A Perth breast imaging clinic and its former director have been fined $100,000 after the consumer watchdog emerged victorious in its legal battle with the business.
The fine follows a Federal Court ruling in March that breast imaging provider Breast Check engaged in misleading or deceptive conduct and made false representations about the devices used in its breast imaging services.
The court also found the former director of Breast Check, Dr Alexandra Boyd, had been knowingly concerned in Breast Check’s conduct.
The proceedings, launched by the Australian Consumer and Competition Commission, related to Breast Check’s use of a device known as the Multifrequency Electrical Impedance Mammograph (MEM) 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 by Breast Check.
Judge Michael Barker found 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.
Barker also found Breast Check represented there was an adequate scientific basis for using the devices as a substitute for mammography when that was not the case.
On Friday, Federal Court Judge Michael Barker ordered Breast Check, now trading as PO Health Professionals, to pay a pecuniary penalty $75,000.
Barker also ordered Boyd to pay $25,000 for her contraventions of Australian Consumer Law.
Alongside the penalties, Barker issued injunctions against Break Check and Boyd from representing there is an adequate scientific medical basis for any breast imaging service being effective in assessing if a customer is at risk of breast cancer and the level of that risk; being able to assure a customer that they do not have breast cancer; or being a substitute for mammography unless there are reasonable grounds for making such representations.
Melissa Monks, special counsel at King & Wood Mallesons, told SmartCompany Breast Check and Boyd were fortunate not to have received greater penalties.
“The commission was seeking much higher penalties but the court must take into account a whole lot of factors when making its decision,” says Monks.
“While the court found the conduct was serious, it occurred for a relatively short period of time of seven months, it was a very small company and it was their first offence.”
Monks compares the penalties to those recently imposed on another breast imaging business, Safe Breast Imaging, and its sole director, which were ordered to pay a combined $250,000 in September for similar contraventions of Australian Consumer Law.
“The conduct there was much broader and wider,” explains Monks. “They had a website and social media; they run a Google AdWords campaign, so their reach was much broader.”
“The nature of their representations also went further as they said doctors were involved in approving their services.”
Monks says the ACCC was right to label the conduct of Breast Check and Boyd as “evil” as the case is “not just about people losing money … it’s about people’s lives”.
“Most medical practitioners are above the board but there are those who operate at the fringe,” she says.
“Thankfully the regulators are jumping on them and using their powers to educate the public and ensure this doesn’t happen again.”
SmartCompany was unable to contact PO Health Professionals or Alexandra Boyd.