By Helen Carter
UPDATE (18/11/2020): Ahpra has released revised advertising guidelines and advised health practitioners to check and correct their advertising to make sure it complies.
The revised Guidelines for advertising a regulated health service take effect from December 14, 2020.
The National Boards and Ahpra have also updated the Advertising compliance and enforcement strategy for the National Scheme to improve voluntary compliance with advertising requirements and introduce an enforcement approach to non-compliance.
Changes to the guidelines include:
- more content about testimonials, protected titles and claims about registration, competence and qualifications
- new content about the evidence required for claims about the effectiveness of a regulated health service and what is acceptable evidence
- re-structuring of content so that information is easier to find
- new flowcharts to help assess when advertising needs to be supported by acceptable evidence and whether a review is considered a testimonial.
This follows our earlier news that Ahpra will conduct an advertising audit of health practitioners starting next February to check and improve compliance with advertising requirements, meanwhile optometrists must now sign a declaration when renewing registration, confirming they will comply with advertising regulations.
The Australian Health Practitioner Regulation Agency will conduct the audit, modelled on the well-established approach to auditing compliance with core registration standards.
It involves adding an extra declaration about advertising compliance when applying for renewal of registration in 2020. Health practitioners will be required to complete a declaration about their advertising compliance, reminding them of their obligations when advertising their services. The audit will not delay decisions about application for renewal.
The declaration states that if they advertise their services or business as an ‘optometrist,’ advertising complies with section 133 of the National Law and the Board’s advertising guidelines.
The Health Practitioner Regulation National Law advertising requirements state that 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 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.
Fines of $5,000 to $10,000
A registered health practitioner or a business providing a regulated health service whose advertising breaches the National Law may be prosecuted and ordered by a court to pay a $5,000 penalty per offence for an individual or a $10,000 penalty per offence for a body corporate.
The Advertising Compliance and Enforcement Strategy for the National Scheme was launched in April 2017 to support improved compliance with the Health Practitioner Regulation National Law advertising requirements through a risk-based enforcement and educative approach.
A revised strategy and updated Guidelines for advertising a regulated health service to help health practitioners understand their obligations when advertising a regulated health service are expected to be released this year.
The National Boards determined that the audit and renewal declaration were an effective way to determine overall advertising and non-compliance rates, following an advertising audit pilot in 2019.
Kym Ayscough, Executive Director, Regulatory Operations, Ahpra. Photo, Ahpra
‘Auditing will support improved compliance with advertising obligations across the entire registrant population, not just those who have had an advertising complaint,’ Ahpra Regulatory Operations Executive Director Kym Ayscough said. ‘It will also provide opportunities to become more proactive in preventing non-compliant advertising by registered health practitioners.’
Ahpra’s Advertising Compliance Team will do the audit from February 2021 and it will involve health practitioners who renewed their registration in 2020.
Practitioners who are renewing non-practising registration and those who have contacted Ahpra in response to a complaint about their advertising in the past 12 months will not be included in the audit sample.
Ahpra and the National Boards developed the nationally consistent proactive approach to auditing health practitioner compliance with the advertising provisions of the National Law.
When registered health practitioners renew their registration, Ahpra will ask them to declare that, if they advertise, their advertising meets the National Law’s advertising requirements. It will conduct audits to check practitioner compliance with these declarations and the advertising requirements.
The audit sample will be sufficient to generalise the outcomes to an entire profession and will enable insight into the overall advertising and non-compliance rates for individual professions.
This will also help determine what profession-wide education interventions would be effective as a compliance mechanism. If a practitioner is selected for audit, they will receive correspondence from Ahpra that will outline what they need to do to become compliant.
In 2018-2019, Ahpra received 515 low-risk to moderate-risk advertising complaints about registrants under the strategy. Only one of these complaints related to an individual optometrist.
In 2017-2018, 820 low-risk to moderate-risk advertising complaints were received.
An Ahpra spokesman said the advertising audit pilot in 2019 was in chiropractic and dental professions and confirmed that a more proactive approach could help educate practitioners about their professional obligations and ensure timely remediation of inappropriate advertising for the benefit of the public.
‘The use of a declaration reminds practitioners of their obligations when advertising their services, and we expect the use of declarations combined with proactive auditing will improve advertising compliance across the entire registrant population, rather than focussing solely on registrants who have been the subject of an advertising complaint,’ he said.
‘As reported in our 2018-2019 annual report, where practitioners have been informed of advertising breaches, there have been no instances of continued non-compliant advertising that required regulatory action through the imposition of advertising restrictions. The data in 2018-2019 confirmed that nearly 50 per cent of registrants became compliant in response to an initial letter about the advertising breach.
‘The remainder become compliant when the imposition of advertising restrictions is being proposed through a show cause notice providing more specific details of breaches. This demonstrates the effectiveness of educating practitioners about their professional obligations and ensures timely remediation of inappropriate advertising for the benefit of the public.’
For more information about your advertising obligations read Ahpra’s advertising resources page and Optometry Australia’s advertising regulations page.
Remember to renew your registration by November 30.
Tagged as: AHPRA & OBA, Audits, Fees & registration