AMA Victoria - Vicdoc August/September 2019

The trouble with testimonials The law Section 133(1)(c) of the Health Practitioner Regulation National Law states that a person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that uses testimonials or purported testimonials about the service or business. What are testimonials and why are they banned? A testimonial is a statement, review, view or feedback about a service. AHPRA advises that in the context of the National Law, a testimonial involves recommendations or positive statements about clinical aspects of a regulated health service. Testimonials may be found under a tab or heading ‘Testimonials’ on a practice website or information brochure; in the Reviews tab on a practice’s or doctor’s Facebook page; or in comments on a practice’s or doctor’s Instagram feed. Testimonials are banned as they can be misleading and one person’s outcome may not be relevant to others. They are not objective or scientific and patients cannot assess their validity. Which testimonials am I responsible for? You are responsible for reviews or testimonials which appear in advertising that you control – e.g. if you are the practice owner, you control your practice’s Facebook page. You are not responsible for removing (or trying to have removed) testimonials published on a website or social media over which you do not have control, for example, ratemds. com. However, a breach of the National Law may occur if you use such a review to advertise, respond to the review or republish it on your website. You are not required to try and remove Google reviews. However, if you respond to a Google review, this could be considered a testimonial if, for example, the response includes clinical aspects of care. What reviews are allowed and can I edit reviews? AHPRA’s testimonial tool helps advertisers understand which reviews can and can’t be published. You can’t refer to clinical aspects, such as symptoms, diagnosis, treatment, outcome, or the skills or experience of the practitioner. Recent publicity about HealthEngine altering negative patient reviews and publishing them as "positive customer feedback” led AHPRA to issue guidance that selectively editing reviews or testimonials may break the law. What if my advertising contains testimonials? If AHPRA becomes aware that advertising contains testimonials, they will write to the responsible practitioner asking them to check their advertising and correct the content to comply with the National Law. Usually a practitioner is given 60 days for this, after which AHPRA may conduct an audit to see if the changes have been made. If the audit finds the advertising still non-compliant, AHPRA can impose conditions on a doctor’s registration that restrict how and what they can advertise. Fines may also be imposed by a court and the Medical Board can take disciplinary action. Why can’t I use testimonials if my colleagues and competitors are using them? This is like saying, “Why can’t I speed when other cars are speeding?” Karen Stephens Risk Adviser MDA National References available from the Editor on request. This article is provided by MDA National. They recommend that you contact your indemnity provider if you need specific advice in relation to your insurance policy. 18 | Vicdoc August / September 2019 A chiropractor was found to have used false and misleading advertising about being able to cure cancer and to have used testimonials in website advertising. He was given a criminal conviction, fined $29,500 and deregistered for two years. Although the claims about curing cancer were more serious than the use of testimonials, the findings in one of the hearings included the following: The two testimonial offences demonstrate that the practitioner took no steps to stay up to date with current professional laws and standards on advertising and failed to understand why such material may be dangerously misleading to patients.