Breast Imaging companies pay penalties for false representations

The Federal Court ordered Breast Check Pty Ltd (now called PO Health Professionals Pty Ltd) to pay a penalty of $75,000 for making false or misleading representations about its breast imaging services in contravention of the Australian Consumer Law (ACL).

The former director of Breast Check, Dr Alexandra Boyd, was ordered to pay penalties of $25,000 for being knowingly concerned or involved in Breast Check’s contraventions.

Breast Check had represented that breast imaging using a thermography device alone, or in conjunction with a Multifrequency Electrical Impedance Mammograph (known as a MEM device), could provide an adequate scientific basis for assessing whether a consumer was at risk from breast cancer and the level of that risk, and assuring the consumer that they did not have breast cancer.  In March this year, the Court found that these representations were false, misleading and deceptive.

The Court also found that Breast Check had represented that there was an adequate scientific basis for using the devices as a substitute for mammography, when that was not the case.  The Court held that this representation was also false, misleading and deceptive.

“If consumers relied on Breast Check’s representations instead of using conventional breast cancer investigation methods including mammography, then potentially breast cancers could have gone undiagnosed.”

“Consumers are entitled to expect that breast imaging services would be provided in a way that is consistent with credible scientific knowledge,” ACCC Commissioner Sarah Court said.

In his judgment today Justice Barker stated “The key issue is the potential to divert customers from using a medically recognised form of breast imaging and the harm or potential harm caused by that. Thus, I accept that even if only one consumer has been so diverted to their detriment, the consequences to a person’s health may be very serious and at worst fatal. That is not something that can be measured solely in monetary terms and it is of no assistance to say the conduct was only directed to a small number of individuals.”

Last week the Court ordered another breast imaging provider, Safe Breast Imaging Pty Ltd, to pay penalties of $200,000 for similar contraventions of the ACL.

The Federal Court has today ordered Safe Breast Imaging Pty Ltd to pay a penalty of $200,000 for making false representations about its breast imaging services, in contravention of the Australian Consumer Law.

Joanne Firth, the sole company director of SBI, was ordered to pay a penalty of $50,000 for her involvement in SBI’s contraventions, and was also disqualified from managing corporations for four years.

In March this year the Court found that SBI had represented that breast imaging using the MEM device could provide an adequate scientific basis for:

  • assessing whether a customer was at risk from breast cancer and the level of that risk; and
  • assuring a customer that they do not have breast cancer.

SBI had also represented that there was an adequate scientific basis for using the MEM device as a substitute for mammography. The Court has found that, in fact, there was inadequate scientific basis for these claims.

Justice Barker found that “the conduct of Safe Breast Imaging and Ms Firth had the potential to pose a grave risk of serious harm to the health of consumers, who were or were likely to be misled into believing the MEM device could be used for the purposes represented…”.

His Honour noted that “representations that Australian registered doctors were involved in the evaluation of images or the writing of reports, when they were not, and any comfort that customers of the business may have drawn from that, was entirely misplaced”.

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