Competition and Markets Authority consults on draft consumer law guidance for fertility clinics

Why is the CMA producing guidance?

Fertility clinics provide an extremely important service for those struggling to have a baby and many patients have positive experiences of the clinics where they have treatment. Every year, around 70,000 cycles of IVF treatment take place in the UK and an increasing proportion of patients pay for treatment themselves. For those buying fertility treatment, there are few, if any, purchases that are more important. As most cycles sadly are not successful, for many patients this is not a one-off purchase, and they can spend many thousands of pounds over the months and years they undergo treatment.

Consumer law gives important protections to fertility patients, as it does consumers in other markets. However, during our discussions with the Human Fertilisation and Embryology Authority (HFEA) and other stakeholders with knowledge of the sector, we identified a general lack of awareness about how consumer law applies in the sector.

Our initial discussions with the HFEA and other stakeholders, reviews of clinic websites and other published research, and media coverage of the sector, also highlighted some clinic practices that may negatively impact patients' ability to make informed decisions about which clinic to choose, and which treatments to buy.

Compliance with consumer law

We took the decision to produce guidance to help clinics providing fertility treatment to patients in the UK understand and comply with their existing obligations under consumer law. Compliance with consumer law should help address some of the concerns we have identified in the sector, such as:

• patients being unable to compare clinics' prices because some clinics present misleadingly low headline prices

• some clinics providing misleading information about their success rates

• some clinics not informing patients about the limited evidence base for certain add-on treatments or their associated risks

• some patients being faced with unexpected additional costs during treatment

The draft guidance specifically considers the law as it applies to fertility clinics.

However, consumer law also protects patients in their interactions with other businesses active in the fertility sector, such as sperm banks, businesses selling complementary fertility treatments and businesses supplying finance for fertility treatment. We advise that these businesses also read the draft guidance and consider how it, and the relevant consumer law principles, apply to them.

What does the guidance cover?

We published a draft version of the guidance for consultation on 3 November 2020. The draft guidance sets out what information clinics should provide to patients and when this should be provided. It explains that, to comply with consumer law, clinics must not provide misleading information to patients or fail to provide all the relevant 'material' information they need to make informed decisions. It also explains what clinics should do to make sure their terms and practices are fair under consumer law.

Listening to patients' experiences

As part of our information gathering, we commissioned research with patients who have paid for their own treatment over the past two years. These in-depth discussions with patients provided rich insights into patients' experiences, their decision-making and the factors that can make them vulnerable. We published the findings from this research alongside the draft guidance.

A copy of the patient research can be found on the CMA's webpages.

The CMA wants to hear from you

We want to hear from those with knowledge of the fertility sector so we can take their views and expertise into account as we finalise the guidance. The deadline for responding to the consultation is 5 January 2021.

We set out a series of questions for stakeholders to consider as they respond to the consultation. These include:

• asking for views on the information that patients need at various stages to make informed decisions about which clinic to choose and which treatments to buy

• inviting further examples of practices, policies and terms used by fertility clinics in their dealings with patients that raise concerns from a consumer law perspective

• seeking views on the scope of the guidance and whether there are aspects of the guidance that could be clarified.

Further details of the CMA's consultation can be found here.

What next?

Next March we will publish the final version of the guidance, along with a short guide for fertility patients, to help raise awareness of their consumer rights.

We will review consumer law compliance across the sector six months after we publish the final guidance.

More information about the CMA's work can be found here.

The CMA's draft guidance for the fertility sector will be discussed at a free-to-attend online event - 'An All-Consuming Problem? How to Protect Patients in the Fertility Market' - produced by the Progress Educational Trust and sponsored by the British Fertility Society.

This event is taking place from 5.30pm-7pm (GMT) on Thursday 14 January 2021. All are welcome. Find out more here, and register here.