A UK eyecare practice found itself in trouble for breaching advertising standards with an article on its website promoting colour testing children for dyslexia. Would the same result apply in Australia?
The complaint (mentioned above) involved an article promoting a testing service to detect dyslexia, which was said to contain misleading claims about the causes of dyslexia, and about the eye test’s ability to detect dyslexia in children.
“Practitioners can only use the term ‘specialist’ if they hold registration in an approved recognised specialty.”
The article, titled ‘Dyslexia Colour Testing from the Experts’, claimed “some believe dyslexia is caused by visual stress” and that “dyslexia visual stress is a condition contributing to reading difficulties”. It encouraged readers to call the practice to book a “full and comprehensive dyslexia test” conducted by “dyslexia colour test specialists”.
The practice denied the article was misleading as it acknowledged dyslexia had its core in disruption of language processing. The practice also sought to rely on saying that the article had largely been written by the manufacturers of the colour testing equipment who had verified its accuracy.
Healthcare advertising in Australia
As outlined in a previous article, Australian law restricts what can be included in advertisements for regulated health services. Healthcare advertising may be covered by the Health Practitioner Regulation National Law, Australian Consumer Law and Therapeutic Goods Advertising Code 2021.
In Australia, similar questions would be asked about website materials including:
1. Who controlled or approved the advertising content?
Practitioners, practice managers and staff, and healthcare companies are responsible for any advertising they commission, control or approve to be published. They may be prosecuted if advertising breaches the law. As in this case, you are responsible for your advertising even if you use an agency or other third party. Make sure you know how to check any advertising created on your behalf. Ahpra’s ‘Advertising hub’ includes a suite of resources and guidance to help with this process and ensure you understand your obligations.
2. Is it information or advertising?
Under Australian law, information brochures or materials are considered advertising if they promote a health service provider or aim to encourage people to choose a particular practitioner or treatment. That includes website articles, such as the one in this case.
3. Are claims misleading or deceptive?
Your advertising should be clear and set realistic expectations of risks, benefits and outcomes. Avoid any claims that are inflated or likely to mislead or deceive the public.
Disclaimers such as suggesting a service “may” assist with or treat a particular condition will not overcome a breach if the overall effect is misleading. In this case, the regulator concluded readers were likely to understand that visual stress caused or contributed to dyslexia, the test being offered could formally diagnose dyslexia, and that “dyslexia glasses” could treat or reduce the impact.
4. Are claims based on acceptable evidence?
You must be able to substantiate claims about a condition or the potential benefits of a treatment with acceptable evidence. As in this case, if you say that “some believe”, or “there is evidence to suggest”, you need to back this up with good quality evidence.
Ahpra’s ‘Acceptable evidence in health advertising’ page includes detail on how to assess whether evidence will be considered acceptable.
5. Does the material encourage indiscriminate use of services?
It is appropriate to encourage good healthcare, including regular check-ups. However, healthcare advertising must not encourage patients to seek treatments that may not be clinically necessary.
Materials that are seen to promote tests with questionable benefits may breach the prohibition on encouraging indiscriminate use of services.
6. Does it claim specialist expertise?
Be careful how you discuss practitioners’ expertise. Practitioners can only use the term ‘specialist’ if they hold registration in an approved recognised specialty.
It is appropriate to highlight their expertise, but explain what that is based on, for example years of experience, particular practice focus, or postgraduate training.
When advertising is in breach
Ahpra encourages voluntary compliance with advertising restrictions and expects healthcare practices to ensure their advertising is compliant before publishing it.
If Ahpra considers advertising breaches the law, it will advise the practitioner or practice of their concerns and require them to amend the advertising within a certain timeframe.
If breaches are not corrected, companies may be fined up to $120,000 and individuals up to $60,000 for each breach. This applies across Australia, except in Western Australia where, at the time of writing (amendments to the penalties are currently before parliament), the penalties remain $5,000 for individuals and $10,000 for companies.
About the Author: Ruanne Brell is a senior legal advisor in the Advocacy, Education and Research team at Avant with more than 20 years’ experience in health and medical law.
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