The release in September of the Ahpra guidance for practitioners who advertise higher risk non-surgical cosmetic procedures, created ripples through the profession as practitioners worked to understand where their unique practice fitted in.

It is important to first recognise that this guidance was created in response to the increasing uptake of cosmetic procedures by patients in the Australian population and the ongoing influence of social media on decisions making especially among younger generations. It states that ‘good practice advertising of cosmetic procedures is honest, balanced, realistic, and informative. It protects the dignity of patients and does not exploit patients.’ 

The guidelines apply to: 

• Health practitioners 

• Individuals who are not registered health practitioners 

• Businesses, partnerships, and corporate entities

With Ahpra confirming in the guidance that responsibility lies with any person authorising the advertising of services, including the owner of the business and anyone responsible for the advertising, this position reaches much further than anything previously held. 

If you are still wondered WHY these guidelines exist when we already have guidance about advertising, and what a higher risk non-surgical cosmetic procedure is, this excerpt below should clarify Ahpra’s concern, and which procedures they are targeting: 

‘The practice of non-surgical cosmetic procedures can be lucrative, and financial gain can compete with and sometimes outweigh, patient wellbeing and safety consideration. Like all cosmetic procedures, higher risk cosmetic procedures are often sought by particularly vulnerable people. 

Examples of higher risk cosmetic procedures include but are not limited to dental veneers, the administration of cosmetic injectables such as botulinum toxin and dermal fillers, injection liposis, thread lifts, sclerotherapy and microsclerotherapy, procedures involving platelet rich plasma, biotherapy or injections of any products derived from the patient’s blood and hard transplants.’  

Before we move on, it is important to know that this guidance is layered on top of the following relevant guidance: 

• Code of Conduct Dental Board of Australia - Code of conduct 

• Guidelines for advertising a regulated health service Australian Health Practitioner Regulation Agency - Guidelines for advertising a regulated health service 

• Social media – How to meet your obligations under the National Law Australian Health Practitioner Regulation Agency - Social media: How to meet your obligations under the National Law 

The Ahpra advertising hub is broadly an incredibly helpful resources for practitioners and can be found here: Australian Health Practitioner Regulation Agency - Advertising hub 

Advertisers must also comply with the Australian Consumer Law administered by the ACCC Home | ACCC. Further, if a therapeutic good is the subject of the advertising then the Therapeutic Goods Administration (TGA) Therapeutic Goods Administration (TGA) | Australian Government Department of Health, Disability and Ageing guidance should also be reviewed to ensure compliance.

Breaches of the guidance will be managed either through the Dental Board’s disciplinary process or, if the prosecution requirements are met, via the court system. Remember that this guidance is an additional layer to the existing Advertising guidance, breaches of which can carry with them significant fines.

Many practitioners are asking how they know whether a procedure sits under the umbrella of a high-risk non-surgical procedure, and in their accompanying FAQ’s to the guidance, Ahpra give this advice; 

To decide whether a procedure is a higher risk non-surgical cosmetic consider the following factors: 

• Is the dominant purpose of the procedure to achieve a more desirable appearance? 

• Is a registered health practitioner required to perform the procedure or an aspect of the procedure? 

• Is the procedure restricted to a particular profession¹ does it require an authorisation only available to certain registered health practitioners² or does it require a level of anatomical, physiological and/or pharmacological knowledge which mean that the cosmetic procedure can usually only be safely performed by a registered health practitioner? 

• Does the procedure require the use of a prescription-only medication, significant alteration of bodily structures, involve the injection of medicines and/or products into and under the skin or does it involve penetration of the deeper dermis?³

The list of what constitutes as advertising is broad including seemingly innocuous items such as business cards, and we recommend that all practitioners review this so they can consider ensure they have reviewed all necessary items, as it is not restricted to your webpage or social media. A broad rule of thumb is that anything which is ‘patient facing’ and/or in the public domain may fall under this guidance.

The guidance goes on to outline the importance of balance in advertising, and places heavy emphasis on the fact that the advertising (think any patient facing resources) cannot be misleading in any way. As with previous advertising guidance, the focus is heavily on an increased uptake by patients because they feel that this procedure will in some way may their life ‘better’. There is a section on prohibited language which trivialises the procedures including, but not limited to ‘doll-maker’, ‘magic hands’ and ‘world’s best’ and an inclusion on body dysmorphic disorder, with the accompanying guidance broadening the obligations practitioners hold to this vulnerable group.

One key sentence that all clinicians should reflect on is ‘Registered health practitioners much recognise the potential for conflict between financial gain and their duty of care to patients’ – and this tension will be considered elsewhere in this publication. 

Practitioners who use their title, interests or professional memberships in their advertising need to pay specific attention to this guidance to ensure they are compliant. 

The existing National Law already prohibits the use of testimonials, and this guidance expands on what this looks and feels like in practice and how clinicians can ensure they comply, including a section on the use of social media influencers. Any colleagues wanting to consider this type of advertising need to ensure they fully understand the obligations, risks and consequences before embarking on advertising of this nature. 

The use of before and after images has again been addressed previously by Ahpra, with this guidance going on to say that; 

‘All images used in advertising that are intended to show the outcomes of higher risk cosmetic procedures must include a prominent warning that the outcomes show are only relevant for this patient and do not necessarily reflect the results other patients may experience.’ 

Further, they are implicit that ‘Images of people under 18 years of age must not be used in advertising of higher risk cosmetic procedures’ and contain guidance on the type of content prohibited in social media posts, including the use of music, dancing, singing, comedic comments, sexualisation of the procedures, using icons or emojis to indicate an emotional reaction to an image, and critically ones that ‘capture, or purport to capture, emotional reactions of patients, such as patients giving a ‘thumbs up’ or crying with happiness of a higher risk cosmetic procedure’.  

All images to be used in advertising require separate written consent from patients, and this consent can be withdrawn at any time.

Learning points: 

• The guidance adds an additional layer to the pre-existing guidance, so needs to be read in conjunction with, not in lieu of these documents. 

• Existing advertising is not ‘grandfathered’ under this guidance. Therefore, any advertising available to the public that was created before the guidance inception date also needs to be modified to comply.

• This document focuses heavily on protecting vulnerable people including people under the age of 18 and body dysmorphs who ‘are particularly vulnerable to body image pressures and negative body image perceptions’. 

• More care than ever needs to be taken with your wording. 

• The use of social media to advertise dental procedures continues to be contentious, and what is permissible in other countries may not be permissible here.

• The definition of ‘non-surgical’ is somewhat loose given procedures such as veneers are technically surgical procedures due to the cutting of human tissue involved.

• Arguably, most orthodontics are non-surgical in nature and aim to improve a patient’s dental appearance. This means that orthodontic cases primarily aimed at non-functional outcomes would be subject to these guidelines. 

• Even where an orthodontic or restorative dental case might be primarily for functional reasons, it is also unclear whether the ongoing use of those images in any advertising might constitute a breach of these guidelines if the before and after images are not posed consistently (or where makeup is used only in the after images). We recommend you exercise caution in the use of any imaging in any advertising until we can better understand how the Dental Board may interpret such cases.

• Where staff are delegated responsibility for certain forms of advertising such as website maintenance, oversight of it by the Ahpra registrant remains essential as these guidelines hold registrants responsible for any advertising of their practice. 

Further learning

In this episode of RiskBites Dr Simon Parsons and Dr Colm Harney, dentolegal consultants at Dental Protection discuss the key aspects of this guidance in addition to teasing out some of the important changes in store for practitioners.

https://www.spreaker.com/episode/riskbites-ahpra-s-new-guidance-for-health-practitioners-who-advertise-non-surgical-cosmetic-procedures--67297254 

References 

1. The use of botulinum toxin to treat medical conditions is excluded from these guidelines. For uses of Botulinum toxin for cosmetic treatments see Better Health Channel cosmetic treatments – injectables.
2. For example, restricted dental acts under s.121 of the National Law.
3. Australian Health Practitioner Regulation Agency - Advertising higher risk non-surgical cosmetic procedures