It is important for doctors and patients alike to know their rights and responsibilities under the Trade Practices Act. The fair trading provisions in the Act support honest professional dealings and contribute to the relationship of trust that exists between doctors and their patients.
This leaflet will help doctors to understand their rights and obligations—both as providers and consumers of goods and services—under the fair trading provisions of the Trade Practices Act 1974.
The fair trading provisions of the Act—and similar provisions in state and territory fair trading legislation—are designed to protect consumers and businesses against deceptive, misleading and unfair trading practices, including in relation to professional services.
The laws against misleading or deceptive conduct protect you when you buy goods or services. People who supply goods or services to you must therefore not engage in misleading or deceptive conduct in their dealings with you.
If you believe you have been misled about any goods or services supplied to you, consider the issues outlined in this leaflet and contact the ACCC infocentre for further guidance (see below).
In operating a professional practice, doctors, like other business people, have an obligation not to mislead or deceive consumers. This includes patients, as consumers of medical products and services.
Broadly speaking, conduct will be considered misleading if specific representations are inaccurate, or the overall impression conveyed is likely to mislead the people at whom it is directed.
The Act prohibits doctors from making false representations about goods or services, including:
intentionally misleading patients
leading them to a wrong conclusion
creating a false impression
leaving out important information
hiding important information (e.g. fine print disclaimers)
making false or inaccurate claims.
You must be careful that specific representations and the overall impression you create about the services you provide are not misleading.
The courts have established four principles to help determine whether conduct is misleading or deceptive:
the relevant section of the public must be identified
all identified people must be considered, including the intelligent and not so intelligent, the educated and uneducated
evidence that someone was actually misled is relevant, but is not conclusive nor essential to establish that the conduct is misleading or deceptive
when a false impression has arisen it is important to determine why, to see if it was the conduct that caused it.
Misleading conduct can include being silent if, in the circumstances, there is an obligation to say something.
As well as the general rule against misleading conduct, the Act creates obligations in relation to representations you make about your services, and in respect of any goods you may sell as part of your practice. The Act prohibits you from falsely representing:
that services or goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use
that goods are new
that a particular person has agreed to acquire services or goods
that services or goods have sponsorship, approval, performance characteristics, accessories, uses or benefits
that a company has sponsorship, approval or affiliation
the price of services or goods
the availability of facilities for the repair of goods or spare parts for goods
the place of origin of goods
the need for any services or goods
the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.
The Act prohibits unconscionable conduct by companies when supplying personal, domestic or household goods or services to consumers; that is, taking unreasonable advantage of a stronger position.
The Act does not define ‘unconscionable conduct’, but sets out a non-exhaustive list of factors that a court may take into account in determining if conduct is unconscionable:
the relative bargaining strengths of the 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, pressure, or unfair tactics
how much the consumer would have had to pay, and under what circumstances, to buy equivalent goods or services from another supplier.
Patients can be vulnerable due to factors such as infirmity or age. You should take care that your actions do not unreasonably take advantage of them.
To make an informed decision about whether to purchase medical and health services (particularly elective services such as cosmetic surgery), patients need reliable and accurate information.
Patients can be physically, psychologically or financially affected by misleading conduct, and these effects can be long lasting. It is essential that patients be given honest, accurate and complete information in a form they can understand.
Doctors are already obliged by common law and professional practice obligations to provide sufficient information to ensure informed consent by patients. This includes:
risks, side effects, permanency of outcome, and other aspects of the nature and quality of treatment
alternative treatment options and the consequences of not having treatment
post-treatment care and potential complications
charges (including for ancillary and add-on services).
Omissions may be crucial. While there is no general duty of disclosure under the Act, you should ensure the combination of what is said and not said, will not give patients the wrong overall impression.
Silence can be misleading if it is reasonable to expect that certain information will be disclosed.
Doctors are permitted to advertise their fees. Advertising is supported by the ACCC as it promotes awareness by patients of prices for services and allows them to make informed decisions about services they may choose to purchase.
The provisions of the Act relating to misleading or deceptive conduct are relevant to all means of promoting medical services and products, including electronic and print media advertising, information brochures, direct mail, internet promotions and outdoor advertising.
When advertising your services, you should take care to avoid representations that might be misleading or deceptive. All statements, taking into account both their content and context, must be honest and accurate. This includes not only what you say or write, but also what you may imply.
Be aware of any implied message, whether intentional or unintentional, that may be misleading or deceptive.
These principles apply to representations made by you and your staff. For example, statements about health and medical services made in consulting rooms or reception areas must also be honest, accurate and complete.
Patients may be uncertain and confused about medical and health services, particularly if they are elective procedures. This means that doctors must take special care to explain their services.
Your patients can be at a disadvantage because they know less about the qualifications of medical professionals than those who practise in the profession. For example, patients may assume that a person who uses the title ‘surgeon’ has undertaken a particular level of training in surgical procedures. Doctors wishing to promote themselves as surgeons should ensure they are not using the term in a way that may mislead patients about their skills or qualifications.
You should ensure that claims or representations about professional qualifications, experience or services are not misleading.
Patients should be given accurate details of the fees and any additional costs they are likely to incur. This is particularly the case where services are elective and/or not medically necessary.
Whenever possible, information on costs should be provided before treatment begins to enable patients to give informed financial consent. This should include not only fees, but also other likely charges and costs, such as specialist charges and rehabilitation costs.
It is recognised that providing information on costs to patients in emergency situations could be very difficult, and in some cases may be impossible or inappropriate in the circumstances. However if the situation permits, information on costs should be provided to patients.
Often several doctors will be involved in providing care. If you cannot provide details on the other doctors’ charges, their names and contact details may be provided to the patient so they can find out for themselves.
Areas where particular care should be taken include:
claims about Medicare funding and bulk-billing
statements relating to private health insurance and the extent to which costs can be claimed through private health insurance
disclosure of all costs before patients commit to purchasing services.
Medical procedures may reveal or result in complications so that it is not always possible to advise patients how this will affect treatment and cost. This can also be true of last minute changes in who performs the procedure when the replacement doctor may have different charges.
If you don’t know what the cost of a patient’s treatment will be, give them an estimate that includes all the relevant information, including that the quoted cost is only an ‘estimate’. To avoid the risk of misleading patients, explain the limitations of an estimate when it is being provided.
Patients are best protected when they are fully informed.
Either yourself, or other professionals that you are referring patients to, may have financial or other interests in promoting a particular service, product, practitioner, clinic or hospital.
When referring a patient you should advise the patient of any actual or potential conflict of interest. For example, if you are part of a corporate medical practice, it may be necessary to disclose that ‘the corporation has a policy of referring patients to professional services or specialists within that corporation’, if that is in fact the case.
This disclosure is another important aspect of obtaining patients’ informed financial consent, because it allows patients to make fully informed choices about their treatment and costs.
Failure to disclose such interests to patients may contravene the Act. Although the Act does not impose a general duty to disclose information, the courts have held that silence is to be considered when determining whether conduct is misleading or deceptive.
You should inform a patient of your interest if non-disclosure may create a misleading impression of the situation.
This ACCC publication was developed in consultation with the Health Services Advisory Committee (HSAC). The Australian Government established HSAC to promote consultation and the exchange of information between the ACCC and health professionals on matters relevant to the application of the Trade Practices Act.
The ACCC recognises the valuable contribution of the following HSAC member organisations and representatives. However, it is noted that this is an ACCC publication, the contents of which do not necessarily reflect the views of the organisations or persons represented on HSAC.
Independent chair The Hon. Mr Tim Fischer
Australian College of Rural and Remote Medicine Professor Ian Wronski
Australian Consumers’ Association Mr Chris Field
Australian Divisions of General Practice Dr Robert Walters
Australian Medical Association Professor Kerryn Phelps
National Rural Health Alliance Ms Lesley Fitzpatrick
The Royal Australian College of General Practitioners Dr David Thompson
Rural Doctors Association of Australia Dr Ken Mackey
Trade practices solicitor and barrister Mr Alan Limbury
