HBN and Jane Worthington DigiMed Australia.
1 The AHPRA Advertising Hub – detailed issues health professionals can access including how to make a complaint, information for the public and FAQs
2 AHPRA examples of non-compliant advertising and what you can do to be more compliant
3 Here are the social media AHPRA guidelines about accidentally breaching patient privacy.
*Disclaimer this cannot be taken as legal advice, but general advice based on working in the media and with hundreds of doctors over the years.