Advertising cases heard by courts and tribunals

A number of registered health practitioners have been the subject of tribunal findings about breaches of advertising requirements.

Advertiser made claims that were not supported by acceptable evidence 

• Acceptable evidence and claims about chelation therapy. In Medical Board of Australia v Lai [2011] VCAT 1754, the Victorian Civil and Administrative Tribunal (VCAT) found that Dr Lai had engaged in unprofessional conduct in his advertising of chelation therapy, by creating an unreasonable expectation of beneficial treatment by making unqualified claims about the benefits of chelation therapy and by failing to state in the advertisement that the effectiveness of chelation therapy has not been established by peer-reviewed scientific research to have the benefits claimed. 
  
  
• Acceptable evidence and claims about hyperbaric oxygen treatment. In Chiropractic Board of Australia v Hooper [2013] VCAT 878, the VCAT found that Dr Hooper’s claims on his website about hyperbaric oxygen treatment were misleading and deceptive because he did not present a balanced view about the effectiveness of hyperbaric oxygen treatment for specified conditions, including that such treatment was not conventionally used in Australia and in western countries with a comparable health service culture and was not supported by medical and scientific evidence.

Advertiser made false and misleading claims 

• Used words ‘saved lives’. In Chiropractors Registration Board v Yil Yildirim [VR86 of 2007], the State Administrative Tribunal (SAT) in Western Australia found (by consent) that Mr Yildirim was guilty of misconduct for, among other things, misleading advertising material provided to the patient stating that chiropractic services offered by him ‘saved lives’, which were unnecessary and capable of being misinterpreted. 
  
  
• Claims to cure cancer. In Medical Board of Australia v William Barnes [VR107 of 2013] the SAT in Western Australia found, by consent, that Mr Barnes had advertised and promoted medical services or caused or allow medical services to be advertised on a website maintained on the internet that stated, represented or implied that the treatment could cure cancer; there was no sound scientific basis on which Mr Barnes could truthfully represent to patients the claim that the treatment could cure cancer; and the advertisement caused his patients, prospective patients and members of the public to be misled by the false representations, giving risk that patients may delay effective treatment of cancer, refuse to undergo or receive effective treatment of cancer, and/or incur expense, discomfort and inconvenience in order to obtain the treatment. Mr Barnes was fined $25,000 and conditions imposed on his registration. 

Advertiser claimed to be a specialist  

• Claims of speciality. In Psychologists Board of Western Australia v Gregory Damato [VR79 of 2010] the SAT in Western Australia found, by consent, the practitioner guilty of improper conduct to advertised services on a website where he advertised his services as a psychologist: - (a) an advertisement involving the use of SCIO machine or Ultrahealth Pty Ltd - Biofeedback System in connection with mental health conditions; and (b) advertised that his specialty areas included ‘... depression, ... ADHD and autism’. The SAT found that claims (a) and (b) were likely to bring the profession into disrepute and claim (b) was misleading in that the practitioner did not have training sufficient to claim that those areas were specialty areas. Mr Damato was reprimanded and had conditions imposed on his registration.

Criminal prosecutions

Advertisers have been prosecuted by Ahpra and convicted and fined for offences under section 133 in relation to unlawful advertising such as:

• a chiropractor claiming to be able to prevent, treat and cure cancer 
• claims not supported by acceptable evidence about the assessment and treatment of testosterone deficiency 
• a Chinese medicine practitioner using testimonials in his advertising which claimed that acupuncture and Chinese herbal medicine treated and cured cancer 
• a podiatry clinic creating an unrealistic expectation of beneficial treatment by making misleading statements not supported by acceptable evidence in their advertising that offered a “permanent long term cure” for conditions such as plantar fasciitis, heel spurs and Achilles tendonitis.