Consumers are often not as well informed about professional services as they are for other sectors because of the imbalance between what they know of service provision compared with what the provider knows. The ACCC is of the opinion that better information needs to be provided about professional services to enable consumers to make better-informed choices about purchasing services and whether to provide consent for services to be provided.
Promotional activities
The source of protection for consumers is provided by the Australian Consumer Law (ACL), which is contained in a schedule to the Competition and Consumer Act 2010. Generally, the ACL requires that professionals do not, in their promotional activities, act in a way that is misleading or deceptive, or is likely to mislead or deceive.
Representations made by professionals on their fees and charges
Through its enforcement of the consumer protection provisions of the ACL the ACCC is concerned that professionals obtain informed financial consent from their clients. Practitioners should be aware that failure to disclose material information such as fees may in some circumstances be in breach of the ACL provisions.
The ACCC believes that professionals have an ethical duty to inform their patients about the cost of the services they provide while consumers have a right to obtain information on these costs—where possible, in advance of the services being provided.
When obtaining informed financial consent, professionals should disclose their commercial or financial interests in other service providers that they refer clients to, or inducements they receive from suppliers of products they recommend and use.
Representations made by professionals regarding the services they provide
The ACCC is concerned generally about professionals making representations to consumers in relation to services and the likely outcome of the provision of the services when those representations are not honoured or fulfilled in the future or the services change without warning. This may constitute misleading or deceptive conduct under the ACL.
Representations about qualifications and credentials
Misleading information about the credentials and qualifications of a professional may also fall for consideration under the consumer protection provisions of the ACL, as do other types of representations made by professionals when providing services.
Unconscionable conduct in consumer transactions
The ACL prohibits unconscionable conduct in consumer transactions. While the ACL does not define ‘unconscionable conduct’, professionals should be aware of the following non-exhaustive list of factors which may be taken into account by the court in deciding whether conduct is, in all the circumstances unconscionable:
the relative bargaining strengths of parties
the imposition of conditions not reasonably necessary to protect the supplier’s legitimate interests
whether the consumer understood any documentation used
the use of undue influence or pressure, or unfair tactics
the amount for which, and the circumstances in which, the consumer could have bought equivalent goods or services from someone other than the supplier.
When dealing with patients or clients, professionals should ensure they do not act unconscionably, in particular, as some consumers may be uncertain and confused about the professional services to be provided.
