Approved by Council: December 2020

Companion Resource: Advice to the Profession

Definitions

Advertising: any communication, whether paid or unpaid,  made in print, through electronic media, social media or via the internet by or on behalf of a physician (i.e., by a third party) that has as its primary purpose the promotion of the physician, a service they provide, or a clinic, facility or group with which they are associated, or the the communication of the availability of professional services.¹

Testimonial: a statement endorsing the quality of a service, product or professional. A before and after photo or video that complies with the requirements of this policy will not be considered a testimonial.

Before and After Photo or Video: images or videos of a patient taken before, during and/or after a medical service, and used to document the process or demonstrate the result.

Policy

This policy sets out expectations for physician advertising and includes both expectations that are set out in the General Regulation under the Medicine Act, 1991², and expectations that have been set by the College of Physicians and Surgeons of Ontario.

1. Physicians must ensure that any advertisement prepared by them, or on their behalf by a third party, complies with the expectations contained in this policy and the General Regulation under the Medicine Act, 1991.

Advertising Content

2. Physicians must only advertise in a manner which:
   1. is readily comprehensible;
   2. is dignified;
   3. is in good taste;³
   4. is accurate and factual;
   5. is verifiable and supported by available evidence and science, if making statistical, scientific or clinical claims;
   6. is respectful and balanced in tone; and
   7. upholds the reputation of the profession.
3. Physicians must not advertise in a manner which:
   1. is false, misleading or deceptive (for example, by the inclusion or omission of any information);
   2. is sensationalised, exaggerated, or provocative;
   3. contains any statement that is discrediting, disparaging, or attacking in nature;
   4. contains any statement comparing themselves to other physicians or health professionals;
   5. contains any statement that promises or suggests a better or more effective service than any other physician or health professional;
   6. contains a testimonial; or
   7. contains any reference to a specific drug, appliance or equipment.

Before and After Photos or Videos

4. In addition to complying with the expectations set out in provisions 2 and 3, physicians must only use before and after photos or videos in advertising where the photos or videos:
   1. are for the purpose of providing accurate and educational information;
   2. portray an outcome that can reasonably and typically be expected;
   3. depict an actual patient who received the advertised medical service from the physician associated with the advertisement;
   4. are not manipulated to misrepresent the results of the medical service;⁴
   5. have consistent lighting, pose, photographic techniques, and setting to maintain a standardization of images;
   6. only depict a patient who has been de-identified, unless the patient has specifically consented to being identified; and
   7. are included alongside a statement that the outcome or results depicted are not guaranteed, and may vary between patients.
5. Physicians must not display before and after photos or videos in advertisements where members of the public are likely to see them unsolicited.⁵
6. In addition to the requirements set out in the Personal Health Information Protection Act, 2004 regarding the collection, use and disclosure of personal health information⁶, physicians must obtain express consent to the specific use of before and after photos or videos before using them in their advertising. As part of this physicians must:
   1. wait until after the medical service is provided to discuss and obtain consent to the use of the before and after photos or videos in their advertising;
   2. show the final images to be used in the advertisement to the patient before using them in any advertisements;
   3. inform the patient that they can withdraw their consent to the use of before and after photos and videos at any point;
   4. inform the patient about the risks of consenting to the use of before and after photos and videos (for example, that once posted on social media they may be unable to be completely withdrawn);
   5. engage in a dialogue with the patient about the use of the photos or videos, regardless of whether supporting documents (such as consent forms, patient education materials or pamphlets) are used;
   6. consider how the power imbalance inherent in the physician-patient relationship could cause patients to feel pressured to consent to the use of photos or videos and take reasonable steps to mitigate this potential effect; and
   7. not offer incentives⁷ to consent to the use of before and after photos or videos.

Association with Products or Services Other than their own Medical Services

7. Physicians must not permit their name or likeness⁸ to be used in or associated with advertising:
   1. for any commercial product or service other than their own medical services, or
   2. for facilities where medical services are not provided by the physician.
8. Notwithstanding provision 7, physicians who are part of a multi disciplinary practice are permitted to be associated with that practice’s advertising, however they must ensure that advertising for the practice meets the following conditions:
   1. the advertisement does not provide or appear to provide any physician’s endorsement of services at the practice not provided by the physician; and
   2. the advertisement does not state or imply that a physician provides all of the services offered at the practice, or that a physician provides any services that they do not in fact provide.

Directing and Targeting Prospective Patients

9. Physicians must not participate in an organized or co-ordinated effort in which another person directs someone to a particular physician for medical services.⁹
10. Physicians must not proactively target and contact, or attempt to contact, any person known to need medical services to solicit them to use their medical services.¹⁰

Use of Title

11. In any communication that advertises, promotes or relates to the provision of medical services, physicians must only reference titles, designations or medical specialties in accordance with the General Regulation under the Medicine Act, 1991.¹¹

Endnotes

^1. For more information on what is and is not considered advertising please see the Advice to the Profession document.  

^2. O. Reg. 114/94: GENERAL under Medicine Act, 1991, S.O. 1991, c. 30.

^3. Advertising that is excessively commercial in tone, as opposed to being educational or informational, will be less likely to be in good taste. For more information on what constitutes “good taste”, please see the Advice to the Profession document.

^4. Cropping or resizing of images for display would not be considered manipulation provided that consistent techniques are applied to any before and after images.

^5. As opposed to displaying before and after photos or videos in places where a prospective patient may seek them out. For example, before and after photos and videos can be displayed on a physician’s website (even if the physician is paying to host that website), but cannot be used in print advertisements in magazines or newspapers, as this would constitute content being displayed in a setting where they would be seen unsolicited. For more information on the use of before and after photos or videos, please see the Advice to the Profession document.

^6. Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A.

^7. Incentives are offerings whose purpose would be to encourage a patient to consent to the use of their photos or videos in advertising. Incentives are often financial, in the form of discounts or special prices.

^8. For example, a representation, picture or image of the physician.

^9. This does not preclude physicians from undertaking a referral or transfer of a patient or patient’s specimen, in good faith and in compliance with the conflict of interest provisions in Part IV of O. Reg. 114/94: GENERAL under Medicine Act, 1991, S.O. 1991, c. 30. For further information please see the Advice to the Profession document.

^10. This does not preclude physicians from contacting patients who have been referred to them, reminding a person who has made an appointment of the appointment or from communicating with regular patients to inform them of health maintenance procedures due to be carried out, health issues, preventative medicine and recent developments in medicine, or of a possible benefit from a change in therapy.

^11. O. Reg. 114/94: GENERAL under Medicine Act, 1991, S.O. 1991, c. 30. For more information on how a physician can refer to themselves in advertising please see the Advice to the Profession document.