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You Can't Say That - Advertising and the National Law

Gardner Legal & Regulatory often assists health practitioners who are seeking guidance on their obligations under the Health Practitioner Regulation National Law (National Law).In this post, we discuss compliance with advertising requirements under the National Law, identify some of the biggest risks of providing a regulated health service (and what that really means), and tips for setting up multiple businesses with different service offerings.


Disclaimer

This information provided by Gardner Legal & Regulatory Pty Ltd does not constitute legal advice, and is provided for general information only. It is not intended to be comprehensive, and is not a substitute for legal advice (nor should it be relied upon as such.) Please seek independent legal advice or other professional advice in relation to any particular matters you, your health practice or other organisation may have. Gardner Legal & Regulatory makes no warranties or representations about the content. We exclude, to the maximum extent permitted by law, any liability which may arise as a result of the use of this content. Where liability cannot be excluded, any liability incurred by use in relation to the use of this content is limited to the extent provided for by the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010). To the extent permitted by law, we will not be liable for any indirect, incidental, special or consequential loss. Use of this content is not intended to create, nor does it create, a solicitor-client relationship between you and Gardner Legal & Regulatory Pty Ltd. Liability limited by a scheme approved under Professional Standards Legislation. Gardner Legal & Regulatory Pty Ltd | An Incorporated Legal Practice ACN 631 757 778


1. Get Advice

From the outset, it is important to recognise that it is rarely possible to avoid any risk, and that what the most important thing to do is appropriately weigh and manage risk.

It will depend on the individual circumstances of each practitioner and practice – sometimes there will not be very much that needs to be done, while at other times, there will be a lot of work that is required.

We recommend obtaining appropriate insurance, legal and business advice before you commence operating a health practice or offer any other service. Significant time and money can be saved by ensuring that you are prepared, rather than seeking to fix errors down the track.



2. Limit risk

Considerations of risk and compliance management will vary depending on a number of different factors, including but not limited to:

  • The nature of the service;

  • The risks and benefits of the service;

  • Who the service is being provided to;

  • Whether the content or service provided in person, online, or a mix of both;

  • Whether there is a risk of indiscriminate use of health resources; and

  • Whether there is a potential crossover of clientele between a regulated health service by the practitioner, and that separate service.

Documents that can be used to limit risk, and set clear expectations of the service offered include a:

  • Privacy policy;

  • Terms and Conditions Form; and

  • Consent Form (often combined with Terms and Conditions).

Other useful documents which can vary greatly depending on the service provided include:

  • Service agreements;

  • Mentoring agreements;

  • Coaching agreements;

  • Flyers and descriptions of programs; and

  • Disclaimers.


3. Know the Law

The most critical section of the National Law that you should understand when it comes to advertising a health business or a business operated by and/or with services offered by a health practitioner, is section 133:

(1) 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; or

(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; or

(c) uses testimonials or purported testimonials about the service or business; or

(d) creates an unreasonable expectation of beneficial treatment; or

(e) directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

Maximum penalty—

(a) in the case of an individual—$5,000; or

(b) in the case of a body corporate—$10,000.


(2) A person does not commit an offence against subsection (1) merely because the person, as part of the person’s business, prints or publishes an advertisement for another person.


(3) In proceedings for an offence against this section, a court may have regard to a guideline approved by a National Board about the advertising of regulated health services


(4) In this section—

regulated health service means a service provided by, or usually provided by, a health practitioner.


While Section 133 can appear relatively simple to comply with, looks can be deceiving. Some critical things to consider if you are providing a regulated health service are:

  • Avoiding package deals, special offers and/or discounts. While they can be used, special care needs to be taken to ensure that they do not encourage indiscriminate use or unnecessary use of a health service.

  • Testimonials are completely prohibited, and cannot be used. This is because (amongst other things) the information in those testimonials may create an unreasonable expectation of the benefits of the service you are offering.

  • Take care to avoid any information that is unsubstantiated, and reference sources for information where appropriate. When citing references or evidence, you should consult the AHPRA and National Boards’ framework for assessing acceptable evidence for any claims made in their advertising. The framework is available on the AHPRA website through the following link: https://www.ahpra.gov.au/Publications/Advertising-hub/Advertising-guidelines-and-other-guidance/Advertising-guidelines.aspx

  • Avoid making a comparison with your practice and other businesses, including price comparisons – as this may be considered as misleading or deceptive.

AHPRA provides some useful information on its website, which can be accessed by this link: https://www.ahpra.gov.au/Publications/Advertising-hub/Resources-for-advertisers.aspx

In our experience, AHPRA’s approach to compliance with section 133 usually is relatively supportive, and it approaches potential breaches from an educational perspective. It tends to only take significant action and prosecute practitioners for serious breaches. However, it can choose to prosecute a practitioner for any breach, and that it is why it is best to be prepared and seek appropriate advice. AHPRA can also refer a practitioner to their National Board for discipline, which it may do if (for example) it is particularly concerned about the safety of the service.

We recommend that you review your advertising and media presence regularly, to ensure compliance. If you are unsure of an aspect of compliance, seek advice from a solicitor, or your insurer.


4. Is the service you are providing a regulated health service?

Sometimes it can be difficult to determine whether or not the service you are providing is a regulated health service. In that case, the safest course is usually to assume that it is clinical and that you are bound by the relevant Board’s Code of Conduct.

It will depend on your individual situation, so you will need to obtain independent advice according to your specific situation.

Under the National Law, a regulated health service means ‘a service provided by, or usually provided by, a health practitioner’. It is a broad definition, and may cover non-health businesses. However, it is likely that the further your business is from a health business, the less likely a Court would consider it to be a regulated health service.

The primary considerations, regardless of where your clients are sourced from, is always making sure that clients are clear about what they are signing up for, and that you’re providing a safe, evidence-based practice with clear boundaries.

If it is not a regulated health service, then you would still need to comply with the Australian Consumer Law (which includes not making false/misleading claims), but that is not a matter that is likely to be dealt with by AHPRA.


5. What to do if you are offering a non-regulated health service?

If you are seeking to provide a service that you do not consider is a regulated health service, then you would want to ensure that you separate your clinical and non-regulated health service businesses are as separate as they can possibly be.

That includes:

  • Separate premises (if possible), or at the least, different entrances/exits is preferable with different signage;

  • Separate websites;

  • Different contact details, social media etc. is advisable; and

  • Trying to avoid using clinical claims/qualifications in promoting your non-clinical service, and ensuring that all of your advertising, contracts and terms and conditions make it very clear that this is not a clinical service, and that you are not providing a medical/psychology/dental etc. service.

There is always a risk that you may be investigated by AHPRA or similar regulator, but if you can show that you have been very clear and open in what you’re providing, then you will have reduced any risk to the public – and this means that the Board (or a Court) is less likely to be concerned.


6. Disclaimers for multiple businesses

One of the best ways to evidence a clear separation of your businesses, is to include appropriate and highly visible disclaimers on websites, advertising, forms and documents, and any other platform where you are advertising the non-clinical service.

Depending on the non-regulated health service on offer, these disclaimers can be very short and simple, or require greater explanation and presence on a platform.

At the very least, a disclaimer for a non-regulated health service should hit the following points:

  • The service on offer is not a regulated health service, and

  • The participant or client will not be receiving medical (or psychological etc.) treatment or advice, in the course of engaging with the non-clinical service.


7. Dual Relationships

Regulators can be highly sensitive to the issue of dual relationships, and the vulnerability and risk to clients. The extent to which this may be an issue for your practice and non-clinical service will depend on:

  • How closely the businesses are related; and

  • What protections you have in place to ensure that the risk of dual relationships are minimised to reduce the risk of a client being exploited.

Most Codes of Conduct or Codes of Ethics specifically talk about dual or multiple relationships., or conflicts of interest. We recommend seeking independent legal advice to consider if any client or patient might in some way be exploited, or seen to be exploited, or what other risks might arise.


8. Insurance

It is important to check with your insurer to see whether your practice might sit outside of your current insurance coverage. If it does, you will need to approach a broker or financial advisor to get advice on your insurance needs.


9. Records, Records, Records

Last, but certainly not least, when making decisions about your business(es), whether it be providing a regulated health service or not, is to keep detailed contemporaneous records of all of the decisions you are making and why.

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