Breast screening business fined $200,000 for misleading conduct

A Perth breast screening clinic and its sole director have been ordered to pay $250,000 in penalties for breaching Australian Consumer Law.

The Federal Court delivered its verdict in the long-running case against Safe Breast Imaging and its director Joanne Firth on Tuesday, ordering the company to pay $200,000 and Firth to pay $50,000.

Firth was also disqualified from managing corporations for four years.

The judgment follows a court finding in March that Safe Breast Imaging represented to its clients that its breast screening service using a multi-frequency electrical impedance mammography (MEM) device was able to assess whether an individual was at risk of developing breast cancer and the level of that risk, as well as providing an assurance to individuals that they did not currently have breast cancer.

However, following an investigation by the Australian Consumer and Competition Commission, the court found there was no scientific basis for the clinic’s claims that the device can be a substitute for mammography.

Justice Baker ruled at the time the conduct of the company and 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”.

Baker also took issue with Safe Breast Imaging’s claims that Australian registered doctors were involved in evaluating clients’ images and writing their reports, which he said were “entirely misplaced”.

Safe Breast Imaging and Firth have been ordered to post the court’s findings on their Facebook pages and the court has granted the ACCC permission to send notices to the clinic’s customers to inform them of the outcome.

This is not the first time the ACCC has taken action against a breast screening clinic for misleading conduct, with the Federal Court ruling in March breast imaging provider Breast Check engaged in misleading or deceptive conduct and made false representations in relation to MEM devices.

“Consumers are entitled to expect that breast imaging services would be provided with medical oversight and promoted in a way that is consistent with credible scientific knowledge,” said ACCC commissioner Sarah Court in a statement this week.

The ACCC said Safe Breast Imaging is no longer offering breast screening services and the phone number listed for the company is disconnected.

SmartCompany attempted to contact Joanne Firth but did not receive a response prior to publication.

Michael Terceiro, of Terceiro Legal Consulting, told SmartCompany the big factor in this case was the risk that consumers were receiving incorrect medical advice.

Terceiro says the ACCC has been “very keen” to pursue cases in which it believes consumers have been misled about their health although this is not listed as a specific priority area for the ACCC.

He says the maximum fine for a corporation found to have misled consumers is $1.1 million so the $200,000 penalty imposed by the court is “probably a little on the low side”.

The ACCC originally sought a $550,000 fine for Safe Breast Imaging and $110,000 penalty for Firth.

While Terceiro says Firth’s fine of $50,000 is “quite a lot”, it’s likely the fine for Safe Breast Imaging was reduced because of the size of the corporation and its clean record in relation to previous contraventions of Australian Consumer Law.

However, he says the ACCC does not shy away from imposing fines on companies that cease trading.

“If a company has gone out of business it is usually hit harder,” he says.