The MDU in action
Using 'before and after' photos as a marketing tool
14.11.24
Make sure your use of ‘before and after’ imagery meets regulatory standards to avoid misleading marketing and protect patient privacy.
A picture is worth a thousand words, which is probably why ‘before and after’ images are often used to showcase cosmetic, dermatology, slimming and dental services.
But while they can tell a powerful story of someone’s physical transformation and the technical skill involved, your business needs to tread carefully to ensure you meet regulatory standards and avoid upsetting patients.
What can go wrong?
Issues can arise when the patient has not given specific informed consent for ‘before and after’ photos to be used for promotional purposes or if an anonymised image is still recognisable by the patient or those close to them.
Businesses can also run into trouble if the Advertising Standards Authority (ASA) finds their marketing misleading, unsuitable or unlawful. The ASA has the power to order the withdrawal of material and can refer “egregious” cases to organisations like Trading Standards and the Medicines and Healthcare Products Regulatory Agency (MHRA), which oversees the advertising of medicines in the UK.
Individual practitioners can face a complaint to their professional regulator for failing to comply with advertising regulations.
What does the guidance say?
All your marketing material (including your website) must comply with the Committee of Advertising Practice (CAP) Code, which is enforced by the ASA.
The CAP has extensive resources on health and beauty advertising as well as specific guidance on the use of ‘before and after’ photos (and related guidance on the use of testimonials).
The relevant CAP guidance is summarised below.
- Permission must be given to use images and patients shouldn’t be incentivised to take part.
- Images must show a genuine patient, not a model.
- Marketing communications for cosmetic interventions must not be targeted at or designed to appeal to under-18s. This 2023 CAP guidance provide more details on this and responsible marketing of surgical and non-surgical cosmetic procedures.
- Ensure you have evidence to substantiate the impression created by the images.
- Retain signed and dated proof that the images are genuine and contact details for the person featured. The CAP warns about the potentially misleading use of pre- and post-production techniques, such as retouching ‘after’ images.
- The images must relate to the product being promoted but be careful about prescription-only medicines (see below).
- The images must not promote prescription-only medicines (POMs), such as botulinum toxin. The CAP says that ‘before and after’ imagery “even in isolation without any accompanying claims is very likely to be seen as an implied ad,” which is a breach of advertising rules.
- Marketing should include material information, including if the person featured is an investor.
You can find more relevant guidance from:
- the GMC (‘Making and using visual and audio recordings of patients’ includes a section on recordings for use in widely accessible public media, ‘Guidance for doctors who offer cosmetic interventions’ and ‘Good medical practice’, paras 88-91 on ‘Communicating as a medical professional’)
- the GDC (‘Guidance on advertising’ and ‘Standards for the dental team’, particularly principles 3 and 4, which cover consent and confidentiality)
- the MHRA (guidance on how to advertise and promote medicines, including the detailed ‘Blue Guide’).
MDU risk management advice
Before-and-after photos are often an intrinsic part of patient care, but if your healthcare business wants to use these for a secondary purpose such as promotion, we recommend you set a clear, consistent and standards-based policy that covers the following areas.
Patient consent
Establish a process for requesting the patient's specific consent, ideally in writing, to use their image in this way, even if you don’t think they will be identifiable in the published image. You should clearly explain the purpose, how and where the photo will be used, how long for and how it will be stored.
We advise you to discuss this with patients at an early stage so they don’t feel under pressure. Make it clear they can withdraw permission at any time.
Documentation
As well as documenting the patient’s consent, you should have a system to record things like the dates the photos were taken, who took them, whether any production techniques were the patient’s contact details and the relevant procedure (not their full medical history). You should be able to show evidence the images are genuine and not misleading.
Anonymising images
Establish a consistent process for effectively covering identifiable features such as by blurring or covering the nose and mouth. If it isn’t practical to anonymise the patient (eg, for a full-face procedure), this should be made clear to them when seeking permission.
Appropriate use of images
Have a clear set of dos and don’ts about how photos are going to be used, in line with the CAP rules, such as excluding images that feature POM treatment or under-18s, and ensuring the image captions and surrounding text do not make misleading claims about the speed or effectiveness of treatments.
Checks and approval
If you’re working with a marketing or web agency, it’s up to you to check they understand the rules on ‘before and after’ photos and ensure these are followed.
It’s a good idea to put a trained and responsible member of the team in charge of the approval process. If you’re unsure whether your promotion is in line with the rules, you can use the CAP checking service.
As an MDUConnect policy holder, you and your team have access to expert medico-legal and dento-legal guidance and support. We encourage you to address issues early to pre-empt problems, so contact us for specific advice or explore our articles and resources.
This page was correct at publication on 14th November 2024. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.
Sarah Jarvis
Risk advisory partner
Sarah has been a full-time medico-legal adviser since 2013, and has wide experience of supporting healthcare companies in dealing with complaints, inquests and general medico-legal queries.
A GP partner and trainer before joining the MDU, she is a team leader in the advisory department, where she also draws on experience gathered from sitting as an MPTS fitness to practise panellist, including chairing the panels.
Oliver Lord
Risk advisory partner
Oliver is part of a specialist advisory team that assists members with disciplinary investigations and has an interest in doctors’ wellbeing.
Before joining the MDU in 2013 Oliver was a consultant psychiatrist in a crisis resolution team. He provides regular talks and courses to members on medico-legal issues, conflict resolution and unconscious bias.
John Dale Skinner
Risk advisory partner
John is a medico-legal adviser and risk advisory partner. John has been with the MDU for the past 10 years, having previously worked as a GP.
He has wide experience as a senior medical claims handler helping MDU members defend clinical negligence claims.
Kathryn Leask
Risk advisory partner
Kathryn has been a medico-legal adviser with the MDU since 2007. She is a team leader and trainer in the medical advisory department.
Before joining the MDU, she worked in paediatrics, gaining her MRCPCH in 2002, and holds a CCT in clinical genetics. Kathryn also holds an MA in Healthcare Ethics and Law, a Bachelor of Law and a Professional Doctorate in Medical Ethics. She is also a fellow of the Faculty of Forensic and Legal Medicine and has previously been an examiner and deputy chief examiner for the faculty.
Kathryn is currently a member of the faculty’s training and education subcommittee and a member of the Royal College of Pathologists (medical examiner).
Jerard Ross
Risk advisory partner
Jerard has been with the MDU for over 10 years, and now works as a risk advisory partner.
Prior to joining the MDU, he was a consultant neurosurgeon balancing a busy NHS practice with private sector work. He is currently the educational lead for the MDU and head of Scottish affairs.
Ed Farnan
Risk advisory partner
Ed has been a medico-legal adviser at the MDU since 2013, and now works as a risk advisory partner. In addition to providing advice and assistance to members. Ed has worked as a clinical risk manager in the underwriting department and as a member of the medical education team.
After qualifying from Queen’s University Belfast in 1995, and as a GP in 2000, he worked as a partner in general practice for around 12 years before joining the MDU.
With an interest in clinical governance, Ed sat on a regional research ethics committee, completed a master’s degree in medical law in 2011 and became a Fellow of the RCGP in 2015.
Ed also writes articles for the MDU and other publications as well as running courses and webinars.
Leo Briggs
Risk advisory partner – dental
Leo is a risk advisory partner specialising in supporting dental practices in dealing with complaints and regulatory matters, as well as general dento-legal queries.
Having qualified from University College Hospital London in 1989, he has worked extensively in the Community Dental Service as well as in general dental practice. Leo also gained an MSc in Periodontology from the Eastman in 1995 and is on the GDC specialist register for Periodontics.
Leo worked part time as a clinical tutor at the School for Professionals Complementary to Dentistry in Portsmouth and started working part time for the DDU in 2005. He has been with the DDU full time since 2009 and became deputy head of the DDU in 2016.
Sarah Ide
Risk advisory partner – dental
Sarah is a risk advisory partner and has been working at the DDU as a dento-legal adviser since 2015, initially combining this work with general practice.
She qualified from Guy's Hospital Dental School in 1992, working there as a house officer before entering general practice as a vocational trainee.
Sarah subsequently worked in independent and private general practice for 25 years and completed an MSc in Aesthetic Dentistry at King’s.
