The 15 national health practitioner boards, collectively known as the National Boards, oversee the regulation of registered health practitioners in Australia. Their responsibilities encompass the registration of practitioners and students, with the exception of psychology, where students are registered as provisional psychologists. Additionally, the National Boards establish the standards that practitioners must adhere to and address complaints and concerns (notifications) related to the health, conduct, or performance of practitioners.

The stipulations are applicable to all entities or individuals engaged in advertising a regulated health service. This encompasses:

1. Registered health practitioners.
2. Individuals lacking registration as health practitioners.
3. Businesses, partnerships, and corporate entities.

What is advertising?

The term ‘advertising’ encompasses, without being exhaustively limited to, any type of verbal, printed, or electronic public communication aimed at promoting a regulated health service provider, with the goal of attracting individuals to the provider, whether they be practitioners or businesses. For a comprehensive understanding of what falls within the scope of advertising under the National Law, it is recommended to consult the advertising guidelines.

Advertisers bear the responsibility for their advertisements. Therefore, it is incumbent upon them to scrutinize any content created by others on their behalf, ensuring its compliance with the regulations.

As per the advertising regulations, content within advertising must avoid falsehoods, misrepresentation, or deception. It should adhere to the following principles:

1. Information must be clear, honest, and inclusive of all essential details.

All assertions presented in advertisements must be substantiated with credible evidence; otherwise, they might be deemed as inaccurate, misleading, or deceptive.

2. Accuracy and simplicity should characterize the information, ensuring easy comprehension.

If advertising includes a list of health conditions and makes claims to effectively ‘treat’ or ‘help’ those conditions, the advertising should also make it clear how the treatment helps each condition listed. This includes that it is supported by acceptable evidence, or the claims may be considered false, misleading or deceptive advertising. Unacceptable forms of evidence might include a comparative study lacking concurrent controls or a solitary case study. Such evidence poses an elevated risk of producing biased or inaccurate findings due to the study design.

Typically, the subsequent categories of studies will not be deemed acceptable evidence for advertising claims:

1. Studies that do not involve human subjects.
2. Before-and-after studies with minimal or no controls.
3. Self-assessment studies.
4. Anecdotal evidence derived from observations in practice.
5. Outcome studies or audits, unless bias or other influencing factors are meticulously controlled.
6. Studies that are not relevant to the target population.

In collaboration with the National Boards, the Australian Health Practitioner Regulation Agency (AHPRA) actively implements the National Registration and Accreditation Scheme. This scheme operates under the framework of the Health Practitioner Regulation National Law, applicable in each state and territory.

The primary objective of both the National Boards and AHPRA is to safeguard the public, emphasizing the protection of public health and well-being.

The advertising guidelines for a regulated health service, created collaboratively by the National Boards in accordance with section 39 of the National Law, underwent a review in 2020. The updated guidelines became effective on December 14, 2020.

These guidelines serve as a tool to assist practitioners and other advertisers in comprehending their responsibilities when promoting a regulated health service. Additionally, the Medical Board of Australia has issued specific Guidelines for registered medical practitioners advertising cosmetic surgery, outlining the criteria medical practitioners must adhere to when advertising such services.

In 2022, amendments were made to the National Law, including an adjustment to the maximum penalties for advertising offenses. The updated penalties stipulate that for individuals, the maximum financial penalty per offense has risen from $5,000 to $60,000, and for a body corporate, it has increased from $10,000 to $120,000. The procedures for addressing advertising breaches under the National Law are outlined in section 1.3 of the guidelines.

It’s important to note that in Western Australia, there has been no increase in the maximum penalty for advertising offenses, and distinct penalties are applicable.

The forthcoming review of the advertising guidelines will incorporate these changes to reflect the updated penalties.

Only medical practitioners possessing specialist registration in surgery, obstetrics and gynaecology, or ophthalmology are authorized to use the title ‘surgeon,’ following an amendment to the National Law introducing a new section 115A.1. Those without such specialist registration in the mentioned fields are no longer permitted to refer to themselves as ‘surgeon.’ This restriction applies to all forms of advertising, including websites, social media, letterheads, business cards, and clinic windows, necessitating the removal of any references to ‘surgeon.’

Medical practitioners with general registration or specialist registration in a different specialty, such as general practice or dermatology, are prohibited from using the title ‘surgeon,’ including the term ‘cosmetic surgeon.’

How can titles become misleading?

In advertising, it is crucial to ensure that the use of titles does not give consumers the impression that a practitioner holds specialist registration or an endorsement that they do not possess, or suggest a higher level of skill or qualification than is accurate.

However, the use of titles in advertising can be beneficial and informative. For instance, employing a descriptive term may offer valuable information to the public, indicating that a practitioner specializes in a particular patient group, area of practice, or works within a specific setting (e.g., sports chiropractor). This can help individuals seeking healthcare choices tailored to their needs, as someone looking for assistance with a musculoskeletal condition would not expect a practitioner specializing in neurological conditions.

As long as the descriptive term does not imply specialist registration or endorsement, it aids the public in making informed healthcare decisions.

Enforcement Strategy for Advertising Compliance in the National Scheme

The Australian Health Practitioner Regulation Agency (AHPRA) and National Boards oversee health practitioners in Australia under the National Registration and Accreditation Scheme (the National Scheme). Focused on public protection, our regulatory approach employs a risk-based methodology, taking actions proportionate to identified risks to public health and safety. AHPRA’s primary objective is to ensure responsible advertising of regulated health services, preventing false or misleading claims to safeguard the public and enable informed healthcare decisions.

This strategy outlines:

– The application of our risk-based approach to advertising compliance and enforcement.

– How AHPRA promotes voluntary compliance and address non-compliant advertising.

– AHPRA’s plans for evaluating and refining this strategy.

1. Introduction
2. AHPRA’s Role

The National Scheme governs 14 health profession groups in Australia, comprising over 650,000 registered practitioners and 150,000 registered students. Each health profession group under the National Scheme has a dedicated National Board, collaborating closely with AHPRA in this regulatory framework.

Advertising in Accordance with the National Law

Section 133 of the National Law establishes a criminal offense for any individual, including registered health practitioners, advertising a regulated health service or a business providing such services in a manner that:

– Is false, misleading, or deceptive, or likely to be misleading or deceptive.

– Offers inducements like gifts or discounts without stating the associated terms and conditions.

– Utilizes testimonials about the service or business.

– Creates unreasonable expectations of beneficial treatment.

– Directly or indirectly encourages indiscriminate or unnecessary use of regulated health services.

The definition of a regulated health service is extensive and encompasses both public and private services, extending beyond direct clinical services.

Presently, the maximum penalties for each advertising offense are $5,000 for individuals and $10,000 for corporate entities. While these penalties act as a general deterrent, they may not always seem proportionate to the offense, particularly in severe cases of false advertising. However, breaches by registered health practitioners also violate the Board’s advertising guidelines and code of conduct, providing grounds for disciplinary action related to their registration.

Our regulatory efforts on advertising compliance involve addressing complaints, educating practitioners about acceptable practices, and taking action against unlawful, misleading, or harmful advertising in the interest of consumers. We collaborate with other consumer protection regulators like the Therapeutic Goods Administration (TGA) and the Australian Competition and Consumer Commission (ACCC).

All National Boards have published guidelines for advertising regulated health services, explaining the legal obligations for advertisers under the National Law. These guidelines are applicable to any individual or business advertising regulated health services.

Our overarching objective is to ensure responsible advertising of regulated health services, providing the public with accurate information to make informed healthcare choices. This strategy outlines our approach to achieve advertising compliance, utilizing available regulatory tools. It emphasizes ongoing evaluation as a fundamental aspect of our strategy, reflecting our commitment to refining and enhancing our approach.

1. Principles

AHPRA’s  regulatory principles form the foundation of our efforts in overseeing Australia’s health practitioners in the public interest. These principles guide our regulatory decision-making, fostering a responsive, risk-based approach to regulation. Aligned with these regulatory principles, the key principles supporting our strategy include:

– Risk-based: We allocate resources to address the highest-risk matters with the greatest potential impact on the public. Our compliance and enforcement actions vary based on the identified risk.

– Targeted: Acknowledging the absence of a one-size-fits-all approach, our actions are focused, purposeful, and tailored to the identified behaviour. We adopt an evidence-based approach, drawing insights from research and collaborating with other regulators to identify best practices and behaviour change strategies. Ongoing evaluation is integral to our strategy.

– Proportionate: We undertake the minimum necessary compliance and enforcement action to manage the identified risk, ensuring public protection.

– Transparent: We establish clear standards for advertising regulated health services and provide authoritative guidance on compliance requirements. Our approach to advertising compliance is transparent, and we enforce compliance when necessary. Decision-making processes and complaint resolutions are consistent, providing clarity to the public and advertisers. We are committed to reporting actions taken, including through case studies and enforcement outcomes.

– Engaged: Collaboration is at the core of our strategy. We engage with the public to understand and meet their expectations, collaborate with professional associations and health practitioners to promote better advertising practices, and explore various opportunities for learning and joint initiatives with government, regulators, and stakeholders.

1. Using a Risk-Based Approach

As a risk-based regulator, our approach to advertising compliance and enforcement involves tailoring actions based on identified risk levels and potential impact. We concentrate resources on the highest-risk matters, recognizing resource constraints. Flexibility is inherent in our strategy, allowing us to respond to new risks, emerging advertising methods, and evolving public expectations.

2. Compliance and Enforcement Strategies

1. Overview of the Compliance and Enforcement Model

Effective compliance and enforcement strategies foster an environment that supports voluntary compliance and instils community confidence in regulation. These strategies promote evidence-based, well-considered, and integrated approaches to enhance compliance behaviour.

In developing this strategy, we considered our efforts in creating guidelines and explanatory information about advertising rules, along with data and experiences related to advertising complaints. We also examined approaches of other regulators and incorporated feedback from stakeholders. Ongoing collaboration with consumers aids our understanding of their healthcare advertising experiences, shaping interventions that facilitate positive outcomes.

Various factors influence whether registered health practitioners and advertisers comply with advertising provisions under the National Law. These factors encompass professional experience, awareness of requirements, effective communication about responsibilities, professional norms, practices, expectations, and broader societal and financial influences.

Our approach considers all these factors, ensuring a comprehensive and nuanced strategy.

The Compliance Pyramid

Understanding that the majority of practitioners aim to adhere to their professional obligations, and most individuals, including non-registered advertisers, intend to comply with the law, our strategy primarily focuses on facilitating compliance for those who are willing to act ethically. We acknowledge that some individuals may require additional support to achieve compliance, and our efforts will be directed toward assisting this group.

Furthermore, we acknowledge a small subset of individuals, both practitioners and other advertisers, who may require more forceful measures to ensure compliance. This is where our enforcement actions are targeted.

1. Risk Assessment Framework

Every complaint alleging statutory offenses under the National Law undergoes a risk assessment. Factors considered during this assessment include the type of offense and associated risks, such as allegations of potential or actual harm.

High-risk matters (classified as critical or major) that we have identified involve advertising practices that:

– Raise concerns about actual harm to consumers.

– Make misleading claims regarding the cure of serious illnesses, like cancer.

– Target patient groups that may be particularly vulnerable, such as advertising 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 the potential to significantly impact healthcare choices.

– May include allegations of an individual falsely presenting themselves as a registered health practitioner or unlawfully using a protected title.

1. Education and Engagement

Education and engagement are proven regulatory tools integral to an effective strategy for behaviour change. We will allocate resources to these activities as we believe they are the most effective means of reaching the majority of individuals who wish to advertise responsibly and promoting higher performance. Our activities to support compliance encompass:

– Collaborating more extensively with consumers to comprehend their experiences with healthcare advertising and leveraging these insights to develop interventions for improved consumer outcomes.

– Expanding guidance for practitioners and other advertisers on advertising rules, consumer experiences, and responsible advertising practices.

– Conducting comprehensive educational campaigns for advertisers, addressing common mistakes in advertising.

– Crafting specific educational tools tailored to address identified areas of concern.

– Engaging with advertisers and stakeholders through webinars, social media, forums, and other interactive activities.

– Transparently communicating instances of non-compliant advertising actions to advertisers and the public to clarify acceptable practices.

– Clearly indicating to advertisers specific types of claims and areas of concern, such as misleading claims without acceptable evidence.

– Corresponding with practitioners and advertisers deemed at risk of non-compliance.

– Collaborating with consumer groups, professional associations, and other regulators on projects supporting the strategy.

1. Enforcement

We will address all complaints about advertising and utilize a spectrum of regulatory tools to rectify non-compliant advertising. The level of compliance and enforcement action will escalate based on ongoing risk assessments and the response of the advertiser.

Certain high-risk cases will be promptly earmarked for prosecution or disciplinary measures. For instances of alleged advertising breaches assessed as lower risk, we will correspond with advertisers, notifying them of their non-compliance and offering resources to aid adherence to the National Law. Our communication approach has been streamlined and targeted, with ongoing development of additional materials such as educational resources and examples of acceptable and unacceptable advertising.

We will stipulate a timeframe for rectifying non-compliant advertising and provide details on how compliance will be verified. We anticipate that many advertisers are eager to rectify their advertising once made aware of non-compliance and the potential consequences. Subsequent to the initial correspondence, compliance will be verified through targeted and random audits, the selection of which depends on the initial risk assessment.

In cases of persistent non-compliance, practitioners will receive a show cause letter proposing conditions on their registration, limiting their ability to advertise, with an additional timeframe for amending their advertising. If the advertising remains unrectified, the conditions will be imposed, and before their removal, practitioners must demonstrate understanding of advertising requirements. Enforcement actions will escalate based on risk assessments and advertiser responses, potentially culminating in referral to a tribunal for continued non-compliance after the imposition of conditions.

Moving forward, we will publish summaries of compliance and enforcement actions taken, potentially highlighting specific areas of focus (e.g., claims targeting specific patient groups or certain health conditions).

Our strategy employs a combination of established and experimental approaches. We will utilize an evaluation framework to assess whether our efforts are enhancing advertising compliance and to ensure the ongoing relevance and responsiveness of our strategy. Annual reporting on the strategy’s achievements will be conducted, exploring additional avenues such as online news items and newsletters for practitioners.

1. Review

The initial review period for this strategy is 12 months. Supporting documentation will undergo regular review and updates as the strategy is implemented, encompassing pilot initiatives and the incorporation of the evaluation framework. New Protections Regarding the Title ‘Surgeon’ in the Medical Profession

A recent amendment to the National Law introduces section 115A.3, restricting the use of the title ‘surgeon’ in the medical profession. Only medical practitioners with specialist registration in surgery, obstetrics and gynaecology, or ophthalmology are permitted to use the title ‘surgeon.’ Those without such specialist registration are prohibited from using the title, and all references to ‘surgeon’ must be removed from advertising platforms, including websites, social media, letterheads, business cards, and clinic windows.

This rule applies exclusively to registered medical practitioners and does not alter regulations for protected titles in the dental and podiatry professions, nor does it impact dentists using the title dental surgeon.

The advertising guidelines will be revised to incorporate these changes during the next review.

Common Pitfalls

1. Using a protected title with a descriptive term in a potentially misleading manner: While pairing a descriptive term with a protected title can be informative, caution must be exercised to prevent over-representing the practitioner’s skills, experience, or qualifications, or implying specialist registration or endorsement.
2. Using terms like ‘specialist,’ ‘specialises in,’ ‘specialty,’ or ‘specialised’ without holding specialist registration: The use of these terms implies specialist registration and can mislead the public if the practitioner does not possess such credentials. Employing phrases like ‘substantial experience in’ or ‘working primarily in’ is less likely to be misleading.

It is essential to note that this new section exclusively pertains to registered medical practitioners. It does not alter the regulations governing the use of protected titles by health practitioners with specialist registration in the dental and podiatry professions, nor does it impact dentists using the title dental surgeon.

The forthcoming review of the advertising guidelines will incorporate these modifications to ensure alignment with the updated regulations.

The terms used in this document are specifically defined for the purposes of section 133 of the National Law. Advertisers should be aware that the definitions in these guidelines may differ from those in other legislation, and they are advised to refer to the relevant definitions to ensure compliance with all applicable laws.

Advertiser:

Refers to any person or business advertising a regulated health service provider, whether it be an individual practitioner or a business entity.

Advertising:

This definition encompasses all forms of verbal, printed, or electronic public communication aimed at promoting a regulated health service provider to attract individuals to the provider, whether it is a practitioner or a business. This includes various advertising mediums such as television, radio, newspapers, flyers, billboards, books (if promoting a specific regulated health service provider), public and professional lists, pictorial representations, designs, mobile communications or other displays, internet (including websites and social media), electronic media promoting a particular regulated health service provider, business cards, announcement cards, office signs, letterheads on documents used for public promotion of a particular health service provider, public and professional directory listings, and other similar professional notices. Advertising also extends to situations where practitioners make themselves available or provide information for media reports, magazine articles, or advertorials, especially if the practitioner (author) promotes a specific regulated health service provider.

However, advertising excludes:

– Material given to patients during consultations designed to provide clinical or technical information about health conditions or relevant/recommended/clinically appropriate procedures, with the person having ample opportunity to discuss and ask questions. This information should not refer to services by the practitioner that might be perceived as promoting their services rather than providing general information about a procedure or practice.

– Material issued by a person or organization for public health information, public health programs, or health promotion activities (e.g., free diabetes screening).

– Tenders, tender processes, competitive business quotations and proposals, and references about non-health services in those processes, provided the material is not made available to the general public or used for promotional purposes (e.g., published on a website).

– Comments by a patient on a social media or patient information-sharing site not used for advertising a regulated health service, and not owned, operated, or controlled by the practice or practitioner mentioned in the comments.

– Promotion of a profession, training, or education for a profession.

Ahpra:

Stands for the Australian Health Practitioner Regulation Agency. Ahpra operates under the governance of the National Law and provides administrative and policy support to the 15 National Boards responsible for regulating the 16 registered health professions.

Health practitioner:

An individual practicing a registered health profession as defined in the National Law.

National Board:

A national health practitioner board established by section 31 of the National Law.

National Law:

Refers to the Health Practitioner Regulation National Law, as enforced in each state and territory.

Person:

Expressions such as ‘person,’ ‘party,’ ‘someone,’ ‘anyone,’ ‘no-one,’ ‘one,’ ‘another,’ and ‘whoever,’ used to denote persons generally, include both individuals and corporate entities.

Purported testimonial:

A statement or representation appearing to be a testimonial, whether provided in the first or third person.

Regulated health service:

A service provided by, or usually provided by, a health practitioner as defined in the National Law.

Social media:

Encompasses websites and applications allowing users to create and share content or engage in social networking, sometimes used for advertising regulated health services. Common social media platforms include social networking, microblogging, photo sharing, video sharing, and forums.

Section 133 of the National Law governs the advertising of regulated health services, outlining specific prohibitions and penalties:

(1) Prohibitions include:

   (a) False, misleading, or deceptive advertising.

   (b) Offering inducements without stating terms and conditions.

   (c) Use of testimonials about the service or business.

   (d) Creating unreasonable expectations of beneficial treatment.

   (e) Encouraging indiscriminate or unnecessary use of regulated health services.

 Maximum penalties:

   (a) Individuals: $5,000

   (b) Body corporates: $10,000

(2) Persons printing or publishing advertisements for others as part of their business do not automatically commit an offense.

(3) Courts or tribunals may consider guidelines approved by National Boards in proceedings related to offenses under this section.

(4) In this section, “regulated health service” refers to a service provided by a health practitioner.