Previous posts outlined the codes of conduct for Australian healthcare practitioners and avenues for making official complaints. In addition, national practitioner boards have jointly developed advertising guidelines for registered practitioners, administered through AHPRA. For unregistered practitioners outside NSW, deceptive advertising may come under the Fair Trading Act.
Advertising breaches by registered healthcare practitioners
Australia’s Health Practitioner Regulation National Law, which is designed to protect the health and safety of the public, contains sections which apply to the regulation of advertising of services provided by registered health practitioners. Registered practitioners include doctors, psychologists, physiotherapists, Chinese Medicine practitioners, pharmacists and dentists.
As mentioned in previous posts regarding registered practitioners and particularly doctors, notifications of breaches of the codes and guidelines can be made to the Australian Healthcare Practitioner Regulatory Authority, AHPRA, in all states. The phone number is 1 300 419 495
There are risks that false, misleading or deceptive advertising can lead to the indiscriminate or unnecessary provision of health services, or create unrealistic expectations about the benefits, likelihood of success and safety of such services, with possible adverse consequences for consumers. There is potential for inaccurate or misleading advertising of health services to cause harm to consumers, both physically and psychologically. This is particularly relevant in cases in which the consumer may be vulnerable or not sufficiently well informed to make a decision about the suitability of certain types of services.
The Australian Competition and Consumer Commission (ACCC) takes action against persons who make false or misleading claims about their products or services, and profit from the desire of vulnerable people to change their appearance or improve their wellbeing.
The (Health Practitioner) National Law does not contain a definition of ‘advertising’. Therefore, for the purposes of these guidelines, advertising includes but is not limited to all forms of printed and electronic media…
Advertising also includes situations in which practitioners make themselves available or provide information for media reports, magazine articles or advertorials, including where practitioners make comment or provide information on particular products or services, or particular practitioners.
In particular, s. 133 of the 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 —
(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 sets out 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.’
3.3 Substantiation of claims
Practitioners must be certain that they can substantiate any claims made in advertising material, particularly in relation to outcomes of treatment, whether implied or explicitly stated.
5 What is unacceptable advertising?
(a) create or be likely to create unwarranted and unrealistic expectations about the effectiveness of the health services advertised
(c) mislead, either directly, or by implication, use of emphasis, comparison, contrast or omission
(h) lead to, or be likely to lead to, inappropriate self- diagnosis or self-treatment
(i) abuse the trust or exploit a lack of knowledge by patients or clients
6.7 Use of scientific information in advertising
The boards encourage caution when using scientific information in advertising of regulated health services. When a practitioner chooses to use scientific information in advertising, it should:
- be presented in a manner that is accurate, balanced and not misleading
- use terminology that is understood readily by the audience to whom it is directed
- identify clearly the relevant researchers, sponsors and the academic publication in which the results appear
- be from a reputable and verifiable source.
Relevance: The original website for Esoteric Breast Massage claims women’s breasts hold ‘energetic imposts’ and when breasts are affected, so too are the, lungs, digestive system and ovaries, and that EBM ‘assists to heal many issues such as painful periods, polycystic ovaries, endometriosis, bloating/water retention, and pre-menstrual and menopausal symptoms.’ All of the above is outright fiction. EBM was invented by Serge Benhayon. Serge has no medical or scientific qualifications. Serge Benhayon has no qualifications at all. Without medical qualifications he cannot establish a clinical basis for a therapy. The above claims cannot be substantiated. According to the guidelines above, patients who underwent EBM on the basis of such claims have cause for complaint. If you like, you may add the link above to your complaint, or attach some screenshots, or if that site archive is pulled down, contact me and I can forward you mine.
Any similar advertising or webpages making claims to Esoteric healing modalities being effective in treating symptoms or illness, including patients recovering from or undergoing chemotherapy are similarly misleading. Serge’s invented modalities don’t do zip for symptoms, and no one, including the doctors, have any basis for claiming otherwise. Serge’s therapies are only good for extracting money from the vulnerable.
The fact that Universal Medicine even uses the title ‘medicine’ and has done since long before the doctors got involved could probably be classed as misleading or deceptive. I haven’t made a complaint about that specifically, yet, but if anyone would like to mention that in their complaint, please be my guest.
Advertising Restrictions for unregistered practitioners
As discussed in a previous post, NSW has a code of conduct for unregistered practitioners, and practitioners may be prohibited from practice if found to be in breach of the code and deemed to be a risk to public health. (They must be found to be both). Unregistered practitioners in NSW are defined as anyone claiming to offer a health service, including naturopaths, dieticians, exercise physiologists, massage therapists and the unqualified Esoteric healing brigade.
Unfortunately, there is no such code in states outside NSW, and therefore limited protection for patients of such practitioners, however, deceptive or misleading advertising may be regarded as a contravention of the Commonwealth Trade Practices Act and fall under the jurisdiction of the Australian Competition and Consumer Commission ACCC, as well as state Fair Trading Acts.
In NSW, to reiterate part of the Code of Conduct for Unregistered Practitioners most relevant to advertising, these breaches may form the basis of a complaint:
11 Health practitioners required to have clinical basis for treatments
A health practitioner must not diagnose or treat an illness or condition without an adequate clinical basis.
12 Health practitioners not to misinform their clients
(1) A health practitioner must not engage in any form of misinformation or misrepresentation in relation to the products or services he or she provides or as to his or her qualifications, training or professional affiliations.
(2) A health practitioner must provide truthful information as to his or her qualifications, training or professional affiliations if asked about those matters by a client.
(3) A health practitioner must not make claims, either directly or in advertising or promotional material, about the efficacy of treatment or services provided if those claims cannot be substantiated.
In states outside NSW, it might pay to enquire with Consumer Affairs/Departments of Fair Trading, seeing the Commonwealth Trade Practices Act permits advertising as long as it isn’t misleading or deceptive or likely to mislead or deceive. There is also a section on unconscionable conduct.
State based fair trading legislation refers to the substantiation of claims, unconscionable conduct, misleading and deceptive conduct, and false representations in relation to goods and services. For more information try the Consumer Affairs departments in Qld and Victoria.