In the latest crackdown on the “commercialization” of healthcare in India, the National Medical Commission (“NMC”) has issued ‘Guidelines on Ethical Advertising and Public Communication by hospitals/medical institutions and Registered Medical Practitioners’ (“Ethical Advertising Guidelines”).
Over the past few years, there has been widespread discourse around hospitals putting out promotional advertisements. While registered medical practitioners (“RMP(s)”) are unequivocally restricted from engaging in any activities that could amount to promotion, there is no equivalent restriction for hospitals and clinics, partly because of the fragmented manner in which they are regulated in India. In 2023, the Supreme Court had admitted a public interest litigation which sought to regulate advertisements by corporate hospitals, in response to which the NMC had convened a panel to examine the issue. The NMC panel concluded that the restrictions on advertisements that apply to RMPs should be extended to hospitals as well.
Interestingly, the NMC’s authority does not expressly extend to hospitals and medical institutions, which are regulated at the state-level by laws, and this is the first formal attempt to regulate conduct by hospitals. In response to this issue, the NMC panel had concluded that the wordings of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (“MCI Code”) empowers the NMC to lay down policies to ensure observance of professional ethics in the medical profession, and not by medical professionals, which extended to issuing guidelines for hospitals. To reduce challenges around the enforceability of the Ethical Advertising Guidelines, the NMC has clarified that the Ethical Advertising Guidelines are to be read in conjunction with the applicable clinical establishment laws, and that the latter will prevail in case of any irreconcilable conflicts. It has also clarified that non-compliances by hospitals will be dealt with under the applicable state clinical establishment law, and not through the NMC’s disciplinary machinery.
The Ethical Advertising Guidelines, which come into force immediately, are substantially more prescriptive than the MCI Code itself. They not only contains guidance for materials that are disseminated across mediums including through digital marketing, influencer marketing, podcasts, and messaging platforms, but also contains provisions for the use of AI for the promotional materials.
Expanding on the position under the MCI Code, the Ethical Advertising Guidelines allows hospitals to disseminate factual information such as accreditation information, departments, emergency services, infrastructure and facilities available, including in public spaces like railway stations and airports. Any superlative claims or references to rankings or awards would be subject to scrutiny, and would need to be verifiable. Interestingly, while RMPs are permitted to participate in health awareness campaigns, the Ethical Advertising Guidelines do not expressly allow hospitals to conduct public health or disease awareness campaigns, with the exemption of campaigns about programmes and schemes run by the government.
The Ethical Advertising Guidelines also prohibits the use of discounts, limited-period offers, contests, coupons, gifts, cashbacks, referral benefits, free procedures or similar inducements in a manner that is likely to encourage unnecessary medical consultation, diagnostic investigations or treatments or would otherwise amount to solicitation of patients, unless it is a factual, lawful disclosure: of charges, packages or fees offered by the hospital or diagnostic centre.
While the definition of “hospital/medical institution” under the Ethical Advertising Guidelines does not extend to digital health platforms, they do direct such platforms to ensure compliance with the advertising norms, which includes the prohibition on paid rankings or other means of manipulating search rankings, visibility or algorithms to create a misleading impression of professional standing, and the procurement of reviews, ratings, testimonials, comments.
For hospitals, these guidelines introduce unprecedented risk exposure under both the applicable clinical establishments law and the general advertising and consumer protection laws. The NMC has not provided a transition period under the Ethical Advertising Guidelines, so hospitals would need to act swiftly to minimise risk of legal action. All existing advertisements and materials should be reviewed, and any non-compliant materials should be taken down and revised. Similarly, the materials pertaining to health packages and offers should be audited to ascertain whether it may be perceived as violative. Clear, documented approval procedures should be implemented for any materials commissioned, sponsored or authorised by the hospital, either through an agency or influencer. Additionally, the structure of engagements with third-parties such as agencies, online platforms, influencers should be audited to ensure that the payment or consideration is not linked to the procurement or referrals of patients.
While the extent of scrutiny and prosecution under the Ethical Advertising Guidelines is still to be seen, the recent rise in enforcement actions signals that the regulators may not take non-compliances lightly. The NMC’s objective is not to clamp down on all forms of patient-facing communications by hospitals but to bring about transparency and minimise the risk of patients being misled. Though the immediate impact may be an added compliance burden for hospitals, in the longer-term, the Ethical Advertising Guidelines may help restore the reputation of the healthcare system as a whole.