Court finds breast imaging provider engaged in misleading conduct

The Federal Court has found that breast imaging provider Breast Check Pty Ltd (now called PO Health Professionals Pty Ltd) engaged in misleading or deceptive conduct and made false representations about the devices used in its breast imaging services, in proceedings brought by the Australian Competition and Consumer Commission (ACCC).

Former director, Dr Alexandra Boyd was also found to have been knowingly concerned in Breast Check’s conduct.

Breast Check’s imaging services initially involved the use of a device known as the Multifrequency Electrical Impedance Mammograph (the MEM device) and a digital infrared thermographic camera to capture images of a customer’s breasts.  From about February 2011, only the infrared thermographic camera was used.

The ACCC alleged that between October 2010 and May 2011 Breast Check falsely represented that breast imaging done using a thermography device alone, or in conjunction with 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.

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

The ACCC had also alleged that Breast Check 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 found that there was no adequate scientific basis for these claims made by Breast Check and that the representation was false, misleading and deceptive.

Justice Barker commented that “it would be entirely reasonable for a consumer to conclude that, where a service of a medical nature is being provided, there would be scientific medical evidence of a sufficient quality to support the use of the equipment used to provide such a service and that the use of breast imaging devices would not be promoted in a way to be contrary to the state of scientific medical knowledge.”

“This court action followed a joint media release in June 2011 from the ACCC, Cancer Council Australia and the Therapeutic Goods Administration urging Australian women not to rely on unproven commercial breast imaging technologies to detect breast cancer.” ACCC Chairman Rod Sims said.

“This case was particularly concerning to the ACCC because Breast Check had represented to women that its breast imaging services could assure them they did not have breast cancer when this was not the case, and that the imaging was a substitute for mammography, when there was no scientific basis for this claim” Mr Sims said.

A hearing will be held in the Federal Court in Perth on 20 May 2014 in relation to the appropriate relief to be ordered. The ACCC is seeking declarations, injunctions, an order that corrective letters be sent to affected consumers, pecuniary penalties and costs.