The primary role of physicians is to deliver care to their patients. Physicians often also find themselves operating or associated with businesses that are seeking new patients. The College of Physicians and Surgeons of Ontario (“CPSO”) permits physicians to advertise their services, but regulates these advertisements. Physicians may be subject to complaints and professional consequences for violating the regulations. What follows is our brief overview of the CPSO’s advertising regulations.
Due to the high importance and highly specialized nature of medical services, the medical profession holds a special place of trust in society. Members of the public generally lack the kind of professional training needed to evaluate qualitative claims regarding physicians and medical services. As a result, advertising regulations aim to ensure that physicians continue to prioritize professionalism and patient welfare over commercialism.
In Yazdanfar v. The College of Physicians and Surgeons of Ontario, 2013 ONSC 6420 (CanLII), the Divisional Court of the Superior Court of Justice confirmed that advertising regulations are a permitted limitation on physicians’ freedom of expression under the Canadian Charter of Rights and Freedoms. In contrast to certain consumer goods that are advertised for an explicitly commercial purpose, medical services are considered too significant to the public interest to allow for unfettered competitive advertising.
Neither the Medicine Act, 1991 nor any current CPSO policies define the term “Advertisement”. However, based on case law and definitions adopted by other regulated health Colleges, this term likely includes the following:
- Traditional print advertisements and flyers;
- Newsletters and announcements;
- Business cards and stationery;
- Logos and signage;
- Video and radio advertisements;
- Websites, mobile applications, and podcasts;
- Social media content on Facebook, Twitter, Instagram, etc.; and
- Other information related to the physician’s practice, regardless of the form or the manner of distribution.
According to relevant case law and Ontario Regulation 114/94: GENERAL under the Medicine Act, 1991, it may be an act of professional misconduct for physicians to publish, display, distribute, or use promotional materials that contain the following:
- information that is false, unclear, misleading, unverifiable, unprofessional, or not dignified or in good taste;
- personal testimonials, which include “before-and-after” photographs;
- superlative or comparative statements, such as “the best service around”, which suggest uniqueness or superiority over other physicians;
- incentive programs, including giveaways, contests, draws, or free products or services;
- references to specific drugs/appliances/equipment;
- systems in which another person steers or recommends people to a physician or practice site for professional services; and
- references to practice areas/procedures/treatments without disclosing if the physician is a general practitioner or a specialist, and without disclosing the physician’s specialty, if applicable.
Even if they are not personally involved in or aware of any promotional activities, physicians may be found to have “caused or permitted” the dissemination of any advertisements pertaining to their practice or person. The case law suggests that physicians are required to do the following:
- maintain awareness of any promotional material published by an organization with which they have a direct connection; and
- make reasonable efforts to ensure that those advertisements do not breach regulations.
Physicians who intend to advertise or use social media should carefully consider how both the public and the CPSO might interpret their advertisements. As breaching advertising regulations can result in professional consequences, physicians should take care when promoting their services.
