AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ACN 117 372 915: SHOULD CONSUMER LAW REGULATE DOCTOR-PATIENT RELATIONS IN A CORPORATISED HEALTH CARE SYSTEM?
In April 2015, North J of the Federal Court of Australia made a finding of unconscionable conduct against Advanced Medical Institute, a promoter and provider of erectile dysfunction treatment, in a case concerning unfair contract terms (Australian Competition and Consumer Commission vACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368). The contract required a minimum 12-month commitment, with costs exceeding treatments available from general practitioners, and made refunds available only after all possible treatment plans were exhausted which included penile injections. This column analyses that case, particularly in respect to the consumer law standards of practice under which it was litigated. Those standards refer to patients as "consumers" yet North J made extensive reference to the Good Medical Practice: A Code of Conduct for Doctors in Australia, a text which refers to "patients", as evidence of what constitutes appropriate professional conduct or practice for the health profession. This column considers whether legislative and judicial categorisation of patients (a class of people presumptively suffering, sick and vulnerable) as "consumers" undermines the formal and informal protections accorded to patients under normative systems of medical ethics such as those represented by the Code. The case, it is argued, also illuminates the contemporary tensions between the ethical, legal and human rights standards required of doctors in their treatment of patients and the commercial interests of businesses.