Advertising challenges of healthcare providers and practices

When done correctly, advertising can increase sales, enhance a business’s image and educate consumers, among many other benefits. For licensed health professionals in Canada and elsewhere, however, issues can develop when advertising misrepresents the services professionals provide.

How do these issues happen and what should healthcare professionals do to prevent them?

Healthcare professionals or their practice may market services through a variety of media, such as print publications, television, radio and social media, including personal websites and blogs. Each has the potential for effective, ethical communication to potential consumers. Professionals use advertising to:

• Grow their business by attracting new patients
• Alert consumers  about specialized services
• Generate referrals
• Gain community exposure
• Promote their profession
• Educate the public and patients

In advertising, the information must be true, accurate and often brief. Complex medical terms and treatments, however, may not always lend themselves to the brevity typically needed in many advertising formats. For instance, 30- and 60-second TV and radio spots may necessitate the omission of so much information that the advertisement may become misleading¹.

Ethics and Advertising

Healthcare consumers are often uninformed about the safety and efficacy of medical treatments or tests related to specific health concerns or conditions. As a result, many consumers have become proficient at self-researching diseases and treatments through a variety of online forums. However these sources don’t always feature evidence-based information from professional bodies, reputable healthcare agencies, and experts in the field. How can patients assess the objectivity and quality of the information they read – or if the information is even applicable?

The striking imbalance between the highly specialized knowledge of healthcare professionals and what consumers typically know and understand makes the consumer vulnerable and dependent on healthcare providers to make an informed decision and guide them through their healthcare choices. Selecting a healthcare service is not the same as buying a car or hiring a carpet cleaner, which do not require the consumer to rely on specialized knowledge from a professional to make an informed choice.

As a result, some health professional colleges have stated that while it is ethical for health professionals to market their practice and services, all communication must be objectively true and not misleading, deceptive or discriminatory. Professionals should ensure that their advertising practices comply with the guidance of their college. Questions regarding appropriate practices should be addressed to the college or professional body.

In general, appropriate communication to the public should:² 

• Be objectively true, including the provider’s name, certification, services provided, pricing structure, office hours and contact information
• Provide evidence-based information about a service or treatment
• Be factually supportable such as evidence of a provider’s specialized training
• Provide patient information that uses verified medical information about a condition such as frostbite (what it is, typical symptoms, and first aid) using sourced information such as Health Canada, CDC, etc.
• Not promise results such as a cure for an incurable disease or condition
• Not use superlatives such as “best in class” to describe a service or practice unless this can be factually supported 
• Identify paid advertising as such
• Not disparage or denigrate the skills or competence of other providers or other professions

Conversely, advertising that manipulates a patient’s ignorance, stimulates demand for unproven or ineffective therapies, and is otherwise false or deceptive may include the following tactics:³

• Creating unjustified expectations of favourable results by, for example using  patient photos or graphs
• Making claims that professionals have unique skills or provide unique treatments that cannot be verified
• Implying that a professional has specialty or sub-specialty training when this is not the case
• Implying that an incurable condition may be cured
• Using terms such as “world-class” or “best” to describe a skill or practice that are generally not factually supportable or inarguable
• Misrepresenting facts or making a scientific claim that cannot be supported by reliable data or evidence
• Endorsing or promoting a product or line of products that are not necessary or medically indicated
• Promoting experimental treatments or therapies
• Publishing patient testimonials
• Using a patient’s name or other identifiable information or photographs without explicit authorization
• Using paid spokespeople to exaggerate the efficacy of a treatment

These advertising practices may lead patients to make poor decisions about disease treatment or health maintenance and also may encourage unnecessary risks or foster unrealistic expectations⁴.

The following are extracts from two of Canada’s colleges⁵ regarding advertising:

College of Naturopathic Physicians of British Columbia:  “Any marketing undertaken or authorized by a registrant in respect of his or her professional services must not be: a. false, b. inaccurate, c. reasonably expected to mislead the public, d. unverifiable or, e. contrary to the public interest in the practice of the profession.”⁶

Royal College of Dental Surgeons of Ontario: “3. Do not include in your advertisement materials anything that would be considered by the College to be in violation of the advertising regulation. This includes using: statements which are unclear, untrue or misleading; statements which are indicative of superiority or uniqueness; statements which suggest or create an expectation of favourable results or appeal to the public’s fears; testimonials or any statement that can only be verified by a person’s personal feeling or views; incentive programs, including giveaways, contests, draws or free products or services;  . . .”⁷

(Refer to each college’s website to read the full guidance.)

Consequences of Advertising Breaches

In addition to civil action, providers who knowingly or unwittingly breach their college's advertising guidance can face disciplinary action by the regulator, which may result in a fine or other sanction. It is the college that makes the determination whether the professional has breached its guidance.

CNA’s Risk Management Response to Advertising Liability

CNA has undertaken numerous risk strategies to mitigate the exposure of disciplinary claims, including:

• Educating insureds and their professional associations on practices
• Advising the colleges about the frequency of these types of claims
• Engaging each insureds’ lawyer in helping their clients manage this risk

The Bottom Line

The principles outlined here can also generally be applied to social media and other kinds of online communication, such as personal websites and blogs, discussion boards and general content.

Check your college’s website for the advertising guidance that is applicable to your practice.

¹ American Society of Obstetricians and Gynecologists. (2011). Ethical ways for physicians to market a practice. https://www.acog.org/Clinical-Guidance-and-Publications/Committee-Opinions/Committee-on-Ethics/Ethical-Ways-for-Physicians-to-Market-a-Practice?IsMobileSet=false
² Meira, Erik. (2017). The Ethics of Healthcare Advertising. Retrieved at https://thesciencept.com/ethics-of-healthcare-advertising/
³ Stanger, Kim. (2017). Holland & Hart, Marketing Traps for Healthcare Providers. Retrieved at https://www.hollandhart.com/marketing-traps-for-healthcare-providers
⁴ Oxman, David. (2007). The Hospitalist: Advertising. Retrieved at https://www.the-hospitalist.org/hospitalist/article/123323/hospital-advertising.
⁵ A ‘College’ in this context is the body that regulates health professions in Canada.
⁶ College of Naturopathic Physicians of British Columbia. (2017). Bylaws: Section 100: Marketing. Retrieved at http://www.cnpbc.bc.ca/wp-content/uploads/2017-11-08-CNPBC-Bylaws-Consolidation.pdf.
⁷ Royal College of Dental Surgeons of Ontario. (2012). Practice Advisory: Professional Advertising.  Retrieved at https://az184419.vo.msecnd.net/rcdso/pdf/practice-advisories/RCDSO_Practice_Advisory_Professional_Advertising.pdf.

DISCLAIMER

One or more of the CNA companies provide the products and/or services described. The information is intended to present a general overview for illustrative purposes only. Read CNA’s General Disclaimer.

To access all other 2019 blogs: https://www.cnacanada.ca/web/guest/cnacanada/about/listofauthors

Ruth Stewart is the Senior Risk Control Consultant, Healthcare for CNA Canada. Ruth brings to her role a background in clinical nursing which includes experience in surgical, intensive care and trauma nursing as well as management of risk in the not-for-profit sector. She left the healthcare sector to work with an international broker using her clinical and operational knowledge to assist acute care and long term care insureds better manage their risks. Ruth works directly with insureds to manage operational risk, and develops publications, tools and other resources to help insureds manage risk. Ruth collaborates with a team of seasoned Healthcare Risk Control/Risk and Governance professionals in the US and UK to provide a comprehensive range of risk services to CNA’s insureds.

Ruth received her nursing training from George Brown College, and her Master in Health Administration from the University of Ottawa. She is a member of the College of Nurses of Ontario (CNO), and a certified member (CHE) of the Canadian College of Health Leaders (CCHL).