New policy for Ontario physicians sets higher standard for ads prepared by third parties: law firm

A new policy released by the College of Physicians and Surgeons of Ontario appears to fix a higher standard regarding its expectations for advertisements prepared by third parties on behalf of physicians.

While prior case law interpreting the General Regulation under the Medicine Act, 1991 asks physicians to adopt “reasonable steps” to ensure that such advertisements have been prepared in accordance with the regulation, the new policy states that physicians must ensure that these advertisements comply with the expectations stated in the regulation and in the policy, health and regulatory law firm Rosen Sunshine LLP wrote in a blog post.

The policy, approved by the Council of the College this December, sets out the college’s expectations for advertisements prepared by physicians, or prepared on behalf of physicians by third parties. The policy urges physicians to make sure that their advertising content is readily comprehensible, dignified, accurate, factual, verifiable, respectful, balanced, scientifically supported, showing good taste and upholding the reputation of the profession.

The policy advises physicians not to include in their advertisements statements that are false, misleading, deceptive, sensationalised, exaggerated, provocative, discrediting, disparaging or attacking in nature. Such advertising should ideally refrain from containing statements comparing the physicians to other health professionals, statements promising or suggesting better services, statements including testimonials or statements referring to a specific drug, appliance or equipment.

The policy then sets out additional expectations applicable to before and after photos or videos, which should be utilized to offer accurate information and to show reasonably expected outcomes, accompanied by a statement that such results may vary. The photo or video should be consistent in terms of lighting, pose and technique and should not be manipulated.

The patient shown, who received the advertised medical service from the physician associated with the advertisement, should not be identified in the before and after photos or videos without their consent. This consent should be express and specific to the use of the photos or videos as advertising and should comply with the requirements under the Personal Health Information Protection Act, 2004.

The policy contains other guidelines in obtaining patients’ consent for the use of before and after photos or videos, such as informing patients about the potential risks and keeping in mind the possible pressure caused by the inherent power imbalance in the physician-patient relationship.

The policy urges physicians not to allow their name or likeness to be used for commercial products or services outside of their own medical services or for facilities where they do not offer their medical services. An exception is physicians who belong to a multidisciplinary practice, who may be associated with advertising of that practice, subject to certain conditions.

The policy also contains expectations regarding directing and targeting prospective patients and regarding the use of reference titles, designations or medical specialties.

“As other health Colleges often look to the CPSO for guidance, this new policy will likely be influential throughout the health professions,” noted Rosen Sunshine in its blog post.

The college released a companion resource alongside the policy to assist physicians in meeting the expectations in the policy and in the regulation. It provides guidance to physicians regarding how to handle comments on social media posts and testimonials on third party sites and how to know what the college will or will not consider advertising.

The companion resource’s rule regarding whether fundraising efforts on behalf of a foundation or an organization will or will not generally be considered advertising is vague, wrote Rosen Sunshine in the blog post. The firm thus recommended that, in such a situation, “the physician should ensure that any communications containing the physician’s name or likeness comply with the advertising requirements contained in the Policy and the Regulation, and have the campaign reviewed by a lawyer.”