Introduction
This is a question that has been asked repeatedly amidst the recurring debate on the ethics of advertising. While many seniors strongly object to advertisements by doctors, a new young generation of medical professionals have been increasingly strident on the right to advertise about who they are, what their qualification is, their strengths, special skills etc. The new notion comes in the wake of several developments and questions about the medical professionals between 1980 and 2000. The argument in favour of doctors being allowed to advertise or provide information to the public have largely been fuelled by the following issues
1. The question of whether doctors are commercial service providers?
2. The existing pattern in countries like India, where large corporate hospitals advertise, whereas private practitioners are hauled up for doing so.
3. The increasing pressure from the public for a right to know as a principle of autonomy
4. Competition laws in many countries that have come down heavily on the monopolies by certain groups and the fundamental principle embedded in the law to allow equal competition.
Historical perspectives and reason for change
All over the world, the code of ethics for doctor's have been changed to permit doctors to advertise in the public domain about their practice details. This comes from several legislations and amendments in the laws governing medical practice. In fact the Councils which implement Competition law ( also known as anti -trust laws ) have forced Medical statutory bodies and Medical/ Dental Associations to remove clauses against advertising in their respective code of ethics. This has been enforced through legislations in several countries including USA, UK, European Union, Australia, New Zealand etc starting in the early 1980s. Let us take an example of UK where the ethical guidelines were systematically dismantled in stages despite the opposition from the GMC/ GDC. It is a lesson that India should pay attention to.
Let us look at this excerpt, 'To consider the desirability of issuing a general warning notice to medical practitioners against the practices of canvassing and advertising or the purpose of procuring patients' (1). If these words sounds familiar, the chances are that you are practising as a health professional in India or one of the South Asian countries. The above advisory is a recommendation from the British Medical Association to the General Medical Council in 1905. The view that any kind of advertisement or marketing strategy is inconsistent with the practice of Medicine or Dentistry was widely held in England and most countries in the commonwealth till about 1983. While most developed countries have reviewed the code of ethics for those practising medicine, a few countries like India continue, as always, with the hangover of the colonial era.
After 1983, matters began to change in Great Britain when a series of consultative meetings between doctor's associations and public organisations resulted in a movement for major changes in the policy. Much of this was translated into a revised guideline published in 1986 which relaxed most of the restrictions on advertising by doctors. This was mostly due to the pressure from patient's groups like the Patient's Liaison group of the Royal College of General Practitioners (2) , that wanted more information about services available and also from some professional groups that felt that the GMC ( the statutory body) should play a role to 'lead the profession rather than simply reflect established opinion'(1).
Some further relaxations were made on the basis of an acceptance that it was easier to control the contents rather than preventing the dissemination of information per se. By 1987 the Government bodies started taking an interest in the matter through The Office of Fair Trading ( OFT) and thereafter asked the Monopolies and Merger Commission ( MMC) to investigate into the issue of restricting advertisement by the statutory bodies. The MMC took evidence from a variety of bodies representing both the professional and the public and published its recommendations in March 1986. (3) . Eventually three questions were raised
1. The use of promotional advertising technique
2. Canvassing or touting for patients
3. Making disparaging statements about fellow professionals
With regard to the first two issues, the questions was whether the restriction should be on the method of advertising or the contents of an advertisement. It was decided that the contents should be honest and factual. There was to be a relaxation of the manner in which information was provided. The difference between providing information to the public or patients and promoting oneself is a difficult call.
With regard to the third it was equivocal and therefore based on the situation. While it was necessary for doctors to bring to the attention of patients and authorities, evidence of gross negligence, it should not be used to benefit oneself. The lines are blurred. Today section 70 of Good Medical Practice in the UK has only this to say about advertising " When advertising your services, you must make sure the information you publish is factual and can be checked and does not exploit vulnerability or lack of knowledge."
At least 10 years prior to the UK relaxation, the USA had completely relaxed the restriction on advertisements by doctors as a result of the intervention of the the Federal Trade Commission ( equivalent to the MMC in U.K. And the Competition Council of India ). After the successful FTC suit in 1975 (Goldfarb v Virginia State Bar), the AMA removed all prohibitions to advertising, retaining only a weak restriction against false or misleading advertising(4). In fact, the FTC challenged the ethical restrictions imposed by the American Medical Association on the grounds of monopolies. Today doctors and dentists in USA can freely advertise provided it is factual. Breach of honesty is dealt with under tort and the statutes of the advertising regulatory authority.
This is the situation in other countries. The German medical statutory body called ARTZETAG, similarly withdrew all restrictions. From 2000, Doctors in Germany can publicise their formal education, experience, special diagnostic and therapeutic abilities etc on their practice signs, newspapers and the internet.(6). Other countries that expressly permit advertisements by physicians and dentists include Singapore (7), Australia and New Zealand (8)etc. In fact the Italian Medical and Dental Council was fined € 831,816 by the Italian Competition Agency ( ICA) in 2014 for imposing restrictions on advertisement by doctor's(9).
It is perhaps high time that the MCI and DCI restructure the code of ethics to permit fair competition for young doctors to be able to break the monopoly of the corporate establishments which indiscriminately violate the existing norms. The Competition Council of India can even initiate suo moto action against legislations and statutes that prohibit such marketing techniques based on archaic ethical principles handed over to us by the British, who themselves have amended their laws and regulation.
Conclusion:
It may therefore be concluded that the time is ripe for the statutory bodies to take a re look at the issue of advertising. There is likely to be legal or statutory imposition on the Medical and Dental Council if the competition Council of India takes cognisance of the fact that medical practice is a commercial service and it is monopolised by some sections, particularly the corporates. There is of course a danger of doctors going overboard using the relaxation. I would quote from the Indian Journal of Medical Ethics to point out the impact of strict restrictions being bad in morals. "Relying strictly on word-of mouth has some negative implications 1. It favors the already established doctors, “the gray beards”, against the new entrants to the field of medicine. This bias is entirely in keeping with the hierarchical nature of English society that gave us our system of medicine 2. Allowing other doctors to be gatekeepers to consultants has promoted fee splitting. A transparent well-publicized schedule of fees and services of a consultant may help put a stop to this practice."(10)
References
1. Irvine DH, Journal of Medical Ethics, 1991,17, 35-40 ( General Medical Council. Minutes. Vol XL11: 138 London 1905)
2. Patient's Liaison Group of the Royal College of General Practitioners. Availability of Information for patients. Journal of the Royal College of General Practitioners 1984;34,269:672-673 ( also page 644)
3. Monopolies and Mergers Commission. Services of Medical Practitioners: A report on the supply of the services of registered Medical Practitioners in relation to restriction on advertising. London: HMSO, 1989.
4. Burnham J C. American medicine's golden age: what happened to it? In: Leavitt JW, Numbers R, eds. Sickness and health in America, readings in the history of medicine and public health. Madison, W: University of Wisconsin Press 1985
8. http://www.medicalboard.gov.au/Codes-Guidelines-for-advertising-regulated-health-services.aspx
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