The short answer is yes, doctors and other regulated health practitioners can advertise in Australia.
However, they must meet strict medical advertising laws, for which breaches are considered a criminal offence. Depending on the severity of the breach and if you are a registered health practitioner, a court may issue monetary penalties or disciplinary action.
To help you know your rights and responsibilities when advertising as a doctor or other medical professional, we’ve created this basic guide to medical regulations in Australia. Here you’ll find:
- Some of the types of medical advertising covered under the regulations.
- Who needs to be wary of medical advertising regulations.
- The basic medical advertising regulations commonly breached.
- Some of the specific COVID-19 medical advertising laws.
- Potential outcomes of breaching medical advertising regulations, including some precedent cases of 2020.
- What to do if you breach guidelines.
You can also download our Doctor Advertising in Australia Cheat Sheet.
As always, this article is for general informational purposes only and does not replace professional legal advice. If you have questions or are concerned, you’re best speaking to your legal advisor.
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Types of Medical Advertising in Australia
“In the context of advertising a regulated health service, advertising includes all forms of verbal, printed and electronic communication that promotes and seeks to attract a person to a regulated health service provider and/or to attract a person to use the regulated health service. Social media is also often used to advertise a regulated health service.”- AHPRA, Guidelines for Advertising a Regulated Health Service
Types of medical advertising include, but are not limited to:
More information about medical advertising in Australia can be found on the Australian Health Practitioner Regulation Agency (AHPRA) website.
Definition of Advertiser Under Medical Regulations
An advertiser is considered someone who:
- Can publish or authorise content, including directing someone to publish or draft content, including a third party, staff member or marketing agency.
- Has access to a mechanism for the modification or removal of content published by an unrelated publisher.
In relation to medical advertising, this can include:
- Registered health practitioners.
- Unregistered health practitioners.
- Businesses, partnerships and corporate entities.
Doctor advertising in Australia must not:
1. Be false, misleading or deceptive.
The official regulation under Section 133 Appendix 1 of the National Law says, “A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that — (a) is false, misleading or deceptive or is likely to be misleading or deceptive.”
False, misleading or deceptive medical advertising can either be a direct attempt or an indirect mishap. Other medical advertising laws dig into some of the specifics of this, but doctors advertising need to be wary of:
- Who will be seeing or hearing their advertising and how they may interpret the information.
- Selling products or services based on balanced scientific fact and their own merit.
- Over emphasising the importance or value of a product or service.
- Displaying information in its entirety in a way that is balanced and backed by scientific evidence.
- Referring to titles, qualifications and similar correctly.
- Making comparisons or suggestions of higher importance of a service, product or practitioner.
- Making claims about the superiority of a service or practitioner.
A false statement under medical advertising can include:
- Referring to yourself as a specialised doctor without stating the exact medical qualifications and where you obtained them.
- Including information from a study, but not the full or balanced information, such as stating ‘X number of participants received X results’ without stating number of participants, any conditionals, etc.
- Making unqualified claims about treatments which may ‘assist with’ or ‘treat’.
- Underplaying or minimising risks or potential risks associated with a treatment or procedure.
- Compares prices, practitioners, outcomes or regulated health professionals without complete information.
- Making claims of providing a superior product or service.
2. Make comparisons with other regulated health services or practitioners.
Under section 4.1.3, it says, “Comparative advertising that is used to promote a regulated health service over another can be misleading and/or deceptive because it can be difficult to include complete information when making comparisons.”
It may be a breach of doctor advertising in Australia where there has been a comparison between different health practitioners, a service or product being used, such as:
- Comparison of quality of care by different health services.
- Comparison of health outcomes.
- Comparison of medical professionals.
- Comparison of a medical professional’s competency, skill, experience or qualification.
- Comparison of price of a regulated health service.
If making a comparison, all aspects must be covered to give the receiver a full understanding of the legitimate differences without being misled.
Misleading comparisons can also be made without referencing a secondary party, including statements such as:
- Best doctor in Location.
- Cheapest doctor in Location.
- Most experienced doctor in Location.
3. Use professional titles, qualifications and specialisations incorrectly.
4.1.4 of the guidelines states, “The National Law regulates the use of certain titles (protected titles). Misuse of a protected title is an offence under the National Law.”
As misleading people into thinking you have a qualification, specialisation or registration in the medical field is a breach of law, you’ll want to be sure you’re using protected titles correctly. This includes not using a title, name, initial, symbol, word, or description to indicate you are a medical professional unless you hold that exact registration. A full description of this can be found in National Law documentation.
Common misuse of professional titles, qualifications and specialisations:
- Using specialised without registration, such as ‘Dr. X is a Specialist Doctor’ instead of ‘Dr. X is a general practitioner with a special interest in X’.
- Using an unregulated qualification or quantification of experience in a way that does not have supporting evidence, such as ‘expert in all things medical’ instead of ‘qualified with a Bachelor of X at X University’.
- Listing a registered specialisation or award without listing who awarded the title.
Protected medical titles include, but may not be limited to:
- Aboriginal and Torres Strait Islander Health Practice professions, including Aboriginal and Torres Strait Island Health Practitioner, Aboriginal Health Practitioner and Torres Strait Islander Health Practitioner.
- Chinese medicine professions, including Chinese medicine practitioner, Chinese herbal dispenser, Chinese herbal medicine practitioner, Oriental medicine practitioner and acupuncturist.
- Dental professions, including dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist.
- Medical practitioner.
- Medical radiation practice professions, including, medical radiation practitioner, diagnostic radiographer, medical imaging technologist, radiographer, nuclear medicine scientist, nuclear medicine technologist and radiation therapist.
- Midwifery professions, including midwife and midwife practitioner.
- Nursing professionals, including nurse, registered nurse, nurse practitioner and enrolled nurse.
- Occupational therapist.
- Optometry professions, including optometrist and optician.
- Pharmacy professions, including pharmacist and pharmaceutical chemist.
- Physiotherapist professions, including physiotherapist and physical therapist.
- Podiatry professions, including podiatrist and chiropodist.
Protected titles — professions with divisions include, but may not be limited to:
- Chinese medicine professions, including acupuncturist, Chinese herbal medicine practitioner and Chinese herbal dispenser.
- Dental practitioner professions, including dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist.
- Medical radiation practitioner professions, including diagnostic radiographer, nuclear medicine technologist and radiation therapist.
- Nurse professions, including registered nurse and enrolled nurse.
Visit page 22 and 23 of the Guidelines for advertising a regulated health service for a full list.
Under 133 of the National Law, “(1) A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that— (b) offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer.”
Where advertising or mentioning a price, offer, gift or competition, advertisers must include full terms and conditions, and be entirely factual. For example, listing a product or service as free when it is covered under Medicare is considered misleading.
In the case of there not being enough space to display full terms and conditions, advertisers can directly refer consumers to the locations of the complete information, such as a link to a website. The information must be easy to use and accessible, so cannot be behind a content gate, such as a payment wall or offer sign-up.
Where a gift, discount or price is being displayed, a breach of National Law may occur if:
- Price information is unclear, vague or is not entirely accurate.
- An offer is presented but is misleading, such as where a buy-one-get-one-free is presented, but the price of the first is increased to cover the cost of the second.
- Conditions and limitations are not presented, including expiry, location, who is eligible, etc.
- An instalment or payment plan is mentioned but not what the full price would be, such as ‘Only six weekly payments of $10’ without disclosing the full price is $40.
5. Include clinical reviews and testimonials.
“Under National Law 133 (1) A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that— (c) uses testimonials or purported testimonials about the service or business.”
Under AHPRA (Australian Health Practitioner Regulation Agency) and the National Boards, a testimonial and a review are two different things. In the simplest explanation, a testimonial is considered a positive statement about a person or thing, while a review is the sharing of a non-clinical experience.
It is a breach of National Law to use testimonials in advertising due to them being considered potentially misleading. However, it is not against National Law to receive non-clinical reviews on review platforms, like Localsearch.com.au, Google, Facebook, etc.
What is considered a clinical review?
A clinical aspect is considered anything regarding symptoms (either specific symptoms or reasons for seeking treatment), diagnosis of treatment (again, either a specific diagnosis or the treatment from a medical professional) or an outcome (including specific results, direct or indirect comment of experience of the practitioner, etc.).
Ideally, if requesting your customers or clients to leave you reviews, ask them to focus on customer service aspects of their experience, such as ease of booking appointments, bedside manner, convenient location, etc. These types of reviews may be able to be used in advertising if they are strictly non-clinical.
Who is responsible for reviews?
Many review platforms are also considered advertising platforms, so it’s best to think of them as an extension of your marketing. As the advertiser, you are responsible for ensuring compliance with testimonials, unless you do not have any control over the platform, such as removing a review function. For example, you would be responsible for review and testimonial compliance on your website, social media and some online directories. However, you may not be responsible for managing reviews on review platforms you cannot opt out of.
6. Create false expectations through images and photographs.
Doctor advertising rules in Australia mean any visual elements of your advertising must not be misleading. This includes showing an outcome that may not be possible for every recipient of a treatment or provide false expectations.
Images, graphics of visual content in doctor advertising may breach National Law if they:
- Have been edited or altered.
- It is not clear how the treatment has influenced the focus of the image.
- Before and after visuals are as similar in pose, background, lighting etc. as possible.
COVID-19 Medical Advertising Guidelines
With the important role medical professionals have in relation to COVID-19, the AHPRA and National Boards have updated regulations to include specifics regarding the pandemic. This includes medical advertisers:
- Only using entirely accurate information.
- Not advertising being able to claim prevention or protection from COVID-19.
- Not advertising accelerated recovery from COVID-19.
Like any other medical claim being made in advertising, doctors and other medical professionals must be able to provide substantial evidence to support any claims. As well as breaches under the National Law, there may be breaches of the Therapeutic Goods Act 1989.
More information about doctor advertising in Australia and COVID-19 can be found on the APHRA website.
Potential Outcomes of Breaching Medical Advertising Laws in Australia
Unfortunately, intentional or not, a breach of medical advertising regulations is taken very seriously by the involved bodies. While some minor breaches may only require content to be removed by a certain date, some outcomes are quite severe, such as the examples of medical businesses breaching regulations below.
Perth Doctor Fined $37,800 in 2020 for 15 Infringement Notices of Alleged Advertising Breaches
A Perth doctor was issued fifteen infringement notices by the Therapeutic Goods Administration (TGA) in 2020, totalling to $37,800. Infringements were issued for alleged unlawful advertising of therapeutic goods in relation to COVID-19, including claims on the doctor’s website.
The public notice on the TGA website claims the business referred to therapeutic goods not included in the Australian Register of Therapeutic Goods (ARTG) and included therapeutic claims in relation to COVID-19 for a number of products.
Two Sydney Companies Fined Total of $93,240 in 2020 for Unlawful Product Importation & Advertising
Two Sydney-based medical businesses were issued a combined seven infringement notices totalling $93,240. The infringements included $13,320 for alleged unlawful importation of infrared thermometers and $79,920 for alleged advertising breaches in relation to medical devices.
Breaches of the medical advertising included falsely listing medical devices as TGA-approved.
Multi-Level Marketing Company Fined $37,800 in 2020 for Vitamin Advertising Breaches
A multi-level marketing company received three infringement notices from the TGA, amounting to $37,800 after alleged medical advertising breaches. The breaches were reportedly for promoting vitamin products for a condition not permitted and having health professionals endorse the product.
In the public notice from the TGA, they reminded direct sellers they have the same legal responsibilities as the company when advertising goods.
What to Do if You Have Breached Medical Advertising Laws
1. Follow the instructions on the infringement notice.
If you receive notice of having breached medical advertising regulations, follow the instructions on the notice as closely as possible. Instructions may include if you need to respond, how to respond, if and when you need to remove advertising content and where to go for more information.
2. Remove the offending advertisement and take screenshots.
Unless otherwise advised, take screenshots or photos of the offending medical advertising and remove the material as soon as possible. If you’ve received notice of breaching medical regulations, they often will give you a date to remove the material by, but it may depend on the severity and type of breach.
If the advertisement is in the form of a review, you will need to follow the platform’s removal process. This can be difficult on platforms like Google, but if you work with a Google My Business Partner (like Localsearch), you may be able to get some support in doing this, especially if you have a breach notice.
3. Seek professional legal advice.
Like any laws, medical advertising regulations can be complex to understand. If you have breached medical advertising regulations, seek the advice and counsel of a legal professional confident in the area of medical advertising for doctors.
Disclaimer: This article is for general informational purposes only and does not substitute professional legal advice. Neither Localsearch nor the author are liable for any misuse of the information. Anyone looking for more information should seek individual legal advice from their legal advisor.