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False breast claims end up in court

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Two companies face stiff penalties for engaging in misleading and deceptive conduct after giving women false assurances that they were able to diagnose breast cancer.

In a crackdown on operators making unsubstantiated claims about their ability to detect breast cancer tumours, the consumer watchdog has secured Federal Court judgements against Safe Breast Imaging Pty Ltd, its sole Director Joanne Firth, and Breast Check Pty Ltd (now trading as PO Health Professionals Pty Ltd) and former Director Dr Alexandra Boyd.

In its successful actions, the Australian Competition and Consumer Commission alleged that both companies falsely claimed that their procedures, involving the use of a Multifrequency Electrical Impedance Mammograph (MEM), either alone or in conjunction with digital infrared thermographic camera, could provide an adequate scientific basis for assessing whether or not a patient was at risk of developing breast cancer, and the level of that risk, as well as assuring customers they did not have breast cancer.

The Court found that there was no scientific basis for the claims by the companies that scans using the MEM device and/or thermography were a substitute for mammography.

In his judgement regarding Breast Check, Justice Michael Barker said “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…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”.

ACCC Chairman Rod Sims said the case was particularly concerning because Breast Check had told women its breast imaging services could provide assurances that they did not have breast cancer “when this was not the case”.

In addition to misrepresentations about the capability of the MEM device, Safe Breast Imaging was also found to have been deceptive in its claims about the involvement of medical practitioners in its procedures.

The reports the company gave to its customers included the name of a medical doctor, implying they had been prepared by the doctor.

But the court found that, in some instances, the doctors named in the reports had not interpreted the images and had not written the reports. In other instances the people named as doctors were not in fact medical practitioners.

The court found that Ms Firth knew of the falsity of the company’s claims regarding the involvement of medical practitioners, and was knowingly concerned in its conduct.

“Not only did Safe Breast Imaging falsely represent to women that it could assure them they did not have breast cancer…, but SBI also tried to gain greater credibility by overstating the role that doctors played in the service,” Mr Sims said.

The ACCC Chairman said the judgement were a clear warning to the medical services industry that claims about procedures and treatments must be accurate and supported by credible scientific evidence.

Penalties in the Breast Check case will be determined at a Federal Court hearing on 20 May, while those in the Safe Breast Imaging case will be decided at a hearing on 10 June.

Adrian Rollins

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