Australian Competition and Consumer Commission v ACN 117 372 915: Should Consumer Law Regulate Doctor-Patient Relations in a Corporatised Health Care System

Wallace J, Pyman E and Faunce TA. Australian Competition and Consumer Commission v CAN 117372915: Should Consumer Law Regulate Doctor-Patient Relations in A Corporatised Health care System (2015) 23 (1) JLM 55-67

12 Pages Posted: 29 Oct 2018

See all articles by Jessica Wallace

Jessica Wallace

Australian National University (ANU)

Ella Pyman

Australian National University (ANU)

Thomas Alured Faunce

Australian National University

Date Written: 2015

Abstract

In April 2015, North J of the Federal Court 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 v ACN 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.

Note: This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as ‘Wallace J, Pyman E and Faunce TA, Australian Competition and Consumer Commission v ACN 117 372 915: Should Consumer Law Regulate Doctor-Patient Relations in a Corporatised Health Care System, 2015, 23, JLM, 55’.

This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039.

Keywords: Erectile Dysfunction Treatment, Penile Injections, Public Health, Consumer Protection

JEL Classification: I18, K32

Suggested Citation

Wallace, Jessica and Pyman, Ella and Faunce, Thomas Alured, Australian Competition and Consumer Commission v ACN 117 372 915: Should Consumer Law Regulate Doctor-Patient Relations in a Corporatised Health Care System (2015). Wallace J, Pyman E and Faunce TA. Australian Competition and Consumer Commission v CAN 117372915: Should Consumer Law Regulate Doctor-Patient Relations in A Corporatised Health care System (2015) 23 (1) JLM 55-67 . Available at SSRN: https://ssrn.com/abstract=3241864

Jessica Wallace

Australian National University (ANU) ( email )

Canberra, Australian Capital Territory 2601
Australia

Ella Pyman

Australian National University (ANU) ( email )

Canberra, Australian Capital Territory 2601
Australia

Thomas Alured Faunce (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 0200
Australia
61 2 61253563 (Phone)

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