It seems doctors will not face $5000 fines, after all, if they don’t request the removal of unsolicited online comments about their services, according to a “clarification” by the Medical Board of Australia on controversial new advertising guidelines.

The Board last Friday noted there is: “…a clear difference between advertising – which requires an intent to promote the health services – and unsolicited online comment over which practitioners do not usually have control.” See its full statement below.

As the Australian Doctor noted, the guidelines sparked outrage and concern that comments about clinical care on sites like Facebook or review sites such as RateMDs would be deemed testimonials, and therefore break the law.

Melbourne plastic surgeon Jill Tomlinson welcomed the MBA’s “about turn”, but she’s concerned that other health professionals – dentists, nurses, physios and others – are still at risk under the new Health Practitioner Regulation Agency (AHPRA) guidelines, which are due to take effect on March 17.

In an open letter to the AHPRA (published below), she says it needs to place the guidelines under review and – given this isn’t the first time it’s faced fierce criticism for its social media position  – “ensure that healthcare social media experts are consulted in the development of any future AHPRA guidelines pertaining to social media.” Tomlinson pointedly makes the offer:

“If you don’t know how to reach social media experts let me make it simple for you. Just send me the login details for your inactive Twitter account and tell me any time you’re in policy development mode. I’ll get the word out on your behalf, and then all you need to do is what healthcare social media experts do every day: listen, engage and learn.”

Sunshine Coast GP, and a regular on Twitter, Dr Edwin Kruys, also welcomed the Board’s statement but agrees there are still important unanswered questions, including what weight the Board’s reassurance has if the guidelines haven’t yet been updated.

See some other responses and concerns below via Twitter, and a wrap of the discussion on the issue hosted last night by @hscmanz on Twitter.

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Media release from the Medical Board of Australia

Medical Board clarifies difference between advertising and online comment

The Board confirms online comment is not always advertising.

The Medical Board of Australia has moved to clarify the difference between advertising and online comment.

Medical Board of Australia Chair, Dr Joanna Flynn AM, said the recent release of revised advertising guidelines and a new social media policy – to come into effect on 17 March 2014 – had triggered lively debate online.

“It’s great that doctors are engaging with their regulatory responsibilities and wanting to make sure that how they practice meets the expectations of the Board,” Dr Flynn said.

“But there is a clear difference between advertising – which requires an intent to promote the health services – and unsolicited online comment over which practitioners do not usually have control,” she said.

The National Law prohibits the use of testimonials in advertising a regulated health service, which means a service provided by or usually provided by a registered health practitioner.

The advertising guidelines apply to testimonials in the context of advertising – when testimonials are used to advertise or promote a regulated health service. The clearest examples are when practitioners use testimonials in a print or television advertisement or to promote their services on their own website.

The Board expects practitioners to take reasonable steps to remove testimonials they are using to advertise or promote regulated health services they provide, or when the testimonials are used by someone advertising the regulated services on their behalf. (This could be a third party who is advertising the services the practitioner provides at the practitioner’s request).

But the Board recognises that practitioners are unable to control what is written about them in a public forum.

The Board does not expect practitioners to actively monitor internet sites. We do expect them to ensure that their own advertising, or that done by others on their behalf, meets the Board’s standards.

When a practitioner has been advised by AHPRA that it considers any advertising to contravene the National Law, we expect the practitioner to take reasonable steps to ensure the advertising is removed.

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In her open letter to the AHPRA, Jill Tomlinson writes:

Dear AHPRA,

RE: Proposed “Guidelines for advertising regulated health services”

In 2012 you released a consultation paper on your then proposed social media policy. Feedback from the Australian healthcare social media community was swift and negative. I am relieved that you subsequently undertook a consultation and significantly revised your proposed social media policy. However, I am dismayed that your lack of understanding of social media communication has resurfaced in your proposed “Guidelines for advertising regulated health services” that is scheduled to take effect on March 17, 2014.

According to Section 6.2.3 of the proposed Guidelines, from March 17 over 600,000 registered health practitioners will need to ask any individual who writes online about their clinical care, or any website that hosts the online comments, to remove the comments.

Your Guidelines state: “A practitioner must take reasonable steps to have any testimonials associated with their health service or business removed when they become aware of them, even if they appear on a website that is not directly associated and/or under the direct control or administration of that health practitioner and/or their business or service. This includes unsolicited testimonials.

Following an outcry on social media the Medical Board of Australia released a media statement on 7 March stating that “the Board recognises that practitioners are unable to control what is written about them in a public forum”. After initially defending the AHPRA Guidelines and stating that the Board’s hands were tied, Medical Board Chair Dr Joanna Flynn stated: “there is a clear difference between advertising – which requires an intent to promote the health services – and unsolicited online comment over which practitioners do not usually have control”. The Medical Board’s about turn on this matter is prudent. Indeed, if Section 6.2.3 of your proposed Guidelines applied to medical practitioners then members of the Medical Board would soon find themselves needing to contact Australian and overseas websites asking that online testimonials of their own clinical practice be removed.

Your proposed social media and advertising Guidelines of 2012 and 2014 demonstrate AHPRA’s complete lack of social media expertise. Health practitioners wouldn’t implement clinical practice guidelines that were developed by individuals who have no experience or expertise in the field. So why would you propose to implement Web 2.0 communications guidelines that have been developed by individuals who clearly have no experience or expertise in this field?

AHPRA, please place your proposed Advertising Guidelines under immediate review and ensure that healthcare social media experts are consulted in the development of any future AHPRA guidelines pertaining to social media. If you don’t know how to reach social media experts let me make it simple for you. Just send me the login details for your inactive Twitter account and tell me any time you’re in policy development mode. I’ll get the word out on your behalf, and then all you need to do is what healthcare social media experts do every day: listen, engage and learn.

Sincerely,
Dr Jill Tomlinson
MBBS(Hons), PG Dip Surg Anat, FRACS(Plast), GAICD
Plastic, Reconstructive and Hand Surgeon

 

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