AHPRA: What You Need To Know About the New Advertising Rules

December 14, 2020

These new rules are the result of a 2-year consultation and review intended to update the 2014 regulations.

So, what’s changed? Well, AHPRA says not a lot, that there are only minor substantive changes to the content and that most of the work has focused on improving readability and making it easier to find information. That’s perhaps not surprising since section 133 of the National Law (on which the guidelines are based) has not changed.

You’d be wise to dig a little deeper than that, though. Key updates include:

Significant new content about the acceptable levels of evidence to use when making claims about the effectiveness of a regulated health service
A new proactive approach to ensuring advertising compliance alongside a risk-based approach to determining the severity of any breach and the appropriate penalty
Additional content about titles and claims about registration, specialty, competence and qualifications
Additional content about testimonials, including whether a review is considered a testimonial and an indication that AHPRA may overlook some types of testimonial.

Improved accessibility and readability

If you found yourself uncertain of your obligations when reading certain parts of the previous guidelines then you’re likely to find the update refreshing.

Plain English has won the day here – a welcome development since the previous guidelines often reiterated large sections of the National Law in untranslated legalese. As AHPRA stated in its consultation paper, the revised draft is expressed in plain language and explains rather than re-states the legislation.

You’ll also notice a rearranged structure that mirrors the relevant subsections in the legislation.

So far, so good. Now let’s examine the more significant changes.

Acceptable levels of evidence to substantiate health claims in advertising

AHPRA argues that there is an important distinction between acceptable evidence for claims made in advertising and the evidence used for clinical decisions.

When you’re with a patient, you can discuss the pros and cons of a proposed treatment as it relates to their particular presentation and treatment goals. There’s a relational aspect there that helps the consumer make an informed decision about their healthcare. Advertising, by its nature, is generic. There’s no chance for discussion and no opportunity to clarify whether a particular treatment is likely to help that patient.

You’ve always had to be careful to advertise medical treatments fairly, not cherry-picking the evidence that suits but rather relying on robust and relevant studies.

That’s because Section 133 of the National Law states:

A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that –
Is false, misleading or deceptive
Creates an unreasonable expectation of beneficial treatment.

The old guidelines warned you against exaggerating claims or basing them on incomplete or biased information, failing to disclose health risks, omitting warnings about any surgical or invasive procedures or making people fear their health will suffer if they don’t use a certain treatment. You also had to avoid implying that a certain treatment was guaranteed to work or contained ‘secret’ ingredients that would benefit the patient.

That said, you also had to be careful not to blind consumers with science. You had to be cautious about using scientific information in advertising to avoid misleading people. If you did use scientific information, you had to present it in an accurate, balanced way using everyday terminology and identifying the reputable, peer-reviewed and verifiable source on which your claim was based.

Since the old guidelines were published in 2014, AHPRA and the National Boards have developed a framework for assessing acceptable evidence for any claims made in their advertising. This has been available on AHPRA’s website since 2019 and is now officially incorporated into the new guidelines.

You’ll find this approach follows standard principles for assessing the quality of medical evidence. In general, evidence is assessed as ‘acceptable’ where a body of evidence rates highly against its:

Source, which should be publicly accessible and reliable
Relevance to your advertising claim
Inclusion of all relevant evidence
Study design, which should be at a level high enough to support your advertising claim
Quality and appropriateness of methodology
Strength – does the evidence show a meaningful effect that supports your advertising claim?

The new guidelines state that the following types of studies will generally not be considered acceptable evidence for advertising claims:

Studies involving no human subjects
Before and after studies with few or no controls
Self-assessment studies
Anecdotal evidence based on observations in practice
Outcome studies or audits, unless bias or other factors that may influence the results are carefully controlled
Studies that are not applicable to the target population.

For a while now, the AHPRA website has contained specific pages to help chiropractors and osteopaths understand how to substantiate therapeutic claims. Essentially, be very careful about any claim relating to improving general health and wellbeing or regarding treatment of non-musculoskeletal conditions.

Similarly, Chinese medicine practitioners are advised to focus on managing the symptoms of some diseases rather than making treatment claims, cannot rely on claims of traditional use since this does not meet standards for public advertising and should not rely on the 2003 WHO statement as this has not been updated for over 5 years.

A new proactive approach to compliance

Under the new Advertising compliance and enforcement strategy for the National Scheme, AHPRA will no longer wait for a complaint to be made before enforcing its advertising guidelines.

Determined to show that the tiger has teeth, it will now:

Insist that you sign a declaration stating that your advertising is compliant each time you renew your registration
Conduct regular audits of a sufficient sample size to generalise the outcomes to the entire profession so it can advise the National Boards of the overall advertising and non-compliance rates for their profession to determine whether any profession-wide education interventions are needed to improve compliance.

If you’re not sure whether your advertising is compliant, then contact Splice Marketing for a review.

If you do fall foul of the rules, AHPRA will continue to take a risk-based approach to compliance that takes into account:

The severity of a breach based on the risk it poses to consumers (see below)
Whether the breach represents an unwitting error or a deliberate intent to circumvent the guidelines.

According to AHPRA, high-risk advertising practices:

Raise concerns of actual harm to consumers
Make misleading claims about curing serious illnesses, such as cancer or public health emergencies e.g. COVID-19
Target vulnerable groups, 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 potential to have significant adverse impacts on healthcare choices, and/or
May also involve allegations of a person holding themselves out to be a registered health practitioner or unlawfully using a protected title. We will periodically review and update this list as needed

AHPRA still has the power to impose serious penalties so it’s important you follow the guidelines to the best of your ability.

Who can call themselves a doctor or specialist?

The rules on using titles, specialties and qualifications have not changed though AHPRA has provided additional content to help you understand them.

The overarching theme of the guidelines is to avoid misleading the public. That’s why you have to be careful about how you present your title, qualifications and areas of expertise.

The key things to remember here are:

In ordinary usage, ‘Dr’ means a medical doctor. If you’re not one of those but do have a PhD or other qualification that means you can legitimately style yourself ‘Dr’ then it’s important to add your registration category in brackets afterwards, such as ‘Dr Amanda Jones (chiropractor)’ or ‘Dr Bob Anderson (psychologist).
Unless you are registered in an approved specialist category, do not refer to yourself as a ‘specialist’ or give the impression that you are one. It is acceptable to say that you have a special interest in a certain area of practice.

Testimonials and reviews

The rules on testimonials and reviews have not changed but it seems there is now some wriggle room in their enforcement.

You still can’t use testimonials in your advertising. The rules continue to prevent testimonials about your clinical care, defined as anything that references:

Symptoms and the reason for seeking care
Your diagnosis and treatment
Outcomes, both the specific outcome of the consultation and your skills and experience (either directly or by comparison).

AHPRA does not hold you responsible for positive or negative reviews on third-party websites since you can’t control these. However, you must not repost these reviews (that does count as advertising) and should be wary of engaging with them by replying.

AHPRA has signalled something interesting in its Advertising compliance and enforcement strategy for the National Scheme, stating that

Time will tell how this works in practice and where AHPRA draws the line. It’s probably best to err on the side of caution for now.

How Splice Marketing can help

You already have a demanding job and a high workload. While compliance with advertising codes remains your responsibility as a registered health professional, we can help by:

Reviewing your current advertising before you need to renew your registration – under the new rules you’ll have to declare that your advertising is compliant
Creating compliant marketing materials, websites, social media campaigns and blog posts
Drawing on the expertise of our in-house lawyer who used to sit on the AHPRA board.

If you’d like help to ensure your advertising complies with the new guidelines, then please contact Splice Marketing. We’re here for you.

Disclaimer

All information is general in nature. Healthcare professionals should consider their own personal circumstances and seek a second opinion from a medico-legal expert if you have any further questions.