Amendment to the Medical Council s Statement on advertising in relation to the use of testimonials

Transcription

1 8 March 2016 Amendment to the Medical Council s Statement on advertising in relation to the use of testimonials The Medical Council of New Zealand (the Council) is proposing to amend part of its Statement on advertising, and is seeking your input. Specifically, Council is intending to prohibit doctors from using or including testimonials in their advertising, or on any websites or social media forums advertising the doctor s services which the doctor has control of. Background In March 2015, Council issued its revised Statement on advertising which had the objective of protecting patients from advertising that is false, misleading and deceptive, and to provide guidance to doctors about their advertising of health-related products and services. Specifically, the revised statement sets out Council s expectations that advertisements by doctors must contain truthful and balanced representations, and that any claims or scientific information should: be valid, evidence-based, and substantiated be readily understood by the audience to whom it is directed be from a reputable and verifiable source identify clearly the relevant researchers, sponsors and the publication where the results on which any scientific or claims are based appear. In addition, the revised statement outlines Council s expectations regarding the use of before and after photos; the use of titles, qualifications and memberships; and advertising by means of discount coupons and gift certificates. These changes were made following Council s consultation with its stakeholders in February However, that consultation did not cover the use of testimonials. As such, there is currently no reference to the use of testimonials in the Statement on advertising. From time to time, Council receives queries from doctors about the use of testimonials indicating that there is a need for specific guidance in Council s Statement on advertising. What is at issue with using testimonials in medical advertising? Testimonials are effective when selling consumer goods and services. However, health treatments differ from consumer goods and services because there is usually a significant power imbalance between the knowledge of doctors and that of patients. Because of this, doctors have an obligation to take extra care to provide patients with full and balanced information about the patient s treatment options. Testimonials may not be entirely balanced because they tend to reflect an individual patient s experience, which may not provide a reliable basis for concluding that a particular procedure or treatment will be beneficial and effective for another patient.

2 It is also difficult to gauge from any individual case a doctor s skill, competence and overall standard of care. Often, testimonials seek to convey an underlying message that choosing a particular doctor will result in a better outcome for the patient than if the patient went to another doctor. In reality, this may or may not be the case since there are other factors that also influence the patient s outcome that extend beyond the skill and competence of an individual doctor. These factors include the patient s age, co-morbidities, the skill and level of experience of other health practitioners involved in the procedure the patient is seeking, and whether there is good communication and co-ordination of care between different health practitioners. In light of the issues identified with testimonials, it would be difficult for Council to endorse their use by doctors. In any event, several professional bodies and overseas regulatory authorities already prohibit the use of testimonials in their advertising guidelines. If Council incorporated the prohibition, it would mean more consistency between our advertising guidelines and those of other professional bodies and overseas regulatory authorities. Professional bodies and overseas regulatory authorities position regarding the use of testimonials in medical advertising (a) New Zealand Medical Association The New Zealand Medical Association has issued a Code of Ethics for the medical profession. Clause 59 which prohibits doctors from using testimonials in advertisements and promotional materials states: Doctors should accept that their professional reputation must be based upon their ability, technical skills and integrity. Doctors should advertise professional services or make professional announcements only in circumstances where the primary purpose of any notification is factual presentation of information reasonably needed by any person wishing to make an informed decision about the appropriateness and availability of services that may meet his or her medical needs. Any such announcement or advertisement must be demonstrably true in all respects and contain no testimonial material or endorsement of clinical skills. Qualifications not recognised by appropriate New Zealand statutory bodies should not be quoted. (b) Australian Health Practitioner Regulation Agency In May 2014, the Australian Health Practitioner Regulation Agency s (AHPRA) Guidelines for advertising regulated health services came into effect. The overarching theme of AHPRA s advertising guidelines is to caution health practitioners against misleading or deceptive practices when providing health services to potential users. The guidelines apply to anyone who advertises a regulated health service whether or not that person or business is a health provider. Clause addresses the use of testimonials and key aspects of this clause include: It is unacceptable for health practitioners to use testimonials in the health practitioner s advertising such as their website, Facebook, print, radio or television advertisement. Health practitioners cannot use or quote testimonials on a site or in social media that is advertising a regulated health service. Health practitioners should not encourage patients to leave testimonials on websites that health practitioners control which advertise the services that the health practitioner provides. However, health practitioners are not responsible for removing any unsolicited testimonials published on a website or social media which the practitioner has no control of such as a patient s Facebook or Twitter account.

3 (c) American Medical Association The American Medical Association s Code of Medical Ethics includes a section on Advertising and Publicity. According to the AMA, certain types of communications have a significant potential for deception for example, the testimonials of patients as to the doctor s skill or the quality of the doctor s professional services. Such testimonials are often inaccurate because they do not reflect the results of patients with conditions comparable to the patient providing the testimonial. (d) College of Physicians & Surgeons of Alberta, Canada The College of Physicians & Surgeons of Alberta (CPSA) has issued a Standard on advertising. Under Clause (1)(h), CPSA states that a regulated member who is responsible for an advertisement must ensure that the information provided does not include claims, representations, endorsements or testimonials regarding the service or business. Council s proposed amendment Council is proposing to prohibit the use of testimonials in medical advertising because they can be unreliable and misleading, and such a prohibition would mean greater consistency between Council s advertising guidelines and that of registration authorities and professional bodies (including the New Zealand Medical Association) mentioned above. Specifically, Council is proposing to incorporate the prohibition as part of Clause 13 of its Statement on advertising which will also define testimonial and explain that testimonials are not limited to comments from patients. However, the prohibition is only intended to apply to advertisements, websites and social media forums that the doctor has control of. In other words, doctors are not responsible for unsolicited testimonials or comments that their patients might publish in a website or social media forum which the doctor has no control of. That said, doctors should not encourage their patients to leave testimonials on websites that the doctor controls which is something the revised statement points out. Council is proposing to incorporate additional wording (bold and underlined) so that Clause 13 of its revised Statement on advertising reads as: 13. Advertisements must not unduly glamorise products and services or foster unrealistic expectations. Testimonials [Footnote 6] can create unrealistic expectation of outcomes in patients and must not be used or quoted in your advertising or on any websites or social media forums you control that advertise your services. [Footnote 7] [Footnote 6] The Council defines testimonial as a recommendation or positive statement about a doctor s care, skill, expertise or treatment. Testimonials include expressions of appreciation or esteem, a character reference or a statement of the benefits received from the care provided. Testimonials are not limited to comments from patients but may also include feedback from colleagues, other health care professionals, friends, family and other persons in the doctor s network. [Footnote 7] You must not encourage patients to leave testimonials on websites you control that advertise your services. However, you are not responsible for any unsolicited testimonials or comments that are published on a website or in social media over which you do not have control of.

4 Questions 1. Do you agree with Council s proposed prohibition of the use of testimonials in medical advertising? Why or why not? 2. Do you agree with Council s proposed definition of testimonial? What other changes (if any) should Council incorporate in its definition of testimonial? 3. Are there any other changes that Council should incorporate to Clause 13?

5 Consultation process The full draft revised Statement on advertising can be download from Council s website at: For ease of reference, the proposed changes to Clause 13 have been tracked in this document to highlight the changes. We have circulated our consultation widely to the profession and to other relevant stakeholders. Please review the draft statement, and give us your views on our proposed changes. You are welcome to respond to some or all of the questions in the consultation paper by completing this form, or by forwarding your feedback on a separate document. If there are any other comments you would like Council to consider, please include them with your response. Submissions and suggestions can be sent to: Kanny Ooi Senior Policy Adviser and Researcher Medical Council of New Zealand PO Box The Terrace Wellington 6143 Or via at kooi@mcnz.org.nz If you have any queries, please contact Kanny on direct dial Thank you for taking the time to consider these proposed changes to our statement. The deadline for feedback on this consultation is 26 April Please ensure that we receive your feedback by this date.