A new revised version of the NMBA guideline for advertising regulated health services, to come into effect next month (March 2014), appears to prohibit the publication of birth stories by midwives, or by others who may (intentionally or not) link a midwife to the story.
The National health practitioner law prohibits testimonials as a form of advertising. The revised guideline states (p9):
Section 133 of the National Law states:
(1) A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that –
(c) Uses testimonials or purported testimonials about the service or business
The National Law does not define ‘testimonial’, so the word has its ordinary meaning of a positive statement about a person or thing. In the context of the National Law, a testimonial includes recommendations, or statements about the quality of a regulated health service including clinical care, personal experiences of a regulated health service or about the benefits of a particular practitioner or regulated health service by someone who received the service. Testimonials can distort a person’s judgment in his or her choice of health practitioner. They may misrepresent the skills and or expertise of practitioners and create unrealistic expectations of the benefits such practitioners may offer health consumers. Testimonials in advertising include:
1. using or quoting testimonials on a website, such as patients posting comments about a practitioner on the practitioner’s business website, particularly when the website encourages patients to post comments and/or selectively publishes patient comments, and/or
2. the use of patient stories to promote a practitioner or regulated health service.
There are a number of independent websites that invite public feedback/reviews about a patient’s experience of a regulated health practitioner, business and/or service. These websites are designed to help consumers make more informed decisions and increase transparency of interactions.
A review is not considered to be a testimonial or purported testimonial, in breach of section 133 (1)(c) of the National Law when it only comments on non-clinical issues, regardless of whether it is positive, negative or neutral.
Reviews must not contain statements about the quality of clinical care received from the regulated health practitioner, business and/or service.
A practitioner must take reasonable steps to have any testimonials associated with their health service or business removed when they become aware of them, even if they appear on a website that is not directly associated and/or under the direct control or administration of that health practitioner and/or their business or service. This includes unsolicited testimonials.
‘Reasonable steps’ include taking action in the practitioner’s power, such as directly removing, or requesting removal, of the testimonials. For example, a review on a social media site that states ‘Appointment ran very late and magazines were old’, is not considered a testimonial as it makes no reference to the clinical care provided by a regulated health practitioner, business or service. However, a review on the same social media site that states ‘Practitioner was quick to diagnose my illness and gave excellent treatment’, is a testimonial which references clinical care and is considered in breach of the National Law.
Once the practitioner becomes aware of the testimonial, they must take reasonable steps to have the testimonial removed (also refer to Section 7.1 on social media).
This new guideline appears to prohibit birth stories either on the midwife's website or somewhere else. "Testimonials in advertising include ... 2. the use of patient stories to promote a practitioner or regulated health service" and "a testimonial which references clinical care and is considered in breach of the National Law." There are some lovely birth montages and videos on youtube that give a visual promotion of the birth - including pictures of the midwives and reference to their names. Are these also in breach of the law?
Perhaps it could be argued that a birth story or montage (on the midwife's site or someone else's) is not being used to *promote* the practitioner; rather to educate the public. I don't think this argument would hold. Midwives are in business, and businesses promote themselves because the only way they can keep going is if they make enough money.
It seems to me as though there is a problem with this very inclusive definition of the word 'testimonial'. Surely a person's story of their own birth is theirs to tell or not? The guideline says "Testimonials can distort a person’s judgment in his or her choice of health practitioner."
The overarching purpose of regulation of health professionals is the protection of the public. Protection of the public from rogue or negligent or incompetent professionals and the like. Protection of the public from charlatans and snake oil sellers who would deceive and manipulate unsuspecting potential clients.
Perhaps this sort of restrictive guideline is appropriate in health related services that may be seen to prey on people's vanity: expensive medical or surgical treatments that are carried out, with little chance of lasting effect on health or wellbeing? Perhaps this is an instance in which the midwife is different from other regulated health practitioners?
It would appear that the strong arm of the law is being used as 'Goliath' against the 'David' of the natural childbirth movement. Natural childbirth is unique in the spectrum of health care: it requires the woman to do *it* herself! There are no shortcuts, no special breathing techniques, no therapies, no magic words or products to be bought, that make natural childbirth better than it already is.
Would the birth story of a woman who wanted to give birth naturally after a previous caesarean be able to 'distort a person's judgment' about the professional capacity of the midwife? Surely there is benefit to the public in being able to consider the events and decisions that led to the birth of a baby?
If birth stories (aka testimonials, under the revised guidelines) really can distort a woman's judgment in her choice of midwife, would it not be more reasonable to require a disclaimer to be displayed with birth stories, warning the public about this risk? By removing birth stories from publicly accessible sites, are we returning to old ways, speaking only of such things in hushed tones behind closed doors? Surely that is not appropriate in today's world.
Opinions expressed in this article are those of the author, Joy Johnston.
|Thanks to Niki for sharing this special moment|