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Jaw and order

jawrorder300Where do you stand when it comes to advertising? The laws that govern marketing of dental practices have always been strict, but with the expansion of social media they have become extremely difficult for dentists to adhere to. The Dental Board of Australia recently released revised guidelines for advertising regulated health services, which came into effect on March 17 this year.

The new guidelines seek to explain expectations of practitioners and to provide clarity for dentists about their obligations in relation to advertising. The guidelines were released in the February before they took effect, giving dentists a month’s notice to digest their implications. Most dentists are keenly aware of the key sticking points of the National Law—the instrument created by the Australian Health Practitioner Regulation Agency (AHPRA), in association with the National Boards, which enforces the guidelines.

A breach of the advertising requirements of the National Law is considered a criminal offence and a court may impose a penalty of up to $5000 for an individual practitioner. A breach may also attract a disciplinary action for unprofessional conduct on the part of the practitioner. So what does the law allow? Basic information about a practitioner’s location, fees, qualifications and experience and contact details; a photo of the practitioner and the practitioner’s practice; appropriate warnings and statements providing public health information. The guidelines warn dentists: “… ask yourself whether your advertising is verifiable and meets the requirements of the National Law.”

The law prohibits false or misleading conduct, offering gifts and discounts, creating unreasonable expectations of beneficial treatment or the encouragement of indiscriminate or unnecessary use of health services. Controversially, it also bans the use of testimonials. The use of testimonials in dental advertising—including the potential for their use on social media—has been a contentious issue for a long time. The Dental Board insists that the revised guidelines and the new social media guidelines will provide greater certainty in relation to the use of testimonials in advertising. The new guidelines acknowledge the proliferation of review websites and social media pages that might include complimentary comments by third parties about their experiences with certain dentists.

The guidelines note that these websites are “designed to help consumers make more informed decisions and increase transparency of interactions” and go on to say that a review is not considered to be a testimonial and in breach of the National Law as long as it does not comment on clinical issues, whether it be positive, negative or neutral. Reviews must not contain statements about the quality of clinical care. The guidelines indicate that a practitioner is expected to take “reasonable steps” to remove, or request to be removed, any statements that refer to the quality of clinical care on third-party websites.

That said, the Dental Board of Australia has published a series of Frequently Asked Questions (FAQs) that seems to go some way to absolving dentists of the responsibility of scouring social media for positive commentary about their services. The FAQs seem to indicate that the Dental Board recognises that dentists may be unable to be aware of and control what is written about them in a public forum, and that the guidelines do not apply to unsolicited online comment over which practitioners do not have control.

The FAQs advise practitioners to keep close control over their own advertising to ensure that it complies with the National Law and to keep an eye on social media “if you’re active on social media”, saying the Board does not “expect you to monitor social media except as described above”. This may seem to provide comfort to some dentists who might be confused about their obligations in relation to social media, but for others, especially those who are already active on social media or who wish to become more involved, the extent of the policing they’re required to conduct of their brand across the web is still unclear.

For others, the laws governing marketing are simply too restrictive—they feel the Dental Board needs to go back to basics. “Dentists run businesses in the same way everyone else does,” says one practitioner, who declined to be named, but believes his view is common. “How are you supposed to differentiate your business from everyone else’s when neither you, nor your clients, are allowed to tell others it’s any good? “The social media policy is fine if you believe that dentists are a breed apart from the rest of society and don’t use it,” he says. “But many do. The guidelines need to reflect the real world.” “In general, the Australian Dental Association (ADA) is supportive of the proposed guidelines for advertising regulated health services,” says ADA CEO Robert Boyd-Boland. “It supports restrictions that ensure advertising of health services reflects the calibre and status of health professionals.” But there are issues the ADA has concerns about. “The ADA recognises that AHPRA cannot explain how to advertise but there remain a number of issues relating to advertising that will confuse practitioners and possibly lead to breaches being committed,” Boyd-Boland says. “An area of concern to the profession in the past has been the restriction preventing the posting of ‘testimonials’ and ‘purported testimonials’—what precisely do these terms mean? The ADA does not consider the issue has been clarified.

The new guidelines state that a testimonial includes recommendations, or statements, about the quality of a regulated health service including clinical care, personal experiences of a regulated health service or about the benefits of a particular practitioner or regulated health service by someone who received the service. “They then go on to suggest that the very same conduct on an independent website may be permitted. The ADA has sought comment and clarification from AHPRA on this. If left as it stands health practitioners will not know where they stand.” The ADA is supportive of the restrictions being imposed not only on health practitioners, but also on advertisers of health services and health service providers whether they are individuals or corporations. “In relation to the social media guidelines, some ambiguity exists here also,” says Boyd-Boland. “While these guidelines link to the advertising guidelines, it does not appear that the social media guidelines apply to non-health practitioners, advertisers and corporations. If they do not, they should.” The ADA also regards the ‘reasonable steps’ provision, which applies to websites that are not directly associated with a dentist’s business, as onerous. “The obligation is also said to be imposed in respect of ‘their social networking pages’,” says Boyd-Boland. “What exactly are they? Does it apply to networking pages created by others that relate to the practitioner? “The issue seems far from resolved so the ADA will continue to advise members that should they become aware of testimonials, they should seek to have comments removed. “The structure and layout of the guidelines are an improvement and they do provide some better clarity but because they are generic to all health professionals, they fail to address the unique requirements of a dental practice setting,” Boyd-Boland says. 

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