Self-funded IVF: Final consumer law guidance published

The Competition and Markets Authority (CMA) has published its final guidance for fertility clinics and a guide for patients in the UK to ensure that they understand their obligations and rights under consumer law: Self-funded IVF: consumer law guidance.

The main purpose of the guidance is to help fertility clinics understand and comply with their existing obligations under consumer law. The UK fertility market is worth around £320 million annually, and has enjoyed steady growth over recent years, with the self-pay market growing as NHS services have declined.

The guidance has been published following concerns by the CMA, Human Fertilisation and Embryology Authority (HFEA), the Advertising Standards Authority (ASA) and patient groups that certain clinic practices may be preventing or inhibiting patients from making informed choices, in particular:

  • Patients being unable to make meaningful comparisons between clinics' prices because of the way some clinics present misleadingly low headline prices, which do not include essential elements of treatment.
  • Patients being faced with unexpected additional costs during treatment.
  • Clinics providing partial or misleading information on their success rates.
  • Patients not being properly informed by clinics of the limited evidence base for add-on treatments increasing the chances of a live birth, or the risk associated with certain add-on treatments.

Fundamentally, consumer law aims to ensure patients are not misled or subjected to unfair commercial contracts – to this end, clinics must put in place contracts with patients which are fair and transparent. The guidance covers:

  • Information provision – what information clinics should provide to prospective patients and existing patients and when (Chapter 3).
  • Commercial practices - what clinics should do to ensure that their commercial practices are fair, in particular to ensure that their commercial practices meet the objective standard of professional diligence (Chapter 4).
  • Contract terms – what clinics should do to ensure that their terms are fair (Chapter 5).
  • Complaints handling – what clinics should do to ensure that their complaints-handling processes are accessible, clear and fair (Chapter 6).

Consumer law will apply to a fertility clinic's terms and commercial practices in relation to the provision of any treatment that is paid for by a patient. This includes where a patient pays for their treatment in full and where they pay for any element of their treatment (over and above their free NHS treatment). This is the case whether the clinic is an NHS or a private clinic, and irrespective of the legal status of the clinic and whether the clinic is acting on a 'not-for-profit' or a 'for profit' basis. The CMA does not generally expect consumer law to apply in relation to the provision of treatment that is funded by the NHS and which is provided to a patient free of charge, whether by an NHS or a private clinic.

To supplement the guidance, the CMA has published a guide for patients and the ASA has published an enforcement notice which provides guidance on the rules when advertising IVF fertility treatment.

Clinics and other businesses active in the sector need to read the guidance and check if any changes to their practices, policies and contractual terms are required.

If a clinic, or any other business active in the sector, does not comply with consumer law, the CMA and other bodies, such as local authority trading standards services, can bring civil court proceedings against them, to stop infringements and seek compensation on behalf of patients. They can also bring criminal prosecutions. The ASA can take action against misleading advertisements that contravene the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code). Moreover, clinics may face legal action from patients, who may bring legal proceedings for a clinic's breach of contract or seek redress in the courts for certain breaches of consumer law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.