Social Media for Doctors - don't post until you've read this

We all know social media is the new “black” when it comes to marketing and advertising, with the ability to deliver real benefits to business revenue, but what are the implications of using social media for doctors? How should they use it? And what is legally and ethically at play here? With several and relevant pieces of legislation in place, navigating advertising standards for medical practices and health service providers can be a minefield, particularly when it comes to social media.

So what exactly does the Law say?

At the moment, the Health Practitioner Regulation National Law (the “National Law”) does not contain a specific definition of ‘advertising’, but it has been taken to include all forms of printed and electronic media, including social media. Therefore, it is essential Doctors understand the impact of providing information on social media platforms. This includes replying to a comment on Facebook, posting a link on Twitter, or writing an article on LinkedIn. All of these actions are considered to be ‘advertising’ for the purpose of the legislation; even if the Doctor's intention is to simply provide some feedback, information or respond to a question. Before we go on to navigate this tricky landscape further, it may be useful to consider the principles behind the National Law. Advertising guidelines in the medical industry are designed to protect consumers and patients from false and misleading information that may compromise their health care choices. The law relating to medical advertising derives from several sources. Most importantly is the “National Law” which governs advertising for health practices and services, but also in play is the Therapeutic Goods Advertising Code 2007 (the “Code”). The Code contains provisions relating to the advertising of medicine, vitamins, and medical devices. In addition to these industry-specific laws, there is the Commonwealth Competition and Consumer Act 2010 and the Fair Trading legislation of each State and Territory. Both impose standards for advertising and obligations to conduct your business in a manner that guarantees consumers’ safety and the provision of suitable products and services. 

How do I know what are acceptable types of advertising?

Fundamentally, advertising of medical and health services must be factual, accurate and clear. For example - if your advertising creates unrealistic expectations as to the effectiveness of the medication or service you provide then you will fall foul of the National Law. This includes using sweeping statements such as “achieve the look you want”, or “look better and feel confident”. Similarly, if your Practice promotes inappropriate or unnecessary use of health services, you will also be breaching the National Law. Examples of this kind of advertising include using words such as “don’t delay” or “get your test results today”. Fundamentally, any statement that misleads, or more importantly, may be likely to mislead a consumer contravenes the National Law. The distinction here is important because the legislation will not consider whether it did, in fact, mislead anyone –only that someone, particularly those who may be vulnerable, could be misled. 

What does this mean for social media?

The informal nature of social media makes using these platforms a particularly perilous affair, especially for Doctors. Casually commenting on a Facebook post about recovery times constitutes improper advertising, as does recommending a treatment or medicine without fully disclosing all associated risks. Plastic surgery, weight loss clinics, skincare and beauty treatments are the services that most likely spring to mind here, but you don’t have to scroll too far through your Facebook feed to see claims like: “Get the Flu Shot before the Flu gets you”, or “Bone density testing FREE today!” These statements, while they promote valuable and legitimate health services could, as stand-alone statements, fail to meet the standards of the National Law, and cause the regulator to come knocking on the door of those businesses. The use of images, particularly the use of ‘before & after’ photos are also heavily prescribed under the legislation. Images must depict a real patient who has fully consented to the use of their image for advertising purposes. If the picture represents a before and after, it must be the same or substantially the same photo, including lighting, background, framing, exposure, posture and clothing. 

What are the implications for non-compliance?

It’s important to note that owners of a Private Practice cannot delegate their duties under the legislation. Practitioners must read and expressly authorise any and all content, article or media reports (advertorials) that promote a health service or therapeutic product. In addition to fines of up to $5,000 for an individual and $10,000 for a corporate entity, breach of the National Law advertising standards will trigger disciplinary action by professional bodies for unprofessional conduct. Consequences for a violation of professional conduct standards are broad but can include a restriction on practice, or ultimately, revocation of your practising certificate. 

With all this in mind, should I even be using social media?

Definitely. Social Media is a legitimate communication channel and one which Doctors can benefit from using. Consideration just needs to be made as to what you’re posting, where you’re posting it and what claims you are making in your posts. You can read more about marketing your business online here.

Want to make sure you’re legally compliant but don't know where to turn?

Contact us if you would like to have more information. Our lawyers at You Legal will be happy to assist you in whatever way we can.

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