Latest decisions regarding practice promotion

Udgivelsesdato

08-04-2020

Sektorer

Steder

The Medical Council of Hong Kong (MCHK) has recently handed down two decisions in relation to the convictions of two doctors for practice promotion. The decisions serve as an important reminder to  medical practitioners to  ensure compliance with the Code of Professional Conduct for the Guidance of Registered Medical Practitioners (the Code), and all other guidelines as issued by the MCHK on promotional activities.

Background and charges

In the first case, the charges against the defendant doctor, whose name is also on the Specialist Register under the Speciality of Dermatology & Venereology, pertained to the publication of five articles on various websites between 2010 and 2012. The charges also relate to the online promotion of skin care products and treatments available at two medical practices in 2016.

The articles complained of relate to the defendant doctor’s participation in talks or interviews on anti-aging treatments and the impact of free radicals on skin.  The defendant doctor was also accused of quoting qualifications on a website which were not in the format approved by the MCHK.

In the second case, the charges against the defendant doctor pertained to the display of a signboard outside his clinic (which exceeded the permissible sizes for signboards set out in Appendix A of the Code), and the promotion of beauty treatments and aesthetic products.

The findings of the MCHK

In adjudicating cases in relation to practice promotion, the MCHK consistently adopts the guiding principle as ruled in Kwok Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524. In doing so, the MCHK carries out a balancing exercise between the competing public interests of the right to advertise, and the disadvantages of untruthful or misleading advertising. Access to information is crucial to the public to enable informed choices in relation to medical services or treatments. However, the prevention of unfair competition and untruthful or misleading advertising, is crucial to maintaining the high standards of professionalism by medical professionals.

The first case

In the first case, the articles complained of contained photographs depicting the defendant doctor in front of a backdrop on which medical skincare products of the commercial brand SkinCeuticals were prominently displayed. The MCHK considered that this left the readers with an impression that the SkinCeuticals products were endorsed by the defendant.

The MCHK was also concerned about the unduly persuasive and imbalanced manner in which the skin care products and treatments were promoted. For instance, “ultherapy” was claimed to be “a new skin tightening treatment, which effectively firms and lifts the contours of the face, while refining the skin”. As such, the MCHK found the defendant doctor guilty of charges in relation to practice promotion.

In relation to the quotation of qualifications, the MCHK was of the view that it may constitute professional misconduct if the defendant doctor repeatedly failed to quote her professional qualification in the format approved by the MCHK. However, as there was no evidence before the MCHK in that respect, the MCHK acquitted the defendant doctor of the charge relating to the quotation of qualifications.

In her submission to the Preliminary Investigation Committee, the defendant doctor stated that the ‘bloggers’, who were also her patients, explained to her that they would like to take some photographs during the treatment so that they could prepare articles to educate people on “ultherapy”. The photographs were eventually published in an online article with some laudatory comments on the defendant doctor’s professional practice and services. The MCHK considered that the defendant doctor ought to have taken proactive steps in the circumstances to remind her patients that the articles they had written on “ultherapy” should not be promotional of her professional practice and services. In addition, she should have informed them not to publish or post the articles and photographs without her prior consent and approval.

The second case

In the second case, in addition to the signboard outside the defendant doctor’s clinic being non-compliant, it also prominently displayed the brand name of an aesthetic product, CLEVIEL. The MCHK’s view was that this left the public with an impression that this aesthetic product was endorsed by the defendant doctor.

The defendant doctor maintained that he was not involved in the installation of large signboards at his medical practice and had immediately informed the landlord to remove the signboard when he became aware of the offending signboard. However, the MCHK considered that the defendant doctor was under a personal duty to ensure that the size of the signboard and the information displayed on was in compliance with the requirements of the Code. As such, he was found guilty of unauthorized practice promotion.

Comment

With the prevalence of advertisements in aesthetic treatments or services, these two MCHK decisions  serve as a reminder for medical professionals on the importance of ensuring compliance when disseminating information to the public. This is particularly relevant to dermatologists or other medical practitioners whose practices involve the provision of aesthetic treatments. Marketing strategies employed to promote these practices are likely be considered by the MCHK, as being in breach of the Code.

Frequently in these circumstances, the publication or editorial works of the content complained of were carried out by third parties. In some cases, we have seen medical practitioners were merely asked to provide material for promotional purpose to the practices they were employed by. It is clear from the decisions above that the responsibility for medical practitioners to ensure compliance with the Code and all other guidelines as issued by the MCHK is a non-delegable one.

Medical practitioners should ensure reviewing any existing promotional materials to make sure they are within the permissible scope.

 

Read more items in Hong Kong Medical Law Brief - Spring 2020 edition