Google (& online) Reviews In Healthcare: To Love or Loathe?

In a recent interview, the President of AMA (NSW) told the Australian Doctor (AusDoc) he had written to Google Australia in May and July this year of their concerns on the risks posed by reviews and ratings to medical practitioners. The letter requested for more rigorous review procedures relating to doctors and to allow doctors to disable the review function linked to their practice’s profile. His contentions were:

• Doctors cannot ‘balance’ negative reviews with positive testimonials as it is strictly prohibited by the National Law.

• HCCC in NSW is the appropriate channel for patients to make complaints.

• Reputational damage and distress are caused even if a 3rd party agent is engaged to have the review removed for breaching Google’s reviewing policy.

• Professional harm outweighs any benefit the public might derive from the reviews.

AusDoc’s article (“Google reviews destroying doctors’ reputations”) generated a flurry of comments from doctors and non-doctors alike. The letter is reproduced in AusDoc’s article and AMA (NSW) also provided its take on the topic in The NSW Doctor.

Unsurprisingly, the response from Google came across as perhaps apathetic. In May this year, it took more than a dozen world leaders to bring the tech giants (Google included) to the table in Paris after the Christchurch shootings which left 51 dead (The Christchurch Call is to eliminate terrorist and violent extremist content online). Such is the current state of play.

Let’s face it, negative (or even mediocre) reviews are never welcomed by businesses. For professionals, reviews (be it amazing or outright false) are directly attached to the professional - the person. It goes without saying the impact can be significant either way. Unlike most businesses, professionals are usually bound by law and industry code of conduct - limiting how they can respond to reviews.

For health providers the additional restriction is regulated by s 133 of the National Law:

(1) A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that --

(a) is false, misleading or deceptive or is likely to be misleading or deceptive; or

(b) offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer; or

(c) uses testimonials or purported testimonials about the service or business; or

(d) creates an unreasonable expectation of beneficial treatment; or

(e) directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

Maximum penalty--

(a) in the case of an individual--$5,000; or

(b) in the case of a body corporate--$10,000.

You may say, “Wait a minute, the active word here is ‘advertise’. How is having positive reviews on third party platforms or responding to them deemed as advertising?” To this, AHPRA has published extensive materials to assist health providers. By AHPRA’s definition, ‘advertising’ means:

“… the public promotion of a regulated health service to attract users to the health provider or encourage the use of the health provider’s service...

For example, a review on a third party website or platform that the advertiser does not control is not considered advertising. An advertiser is not responsible for removing (or trying to have removed) testimonials published on a website or in social media over which they do not have control. However, a breach of the National Law may occur if a health service provider uses the review to advertise, by responding to the review or by re-publishing it on their website.”

Therefore, it appears that the claim purporting “doctors cannot ‘balance’ negative reviews with positive testimonials…” is somewhat flawed as per AHPRA explanation above. It is also unhelpful for AHPRA to label a health provider an ‘advertiser’ regardless if s/he actually performed the act of advertising. The latter part of the example is where it gets interesting (or murky). AHPRA may consider your response to a review as advertising if your comments are deemed to be promoting your services, retweeting or sharing the review on your social media pages.

What happens if the review is outright false, malicious, and/or defamatory? You should seek immediate legal advice to know your options and to determine the next course of action.

In the recent case of Tavakoli v Imisides (No 4) [2019] NSWSC 717, the Sydney plastic surgeon took swift actions in trying to prevent the publication of defamatory statements through an injunction. The defendant ignored the court order and went ahead to publish the first scathing Google review which imputed the surgeon was incompetent, cruel and a bully by threatening patients with lawyers. This led to a defamation and tortious claim by the surgeon. It resulted in an $80,000 settlement payout by the second defendant (patient’s ex-husband) and the Supreme Court of NSW awarded him $530,000 with costs and interests against the first defendant (the patient). Such cases are extreme and rare.

So how should you manage a negative review? Perhaps start by asking yourself: how do you read reviews when googling, say for a vet? Do you scrutinise every single review? Would you be a little suspicious or doubtful if all 57 reviews are awesome and sterling? What if there are a couple of negative/mediocre ones – is it a deal breaker? If the practice responded to the negative reviews in a professional and courteous manner offering avenues to resolve the grievance – will that make a difference?

You get the idea.

It gets tricky when the review is posted anonymously or pseudonymously and your practice is unable to identify the patient from your database. In such instance, it is important that the practice remains professional and courteous in responding (ie not using adjectives like ‘fake’, ‘imposter’, ‘sham’, ‘hoax’ etc…).

Points to consider:

If you have claimed your business profile on Google (ie Google My Business), you should be prepared for reviews eventually (if it is still inactive). Rather than responding in the heat of a moment (or completely ignoring), you might want to take some time to draft some responses during this holiday season that are reflective of your professional and practice’s tone.

Whilst AMA is battling Google, health providers affected under these distressing circumstances are not getting any reprieve. As such, if medico associations like AMA being well respected by the public, are willing to respond appropriately to detrimental reviews on behalf of an affected member, it will put the public at some ease which may also preserve the health provider’s reputation until the reviews can be properly addressed or removed. At the same time, the reviewer will be put on notice to use the appropriate avenue for legitimate complaints. Please note medico associations are not obliged to do so.

What you should know:

1. Contravening s 133 of the National Law is a criminal offence with penalties up to $5,000 for individuals and $10,000 for body corporate; and may lead to a finding of professional misconduct.

2. Positive reviews on Google or other platforms not controlled by health providers are permitted and are not considered as advertisement. Be wary of your responses/actions to the reviews which may amount to advertising.

3. AHPRA’s website has extensive literature, guides and advertising tool to facilitate compliance.

4. If you are unsure, you should seek independent legal advice promptly.

Online reviews are not going away. Learning to navigate this sphere tactfully can be advantageous to your practice in a long run (we have seen this happening to our clients).

If you have queries or a problem about an existing review, have a chat with us.

Resource: AHPRA Testimonial Advertising Tool