Marketing & The Privacy Act: What Every Healthcare Provider Needs to Know

Like any other business, healthcare providers need to market their services to improve brand awareness, attract more clients, and gain trust and credibility in the public eye. But healthcare marketing is different from your typical business advertisement as professionals in this industry have to adhere to the Privacy Act 1988 provisions.

In Australia, healthcare and medical industries are guided by the Privacy Act 1988, which enforces rules to protect patients’ personal information. It provides guidelines on how practitioners and everyone in the medical sector can secure sensitive health information. These regulations are intended to empower patients with more privacy and greater control over their personal health information.

Non-compliance with the provisions of the Privacy Act during healthcare marketing can lead to serious implications, such as substantial fines, lawsuits, and professional misconduct proceedings. The stakes are high, but fret not. This blog post is here to discuss the impacts of the Privacy Act on healthcare marketing. We will also share practical tips to ensure your healthcare marketing campaigns are compliant with the Privacy Act 1988.

 

What are the Implications in Healthcare Marketing?

 

Healthcare marketing strategies such as email campaigns, targeted advertisements, or testimonials may involve using patients’ data. Some of this information is classified as sensitive health information under the Privacy Act, such as medical history and payment information. So, releasing that information could breach patients’ privacy without proper regulations.

The Privacy Act sets rules and guidelines for protecting patients’ sensitive health information during healthcare marketing. These regulations ensure healthcare providers exercise caution and do not disclose sensitive health information without the patient’s consent. If you overlook these rules, you could face significant penalties and consequences.

 

The Office of the Australian Information Commissioner (OAIC) ensures compliance for healthcare marketing and enforces penalties for violations. The penalties apply to healthcare providers, health plans, marketers and any other person who misuses PHI during marketing. The nature of the penalties depends on the severity of the breach, level of involvement and awareness of such violation.
The following are some of the penalties you may face for violations of the Privacy Act regulations during healthcare marketing.

The following are some of the penalties you may face for violations of the Privacy Act regulations during healthcare marketing.

 

Financial Penalties

Breaching healthcare marketing regulations can lead to severe financial penalties, enforced by the OAIC. With the release of the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021, these penalties are set to escalate. Fines are assessed based on the severity of the breach; a smaller fine may be imposed if the organisation was unaware of the violation, while deliberate disregard – that is, acknowledging a breach and failing to correct it – could incur more substantial penalties. Other elements such as willingness to cooperate with ongoing investigations may also impact the level of financial penalty. As part of Australia’s evolving privacy law, these amplified penalties are designed to further deter violations and protect individual privacy.

 

Penalties & Fine Amounts:

     

      • The maximum penalty for serious and repeated privacy interferences: Up to AUD 50,000,000 or three times the benefit value, or 30% of the corporate’s turnover during the breach period.

      • Monetary penalties for failing or refusing to provide information, answer questions, or produce documents required by the Information Commissioner.

      • Maximum civil penalty under the Healthcare Identifiers Act: AUD 825,000 for corporations and AUD 165,000 for individuals.

      • Maximum civil penalty for misuse of a My Health Record: AUD 2,062,500 for corporations and AUD 412,500 for individuals.

      • Maximum penalty under the Privacy Act for false or misleading credit reporting information: AUD 55,000.

      • Maximum penalty for “system of conduct” or “pattern of behaviour” under the Privacy Act: AUD 82,500.

      • Maximum penalty for unauthorised use or disclosure of healthcare identifiers under the Healthcare Identifiers Act: 2 years of imprisonment or AUD 33,000.

    • Criminal pecuniary penalties under the Crimes Act 1914: Typically can be increased five-fold and converted into monetary penalties for corporations.

     

    Criminal Penalties

    While it’s less frequent, healthcare providers in Australia may potentially face criminal penalties, including jail terms, for violations of data privacy and security laws in the course of social media marketing. An instance of such a breach could be the unauthorised use of a patient’s personal health information for marketing purposes leading to financial gain or wrongful disclosures with the intention to cause harm. Prosecution for such offences falls under the jurisdiction of the Australian Department of Justice, and the penalties are dictated by the severity of the breach.

     

    “Maximum penalty for criminal breaches of the My Health Record Act is 5 years of imprisonment.”

     

    Sanctions for Employees and Other Associates

    As mentioned, healthcare marketing involves several stakeholders besides the primary healthcare provider. So, not all the blame and liability for violating regulations falls on the primary health providers. In some situations, employees and other associates in the marketing process take responsibility rather than healthcare providers.

     

    The Power of Social Media

    Social media has revolutionised how health care professionals communicate, collaborate, educate, and inform. Spanning platforms like blogs, social networks, wikis, and media sharing sites, these digital tools can be harnessed to improve professional networking, patient care, and public health programs.

    The rise of medically-focused professional communities has significantly facilitated communication among physicians, pharmacists, and other healthcare professionals. Meanwhile, traditional social platforms like Facebook, Twitter, and LinkedIn also serve as useful platforms for professional interaction. However, despite the potential benefits, social media use presents risks, including dissemination of poor-quality information, breaches of patient privacy, and potential damage to professional reputation. Balancing these opportunities and challenges is crucial for healthcare and medical providers navigating the digital landscape.

     

    How Can You Ensure that Your Marketing Strategies are Compliant?

    The only way to avoid penalties and sanctions is by conducting due diligence when employing marketing strategies to ensure your advertisement doesn’t violate Privacy Act 1988 regulations. Here are some practical tips to ensure your marketing strategies are compliant:.

       

        • Get written patient consent: Before using any patient history information for marketing purposes, contact the patient(s) for authorisation and obtain their permission. The consent should clearly outline the intended use of the information and give patients the option to opt-out if they don’t wish to participate. Having the consent written protects you from legal issues if the patient decides to sue.

        • Train your staff and associates on the Privacy Act 1988: You should provide comprehensive training to all your employees and associates in marketing your health services. Ensure the training covers the basics of regulations, the importance of patient privacy, and the specific guidelines for handling patient data during marketing campaigns.

        • Secure patient data: Carefully store and protect any data used for marketing purposes. That includes both digital and physical storage. You can encrypt digital data, implement secure access controls, and use safe mailing practices for physical documents.

        • Anonymise data when possible: Whenever feasible, de-identify or anonymise patient data before using it in marketing campaigns. That entails removing personally identifiable information that could link the data to a specific individual.

        • Regularly audit your marketing practices: Conduct regular audits of marketing practices to identify any potential Privacy Act compliance issues. That helps ensure you stay updated on regulations and make any necessary adjustments promptly.

       

      In Summary

      Prioritising compliance with Privacy Act regulations is essential when designing marketing strategies for your health services. You can obtain patient consent, secure patient data, anonymise the information, and conduct regular audits of your health marketing strategies. Successful marketing campaigns incorporate marketing practices that align with Privacy Act regulations to protect patient’s privacy and yourself and your business from legal action.

      Are you looking for ways to navigate the complexities of Privacy Act-compliant marketing for your healthcare practice? Partner with Marketing Your Brand to make your work easier. We provide digital marketing services such as social media strategies, website and graphics designs, emails and pay-per-click campaigns, and consultancy services. Contact us today to gain valuable insights, practical tips, and expert guidance that ensures your healthcare marketing is Privacy Act compliant.

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