AHPRA provides guidance for the guidance on advertising, but still leave health professionals with concerns

Over the last week or so, there are been a lot of discussion, concern and complaints about the advertising guidelines released by the Australian Health Practitioner Agency (AHPRA) -  full story can be read here. So much so that an online campaign has got going, and health professionals' associations have been lobbying to have the guidelines revised.

On Tuesday,  AHPRA released FAQ that has gone some way to clarify the advertising guidelines. AHPRA states:

• There is a difference between advertising and unsolicited online comments;
• The advertising guidelines do not apply to unsolicited comments over which practitioners have no control; 
• Practitioners are not responsible for removing (or trying to remove) unsolicited testimonials on sites over which they have NO control.

Still unsure about positive comments
However, there is still no clear guidance in the FAQ about unsolicited comments in the health practitioners’ own space. The FAQ initially say “There is a clear difference between advertising – which requires an advertiser’s intent to promote a health service – and unsolicited online comment, which does not involve an advertiser’s intent to promote a health service.” The FAQ then go on to say “Practitioners are not responsible for removing (or trying to have removed) unsolicited testimonials published on a website or in social media over which they do NOT have control.” There is no mention of how practitioners should deal with unsolicited comments in websites or social media which they DO control.

Should we need guidance to read the Guidance?
At the beginning of the FAQ, AHPRA states “We will keep updating these FAQs to answer questions about emerging issues and guide practitioners about their regulatory responsibilities in relation to advertising.” Whilst it's great that AHPRA is willing to respond to practitioners’ questions as they emerge, I feel that the Guidelines should be easy to understand, consistent, and lacking contradictions in the first place. Then there would not be such a need to provide guidance on how to read the Guidance. I am also very concerned about the fluid nature of the FAQ. I feel it makes practitioners vulnerable and begs the question about how much reliance we can put on the changing information in the FAQ.

What is the legal impact of inconsistencies between Guidance and FAQ?
Finally, in view of the confusion and inconsistency between the Guidelines and FAQ I am left asking what would be held up in a court of law – the Guidelines, or the FAQ which contradict the Guidelines?

 Need for robust guidance
The #AHPRAaction campaign are asking for the complete removal of the section of the guidelines that talks about social media and testimonials. I am not sure I agree with the complete removal because I feel there needs to be guidance on the difference between testimonials and unsolicited comments. However, I would call upon AHPRA to incorporate the FAQ into the Guidelines. This will significantly strengthen the Guidelines and decrease risk to practitioners, especially in the face of vexatious reporting that I have already heard is happening in relation to practitioners’ use of social media.

I would also recommend that the Guidelines are reviewed again in one to two year’s time, instead of three years. The social media landscape changes very quickly and a shorter time frame for review is appropriate in this instance, especially as this is a relatively new area for regulatory consideration.

What do you think? Are the FAQ clear? How will the Guidelines impact on your practice?