Misleading and deceptive conduct is something that should be diligently avoided in any business. As we have previously discussed the law is not only concerned with obvious and blatant lies which are misleading or deceptive, but also any conduct that is likely to mislead or deceive. This means that some of the more subtle things that a business might do where they give others the wrong impression, whether intentionally or not, could be in breach of the law.
Under the Australian Consumer Law, there are heavy penalties for businesses who act in a way that is misleading or deceiving or, is likely to mislead or deceive. If your business is a corporate entity, this could involve penalties of up to $1.1 million per misrepresentation, while individuals could face penalties of up to $220,000 per misrepresentation.
Misrepresentations can occur when businesses communicate in any form with consumers, it may be on a billboard, a product label, or and your website or social media platforms. For more information on this topic please see our past blogs here.
Professional health practitioners are subject to further guidelines under the Health Practitioner Regulation National Law which you need to be aware of. Like the ACCC, the Australian Health Practitioner Regulation Agency (AHPRA) regulates the advertising of health care products and health and medical services. The purpose of the laws administered by the ACCC and AHPRA are to ensure that:
- Businesses operate on a level playing field when selling goods and services to consumers, and
- That consumers can make informed choices when dealing with a regulated health service.
Am I a health practitioner?
To make it clear, the law states that a health practitioner is any individual who practices a health profession. These health professions include:
- Aboriginal and Torres Strait Islander health Practice
- Chinese medicine
- Medical radiation practice
- Nursing and Midwifery
- Occupational therapy
The AHPRA guidelines for advertising which we are about to discuss regulate any service provided by a registered health practitioner. For more information on other health services that are regulated see page 15 of the APHRA guidelines available at the bottom of the page.
The AHPRA Guidelines
Under the AHPRA Guidelines for advertising regulated health services, you should be careful not to use any language that triggers the application of section 133 of the Health Practitioner Regulation National Law, as in force in each State and Territory of Australia. Section 133 of the National law regulates the advertising of regulated health services and touches on several areas which are discussed below. A regulated health service cannot advertise in a way that:
- Is false, misleading or deceptive, or is likely to mislead or deceive;
- Offers some manner of inducement to attract customers without stating the terms and conditions;
[The most common of these “inducements” come in the form of a gift or discount available to customers. These may be effective advertising tools for attracting customers although without the correct terms and conditions the inducement may be in breach of the law.]
[The use of testimonials, whether they are purported testimonials about the health service or business or legitimate are not able to be used for advertising. Again testimonials may be valuable advertising tools for business software or insurance policies however they cannot be used by regulated health service providers.]
Create an unreasonable expectation of beneficial treatment;
[To create, (either intentionally or unintentionally), an unreasonable or misrepresentative expectation of a certain treatment is to be in breach of the law.]
Directly or indirectly encourage the indiscriminate or unnecessary use of regulated health services;
[A person or business must act ethically in only encouraging the use of a regulated health service if there is in fact a need or benefit to do so. To encourage a patient to use a certain health service requires careful evaluation and judgement and cannot be done without great care.]
The maximum penalty for acting in a manner which does not conform with the above regulations for an individual may be up to $5,000 and $10,000 in the case of a company. For more information on this topic then please see the AHPRA website here, also for further information on the guidelines please see the APHRA Guidelines for Advertising Regulated Health Services at the bottom of the page. If what we have discussed above raises any questions or issues for which you may require legal advice then please do not hesitate to contact us at Tri-meridian Corporate and Commercial Law
For further information, please contact the author.
This article is posted in Adelaide, South Australia by Tri-meridian Corporate & Commercial Law and is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. We do not accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your professional adviser.