AHPRA (Australian Health Practitioner Regulation Agency) recently announced a number of revised guidelines/codes/policies for health practitioners, which came into effect on 17 March 2014.
The new social media policy, and more specifically, how a part of Section 133 of the National Law (relating to the use of testimonials for advertising) has been interpreted in the Guidelines for advertising regulated health services (advertising guideline), has caused an upswell of anger in doctors who use social media. GP and blogger, Dr Edwin Kruys summarised the events and its fallout. Dr Jill Tomlinson, a plastic surgeon, is leading an online action group to call on AHPRA to review the advertising guideline.
Today, AHPRA made one concrete action that I view as both encouraging, and entirely inadequate. They released a FAQ (frequently asked questions) document dated 18 March 2014 that suggests that the National Boards acknowledges the unreasonable burden placed upon health practitioners by the revised advertising guideline. The stated perspective in the FAQ appears pragmatic. It states (excerpts):
Advertising and testimonials
There is a clear difference between advertising – which requires an advertiser’s intent to promote a health service – and unsolicited online comment, which does not involve an advertiser’s intent to promote a health service.
Social media and testimonials
1. How do the advertising guidelines and social media policy apply to online comments about practitioners?
The National Boards recognise that practitioners are often unable to be aware of and control what is written about them in a public forum.
The advertising guidelines apply only to advertising of regulated health services. They do not apply to unsolicited online comment over which practitioners do not have control.
…
The Boards do not expect you to monitor social media except as described above.
2. What is a testimonial?
The National Law prohibits the use of testimonials or purported testimonials in advertising.
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The guidelines do not prohibit unsolicited public discussion and opinion sharing about practitioners outside the context of advertising a regulated health service…
The FAQ is reasonable. However, it explicitly contradicts the actual advertising guideline. Section 6.2.3 of the Guidelines for advertising regulated health services states (excepts):
There are a number of independent websites that invite public feedback/reviews about a patient’s experience of a regulated health practitioner, business and/or service. These websites are designed to help consumers make more informed decisions and increase transparency of interactions.
A review is not considered to be a testimonial or purported testimonial, in breach of section 133 (1)(c) of the National Law when it only comments on non-clinical issues, regardless of whether it is positive, negative or neutral.
Reviews must not contain statements about the quality of clinical care received from the regulated health practitioner, business and/or service.
A practitioner must take reasonable steps to have any testimonials associated with their health service or business removed when they become aware of them, even if they appear on a website that is not directly associated and/or under the direct control or administration of that health practitioner and/or their business or service. This includes unsolicited testimonials.
‘Reasonable steps’ include taking action in the practitioner’s power, such as directly removing, or requesting removal, of the testimonials. For example, a review on a social media site that states ‘Appointment ran very late and magazines were old’, is not considered a testimonial as it makes no reference to the clinical care provided by a regulated health practitioner, business or service. However, a review on the same social media site that states ‘Practitioner was quick to diagnose my illness and gave excellent treatment’, is a testimonial which references clinical care and is considered in breach of the National Law.
Once the practitioner becomes aware of the testimonial, they must take reasonable steps to have the testimonial removed (also refer to Section 7.1 on social media).
The advertising guideline gives explicit and unambiguous detail, including an example, on what a practitioner is supposed to do. This is in stark contradiction to the again, explicit and unambiguous instructions in the FAQ.
The introduction in the FAQ includes a rather condescending statement that the advertising guideline is “intended to be read as a whole” and that “it may be more difficult to interpret small sections of the guidelines when they are read outside this context”. I fail to see how a reasonable person could possibly interpret the FAQ as simply clarifying or explaining the text of the advertising guideline – the two instruct practitioners to behave in a mutually exclusive manner on the issue of unsolicited online comments over which practitioners do not have control, that refer to a practitioner’s clinical care.
This is highly problematic. A FAQ does not hold any authority. It is not a revision or addendum to the advertising guideline. It does not redact the guidelines and AHPRA and the National Boards clearly expect practitioners to comply with its guidelines/codes/policies. To claim that the FAQ is actually an interpretation that is consistent with the contents of the advertising guideline, simply renders both documents unintelligible.
AHPRA and the National Boards must revise the the advertising guideline. Given that they were able to produce such a clearly articulated statement within the FAQ, I would not have thought this difficult – replace the offending text in Section 6.2.3 that is inconsistent with the FAQ, with something that is.
