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Welcome to the second bulletin of the Osteopathy Board of Australia (the Board).
This bulletin follows on from our first bulletin (June 2015) which provided advice to osteopaths on the Guidelines for advertising regulated health services. This was shared with practitioners after the Board voiced its concern about advertising complaints about osteopaths.
There are still a significant number of complaints about advertising by osteopaths. We should all consider our obligations and make sure we comply with the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law).
All National Boards are concerned about protecting the public and are progressively providing these common messages to their registrants. The information in this bulletin applies to all registered health practitioners. The Board will continue to actively consider how we can help registered health practitioners to better understand their advertising obligations.
We have recently published Further information on advertising therapeutic claims for osteopaths. This builds on the advice you already received in our first bulletin on advertising and provides further information for you to consider when it comes to advertising your services, including the level of evidence needed to substantiate advertising claims and the use of specific words in advertising.
I would encourage you to check your advertising against the information shared with you in this bulletin. Take time this week to review your web advertising and that of your practice – and make any changes immediately. Have a conversation with your colleagues about the standards everyone must meet when advertising regulated health services.
If your advertising does not comply, you may be the subject of an advertising complaint and when this happens you will be contacted by AHPRA. To avoid this, take early action and remember if in doubt about a claim, leave it out of your advertising!
We hope you find this bulletin a useful resource and I would encourage you to discuss it with your osteopath colleagues.
Dr Nikole Grbin (osteopath) Chair, Osteopathy Board of Australia
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Section 133 of the National Law regulates the advertising of regulated health services (a service provided by, or usually provided by, a health practitioner as defined in the National Law). Section 133 provides that a person must not advertise regulated health services in a way that:
Registered practitioners must not advertise health benefits of their services when there is not acceptable evidence (see explanation below) that these benefits can be achieved.
Under the National Law, the evidence required for therapeutic claims in advertising and the evidence to be used in clinical decision-making about particular treatments is different. A higher standard of evidence is required to support claims made in advertising regulated health services. This is because in advertising, a statement may be easily misinterpreted or taken out of context and then become misleading. It is the overall impression created by the advertising that will be judged and, as such, it is possible for statements that are technically true to be misleading or deceptive in certain contexts.
The National Law bans advertising that creates an unreasonable expectation of beneficial treatment. The claims of beneficial treatment can range from unsubstantiated scientific claims through to miracle cures.
Advertising claims that are contrary to high level evidence are unacceptable.
You should make sure that any information you publish about your services is factual and verifiable.
AHPRA is responsible for prosecuting breaches of the advertising requirements in the National Law. This means that AHPRA, with National Boards, needs to decide objectively whether there has been a breach that should be prosecuted.
There are many aspects that are taken into consideration when evidence is reviewed and each claim is assessed on its merits alongside the evidence presented to support it.
Relevant issues AHPRA consider when assessing whether there is acceptable evidence for therapeutic claims include:
When considering whether advertising claims are misleading or deceptive or create an unreasonable expectation of beneficial treatment, AHPRA will consider the advertising as a whole from the perspective of a member of the public.
The following types of studies will generally not be considered acceptable evidence for advertising claims:
The evidence base for clinical practice is constantly developing so it is important to make sure that the evidence you rely on is current.
Providing a therapy that has been used over many years is not enough to justify therapeutic claims. We appreciate that many therapies have a long history however, that alone is not good evidence for advertising claims.
The history and tradition of a therapy can be described in advertising so long as care is taken to not make therapeutic claims, unless there is acceptable evidence to support them. Patient feedback alone will also not satisfy the requirement for acceptable evidence about advertising claims.
Practitioners must take care to not mislead or create false impressions when using scientific information in advertising. Practitioners who include scientific information in advertising must ensure that the information is presented in a manner that is accurate, balanced and not misleading and use wording that is understood readily by the target audience.
The advertising must clearly identify the relevant researchers, sponsors and the academic publication in which the source scientific information or results appear, and be from a reputable (e.g. peer reviewed) and verifiable source.
Some words have more potential to mislead or deceive when used in advertising, so it is important to consider their use very carefully.
A number of registered health practitioners have been the subject of tribunal findings about breaches of advertising requirements.
Examples include:
In Medical Board of Australia v Lai [2011] VCAT 1754, the Victorian Civil and Administrative Tribunal found that Dr Lai had engaged in unprofessional conduct in his advertising of chelation therapy, by creating an unreasonable expectation of beneficial treatment by making unqualified claims about the benefits of chelation therapy and by failing to state in the advertisement that the effectiveness of chelation therapy has not been established by peer-reviewed scientific research to have the benefits claimed.
In Chiropractic Board of Australia v Hooper [2013] VCAT 878, the Victorian Civil and Administrative Tribunal found that Dr Hooper’s claims on his website about hyperbaric oxygen treatment were misleading and deceptive because he did not present a balanced view about the effectiveness of hyperbaric oxygen treatment for specified conditions, including that such treatment was not conventionally used in Australia and in western countries with a comparable health service culture and was not supported by medical and scientific evidence.
In Chiropractors Registration Board v Yil Yildirim [VR86 of 2007], the State Administrative Tribunal (SAT) in Western Australia found (by consent) that Mr Yildirim was guilty of misconduct for, among other things, misleading advertising material provided to the patient stating that chiropractic services offered by him ‘saved lives’, which were unnecessary and capable of being misinterpreted.
In Medical Board of Australia v William Barnes [VR107 of 2013] the SAT in Western Australia found, by consent, that Mr Barnes had advertised and promoted medical services or caused or permitted medical services to be advertised on a website maintained on the internet that stated, represented or implied that the treatment could cure cancer; there was no sound scientific basis upon which Mr Barnes could truthfully represent to patients the claim that the treatment could cure cancer; and the advertisement caused his patients, prospective patients and members of the public to be misled by the false representations, giving risk that patients may delay effective treatment of cancer, refuse to undergo or receive effective treatment of cancer, and/or incur expense, discomfort and inconvenience in order to obtain the treatment. Mr Barnes was fined $25,000 and conditions imposed on his registration.
In Psychologists Board of Western Australia v Gregory Damato [VR79 of 2010] the SAT in Western Australia found, by consent, the practitioner guilty of improper conduct in relation to advertised services on the website www.quantumenergywellness.com on which he advertised his services as a psychologist: - (a) an advertisement involving the use of SCIO machine or Ultrahealth Pty Ltd - Biofeedback System in connection with mental health conditions; and (b) advertised that his specialty areas included ‘... depression, ... ADHD and autism’. The SAT found that claims (a) and (b) were likely to bring the profession into disrepute and claim (b) was misleading in that the practitioner did not have training sufficient to claim that those areas were specialty areas. Mr Damato was reprimanded and had conditions imposed on his registration.