On 23 September the Competition and Markets Authority (CMA) published findings from its review of consumer law compliance in the fertility sector (see BioNews 1160). The compliance review follows publication in June 2021 of guidance for fertility clinics.
Alongside the Findings Report, the CMA published a report summarising new patient research, which explored how self-funding IVF patients choose between clinics and treatment options.
Why did we review clinics' compliance with consumer law?
We had previously identified concerns in the fertility sector, such as some clinics providing unclear price information and advertising misleading success rates, and a general lack of awareness of how consumer law applies in the sector.
The Guidance was developed to help clinics understand and comply with their obligations under consumer law, in turn protecting patients' consumer rights.
Following publication of the Guidance, we committed to review compliance.
What did our review consider?
Our review focused on IVF and egg freezing treatment, in particular the information clinics provide to patients in relation to price, success rates and treatment add-ons. It also considered the fairness of clinics' contract terms and complaints handling practices.
Our review looked at private and NHS clinics of different sizes providing treatment to self-funding patients.
Are fertility clinics complying with consumer law?
We found a mixed picture in terms of compliance with consumer law among the sample of clinics we reviewed in detail (these clinics account for around 40 percent of private cycles in the UK).
For a small minority of the clinics we reviewed, there were no compliance concerns in any of the areas we assessed.
Positively, we discovered some clinics had made improvements since we published our guidance in 2021 and the Advertising Standards Authority published its Enforcement Notice, and we saw that some clinics were making changes during the course of the review itself.
But the majority of the clinics we reviewed in detail continued to have compliance issues, albeit relatively minor in some cases.
Examples of the concerns we identified included:
- concerns with the transparency of clinics' price information for patients in relation to IVF and egg freezing, both at the initial research stage (when patients are comparing clinics) and prior to agreeing to treatment with their chosen clinic;
- clinics advertising success rate claims, including superiority claims, without clearly identifying the basis of the claims, making it difficult for patients to meaningfully compare between clinics;
- clinics making success rate claims based on incorrect or out of date information, and creating a misleading impression about the clinic's more recent performance by implying that it is more impressive than it is;
- clinics failing to provide information about the evidence for, or risks associated with, certain treatment add-ons;
- clinics making claims that link success rates to the use of certain treatment add-ons without any, or adequate, explanation of the basis on which the claims were made;
- examples of potentially unfair terms.
What action did we take?
We wrote to some clinics setting out the specific compliance issues we had identified with them. We told these clinics that we expected them to review their practices and terms and make appropriate changes to ensure their compliance with consumer law.
All the clinics we contacted have subsequently made changes to address compliance concerns. We welcome the constructive approach generally adopted by clinics and we are continuing to engage with some of the clinics to resolve a small number of outstanding issues.
What do fertility clinics need to do now?
We have published an Open Letter to UK clinics to draw their attention to the compliance concerns we identified during the review. We expect all clinics to read our Findings Report, and to review their information, practices and contract terms and take any necessary action to ensure compliance.
Clinics should make sure that all patient-facing staff, including clinical staff and those involved in producing patient-facing materials understand the consumer law requirements and comply with them.
Clinics should not assume because we have not written to them directly, that their practices are compliant with consumer law. Failure to comply with consumer law could result in the CMA, or others, taking enforcement action.
Variation in cycle packages
During our review, we compared the prices charged by a sample of London clinics for a cycle of IVF treatment, along with the treatments and services they include in, and exclude from, their cycle package price. This revealed significant differences between what clinics include in their headline package price for a single cycle of IVF.
We are concerned that this variation is likely to make it difficult for patients to meaningfully compare clinics' prices when they are shortlisting choices.
So we want to work with clinics, the HFEA and other key stakeholders to explore the feasibility of developing a standard approach for what is included in the headline package price for a single cycle of IVF. To be clear, this is about the presentation of price information to help patients compare clinics' prices. It is not about the prices clinics charge or any form of price regulation.
We will be contacting clinics in the near future with more information about this work.
Further information
A copy of the Findings Report, the Patient Research, the Guidance and further information about the our work in this sector can be found on the CMA's webpages.
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