Ian Youngman considers whether the medical tourism industry is both legal and ethical

 

Is medical tourism ethical?

Are patients in domestic markets suffering because healthcare facilities are being used by medical tourists? Are some aspects of medical tourism such as organ transplantation even legal?

Some politicians are actively supporting medical tourism by setting up organizations to market and promote their country or region, and hoping it will prop up ailing tourism or inbound investment. However, an African minister promoting medical tourism investment ran into trouble when the local press found the proposed location had no planning or other permissions, and suggested that all ministers try using local public hospitals rather than getting private treatment.

Another problem is that apart from Australia, where anyone arranging travel has to be authorized, no country regulates medical travel agencies. Most avoid any regulation on medical travel or tourism agencies by claiming that as healthcare facilitators they are different creatures. It may only be a matter of time before some get found out. The problem is that if you are crooked or just incompetent you can set up a medical travel agency with an impressive name that makes you sound like a big corporation. More than one such company has received press coverage for taking money upfront from potential medical tourists with no intention of arranging treatment. Some national sounding names have been found to be nothing more than a guy using a laptop and an Internet café.

In many industries, international and national trade bodies would seek to work with governments to clean up and legitimize the industry. But in medical tourism we lack such a body. While governments may recognize and work with and even fund national trade bodies, when it comes to lawmaking none of the various medical tourism associations have provided input to national governments or bodies like the EU.

A lot of what is done by people in medical tourism is unregulated, but not as much as people may think. When choosing where to go to for treatment at home, people rely on local knowledge, experience, the press, magazines and their local doctor. When choosing to go further away, most of those sources are no help at all. This means that most potential medical tourists decide where to go based on what they read on the Internet.

In many countries, you can say anything you want on a website. You can omit your business name or location, and give nothing other than email or online contact forms. Many agencies and hospitals assume this applies in most countries. If they do, then they have not been keeping up with legislation

Does your website comply with US and European law?

The US and Europe have both independently and recently decided that website advertising has to comply with the same rules as print and press advertising. Advertising must be legal, decent, honest, and truthful. As these interpretations of existing advertising laws are new, they have not yet been enforced. Also, there is an assumption that they only apply to websites physically sited in the relevant country or region.  But legal cases under other laws have often concluded that if you are targeting customers in country X with material that can be read in country X, the laws of country X apply, even if the company is physically located in country Z. In the last decade, when looking at laws on consumer goods of all types, what used to happen is that countries followed the less strict rules of the US when bringing in new laws to protect consumers. In the last decade, this has changed so that countries follow the stricter rules of the EU, often before the US has made a law in the area. Following the EU, also means that laws are designed more tightly so that is usually fairly clear what is and what is not illegal, and with strict liability, nobody has to prove negligence- just that you broke the law; while US law may often be interpreted by protracted legal battles.

The US and the EU may go about things differently, but they both agree that it is vital to clampdown on internet advertising that makes bold claims. There are medical tourism sites that claim to offer treatment that is both better than and cheaper than anywhere else; in a regulated world they would have to prove both claims. There are sites that say damaging things about competitors, either by name or implication, and this too is something they would not be allowed to do so in the press.

Online advertising is an area of advertising where a certain degree of uncertainty existed with regards to the rules. The advertising industry has now clarified at a European level its guidance on the remit of the self-regulatory rules.

In the United States online advertising is governed and enforced by the Federal Trade Commission (FTC). The FTC has published guidelines in relation to online advertising; failure to comply with an FTC order to cease and desist for publishing an offending advert could result in a substantial fine.

In Europe the E-Commerce Directive attempts to simplify these jurisdictional issues by introducing the "country of origin principle." This means that a company in the UK only needs to comply with UK laws on advertising and can more or less ignore the laws of other EU Member States, even if selling to those Member States. However, there are important exceptions to the country of origin principle, notably the terms of any consumer contracts. It is possible that a court in another Member State will take a liberal interpretation of this exception to protect its own consumers wherever it can – so the "country of origin" principle is weakened significantly. Accordingly, traders take a risk if they choose to ignore other EU countries' laws. Also note that the E-Commerce Directive and EU legislation generally do not override any conflict of laws legislation. When trading beyond the EU, the country of origin principle has no effect. So a UK company selling to the US should also comply with the US rules on advertising.

Each country in the EU has its own consumer protection legislation. It also has its own self-regulation system based on the International Chamber of Commerce's Code of Advertising Practice. In broad terms this states that all advertising should be legal, decent, honest and truthful and should respect the cultural differences of the relevant country.

In certain areas, the regimes of the member states have been harmonized, but the major part of each country's advertising regime remains nationally based and there are major differences between the regimes in force in various countries. For example, Germany bans certain forms of promotional activity (such as two-for-the price-of-one offers); Spain bans adverts for 'war' toys in certain media; Denmark is particularly strict in the rules as to adverts directed at children.

Comply with the law in your target markets

Although the Internet gives a trader the opportunity to sell to every country in the world, most traders have more restricted horizons. The first step for any online advertiser is to determine the markets that it is targeting and to investigate the laws that apply in those markets. You should then seek to comply with those laws.

Complying with the laws of targeted markets is not sufficient protection, however, if orders might be received from other countries as well. The prudent advertiser will also take steps to indicate that orders will not be accepted from non-targeted jurisdictions and incorporate some means of screening for orders that are nevertheless received from those jurisdictions. While it is the advert rather than the order that potentially causes the offence, an advertiser who can be seen to have taken steps to exclude residents of a particular country will clearly be in a better position to defend itself against any claim by the authorities of that country.

If the goods on the site fall within a particularly sensitive category the advertiser might even investigate barring access to the site to viewers from certain areas of the world

In the context of advertisements, the Internet is simply a new means of publication.  But this means of publication means that existing and well-established rules have to be applied in new ways, whilst new rules designed specifically for the online world must also be considered.

Advertising watchdogs exist in 20 out of the 27 EU Member States, and by the second half of 2009 it is expected that self-regulatory bodies will also be up and running in Bulgaria, Cyprus and Luxembourg. Advertisements that appear in new media have to meet the same strict rules that apply to ads in traditional media.  The codes apply to banner ads on other sites, but not always to adverts on people’s own sites.

This is a moving feast and I do not pretend to be an expert on what individual countries are doing or how the law everywhere is interpreted. This is still a very new area and so new laws and interpretations of laws operate in an area of constant change.

Anyone advertising online should try to bring truth to their websites.

A few tips to staying legal

  • If you make a bold claim on price or effectiveness can you back it up?
  • Can people tell who and where you are?
  • Can customers ring you up on a phone that gets answered?
  • Do you check the qualifications and accreditations that you claim for doctors and hospitals? (You cannot delegate responsibility to the      doctor or hospital)
  • Can you prove any price comparisons?
  • Do not knock competitors by name or implication.

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