ACCAN Informed Consent Project (21 August 2009)

5. Issues in specific consumer categories

The section discusses issues regarding obtaining informed consent from specific consumer categories, including:

People with relevant disabilities (intellectual disabilities, hearing impairment, visual impairment and communication impairment);
Indigenous consumers;
Young people; and
Culturally and linguistically diverse consumers.

It is important to note that this list of specific consumer categories is not exhaustive. It was selected based on time and resource constraints. Some evidence emerged during research for this project that other key vulnerable consumer groups have been heavily targeted by exploitative sales in the communications sector, including older consumers.

In the communications sector there is little guidance available to industry on obtaining consent from specific consumer categories. This is in contrast to some other sectors where detailed guidance is available. Not surprisingly the two areas with the greatest coverage are health and human research, where documents covering topics such as Informed Consent and Special Populations are common.[17]

The communications sector could benefit from a greater recognition of the specific needs of some consumer categories and improved guidance on obtaining consent from consumers in those categories.

In the absence of specific guidance on obtaining consent from vulnerable consumers, caseworkers and regulators have tended to rely on a common law test of capacity. In Australia the common law allows a contract to be declared void if one of the parties did not have the capacity to understand the agreement.[18] However, the exact definition and assessment of capacity is complex and differs in some jurisdictions / sectors. It may not be effective to rely on the common law test for general complaints, as the costs of legal and medical expertise are prohibitive.

In addition, if an organisation was aware or should have been aware of a specific vulnerability of a consumer and they subsequently exploit this vulnerability, they may face a claim of unconscionable conduct. In practice this type of claim has proved expensive to pursue, with mixed results (refer to the Radio Rentals case study below at page 21).

Fortunately, the Telecommunications Industry Ombudsman (TIO) applies a less formal test regarding capacity. The TIO’s 2008 Disadvantaged and vulnerable consumers position statement[19] notes the TIO’s approach to capacity issues and capacity complaints. Their questions pertaining to an investigation may include:

Did the consumer have a disadvantage or vulnerability, which significantly affected their capacity, for example to make a voluntary and informed decision about purchasing or using a telecommunications service, or about the financial implications of this purchase or use?
Did the provider know, or ought it to have reasonably known, about this disadvantage or vulnerability?
What was the nature of the provider’s interaction with the consumer?
position statement outlines the relevant materials the TIO might collect in order to answer these questions and further outlines how each question might directly affect the decision in question. Considerations taken into account by the TIO include the resources available to parties during the negotiating stage of any transaction, the impact of the alleged events on each party and the relative cost to each party of possible resolutions.

In reaching fair and reasonable outcomes, the TIO decides either that the consumer’s disadvantage is not an issue in the complaint, or that the consumer’s condition affected their capacity in the circumstances. Where the provider was, or ought reasonably to be aware of the condition of the vulnerable or disadvantaged party the TIO may decide that it would be fair and reasonable for the provider to remedy the situation relating to the complaint. In situations where the provider was not aware, and could not have been expected to be aware of the consumer’s conditions, the TIO may still find it fair and reasonable for the provider to remedy the situation, based on the impact on each of the parties.

An alternative to relying on a general test of capacity and common law remedies is to develop best practice guidance for obtaining consent from specific consumer categories. The following sections describe relevant consent issues in some key consumer categories.

[17] See for example Xavier University, Informed consent process with consent (adults) and assent (children): form templates, Cincinnati, <http://www.xavier.edu/IRB/docs/InformedConsent&Template.doc>.

[18] Gibbons v. Wright (1954) [1954] HCA 17; (1954) 91 CLR 423, <http://www.austlii.edu.au/au/cases/cth/HCA/1954/17.html>.

[19] Telecommunications Information Ombudsman, Disadvantaged and vulnerable consumers, Melbourne, August 2008, <http://www.tio.com.au/POLICIES/Contracts/DisadvantagedVulnerable.htm>.





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