We were approached by Consumer Affairs regarding a change in consumer laws that requires that business be made aware of a new consumer entitlement to a full refund.
Here is what the law states:
Under the Australian Consumer Law, certain consumer guarantees apply automatically, including that a service will be done with due care and skill!
If it is not, the consumer is entitled to a remedy. The type of remedy depends on whether the problem is major or minor. A problem must be major or unable to be fixed before the consumer can ask the business for a refund.
This guarantee means that practitioners must:
- use an acceptable level of skill or technical knowledge when providing the services, and
- take all necessary care to avoid loss or damage when providing the services.
Remedies for Major Problems
It is a major problem if a service is not done with due care and skill and:
- a reasonable consumer would never have bought the service had they known beforehand about the problem, or
- the service has not achieved what the service is normally supposed to do, and this problem cannot be fixed quickly or easily, or
- the supply of the service has created an unsafe situation.
Remedies for major problems
The consumer can choose to:
- cancel the contract and pay a reasonable amount for the work done, or seek a partial refund of money already paid, or
- keep the contract and negotiate a reduced price for the drop in value of the service — this may mean asking for some money back if the consumer has already paid.
If a problem is not major, the consumer must give the supplier a chance to fix the problem before asking for a refund.
Remedies for minor problems
The consumer can require the business to fix the problem within a reasonable time.
If the business refuses to fix the problem or takes too long, the consumer may:
- get it fixed by someone else and recover the costs, or
- cancel the contract and pay a reasonable amount for the work done, or seek a partial refund of money already paid.
We were requested to include in our cancellation policy, the refund policy and all consent forms that the consumer would be entitled to a full refund if they considered that the procedure they received was not delivered with due care and skill!
In our industry where changes can happen progressively through several treatments, we believe that ” due care and skill” could be abused where the client does not want to finish a course of treatments. They could determine that in their opinion, you did not demonstrate that you had “due care and skill” to deliver the treatment outcome they wanted.
We, therefore, refused to include this in the above documents and Consumer Affairs requested that we gain legal advice on our rights to do so. After consultation with our solicitors, they agreed that it would be advisable and that we have the right to remain “silent” on this policy within our documents, as it could be abused by certain consumers.
However, as this is the law, we are required to inform the industry that this clause does exist and to be aware of it, as, in the event of a dispute, a client can demand a full refund based on their interpretation of your service if they deem that it was not delivered with the appropriate “due care and skill”.
Please be made aware of this and, ensure that at all times you can demonstrate to your clients that you were able to deliver the results that you promised them. This means that you have maintained thorough records of their consultation, the diagnosis of their original condition, the recommended plan and the outcome. This way they know what to expect from your treatments and care plans. Make sure you are also able to demonstrate that you are qualified and have the experience to deliver the service in question.
APAN has several consent forms that you can access to ensure that you are fully compliant with the current laws. Please feel free to review these documents and in particular our various client consent forms for different procedures: Cosmetic Tattooing, Skin Needling, IPL and Laser, Photographic consent and many more.
Check these out here: apanetwork.com/resources/resource-documents