Can Doctors Use Testimonials in Australia?
Can Doctors Use Testimonials In Australia?
Doctors and other registered health practitioners can only use testimonials in a very limited fashion.
As a general overview and in simple terms, the limits are:
- star ratings are acceptable, without commentary
- general commentary like “friendly prompt service” or “nice offices, comfortable waiting chairs” and similar comments that are not about the health service received, are acceptable.
Registered health practitioners in Australia are required to comply with AHPRA (Australian Health Practitioner Regulation Agency) advertising guidelines, which are set out in section 133 of the National Law (short for the Health Practitioner Regulation National Law).
Due to the complexity of what is, and what is not allowed in advertising of health services, AHPRA has created an advertising hub on its website to assist practitioners.
Since the National Law commenced in 2010 testimonials have been specifically prohibited under section 133(1)(c) as follows:
- 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; …
In May 2022 hope appeared in the form of proposed amendments to the National Law which were tabled to remove the prohibition on testimonials. It was proposed that section 133(1)(c) would be deleted and that testimonials would be treated in the same way as other forms of advertising.
The explanatory notes to the draft legislation acknowledged that the prohibition on testimonials was “…out of step with consumer expectations and current marketing and advertising practices. Testimonials and reviews are common online, and new forms of advertising, particularly on social media, have blurred the lines between information and advertising. Consumers increasingly expect to have access to reviews and testimonials when purchasing health services and expect to be able to share their views about health services and practitioners.”
The removal of that prohibition would have meant that doctors and other health practitioners could have started using testimonials, provided that the testimonials continued to comply with the other rules around advertising, such as not being misleading or deceptive.
Note that a testimonial saying “Dr Yu cured me of diabetes with acupuncture” is still likely to be prohibited, because the practitioner who uses that testimonials would be required to produce evidence-based research showing a cure was possible through acupuncture treatment. The practitioner in that instance, if testimonials were permitted, would be wise to ask their patient to amend the comment to say something like – “After three months of treatment with acupuncture by Dr Yu I no longer experience any symptoms of diabetes.”
Any use of the word “cure” raises red flags with regulators.
However, we are getting ahead of ourselves.
Although testimonials are still prohibited, penalties were increased significantly under the new legislation to $60,000 for an advertising offence by an individual and $120,000 for a company.
Some concerns were raised about removing the prohibition on using testimonials. One report that surveyed consumers on their beliefs about testimonials found “Testimonials were reported to be lacking in reliability (67.7%) and that they should not be used in healthcare in the same manner as they are used in other industries. Only 44.8% of participants reported that they felt confident to spot a review that was not written by a genuine user of a service.”
The straw that broke the camel’s back and reversed the proposal to remove the prohibition on testimonials, which was removed from the draft legislation before it was passed in October 2022 – is the fault of cosmetic surgeons.
Cosmetic surgery is not an identified area of specialty governed by AHPRA and the title “cosmetic surgeon” is not a protected title. What that means is that a person can call themselves a cosmetic surgeon even if they have no special training or qualifications to carry out cosmetic procedures.
In late 2021 an investigation into the cosmetic surgery industry by AHPRA and the Medical Board of Australia (also part of AHPRA) was announced in the wake of media published by Four Corners and Nine newspapers based upon their investigations into a string of clinics owned by an identified plastic surgeon.
The media reports alleged hygiene and safety breaches, and patients suffering ongoing pain, physical and psychological issues.
The report from the AHPRA investigation was published on 1 September 2022 and a number of recommendations were made around managing advertising of cosmetic procedures.
Whilst no specific recommendation was made about the use of testimonials, it was noted that the use of testimonials would not be helpful in avoiding a lack of reliable information for consumers because “Testimonials, when selectively used by practitioners, are more likely to be the opposite; subjective and biased (even when they may not be false, misleading or deceptive). In these circumstances, the review is concerned that testimonials have the potential to further contribute to misunderstanding and confusion among consumers.” [page 87]
Due to the findings made in the report and the limited resources available to AHPRA to implement and monitor changes in its policies, procedures and guidelines, reforms for cosmetic surgeons have taken priority over the removal of the prohibition on testimonials.
The explanatory notes to the legislation as passed note that the issue of patient testimonials needed to be consistent with actions and reforms for cosmetic surgery.
There is no timeframe for AHPRAs work in reforming how cosmetic surgery is regulated, so doctors and other health practitioners should not anticipate a lift in the prohibition on using testimonials any time in the near future, and should keep in mind the significant increase in penalties.
How can Onyx Legal help you?
If you are a health practitioner and worried about the risks in your advertising contact us to have it reviewed.