Pearls and Irritations

It was only as recently as 1979 that Dr Arthur Burton wrote in his Australian textbook on Medical Ethics and the Law ‘It is the hallmark of a responsible profession that its members do not advertise, and so the ethical rules relating to advertisement are strict.’ In his book he quoted the then advice of the Medical Board of Victoria that: ‘Advertising has for many years been held judicially to constitute infamous conduct in a professional respect, and therefore a ground for deregistration.’

In the intervening 43 years, restrictions on advertising have been progressively relaxed and those restrictions that now exist are poorly policed and rarely enforced by the medical regulator. How has this come about and what has been the impact of deregulation? Have there been benefits or harms from such unrestricted advertising?

The changed approach to advertising by doctors can be traced back to action taken by the Federal Trade Commission (FTC) in the USA in 1975. Until that date, advertising by doctors in the USA had been deemed ethically unacceptable by the American Medical Association (AMA-US) since its first code of ethics was published in 1847. In 1975, perhaps as an early sign of the influence of neo-liberalism, the FTC declared that the AMA-US ban on advertising was anti-competitive. In arguing the case that advertising be permitted, the FTC claimed that increased competition, unleashed by advertising, would lead to lower health care costs. No evidence for this effect has ever been forthcoming. The AMA-US fought the FTC ruling all the way to the Supreme Court where in 1983 the court was divided at 4-4, leaving the new FTC ruling to stand. The flood gates were opened.

It was not many years until the Australian equivalent of the FTC, the Australian Competition and Consumer Commission (ACCC), turned its focus to advertising by doctors and, as a result, by 1994 advertising was now permitted so long as the following criteria were met:

‘A person must not advertise a medical practice or medical or surgical services in a manner which—

(a) is or is intended to be false, misleading or deceptive; or

(b) offers a discount, gift or other inducement to attract patients to a medical practitioner or medical practice unless the advertisement also sets out the terms and conditions of that offer; or

(c) refers to uses or quotes from testimonials or purported testimonials; or

(d) unfavourably contrasts medical or surgical services provided by a medical practitioner or medical practice with services provided by another medical practitioner or medical practice’. (source: Victorian Medical Practice Act 1994, section 64).

These 1994 criteria are virtually identical with those of the current ‘National Law’ which read

‘If you are advertising a regulated health service, your advertising must not:

• be false, misleading or deceptive, or likely to be misleading or deceptive
• offer a gift, discount or other inducement, unless the terms and conditions of the offer are also stated
• use testimonials or purported testimonials about the service or business
• create an unreasonable expectation of beneficial treatment
• directly or indirectly encourage the indiscriminate or unnecessary use of regulated health services’.

These legal provisions are supported and explained by detailed guidelines issued by the Australian Health Practitioner Regulation Agency (AHPRA).

Surprisingly the national regulator, AHPRA, accepts that advertisers are free to display before and after images as its advice includes that ‘care should be taken when using ‘before and after’ images in advertising a regulated health service as they have the potential to be misleading or deceptive. These images may cause a member of the public to have unreasonable expectations of a successful outcome.’

The ACCC has stated that ‘doctors who practise as private practitioners are regarded as carrying on a business’ and are therefore subject to the provisions of the Competition and Consumer Act 2010. Thus doctors are also obliged to be aware of additional laws and regulations surrounding advertising which can be found on the ACCC website.

In 1997, in the first edition of the textbook Ethics, Law and Medical Practice, my co-authors and I wrote, in the context of the mutability of medical ethics, ‘A simple example is the significantly altered attitude to advertising by doctors over the past two decades. Previously, ethical codes strictly limited advertising by doctors on the basis that persons who were ill and seeking medical attention were vulnerable to misleading advertisements which promised more than medicine could offer. This limitation has gradually been replaced by the principle of a community’s right to information.’ We added the following rider: ‘Of interest is that so far only a small minority of doctors have taken advantage of the relaxation of attitudes to advertising and it is still too early to determine whether the change has been to the benefit or detriment of the community.’

In 2022 it is probably time that a well-resourced inquiry be conducted on behalf of the wider community (and not just the medical and other health professions) to examine whether indeed there have been benefits or detriments. Such an inquiry might find:

• That the serious harms arising from cosmetic surgery in otherwise healthy people have been contributed to by widespread advertising, including such advertising vehicles as cosmetic surgeons becoming media celebrities.
• That the costs of advertising are passed on to patients (health consumers) resulting in more expensive health care.
• That the guidelines issued by AHPRA and the health profession boards are more honoured in the breach. (A study of the advertising of Australian orthopaedic surgeons published recently revealed that only 25% were fully compliant with the guidelines and ‘surgeons whose websites appear among the top Google search results violated guidelines more frequently than a random sample of AOA members’).
• That thorough policing of these guidelines would also add to the costs of health care (via the need for AHPRA to increase its staffing, with costs passed on to the health professions).
• That a return to a more limited capacity to advertise medical services would be in the best interests of patients/health consumers.
• That the recent AHPRA proposal to allow doctors to post patient testimonials within their advertisements is not in the best interests of patients.
• That advertising via websites is expensive; marketing experts counsel in favour of word of mouth advertising based on the positive experience of patients.
• That more research is needed to appreciate what patients hope for from advertising and what dangers lurk within. One recent Australian study concluded that ‘the data demonstrated that many health consumers felt that while commercial health advertising was helpful, it was also confusing, with many participants also holding mistaken beliefs around other elements of commercial health advertising. While the advertising of healthcare services might have educational effects and be superficially empowering, advertising is primarily intended to sell, not educate. This research demonstrates that there is significant potential for healthcare advertising to mislead’.

Although the Australian Medical Association (AMA) is often portrayed as the ‘doctors’ trade union’, its 2020 policy about advertising indicates a primary concern for the welfare of patients and the impact of advertising on the inappropriate use of health care resources. Among several concerns, the AMA identifies ‘advertising practices that promote consumerism and pathologise the human condition and experiences can exploit vulnerable individuals, lead them to seek treatments that are not medically necessary, and contribute to poor mental health’. The AMA adds ‘this sort of advertising practice may also contravene the advertising laws; for example, by encouraging the indiscriminate or unnecessary use of health services’.

Any such an inquiry might ask about doctors’ familiarity with AHPRA’s extensive and complex guidelines, whether doctors should be allowed to advertise via social media, what proportion of doctors do advertise via either their own website or via social media, and about what consumers’ desire and experience from advertising (and whether these needs can be met by the present advertising regime?). Additional questions might ask how effective is AHPRA’s compliance and enforcement strategy?

If the inquiry recommends that the current competition law and the National Law and its associated guidelines for regulating advertising by the health professions are appropriate, it might then like to ask whether alleged breaches of the advertising regulations are better dealt with as unprofessional conduct (with the civil standard of the balance of probabilities) versus as a criminal offence (with the criminal standard of beyond reasonable doubt). In my mind, the former approach has more likelihood of providing guidance and effective discipline and deterrence for doctors.

Finally, there have been calls for a Royal Commission into cosmetic surgery. As concerns mount and as the national regulator seems to lack either the powers or the motivation to act, the suggestion of a Royal Commission becomes more appealing. These concerns have only been increased by the report of the independent review of the regulation of medical practitioners who perform cosmetic surgery. This review makes pertinent comments about the limitations of the current advertising guidelines and the failure of AHPRA to monitor advertising by cosmetic surgeons. Should a Royal Commission come to pass, one can only hope that advertising by cosmetic surgeons (and health professionals in general) will be made one of its terms of reference.

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