Healthcare advertising: Understanding AHPRA’s strategy to compliance and enforcement

In April 2017, the Australian Health Practitioner Regulation Agency (AHPRA) issued a strategy paper titled:

“Responsible advertising in healthcare: Keeping people safe”¹

Which served to, amongst other things, assist health practitioners in understanding AHPRA’s rationale for compliance and enforcement of advertising requirements in the health space.

The National Regulation and Accreditation Scheme outlines (among other things) how the National Boards and AHPRA will manage advertising complaints and compliance, including the regulatory powers available to address breaches by health practitioners. AHPRA’s goal is:

“to ensure advertising about regulated health services is done responsibly in order to keep the public safe from false or misleading claims”.

AHPRA identifies the following key principles which underpin its compliance and enforcement strategy:

• Risk-based: A focus on the highest risk matters and those with most potential benefit for the public.
• Targeted: Taking an evidence-based approach, including looking to research and other regulators for examples of best practice regulation and behaviour change approaches, with ongoing evaluation as a core strategy
• Proportionate: Taking the minimum compliance and enforcement action appropriate to manage the risk posed, to protect the public.
• Transparent: Setting clear benchmarks for advertising of regulated health services and providing authoritative guidance on what advertisers need to do to comply and how to enforce compliance when appropriate.
• Engaged: Working with the public, professional associations and health practitioners to support better advertising practices.

A key aspect of AHPRA’s strategy is the use of education and engagement with practitioners. AHPRA will focus resources on education and engagement in order to reach the majority of practitioners who want to advertise responsibly and to encourage higher performance.

In respect of enforcement, AHPRA will undertake a risk assessment from the outset of the matter and will flag high-risk matters suitable for prosecution or disciplinary action. For breaches assessed as lower risk, AHPRA will write to advertisers to put them on notice that their advertising is non-compliant and provide resources to help them to comply with the Health Practitioner Regulation National Law (National Law). Further compliance will be checked by targeted and random audits.

Where continuing non-compliance is identified, the practitioner will receive a show cause letter proposing to impose conditions on their registration restricting the practitioner’s ability to advertise their services, and providing a further timeframe to amend their advertising.

If the practitioner’s advertising is not rectified, the conditions will be imposed and before the conditions are removed the practitioner will need to demonstrate their understanding of the advertising requirements. Enforcement action will escalate depending on the ongoing assessment of risk and the response of the advertiser. Continued non-compliance after the imposition of conditions may result in referral to a disciplinary tribunal.

Helpfully for practitioners, in the future, AHPRA will be publishing summaries of compliance and enforcement action taken and may identify specific areas of focus for enforcement action (for example, advertising claims directed at certain patient groups or about certain health conditions).

Reminder to health practitioners

Practitioners are reminded that section 133 of the National Law, as in force in each state and territory, makes it a criminal offence to advertise a regulated health service in a way that is:

• false, misleading or deceptive or is likely to be misleading or deceptive or
• 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 or
• uses testimonials or purported testimonials about the service or business or
• creates an unreasonable expectation of beneficial treatment or
• directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

The maximum penalty for each contravention is a $5,000 fine for an individual and $10,000 fine for a body corporate. The recent decision of AHPRA v Hance Limboro² serves as a reminder to practitioners that AHPRA will prosecute advertising breaches in particular circumstances. Practitioners should remain vigilant to ensure that their advertising is compliant and reviews should be undertaken on an ongoing basis (particularly of online advertising) to ensure continued compliance.

Other advertising regulations

Health practitioners should be aware that there are other legislative requirements surrounding advertising beyond the National Law. For example, the Department of Health Therapeutic Goods Administration (TGA) released a reminder in May 2017 to health professionals and cosmetic/beauty clinics that the advertising of prescription-only products to consumers is illegal. Schedule 4 of the Standard for the Uniform Scheduling of Medicines and Poisons lists all relevant products.³ This is an offence under section 42DL(1)(f) of the Therapeutic Goods Act 1989 and attracts a maximum penalty of $10,800 for an individual and $54,000 for a body corporate.

In order for health professionals and cosmetic/beauty clinics to promote their products to consumers and also adhere to the regulatory advertising requirements, the TGA recommends ensuring no reference is made to any Schedule 4 items.

¹https://www.ahpra.gov.au/Publications/Advertising-resources/Legislation-guidelines.aspx
²Dr Limboro, a registered chiropractor, was convicted of false advertising after he claimed his treatment could prevent, treat and cure cancer. He was also found to have used testimonials in his advertising. Pleading to 13 charges filed by AHPRA, Dr Limboro was convicted, fined $29,500 and ordered to pay AHPRA’s legal costs.
³These products include cosmetic injectables such as Restylane, Collagen and Botox.