What IVF providers can expect from the CMA's review

Out-Law Analysis | 13 Feb 2020 | 3:06 pm | 3 min. read

IVF providers should take a UK regulator's review of the fertility sector seriously and view it as an opportunity to shape guidance the regulator has promised to issue to address potential consumer protection concerns.

The Competition and Markets Authority's (CMA's) review, announced earlier this month, has been spurred by concerns the regulator has expressed about possible cases of mis-selling of 'add on' treatments and misrepresentation of clinics' success rates. It said it is working with the Human Fertilisation and Embryology Authority (HFEA) to better understand how clinics operate and the experience of patients.

The CMA’s main objective is to develop guidance for providers on their obligations under consumer protection law, but it has also promised to publish separate advice for patients.

However, in a warning to the industry, the CMA has also left open the possibility of enforcement action using its consumer law powers, potentially meaning providers could be forced to change certain practices or be taken to court.

At this early stage, the CMA has identified four issues which the proposed guidance will cover. Whilst there is limited information about these identified issues, parallels can be drawn with other healthcare sectors that have come under the CMA’s scrutiny.

Price transparency

In its statement, the CMA said clinics should "present clear and upfront prices for their treatments".

The CMA’s work in the care homes sector also identified price transparency as a particular concern. Ultimately it took enforcement action against a number of providers, forcing them to change their practices and, in certain cases, pay compensation to residents.

In the care homes sector, the CMA also published guidance describing the charges which should be set out in advance of a resident accepting a place and how these should be communicated. Similarly, following work in the private healthcare sector, the CMA required certain information on fees and the services they included to be provided to patients in a specific manner.

Potential mis-selling of treatments

The CMA said "patients should not be mis-sold ‘add-on’ treatments". It described such treatments as "optional extras offered by some clinics" which can cost patients up to £2,500 per cycle. It said "patients should be given all the information they need before deciding whether an add-on is right for them".

The CMA will look to ensure that clinics are making it sufficiently clear how these add-on treatments may impact on success rates. This is potentially a more serious concern for the CMA and an area where it may be more likely to take further action, if it identified concerns.

Success rates

The CMA has stated clearly that clinics should not mislead patients about how successful their treatments are and should ensure that "rates are accurate and up to date on their websites and in advertising".

The CMA previously looked to improve the availability of performance-related information in the private healthcare sector, partly attributing the lack of publicly available information relating to performance and fees as giving rise to an adverse effect on competition.

Unfair terms

The CMA said terms and conditions in the IVF sector should be "fair and transparent".

The CMA’s action in the private healthcare sector also required consultants to provide information about fees and standard terms and conditions to patients, using an industry template document for consistency and transparency.

Similarly, the CMA’s guidance in the care homes sector advised that resident contracts should be fair and easy to understand. The guidance also outlines that care home providers must not put residents at an unfair disadvantage by tilting the balance of a contract in their favour, negotiating terms in an open way and giving clear notices if any established terms are to be changed. Various pieces of consumer protection legislation make provision for fair and transparent contract terms and the CMA maintains particular focus on enforcing this.

Engaging with the CMA

Based on how it has considered similar issues in the past, there are a number of established 'easy-wins' for the CMA to include in its guidance, particularly regarding upfront disclosure of information. It is therefore essential for providers to engage fully with the CMA’s process, to help shape the content.

If any provider is contacted by the CMA, they should take the information request seriously and be completely honest in their answers. A provider may face legal consequences if they fail to answer questions fully or provide false or misleading information. If in any doubt, seek legal advice.

Even if providers are not contacted, the CMA will commence a public consultation on draft guidance later this year, when providers will have the opportunity to comment on the CMA’s proposals.