Lifting the ban on testimonials in advertising of health services

Queensland – home of the National Law

On 11 May 2022, the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (the Bill) was introduced into the Queensland Parliament and referred to the Health and Environment Committee (the Committee) for consideration.

The Bill would, if passed, amend the Health Practitioner Regulation National Law (National Law), which establishes the National Registration and Accreditation Scheme for health professionals and regulates the advertising of regulated health services.[1]

Queensland is the host jurisdiction for the National Law, which is enacted in each state and Territory in Australia to provide national regulatory uniformity. If the Bill is adopted in Queensland, the changes to the National Law would apply automatically in all other Australian states and territories, except for Western Australia, which must pass its own equivalent legislation, and South Australia, where amendments must be made by regulation.

The Bill comes after recent amendments to the Therapeutic Goods Advertising Code which include a prohibition on the use of incentivised testimonials and testimonials from prohibited people (including health care professionals) in advertising of therapeutic goods. See more on these amendments here, the grace period for which ended on the same day the Committee released its report - 1 July 2022.

Testimonials relating to health services – the law as it stands

The National Law currently prohibits the use of testimonials in the advertising of a regulated health service or a business that provides a regulated health service.[2]

In guidelines published by the Australian Health Practitioner Regulation Agency (AHPRA), which administers the National Law, “testimonials” are defined as recommendations or positive statements about the clinical aspects (i.e., specific symptom, diagnosis, treatment, or outcome) of a regulated health service.

The existing prohibition in the National Law significantly restricts the nature of testimonials that can be used in the advertising of health services - for example, statements relating to a patient’s reasons for seeking treatment, the treatment outcome and the skills or experience of the practitioner are prohibited. However, testimonials about non-clinical aspects of a patient’s experiences are not prohibited (for example, comments about the quality of customer service at a clinic). The current prohibition also does not prevent patients from discussing their experiences using regulated health services, provided their comments are not then used to advertise regulated health services. For example, patients are permitted to express their views online on review platforms. However, any testimonial posted by a patient on social media should not be included on the page of a regulated health service provider (for example, a clinic’s Facebook page). This usually requires careful monitoring or disabling of the review function.

The current penalty for breaching any of the advertising provisions of the National Law, including the prohibition on testimonials, is $5,000 for an individual and $10,000 for a body corporate. A breach of advertising prohibitions is also a criminal offence.

Proposed amendments

As part of broader amendments aimed at strengthening public safety and confidence, the Bill would, if passed:

lift the ban on testimonials used in advertisements for regulated health services or businesses that provide regulated health services;
clarify that “advertise” includes using a testimonial; and
increase the maximum penalty for breaching advertising restrictions from $5,000 for an individual and $10,000 for a body corporate to $60,000 and $120,000, respectively.

As a result, testimonials could be used in advertising of regulated health services, provided the advertising:

is not false, misleading or deceptive;
does not offer incentives to use the service (unless Ts&Cs are disclosed);
does not create an unreasonable expectation of beneficial treatment; and
does not encourage the indiscriminate or unnecessary use of health services.

Rationale for proposed amendments – keeping up in the digital age and protecting consumers

The proposed amendments intend to:

remove the blanket ban that many stakeholders believe is impractical and difficult to enforce;
enable AHPRA to focus on the regulation of testimonials which pose the greatest risk to the public; and
deter advertisers from using advertising that is harmful to the public by increasing penalties for non-compliance twelvefold.

The proposed lifting of the ban reflects the view that the prohibition does not address modern-day consumer expectations, marketing and advertising practices. Specifically, social media is said to have blurred the lines between information and advertising, prompting consumers to expect access to, and the ability to share, reviews and testimonials when making decisions about health services.

As part of its consideration of the Bill, the Committee considered submissions from a range of stakeholders including AHPRA, representatives of medical boards, medical societies, universities and public interest professionals and researchers. The submissions raised a number of policy and practical considerations, summarised below:

What’s next?

The Committee handed down its report on Friday, 1 July 2022 recommending (1) the Bill be passed and (2) the Minister for Health and Ambulance Services not repeal the prohibition on testimonials in the advertising of health services until:

the completion of AHPRA’s Independent review of the regulation of health practitioners in cosmetic surgery, which is currently under way; and

the accompanying guidelines and educational materials have been published.

The Legislative Assembly of Queensland is scheduled to sit on 16 August 2022 when we expect the Bill to be considered for the second reading debate.

Should the Bill pass, testimonials for regulated health services will be treated as any other form of “advertising” under the National Law. This will provide a new way for health practitioners and businesses to advertise regulated health services that many say better aligns with modern consumer expectations of promotional activities.

Advertisers should be cautious

If the Bill is passed, advertisers should take care to ensure that any testimonials that they use are not false, misleading or deceptive, create an unreasonable expectation of beneficial treatment or encourage unnecessary use of their services. This will be a difficult balancing act for advertisers – patients that provide testimonials are typically not aware of the advertising prohibitions in the National Law and – however innocent – are not careful with their language. Selectively editing testimonials or using testimonials that are not genuine would also be considered misleading or deceptive advertising. Severe penalties would apply for not getting this balance right.

Advertisers should also bear in mind that any advertising of regulated health services will remain subject to the general provisions of the Australian Consumer Law which also apply strict penalties for non-compliance.

KWM will monitor the progress of the Bill in the coming weeks.

	Submissions in favour of amendment	Submissions opposing amendment	Example uses 2
Consumer Safety	High risk testimonials will still be caught by the prohibition on false, misleading or deceptive testimonials. Lifting the ban will allow AHPRA to focus its regulatory efforts on areas of greater risk of harm to the public, that being false, misleading or deceptive testimonials. The proposed amendments will not prevent AHPRA and the Medical Boards from acting on the recommendations of the independent review of the regulation of health practitioners in cosmetic surgery.	The average consumer cannot meaningfully comment on the clinical aspects of a health service because they do not have the requisite knowledge, training nor expertise. Increasing the penalties is unlikely to deter the improper use of testimonials if there is insufficient resourcing to identify and enforce the prohibition. The Committee should wait until AHPRA finalises its inquiry into the cosmetic industry to ensure an informed, and robust, approach is adopted.
Consumer Expectations and Current Marketing Practices	Customers expect and benefit from testimonials which are genuine and safe. Customers have access to a large amount of information, including from unregulated jurisdictions. The current social expectation is for consumers to have access to reviews and testimonials when purchasing any service, including health services, and to share the views about the service.	The current prohibition does not limit consumers from posting about their experiences online, it only prohibits the use of positive clinical testimonials from being used as advertisements for a health care service. Unlike the purchase of consumer products, patients typically experience a procedure once, with one practitioner, and have no comparable experience to measure their experience against.
Governance	The Proposed Amendment would bring the National Law in line with general consumer law and achieve regulatory uniformity. The current regulatory position is unclear and difficult to observe and enforce (for example, it is not clear what constitutes “specific clinical aspects”).	The health market and consumer market should not be regulated in the same way because they do not behave the same. Unlike a product, a health service does not have “characteristics” that should be “recommended” by a lay person. A blanket prohibition on testimonials makes it easy to identify non-compliant advertising whereas the ban on testimonials that are false, misleading or deceptive will be difficult to identify and enforce.