Another breast imaging provider found to have engaged in misleading conduct

The Federal Court has found that breast imaging provider Safe Breast Imaging Pty Ltd (SBI) has engaged in misleading or deceptive conduct and made false representations about its breast imaging services in proceedings brought by the Australian Competition and Consumer Commission (ACCC).

The Court also found that Joanne Firth (who was the sole director and the person responsible for the promotion and management of the company) was knowingly concerned in SBI’s conduct.

SBI provided customers with breast imaging using a device known as the Multifrequency Electrical Impedance Mammograph (MEM device). The ACCC alleged that from 17 April 2009 until around August 2011, SBI falsely represented that breast imaging using the MEM device could provide an adequate scientific basis for:

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

The Court found that these representations were false, misleading and deceptive.

The Court also found that SBI had no adequate scientific basis for representing that breast imaging done using the MEM device was a substitute for mammography, and consequently that these representations were also false, misleading and deceptive.

These representations were made on the company’s website, a video placed on the internet, pamphlets and through a Google Adwords campaign.

In addition, SBI had represented that the interpretation of customers’ images and preparation of reports was performed by a medical doctor named in the report provided to the customer. The Court found that these representations were false, misleading and deceptive as, in some instances, the doctors named in the reports had not interpreted the customer’s images and had not written the reports.  In other instances, the persons named as doctors in the reports were in fact not medical doctors.

In relation to these medical practitioner representations, Justice Barker commented that “the ordinary reasonable hypothetical consumer was likely to understand that Safe Breast Imaging was offering a medical breast imaging service and would expect a service of this nature to be provided with medical oversight.”  The Court also found that “It is also plain from the evidence that Ms Firth had knowledge of the falsity of the medical practitioner representations.”

“Not only did Safe Breast Imaging falsely represent to women that it could assure them they did not have breast cancer and that SBI’s imaging was a substitute for mammography, but SBI also tried to gain greater credibility by overstating the role that doctors played in the service,” ACCC Chairman Rod Sims said.

“This judgment and the decision last week in the ACCC proceedings against Breast Check are a clear warning to the medical services industry that claims about medical services must be accurate and supported by credible scientific evidence,” Mr Sims said.

A hearing will be held in the Federal Court in Perth on 10 June 2014 to determine the relief that will be ordered.

The ACCC is seeking declarations, injunctions, an order for publication to assist in remedying the contraventions, pecuniary penalties, an order disqualifying Ms Firth from managing corporations and costs.

Last week the Court had found that another breast imaging provider, Breast Check Pty Ltd, had made false, misleading and deceptive representations that the devices used in providing its breast imaging services could assess whether a customer was at risk from breast cancer and assure customers that they did not have breast cancer, and could be used as a substitute for mammography.