(c) the health practitioner's performance has been unsatisfactory; or

(d) the health practitioner is not of good character.

(2) VCAT may find a practitioner has engaged in unprofessional conduct even though the application alleged professional misconduct.

1. Both parties agree that the applicant has the onus of proof in this proceeding. That onus is to be discharged to the standard of 'on the balance of probabilities'.
2. In a proceeding such as the present one, it is necessary that the onus of proof be discharged with an exactness of evidence. This matter was discussed in the often cited case of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 when Dixon J stated as follows:

When in a civil proceeding a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But consistent with this opinion weight is given to the presumption of innocence and exactness of proof is expected.

The truth is that when the law requires proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found.

1. In relation to the standard of proof, both parties also cited s 140 of the Evidence Act 2008 (Vic). That section relevantly provides:
   1. In a civil proceeding, the court must find the case of party proved if it is satisfied that the case has been proved on the balance of probabilities.
   2. Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -
      • (a) the nature of the cause of action or defence; and
      • (b) the nature of the subject matter of the proceeding; and
      • (c) the gravity of the matters alleged.
2. While this Tribunal is not bound by the rules of evidence (Victorian Civil and Administrative Tribunal Act 1998 s 98(1)(b)), it is desirable that they should be applied where practicable. Dr Freckelton referred to a number of authorities which suggested that there were subtle distinctions between the matters referred to in the Briginshaw case and s 140 of the Evidence Act. However, Dr Freckelton, in our view, has correctly summarised the position when he stated, at paragraph 11 of his submissions:

What is most important is that the Tribunal scrutinise the evidence with considerable care, having regard to the seriousness of the allegations and the important consequences to a practitioner should the allegations be found proved. (Psychology Board of Australia v Van Megchelen [2013] VCAT 328 at [62]- [65] per Judge Jenkins VP and Members Crawford and Manning.

1. Dr Hooper referred to a number of cases from the USA regarding the standard of proof. He referred to James v Board of Dental Excessiveness (1985) 172 Cal App 3rd 1069, 1105 which referred to 'clear and convincing proof of reasonable certainty'. He also referred to 'High probability of the existence of evidence' - People v Mabini (2001) 92 Cal App 4th 654, 662 and Ettinger v Board of Medical Quality Assurances (1982) 139 Cal App 3rd 853 at 856 wherein it was stated 'Clear and convincing (evidence) requires a finding of high probability'. (The evidence must be) 'so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind'.
2. This Tribunal is, as are Courts in this country, bound by decisions of the High Court of Australia. The Briginshaw principle has been accepted law in Australia for over 80 years. Therefore, where there is a difference between the Briginshaw principle and the USA authorities we will follow the Briginshaw principle.

Different from normal chiropractic disciplinary proceedings

1. Dr Reggars was subpoenaed by the respondent to give evidence in this proceeding. He stated that he has been practising as a chiropractor for 40 years. He has also a master degree from Macquarie University. He was also chairman of the Chiropractors Registration Board for many years and his appointment as chairman ceased on or about 30 June 2009. Dr Reggars said that, as chairman of the Chiropractors Registration Board of Victoria, he had a reasonable knowledge of what was happening in the profession. Further, he said, to his knowledge, Dr Hooper was the only chiropractor that he was aware of that was practising in the field of hyperbaric medicine. He further said that he had never heard of the Lokomat until he read about it in an article that was submitted to him by the Board. He agreed that the practice of hyperbaric medicine and Lokomat were not commonplace for chiropractors in Victoria [see Transcript 2377].
2. There are also a number of matters that are very different in this case to what is faced by chiropractors normally practising in Victoria or Australia.
3. In our view, there are also a number of matters peculiar to this proceeding that make the facts that we are dealing with here very different from the commonplace matters that a chiropractor would normally have to deal with. Those matters are:

(a) The vulnerability of QS. While we accept that QS was intelligent and did a considerable amount of homework in order to improve his position and make his disability more bearable, that does not in any way reduce his vulnerability in relation to people that may offer to help him. At paragraph 52 of the applicant's submissions, Dr Freckelton has correctly described the vulnerability of QS:

QS has limited education. He has never had paid employment. He has suffered from depression and made two suicide attempts. He has visual dyslexia which impairs his ability to read. He has gastric reflux and a range of spinal problems. He has limited capacity for ambulation and has long been dependent upon walking sticks and a motorised scooter. However, he passionately aspires and works toward a normal life. As Dr Hodgson put it, 'he is struggling with a difficult situation. But determined and coping'.

(b) The treatment prescribed by the respondent and underwent by QS was both lengthy and costly. The treatment given to QS by HyperMED lasted from August 2007 to May 2008. In that time, QS made several visits to the HyperMED clinic often as much as 5 times per week. Those visits would entail QS using the train to travel from his home to the city and then using his wheelchair to go from the train station to the respondent's practice in Collins Street. This was an enormous undertaking by QS and it is unsurprising that he said, in about December 2007, that he felt very tired. The treatment was also extremely costly. It has already been mentioned that the total cost of the treatment was just under $50,000. This is in spite of some of the sessions that QS underwent at the HyperMED clinic being 'sponsored'. It would be most unusual indeed for patients of chiropractors throughout Victoria to have to endure the commitment and cost that befell QS with HBO/Lokomat treatment by HyperMED.

(c) HBOT was very controversial and unorthodox in so far as chiropractors were concerned. In so far the controversial aspect of the treatment is concerned, it is clear from as what we have said above that the recognised view of the UHMS, the European conference, ANZHMG and Australian Special Interest Group in Diving and Hyperbaric Medicine (ANZSIGDHM), that this treatment is not recognised by these peak bodies for cerebral palsy or any of the conditions referred to in paragraph 31 hereof. On the other hand, there are some bodies which Dr Millar described as fringe bodies that recommend this treatment for cerebral palsy and a number of other conditions referred to in paragraph 31 hereof. The respondent submitted, that as there were many chiropractic clinics in the United States practising in hyperbaric medicine and other hyperbaric medicine clinics that were performing HBOT for cerebral palsy and the conditions referred to in paragraph 31 hereof, that the treatment of hyperbaric medicine for cerebral palsy and other conditions was in fact the mainstream. We do not accept this submission as the bodies that promote the use of hyperbaric medicine to assist in cerebral palsy and the other conditions referred to are largely fringe bodies. We accept that Dr Millar had to say about this matter. Further, we do not believe that adding up the number of people who practise in hyperbaric medicine in the world or the USA and working out whether more of those people give treatment for the conditions we have referred to are determinative of whether the mainstream view is that the treatment is proper for those conditions. To ascertain the mainstream view, one must look at not only the quality of persons that propose a certain view but also their teachings and publications. For those that do not support using hyperbaric medicine for cerebral palsy and those conditions to which we have referred, they have been involved in peer review articles and trials such as the Collet et al study. Further, the proponents of the view that there is insufficient evidence to recommend hyperbaric treatment for cerebral palsy and the conditions referred to are people with unblemished records who are regarded very highly in their profession such as Dr Millar and Dr Bennett. Thus, we form the view, that practising HBOT for cerebral palsy patients or with the complaints referred to in paragraph 31 hereof, is not mainstream medicine.

1. We consider this situation very different from the usual work of chiropractors in this country. Chiropractors in Australia practise on the basis of acquired knowledge over many years of joint experience. The usual work of chiropractors, such as adjustments, is a proven field of treatment modality and, in our view, cannot be compared with the type of treatment that was given by HyperMED. When a patient enters the door of a chiropractor's surgery in this country, the patient will generally know what he or she is seeking and will have a reasonable idea of the course that the chiropractor will follow in performing treatment. The patient will also know that the effects of that treatment will be reviewed regularly by the chiropractor in discussion with the patient to see if the treatment has been effective for the particular complaint that the chiropractor is treating. This stands in stark contrast to the practise of Dr Hooper who left it to the patient to decide when to cease treatment. A patient of a chiropractor usually has a good idea of the treatment goals. This is because of the very nature of the treatment, the patient will know precisely what he or she is trying to achieve. If it is something outside that area, the chiropractor will inform the patient otherwise. Here, the goals of the treatment were unclear, the highest that they can be put was the amelioration of QS's cerebral palsy symptoms and preparation for stem cell therapy.
2. While we accept that treatments given by chiropractors are not always based on science, in our view, it is inappropriate to compare that type of treatment with the treatment offered at HyperMED. We say this because of the matters we have articulated above. On the other hand, a patient entering the HyperMED clinic will be in quite a different situation. While we appreciate that hyperbaric oxygen has been used for many of the treatments discussed since the 1980's, in our view, the success of that treatment has not been established to anywhere near the same extent as the success of the chiropractic treatment has been so established. It should be noted, that we are not saying that the treatment for the conditions referred to offered by HyperMED will not work. What we are saying is that the treatment is so controversial at this stage that a different modus operandi vis a vis informing the patient needs to be adopted to that which is adopted in normal chiropractic practice.
3. The respondent has submitted that this is a test case. In our view, this is not a test case, but is a case very much concerned with and decided on its own particular facts. The issue in this proceeding is whether, as the result of the respondent's conduct, all or any of the 8 allegations that are made against him are proved by the applicant. This is not a test case for other members of the profession. It is not even a test case to determine whether the 30 conditions referred to in paragraph 31 were treatable by hyperbaric medicine. The issue in relation to Allegation 7 is whether Dr Hooper engaged in false and misleading advertising on the website in relation to those 30 conditions. There have been a number of cases already decided by this Tribunal in relation to health practitioners performing treatment that is outside what is normally performed by their colleagues. There is nothing new about the Tribunal deciding these matters. See Traill v Medical Practitioners Board [2006] VCAT 1920 and Chinese Medical Registration Board of Victoria v Ghaffurian [2012] VCAT 478. We thus conclude that any matters that are found in this case do not necessarily apply to chiropractors practising in Victoria or Australia within the normal manner that the chiropractors so practise.

Allegation 1: Alleged Failure to Make Proper Clinical Assessment

1. Allegation 1 alleges that the respondent failed to undertake or direct a proper clinical assessment before embarking on hyperbaric and Lokomat treatment of QS. In relation to the question of using HBOT to stimulate stem cell growth and activity, the following points are made:

(a) We refer to and repeat paragraphs 95 to 97 hereof in that Dr Steenblock or his SRI should have been contacted to find out when and if stem cell therapy was to take place.

(b) An important matter Dr Hooper should have considered was what QS was requesting of the respondent and what the notifier was expecting to achieve from the treatment being offered. Dr Hooper further should have discussed the amount of treatment that it would have been necessary in order to have the stem cells activated to the required level prior to the SRI stem cell therapy rather than just fixing on a number of treatments without explanation. In relation to the question of the treatment for QS's improvement in functionality because of his cerebral palsy, there was no discussion as to what was trying to be achieved as a result of HBOT and Lokomat treatment. Further, there was no objective examination. For example, there was no six minute or ten metre walking tests suggested by Dr Carda, that is, because the tests were not performed, it was impossible to obtain an objective measurement as to the notifier's starting point before the commencement of treatment. There was not even a description taken from QS as to his difficulties he was suffering on a scale of one to ten. Thus, it does appear that there was no proper objective tests performed prior to commencing treating so that the notifier could be properly assessed. The respondent submitted that, 'the applicant has failed to produce any evidence from 26 percent of the transcript devoted to its HBOT practitioners' (sic). (See [107]). Instead it is forced to rely upon its chiropractors, Ebrall, Terrett and its neurologist, Churchyard. In our view, this submission misses the point. What is important, is the practitioner finding out and stating precisely what is to be achieved and the best way of achieving it and obtaining some objective measurements in relation to QS.

1. The respondent also said that QS informed Dr Hooper when he first came to the HyperMED clinic of such information had been obtained from the HyperMED website in particular and from other websites on the world wide web, including that of SRI. Dr Hooper also referred to the information pack that had been sent out to the applicant and newsletters prepared by HyperMED. He quoted from QS's evidence at Transcript 158, where he said, 'I felt quite informed, but I actually should have researched myself regarding the source of that information.' He also referred to the fact that SRI had supplied a video to QS about stem cell therapy. Dr Hooper also referred to the fact that he had taken QS through two chapters of Jain's book.
2. In our view, the respondent's submissions place far too much emphasis on what QS may have found out prior to the first consultation. What is important is the actual assessment that should have been made. We agree with Dr Freckelton's submission, that the respondent, 'failed to undertake or direct a proper clinical assessment before embarking upon lengthy and expensive hyperbaric and Lokomat treatment for QS.' We also agree with Dr Churchyard when he said that the MRI scan which was performed at the direction of Dr Hooper upon the notifier, was unlikely to yield information of any particular assistance in relation to the proposed treatment of QS. In any event, QS attended the sessions at HyperMED on 29 August, 1, 3 and 5 September 2007, which sessions all happened prior to the MRI being performed.
3. We note that Dr Hooper was provided with historical material about QS's previous treatments, however, that material, apart from the CT scan, showed little other than QS was previously treated with Baclofen.
4. Dr Freckelton submitted that the respondent's progress notes do not show any more than a 'short clinical history was obtained and an MRI proposed'. It is also noted, that the front cover of the notes refer to 'Adult cerebral palsy ... stem cell program - David Steenblock'. In spite of this scant information, it is clear that the respondent proposed that QS receive 'hundred and fifty plus' hyperbaric oxygen treatment and 'forty-sixty plus' Lokomat treatment. There was also discussion about QS fundraising. It is thus clear, that the notes kept by HyperMED do not in fact show what assessment was made, if any, of QS prior to commencing treatment. In Dr Ebrall's witness statement of 31 August 2012, he observed that QS had not been provided with a working diagnosis or management plan and the records of practitioner-patient interaction was not in the accepted format.
5. It is also noted that Mr Islam, an unregistered doctor in Australia but whom was registered in Pakistan and employed by HyperMED, had an initial conversation with QS. In that conversation, it is clear that he knew nothing about preparation for stem cell therapy and he believed that the purpose of treatment at HyperMED was because 'he [QS] want to get better, and he wants to walk better; and that kind of thing.' [See Transcript 1897].
6. Further, the initial notations made in August 2007 do not make it clear what Dr Hooper thought he was trying to achieve. As Dr Freckelton put it, at paragraph 121 of his submissions:

Regardless of what Dr Hooper was seeking to accomplish, this should have been identified clearly with QS and properly recorded. This should have been:

(b) ongoing monitoring of the efficacy of the therapeutic intervention(s) by clinical examination and/or use of established measures of function;

(c) define end points of acute and intensive treatment;

(d) transition of a maintenance treatment phase once maximum possible function has achieved.

See report of Dr Churchyard, 11 February 2010. ATB 688, that is, as Dr Churchyard said, Dr Hooper appears not to have systematically or prospectively attempted objectively to assess QS's condition at the outset or thereafter.

1. Dr Terrett made it clear that prior to commencing treatment, in addition to a proper history being taken, there should have been a physical examination conducted. Failure to do so, he said, falls short of what is reasonably expected by a registered health practitioner. We agree with this comment, particularly in relation to this particular instance where the treatment given was so unusual in Victoria. Thus, we find Allegation 1 has been made out.

Determination pursuant to s 77(1) of the Act in relation to Allegation 1

1. Section 77(1)(a) provides that we may make findings as to whether or not Dr Hooper has engaged 'unprofessional conduct or professional misconduct'. Dr Freckelton, for the purpose of Allegation 1, has submitted that we should find that Dr Hooper has engaged in professional misconduct. Definitions of professional misconduct and unprofessional conduct have been provided by the Act and are reproduced in these Reasons at paragraphs 154 and 157 inclusive. Subsections (a) and (b) of the definition of professional misconduct in s 3 of the Act are a restatement of the common law definition of professional misconduct. In Myers v Elman (1940) AC 282 at 288 to 289, Viscount Maugham in House of Lords found that professional misconduct was to:

Have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency.

1. In Re Solicitor [1960] VicRp 96; (1960) VR 617 at 622 Deane J held that, 'misconduct' 'in a professional capacity' pursuant to s.15 of the Legal Profession Act 1958 (VRC) bore the same meaning as described in Myer v Elman in respect of professional misconduct. In Magrath v Medical Board (unreported) Supreme Court of Victoria 1 November 1976, Eames J noted that judicial interpretation of the expression 'professional misconduct' was that the words, 'comprised conduct which was more than mere professional incompetence, or mere deficiencies in professional practice, but would encompass conduct which included 'deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner'. This was a quotation from Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200.
2. The test has also been referred to by Mandy J in Campbell v Dental Board of Victoria (1999) VSC 13 at [23]- [24] where his Honour followed a formulation of the Queensland Full Court in Adamson v Queensland Law Society Inc (1990) 1 Qd R 498 at 507. It was there stated:

The test to be applied is whether the conduct violates or falls short of, a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.

1. 'Unprofessional conduct', as defined in s 3 of the Act, is 'a smaller hurdle' or less serious than the conduct referred to in 'professional misconduct'. The definition refers to the reasonable standards of the community and professional peers of good repute and competence. In Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044 at [33] the then President, Morris J, stated:

I wish to repeat the words of paragraph (a) and (b) of the definition of unprofessional conduct. In both these paragraphs attention is directed at professional conduct which is of a lesser standard than that which might 'reasonably' be expected of a registered medical practitioner by the public or by peers of the practitioner. In my opinion, neither the public nor the peers of a medical practitioner expect perfection at all times. Human frailty visits every person, including those who are medical practitioners. Reasonable members of the public, and reasonable peers of medical practitioners, understand this. Reasonable people are tolerant of occasional lapses, particularly if these lapses do not form a consistent course of conduct or, if taken separately, are sufficiently serious to warrant intervention by those charged with acting on behalf of the state.

1. The provision of HBOT and Lokomat treatment is very unusual in Australia as opposed to the United States, Japan, China and Russia. We have already noted that this is a most unusual case involving a chiropractor practising in Australia. By that we mean that there are either no other or but a handful of chiropractors who practise in the same field as did Dr Hooper.
2. In our view, it is inappropriate, when making a determination, to take into account the views of chiropractors practising in another country, such as the United States, for example, Dr Stoller. As Dr Freckelton has pointed out, those chiropractors are avowedly 'part of groups which are lobbying for change and perspectives other than those which are standard.'
3. Dr Freckelton submitted that because of the unusual nature of the treatment that Dr Hooper, as a chiropractor, was giving, the appropriate view in relation to that required by s 3 in relation to professional misconduct and unprofessional conduct was hyperbaric practitioners of good repute in mainstream, highly regarded associations such as ANZHMG, ANZSIGDHM, and in the United States, UHMS and in Europe, the consensus of the European Committee for Hyperbaric Medicine. We believe this submission is going too far in that it excludes the views of chiropractors in Australia, however, because of the nature of this particular proceeding, which we have explained earlier, it is appropriate that these bodies' views should be taken into account and given strong weight.
4. Taking these matters into account, we have formed the view that the conduct of Dr Hooper in so far as it relates to failing to make a proper assessment, is not conduct of sufficient seriousness as to be considered 'professional misconduct'. We believe it is too extreme to describe this conduct as 'disgraceful or dishonourable' as referred to in Myers v Elman (supra). The real vice in this proceeding was the failure to do a proper assessment led to QS not being provided with a working diagnosis or management plan and that the record of practitioner-patient interaction was not in the expected format. (See evidence of Dr Ebrall referred to above.) We also agree that a proper assessment should have been done prior to treatment commencing and this was not done. However, we do not believe that such failure amounts to professional misconduct.
5. We are of the view that the failure to do a proper assessment, is of a lesser standard than that which might reasonably be expected of a registered chiropractor by the public or by the peers of Dr Hooper be they other chiropractors in Australia or members of the peak organisations that we have referred above. We also note, that in relation to the provision of Lokomat treatment, the fact that no objective assessment was made prior to the commencement of any treatment, made it impossible to objectively gauge any benefit that QS may have received from treatment. Again, we are of the view that this would be of such a character that it would not be acceptable by members of the public in relation to a chiropractor or his fellow members of the profession. Given these circumstances, we find that the applicant, in failing to assess QS at all or in a proper manner, has engaged in unprofessional conduct within the meaning of s 77(1)(a) of the Act. We have considered other possible determinations provided in s 77(1) but do not believe they are appropriate in these circumstances.

1. In relation to this issue, we refer to paragraphs 80 to 87 inclusive and repeat the contents of those paragraphs. We also refer to and repeat the matters concerning the efficacy of HBOT and the Lokomat which are to be found in paragraphs 47 to 79 inclusive hereof.
2. Before commencing a discussion of this topic, we wish to make it clear that we are not of the view that either HBOT or Lokomat treatment for the conditions described in paragraph 31 hereof should be prohibited. The issue is that the treatments that were offered by HyperMED to QS were not mainstream and, as a result, special attention should have been given in relation to discussions about the possible effects that those treatments would have had on QS. We have discussed this issue above. Further, the treatment HBOT and Lokomat treatment are treatments are not normally used by chiropractors in Australia. Bearing all these matters in mind, what should QS have been told by Dr Hooper and his associates in order for him to have given informed consent to the treatment?
3. As previously mentioned, Dr Hooper relied on the fact that the chiropractic profession in Australia conducts evidence based practice and therefore scientific proof of efficacy is not required. However, as we have previously said, this is a special case because of the reasons stated above. Put simply, because there is great controversy in relation to HBOT for patients with cerebral palsy, its ability to stimulate stem cell growth and, for the use of a Lokomat of such patients, the treatment offered by HyperMED falls into a completely different category of treatment than offered by other chiropractors in Australia. This puts a greater onus on the practitioner than one who is simply doing an adjustment that may take a few treatments. This is in stark contrast to the amount of treatments and the cost of such treatments that QS had with HyperMED.
4. It is insufficient for a chiropractor to just give written material, even though that written material may not all be in favour of the treatment. It does not matter whether that written material is in the form of a website or an information pack sent to a potential patient. In this particular instance, the material on the respondent's website was like a 'huge forest' where persons such as QS would be likely to lose their way, we refer to and accept the comments of Professor Dodd referred to in paragraph 44 of these Reasons. We also note, that QS was an extremely vulnerable person who was desperate to improve his position.
5. Because of all these factors, it was extremely important and proper that Dr Hooper should have ensured that QS had a full understanding, not only of the treatment that was to take place, but of the views of mainstream hyperbaric practitioners and peak professional bodies that the treatment for cerebral palsy was not recommended by those practitioners and particular bodies and, in fact, they did not believe such treatment was efficacious. This fact was never properly explained to QS by Dr Hooper.
6. Further, in relation to Lokomat treatment, it was never explained by Dr Hooper to QS that there was a firm body of evidence which would suggest that the Lokomat treatment, would not advance QS's cause any more than practising in overground walking like he had been doing since 2004.
7. It is the responsibility of the practitioner to ensure that the patient has given suitable consent. The High Court in Rogers v Whitaker (1992) 175 CLR 497 at [14]-[16] stated:

The choice as to whether a patient will submit to medical treatment is, in reality, meaningless unless it is made on the basis of relevant information. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of practitioner alone or, for that matter, of the medical profession ... except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment ... Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for the purpose having regard to the patient's apprehended capacity to understand the information ...

A doctor has a duty to warn a patient of a medical risk inherent in the proposed treatment; the risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be reasonably aware that the particular patient if warned of the risk, would be likely to attach significance to it.

1. The Tribunal, in Medical Board v Laska [2011] VCAT 1888 at [29], made it clear that the practitioner has an obligation to:

Not only explain to the patient what he was doing and why he was doing it; he needed to ensure that she fully understood and was thereby giving her informed consent to the examination. Silence is not sufficient or adequate 'cue' to proceed.

1. In this instance, it is insufficient for Dr Hooper, after having formed the view that QS was a knowledgeable and intelligent man, that he knew all the pros and cons of receiving the treatment, as well as the strong views expressed by peak bodies and respected practitioners against the efficacy of such treatment or the questionable efficacy of such treatment. The fact that QS was not only vulnerable but displayed that vulnerability should have put Dr Hooper on notice that contrary views needed to be explained to QS very carefully and those explanations needed to be noted in the progress notes. In Dr Hooper's defence, he relied heavily on the fact that QS knew that there was some doubt as to the efficacy of the treatment by the fact that he told Dr Hooper that he was 'a good guinea pig' [see Transcript page 150]. This statement should have immediately sent signals to Dr Hooper as to the vulnerability of QS. Instead, Dr Hooper took this statement to mean that QS was aware of the experimental nature of the treatment. What Dr Hooper did not explain to QS and what was necessary to be explained was that the treatment that was being offered had many detractors, including mainstream medicine and people of high repute. It matters not that others believed the treatment was most efficacious, for example, Dr Stoller and Dr Marois. Dr Terrett, at page 7 of his witness statement of 4 August 2012, and at Transcript 2149, made it clear what a practitioner must tell a patient in order for consent to be informed. He stated:

It can only be Informed Consent if the practitioner has explained to the patient:

• the diagnosis;
• the proposed treatment;
• the benefits of treatment;
• the likely duration of treatment;
• any real or material risks of the treatment;
• the likely costs of treatment, and other possible costs (eg, X-rays);
• likely consequences of treatment;
• the patient has the opportunity to ask the practitioner any questions they may have about the diagnosis, the proposed treatment and/or possible complications of the proposed treatment.

1. Dr Freckelton correctly suggested that the practitioner had an obligation to inform the patient of other treatment options. In support of this submission he referred to the Chiropractors Registration Board of Victoria's Standards and Practice Code - 'Codes of Professional Conduct'. In this regard, Dr Hooper relied on the evidence of Dr Stoller that the use of oxygen masks rather than HBOT could produce a benefit at far less cost [Transcript p 2055], Professor Dodd also said overground walking would be just as beneficial (if not more so as a partial bodyweight system such as the Lokomat) [see Transcript 564].
2. Taking these matters into account, Professor Terrett was of the view that informed consent from QS had not been obtained by Dr Hooper in this regard [see Transcript 2118].
3. The question of the strength of the evidence supporting the proposed treatment was referred to by Dr Millar at Transcript 409. He stated that:

It's a critical part of informed consent that patients ... are made aware of the level of evidence supporting the proposed treatment.

He said it was a fundamental part of obtaining informed consent from a patient that they be alerted to the level of evidence supporting the treatment and if it is an unproven therapy, they be informed of this:

If it is not a reasonable therapy then of course I don't believe it should be offered to them, and if it is truly experimental then it should - I think everyone, at least in my peer group would agree, should actually be approved by a properly constituted ethics committee as being a human research ethics-approved research exposure. So depending on just how experimental or speculative the therapy is, it would range between informed consent with the patient clearly told that this was speculative, you know commonly applied perhaps but speculative therapy, through to should only be provided as the ethics-approved research exposure, depending on just how speculative it was.

1. Dr Millar also referred to the fact that the cost and effort on the part of the patient should be discussed by the practitioner, which would allow the patient the greatest possible information about the risks and benefits of the treatment and the reason that recommendations were made or not made. [See Transcript 951].
2. Dr Churchyard was of a similar view to Dr Millar. At Transcript 1407, Dr Churchyard stated:

My view would be for any health practitioner, from whatever discipline, dealing with the patient, that whatever cause, that they should ensure informed consent which would include, when discussing any treatment option, a realistic assessment of the evidence base and hopefully be able to give patients an estimate of the likelihood of success. I think, also, in chronic neurological disorders - and this is a fundamental tenant of practice - that it's very important that treatment not be open-ended, that patients are to be given defined treatment goals, and there is some sort or schedule, if I might put it that way, for the treatment's efficacy to be evaluated and a decision made at that time whether or not there will be any benefit to the patient in continuing treatment thereafter.

1. It is noted, that Dr Hooper made several criticisms of Dr Churchyard, including the fact that Dr Hooper believed Dr Churchyard's evidence was contradictory and that Dr Churchyard had no experience in either hyperbaric or stem cell therapy. In our view, the areas in which Dr Churchyard was considered by Dr Hooper to be contradictory, were minimal, and can easily be explained by the lengthy cross-examination that was put to him and the different context in which questions were put. Further, Dr Churchyard is a distinguished neurologist of many years experience. He thus has a good understanding of the workings of the brain and what treatments may or may not be beneficial for neurological conditions. A doctor like Dr Churchyard does not have to practise in a particular modality of treatment, in order to know the likely efficacy of such treatment.
2. Professor Dodd, at Transcript 1407, suggested that a practitioner should be very careful and give correct information to patients who are contemplating treatment when the efficacy of the treatment had not been scientifically established. She stated the practitioner should:

Say this is a very early treatment, it is based on a theory which had got some, you know, people thinking this was a useful thing to do, and that it was something that might be useful, but I would be really clear about what usefulness that might be ... You would have to be very careful about what your claims were about something like that. But I think the most important thing is to agree to tell the person that, you know, the evidence, is very weak. There's not a lot of evidence at the moment. This is almost experimental, actually. It's almost experimental kind of treatment at this point, and tell them how much it will cost and how much time it would take, and we're not sure about what outcomes might be. Therefore if they wanted to participate, they could, but I would be very anxious about doing a lot of treatment, you know, without having quite clear outcomes I was going to measure and clear times when I was going to measure them.

1. Dr Marois agreed that, in 2007/2008, it was necessary to inform a patient with cerebral palsy with a balanced view of the prospects of success and the state of scientific literature at the time which did not categorise it (HBOT) as a recognised therapy.
2. The respondent launched an attack on the credibility of Dr Millar's evidence in so far as it related to informed consent and other matters. Dr Hooper contrasted different evidence given by Dr Millar and concluded it was inconsistent. At paragraph 109 of the respondent's submissions it is stated:

The second area of informed consent was testimony from Dr Millar where he contradicted his testimony from the previous day's testimony to swing the scales back in favour of the applicant. The respondent refers to paragraph 134 [Transcript page 951] where Dr Millar indicates a practitioner should politely decline treatment for cerebral palsy patients, contrasts his page 778 earlier 'toss of the coin' statement.

1. On researching these references, we find this submission difficult to understand. At Transcript page 778, Dr Millar, after indicating he would defend his ability to give hyperbaric treatment to conditions that are not on the Medicare funding list, stated:

And the same philosophy is probably why I ended up concluding in my earlier statement that if I was asked whether hyperbaric oxygen should be banned for cerebral palsy or multiple sclerosis I would be quite equivocally placed and possibly could even toss a coin because I would feel torn between the public purse and the evidence of the clinical practice.

However, the statement at Transcript page 951 attributed to Dr Millar appears to be made by Dr Bennett. Dr Bennett there says:

Leaving aside the possibility of offering other forms of treatment (other than HBOT) and assistance and referral, the correct course for this hyperbaric position is to politely and regrettably decline treatment on that basis.

Thus, the statement with a slightly different emphasis to that quoted by Dr Millar, seems to be made by Dr Bennett.

1. At paragraph 20 of Dr Freckelton's reply submissions, he comments the tossing of the coin reference and by Dr Millar and the alleged banning reference by Dr Millar but, in fact, from Dr Bennett. Dr Freckelton stated:

... the reference to tossing a coin relates to the banning, the prescribing absolutely, of hyperbaric treatment for cerebral palsy and multiple sclerosis. Dr Millar's tentative ethical position, as it is for giving hyperbaric oxygen for conditions not on various lists, is that it ought to be allowed but only engaged when amongst other things, properly informed consent is obtained (depending on sufficient furnishing of relevant information) and, for instance, when a properly controlled and designed clinical experiment is conducted. The position that Dr Millar was advocating tossing a coin or was so unsure that his professional views rested upon the 'toss of a coin' is a complete distortion of his words and a failure to have regard to the context.

1. The respondent also referred to the fact that the code of conduct did not require practitioners to practise in evidence-based modalities of treatment. However, we agree with Dr Freckelton that the code of conduct is, a 'broad-based document endeavouring to give ethical guidance to chiropractors, and clearly identifying what is required for obtaining informed consent. The codes do not descend into every specific detail.'
2. As we have stated previously, this proceeding revolves around very unusual conduct for a chiropractor. Therefore, different rules apply in a situation like this as to when a chiropractor would be practising the normal everyday modalities that chiropractors use for treatment. We thus agree with what Dr Freckelton has stated at paragraph 205 of his submissions that:

... treatment for cerebral palsy to an adult with the condition who is desirous of improving his circumstances, it was his (Dr Hooper's) responsibility to provide information to enable the patient to engage in lengthy and extensive treatment which, objectively, was unlikely to provide him any significant benefit.

1. For the above reasons, we have concluded that the respondent failed to obtain proper informed consent pursuant to Allegation 2 for the treatment administered by Dr Hooper to QS between August 2007 and May 2008.

1. Dr Freckelton has submitted, that we should make a determination in relation to Allegation 2, pursuant to s 77(1)(d), that Dr Hooper is not of 'good character'. That does not, of course, preclude us from making a determination that Dr Hooper's conduct was professional misconduct or unprofessional conduct. That is, we, subject to proper principles, are able to make a determination that Dr Hooper is not of good character, has engaged in professional misconduct or has engaged in unprofessional conduct. It is noted that s 77(1) provides for a number of other determinations which we do not believe are appropriate in this proceeding.
2. In relation to both professional misconduct and unprofessional conduct, we have discussed the law in relation to those matters in relation to Allegation 1 hereof and, as a result, it is not necessary to repeat the same.
3. The concept of good character is not one which bears some special or technical meaning; rather, the words are used in their ordinary meaning. See Healthcare Complaints Commission v Karalasingham (2007) NSWCA 267 at [45]. Further, whether a person is of good character or otherwise is a question of fact rather than law. It is an evaluation of the given question being undertaken in the context in which the question is raised under the legislation. See Smith v Director-General of Transport (2004) WASCA 64 at [24]. Thus, one must consider the statutory purpose for which assessment of character is required. That is, the character in so far as it is relevant to the function for which a person is registered or to be registered. See, by way of example, Re B [1981] 2 NSWLR 327 at 394-395. This principle was demonstrated by a statement from Walsh JA in Ex parte Tziniolis; re Medical Practitioners Act (1967) 1 NSWR 357 at 358-359 where it was stated:

[W]e are entitled to enquire into what may be described as personal misconduct; as distinct from professional misconduct; in determining this case whether or not the applicant is a man of good character, whilst recognising that there may be some kind of conduct deserving of disapproval which have little or no bearing on the question of whether or not it is shown that an applicant for registration as a medical practitioner is a person of good character.

'good character' is not a summation of acts alone but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by the evidence from which the inference of good character or not good character can be drawn.

1. It is also clear, that character is not just clinical capacity of a practitioner. In Bannister v Walton (unreported) NSWC Court of Appeal 30 April 2002, Mahoney stated:

Clinical capacity is by no means the only consideration to which regard is to be held in determining whether a person is appropriate to practise medicine. It is necessary that the public be protected against those who, though having the appropriate skills do not have the character for the opportunities and privileges which the right of practice gives.

1. In McBride v Walton (1994) NSWCA 199 the New South Wales Court of Appeal (Handley and Powell JJA) approved the following factors as relevant to the question of determining 'good character':

(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of misconduct and its relevance to practising medicine;

(c) whether the misconduct should be viewed as an isolated episode or whether it is characteristic of the practitioner;

(d) any motivation which may have given rise to the proven episode of misconduct;

(e) underlying qualities of character shown by other acts of misconduct; and

(f) whether the practitioner's conduct after the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe high standards required of a medical practitioner.

1. In this particular instance, we view Dr Hooper's conduct as an error of judgment rather than a defect in character. While we agree that Dr Hooper was running a business and undoubtedly trying to maximise his profits, on the other hand, we are of the view that he truly believed and believes that the treatment he was offering would be effectual and was a panacea for not only cerebral palsy but for other matters described in his website. The treatment being offered was not likely to have serious side effects or adverse physical effects on QS, save and except for the huge commitment that QS put into the treatment and the exhaustion which followed and the huge financial commitment which he made and which ultimately he became very worried about when he could not meet such commitment. The offering of HBOT and Lokomat treatment by HyperMED was clearly not isolated episodes. The giving of that treatment for cerebral palsy and/or neurological complaints, was part of HyperMED's business. However, we do not believe that the giving of such treatment, in fact, reflects on the character of Dr Hooper, save and except that he is 'true believer' in the treatment that was being given.
2. In relation to the question of motivation for giving the treatment, clearly Dr Hooper's motivation was that of running his business and, quite possibly, curing his patients.
3. In relation to Dr Hooper's underlying qualities of character shown by other acts of misconduct, it should be noted that, apart from the allegations that have been presented to us here, no other misconduct has been alleged against Dr Hooper. We also note, that a number of his patients have given testimonials that they were very happy with the treatment he gave. However, the issue that we are concerned with here is informed consent. That being the case, we do not hold the view that this shows any matter of underlying character by which we could make a finding of bad character. However, we are concerned that Dr Hooper has operated his practice in a blinkered sort of way, refusing to accept legitimate criticism in relation to his conduct. Further, when things have gone wrong, he has been inclined to blame others, for example, in his opening submissions, he has blamed QS for his bankruptcy and has accused the applicant and its solicitors and counsel of having improper motives in bringing this application. He also believes that has been singled out for 'persecution'. All that is a flaw in the respondent's character.
4. In relation to the question of whether Dr Hooper's conduct, after the conduct which we have found to be not proper, may demonstrate or affect public and professional confidence in him. We are of the view that, as in relation to Dr Hooper's conduct, it is likely to have a devastating effect into the public's view as to whether he is able to give proper professional advice in an unbiased type of manner which is in the patient's best interest. We are of the view that, certainly at the present time, he would be unable to observe the high standards that would be expected of him in the chiropractic profession. Further, his conduct is likely to bring the whole chiropractic profession into disrepute and adversely affect the positive results that the profession has achieved in its hard fought battle to become a legitimate health provider in Australia.
5. Having made the above findings, we are nonetheless of the opinion, that the respondent's conduct, in failing to obtain proper informed consent from QS, is not sufficient conduct to make a finding pursuant to s 77(1)(d) of the Act.
6. The next question is whether a finding should be made of 'professional misconduct' as a result of Dr Hooper's failure to obtain proper informed consent from QS. Dr Hooper knew, or should have known, that it was necessary to obtain proper informed consent, being a vulnerable person, before he embarked upon costly and lengthy treatment. He also knew, or should have known, that the treatment he was providing, both in HBOT and Lokomat, was treatment that was not accepted by the mainstream bodies for hyperbaric medicine and that, those that were like-minded with Dr Hooper, were complete advocates for the cause of such treatment, and were performing the treatment, not only without proper evidence, but without proper clinical results from that treatment, particularly in the community which Dr Hooper was operating in, that is, Victoria.
7. In our view, taking into account the matters that we have discussed, Dr Hooper's conduct 'violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency.'
8. In our view, the conduct of Dr Hooper in relation to this Allegation, is such that it comes within what Priestley JA stated in Qidwai v Brown (1984) 1 NSWLR 100 at 105 as to be such that the 'practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of the professional brethren of good repute and competence.'
9. We also believe that this conduct comes within what Kirby P described in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200 that it included:

A deliberate departure from accepted standards or such serious negligence as, although not deliberate to portray indifference and an abuse of privilege which accompany registration ...

It also comes within what Mandy J described in Campbell v Dental Board of Victoria referred to above.

1. In our view, the professional peers of Dr Hooper in Victoria would conclude that Dr Hooper's conduct in relation to Allegation 2 is a matter of serious impropriety. Therefore we conclude that Dr Hooper's conduct in relation to Allegation 2 is professional misconduct within the definition of s 3 of the Act and within the meaning of s 77(1)(a) of the Act. Having concluded that Dr Hooper's conduct was professional misconduct within the meaning of s 3 of the Act, we do not have to consider whether Dr Hooper's conduct was unprofessional conduct. We have considered determinations provided in s 77(1)(b) and (e) of the Act and do not believe they are appropriate in this instance.
2. Before leaving this allegation, it is desirable we say something of the evidence presented to us by the respondent concerning Allegation 2. The evidence from QS suggests that he was given or possessed a broad understanding of HBOT and Lokomat therapy from both his own research and from whatever told to him by Dr Hooper. The extract from the Transcript also refers to Dr Hooper showing QS diagrams which Dr Hooper suggests come from Jain's book. There is also evidence in relation to fundraising and 'base line' approximates of the amount of treatment and costs. Further, Dr Hooper also refers to the fact that if QS was 'offered a miracle he would take it'. The evidence of Dr Terrett is referred to but, in our view, does not take the matter any further than what we have already discussed. Many quotations related to Dr Terrett's view of the Codes of Conduct. In our view, none of these matters take the issue before us any further and do not alter either the view we have taken of the evidence about or the use to which the evidence should be made. In particular, the evidence does not touch on whether QS was informed of contradictory views held by peak professional bodies or respected mainstream practitioners relating to HBOT and Lokomat treatment.

1. It would appear that the purpose of the treatment given by HyperMED to QS was to prepare QS for stem cell therapy at SRI and to make him more functional.
2. Professor Dodd, in her report of 18 January 2010 at paragraph 8, commented on the appropriateness of a treatment plan for a Lokomat provider. She stated:

It would be appropriate and very common practice for providers of Lokomat treatment to prepare a treatment plan prior to the commencement of treatment. The plan should include at least the following:

1. Specific agreed and measurable goals of treatment for the person with CP (cerebral palsy), that are realistic and based on scientific evidence of the potential benefits of such program.
2. Information about how the goals of treatment will be measured and evaluated (ie, what the objective and substantive outcome measures to evaluate progress will be).
3. When and how often the goals will be formally measured - so setting formalised review dates.
4. Based on scientific literature, an agreed plan of approximately the intensity and duration of treatment that is anticipated to be needed to achieve the agreed specific measurable goals.
5. Details of the treatment intervention proposed for implementation.
6. In relation to hyperbaric treatment, Dr Millar made the following comment about a treatment plan. [See Transcript 958]:

I think in respect of hyperbaric and in respect of treatment plans in general, it's extremely important from both a practitioner and patient and the patient's family often - that the treatment plan is clearly understood between the practitioners and the patient. And there are multiple reasons why this is so. It is often only in the development of a comprehensive treatment plant that the full impact on the individual concerned may become obvious. For example, from our own practice in hyperbaric, it is not uncommon for a patient to ... - to express the desire to have the hyperbaric treatment and to understand that it might involve more than one treatment, but when full explanation of the time taken each day and the number of hours that they will have to be at the hospital and so forth that they can modify their decision about to have at all or delay treatment. So a plan is essential in the patient's understanding what their committing to. Hyperbaric, ... its great disadvantage is the time taken to produce its therapeutic effects. It's - there are very very few things we treat that respond quickly. So it's very important for the - from the patient's point of view to understand as much as possible what they are signing up for. From the practitioner's point of view it is very important to have a clear idea from your experience and knowledge of the literature what number of treatments or time under pressure or whichever you want to express it, what are critical times.

1. Dr Hooper maintains there was an adequate treatment plan. Reference was made that there were to be 140+ hours of hyperbaric treatment and 60+ hours Lokomat treatment to be provided. Also he says that the patient had a full understanding of what was to be achieved by the treatment, namely, preparedness for stem cell therapy and a better functionality.
2. It is noted that Dr Ebrall, in his report of 31 August 2010, observed that there was 'no real plan' in Dr Hooper's records. There was no 'management plan by the chiropractor that proposes the frequency duration of the treatment and the desired milestones'. In a similar vein, Dr Terrett observed, in his report of 4 August 2012 at page 11, that the ordinary indicia of a treatment plan in this instance are wholly lacking. We agree with the observations of both Dr Ebrall and Dr Terrett.
3. In Dr Hooper's submissions, under the heading of Allegation 3, he referred to the fact that there were computer-generated notes. The notes he was referring to were those documents that were generated from the Lokomat. We find it difficult to understand how those documents could have been a treatment plan, when they were produced after the treatment had commenced. In any event, it does appear from the evidence of Dr Carda, that the notes do not give an indication of how the patient is performing. They, in fact, indicate what the machine is doing. Dr Hooper also relies heavily on the evidence of Dr Perkoulidis. However, we have already made comment in relation to his evidence.
4. In conclusion, we agree with the comments made by Dr Freckelton in his submissions when he stated, at paragraph 133:

What was sought to be achieved is simply a matter of conjecture. What would be the mark of success or failure are not identified - either in respect of the necessary improvement of the patient's condition or symptomatology or his readiness for stem cell treatment.

1. We also agree with the comment that Freckelton made at paragraph 139 of his submissions where he states:

The tactic of failing to formulate and communicate a treatment plan to QS deprived the patient of the ability to ask relevant questions and to understand informedly the purpose and objectives of treatment. In turn this impacted fundamentally upon QS's capacity to make a considered decision about the expensive treatment which Dr Hooper proposed that he submit.

1. Dr Hooper referred to what he called a treatment plan being contained in the information sent to QS prior to his first visit to HyperMED. He also referred to the fact that QS had three stages of treatment being 'the start phase', 'intensive phase' and 'consideration of pursuing stem cells overseas'. Dr Hooper suggested there was an opportunity for QS to discuss the treatment going forward when the cost of the HBOT was reduced after QS had completed 100 hours. In our view, none of the matters together or individually referred to by Dr Hooper were sufficient to constitute a treatment plan. We refer to matters discussed above as to what a treatment plan should contain and the way QS's treatment plan (if there was one), was lacking. We do not believe the issues raised by Dr Hooper take the matter any further.
2. Thus, we find Allegation 3 has been made out.
3. Dr Freckelton has submitted that we make a determination pursuant to s 77(1)(a) that Dr Hooper has engaged in 'professional misconduct' in relation to Allegation 3. In making a determination in relation to this particular Allegation, we believe that the same principles and matters apply as we have referred to pursuant to Allegation 1. Having formed that opinion, we determine that the respondent, Dr Hooper, has engaged in unprofessional conduct pursuant to s 77(1)(a) of the Act. We have set out the law and considerations relating to unprofessional conduct in dealing with Allegation 1 hereof. In relation to unprofessional conduct we are of the view that similar facts and law apply to Allegation 3 as to Allegation 1. We do not believe the other determinations referred to in s 77(1) are applicable to Allegation 3.

1. A number of the expert witnesses gave evidence that it is necessary to monitor and review a treatment plan to identify whether its objectives are being met. In order to do this, the treatment plan needs to be reviewed at various intervals to ensure that it is fulfilling worthwhile therapeutic objectives and not open-ended. Further, the practitioner needs to inform him or herself of whether the objectives in the initial treatment plan are being accomplished or otherwise.
2. In Professor Terrett's report of 4 August 2012, he explained when a treatment plan may require review and when it will require review. In relation to the former, he stated that it may require review if:
   • the patient has improved more quickly than was initially thought;
   • the patient has reacted badly to previous treatment;
   • the patient has not responded as well as initially hoped; or
   • if there has been any events which have occurred since the previous treatment.

In relation to when the plan will be required to be reviewed, he stated:

• the patient does not respond to treatment more quickly than was initially thought;
• the patient does have any adverse reaction to the treatment; or
• the patient does not have any benefit from the treatment.

1. The importance of monitoring progress was referred to by Professor Dodd in her report of 18 January 2010 at paragraph 9, where she stated:

Monitoring progress and potential improvement is critical. Research suggests that the effects of the treatment vary from individual to individual and needs to be tailored and adjusted to the need and responses of the individual throughout the course of treatment ...

1. In the same paragraph of the same report, Professor Dodd said that monitoring should entail:
   • indication of valid and reliable objective outcome measures relevant to the specific goals of treatment;
   • subjective evaluation from the patient of their perceptions about progress;
   • agreed timelines of when formal systematic measurement of the agreed outcome measures will take place;
   • there should also be less formal monitoring of progress throughout each treatment session, and from session to session but between the formal treatment reviews;
   • in this instance the only indication of modification of the treatment plan is merely that the treatment was extended, in the sense of more sessions being determined upon by Dr Hooper on or about 16 November 2007.
2. Dr Hooper relies on the Lokomat printout notes as showing that he changed the treatment plan and the treatment as it went along. However, in our view, those notes do not show any real monitoring of the treatment at all. What they show is different settings on the machine. It does not show the patient being evaluated. It does not show whether the patient has made improvement that justifies the treatment continuing. In fact, it does not really show that the patient has made improvement. What the notes show is that the machine settings have been altered. But, when one looks at the overall treatment of the machine settings, such as Exhibit J, which is a document prepared by Dr Hooper, being a summary of some of the machine notes, it indicates that there is no real change in the patient's progress.
3. Dr Hooper's progress notes also point the fact that, in November, there was a decision to continue with more of both hyperbaric and Lokomat treatments. However, the notes do not say on what basis this decision was made.
4. Further, it is clear from Dr Hooper's own evidence, that he was not properly monitoring the HBOT. At pages 1710 and 1711 of the Transcript, that Dr Hooper would not tell a patient to stop treatment unless the patient was non-compliant. It is quite unsatisfactory that the decision whether to stop or continue treatment should be left to the patient alone.
5. At paragraph 145 of Dr Freckelton's submissions, he quotes from Professor Dodd as to part of the risk of not monitoring outcomes. The Professor states:

The risk of failing to monitor progress and potential improvement mostly surrounds delivery of potentially ineffective treatment to the patient - so wasting time and finances. There is also the risk of not progressing the treatment parameters appropriate to obtain the optimal result.

1. Dr Carda, in his report of 16 October 2012 page 4, indicates the matters that should have been taken into account in considering whether a treatment plan should have been modified. He identified the following matters:

Improvement in Notifier's gait could have been easily measured with commonly accepted measures of gait function as: gait speed for example measuring the speed with a ten metre walking test, cadence, step length, endurance (for example with a six minute walking test) and with measures of participating (for example, with WHS or the Canadian Occupational Performance Measure; Mayo-Portland Ability Inventory). Three-D gait analysis is another reliable tool to assess slight improvements at the level of patients ability that are hard to believe clinically. Another measure that could have been used is Gross Motor Function Classification System.

So, a clinician that wants to show improvement in patients gait with Lokomat should utilise one or more of these instruments.

1. Dr Hooper relied on conversations between doctors with foreign, but no Australian registration and the notifier. He also relied on some of the patient's self-reporting. As we have discussed earlier, the self-reporting of a patient is very unreliable, because of the participation or Hawthorne effect. That is, the patient is paying a lot of money and going to a lot of trouble to participate in the treatment and therefore is anxious for success and believes that is success in the treatment, even if, objectively, there is none. In our view QS's conversations with the HyperMED clinicians were no more than self reporting.
2. We agree with the statement made by Dr Freckelton at paragraph 148 of his submissions. He there stated:

There is no indication of whether QS had met any treatment objectives in terms of improvement of his symptomatology of cerebral palsy or whether and if so, how he had been readied for stem cell treatment. In fact there is no reference whatsoever to his readiness for stem cell treatment anywhere in the clinical file save that there have been discussions about stem cell treatment on 27 August.

1. Thus we conclude, that Allegation 4 has been made out.
2. As with Allegations 1 and 3, Dr Freckelton submitted that we should determine in relation to Allegation 4, that Dr Hooper has engaged in 'professional misconduct'. However, as with Allegations 1 and 3, we believe the same considerations apply here as they applied there. We have set out the law and considerations in what we have written about Allegation 1, relating to unprofessional conduct and we are of the view that the same considerations apply to Allegation 4. We do not believe other determinations referred to in s 77(1) of the Act are appropriate for Allegation 4. Therefore, we determine that the respondent has engaged in unprofessional conduct. (Basically the same facts apply here as there).

1. The matters in relation to this Allegation are not dissimilar to those discussed in relation to Allegation 4. In paragraph 48 of QS's statement of 16 June 2010, he referred to matters relevant to monitoring of outcomes. He said there were few consultations between himself and Dr Hooper, 'he would talk to me from time-to-time while I was on the Lokomat machine but he did not undertake any tests to record any improvement in my condition. At no stage did Dr Hooper physically examine me in relation to my progress or my functionality.'
2. The respondent relied on the evidence of QS at Transcript 205 where QS agreed that he talked to Dr Lu, Dr Tooraj and Mr Islam that they knew the protocols and they were not pressurising him. The doctors referred to were unregistered doctors in the State of Victoria or Australia. Dr Hooper also relied on the fact that QS agreed that each of those 'doctors' instructed QS in what to do and they were familiar with his problems. However, it was admitted by Mr Islam in his evidence, that he was unaware that QS was being prepared for stem cell therapy. The other 'doctors' did not give evidence.
3. Dr Freckelton also relied on the evidence of Dr Terrett at Transcript 1414. After Dr Terrett had indicated that the only treatment plan he could determine was 120 hours of HBOT and a number of hours of Lokomat treatment, Dr Terrett was asked by Dr Freckelton: 'Would that kind of an indication meet the standard criteria for a treatment plan provided by a chiropractor?' Dr Terrett answered:

I think there should be - with a treatment plan that is so long, you would normally expect periodic revision of - or reassessment of the patient's condition and they are responding to treatment before you complete 120 hours of or 200 hours of treatment. So I don't think that - would be normal practice. Amongst many practitioners that I know who have long, extended treatment plans with some patients, I have heard it suggested that after 12 visits, there is reassessment on the twelfth visit.

Apart from extending the hours for HBOT and Lokomat treatment in November of 2007 there does not appear to have been any reassessment of QS at all. In fact, as it has already been mentioned, Dr Hooper believed QS should continue treatment until he stopped.

1. Dr Hooper's progress notes do not reveal any record of testing QS in respect of cerebral palsy symptoms generally or his readiness for stem cell treatment. This indicates that it is unlikely that there was proper monitoring of the outcome of any treatment which QS received.
2. The necessity for monitoring treatment, was emphasised by a number of the witnesses who gave evidence for the applicant:
   • (a) In his report of 11 February 2010, at page 5, Dr Millar noted that the patient's progress should always be monitored on a continuing basis. He stated, that the failure to monitor treatment has the potential for the unnecessary continuation of either completed or futile treatment, or a result of important issues being overlooked or an alternative treatment foregone.
   • (b) In his report of 6 April 2011, Dr Bennett stated that it was 'universal practice' in medically run (HBO) chambers to assess the patient each day after therapy to ensure there was no problems with the therapy.

Save for the occasional comment in the notes that QS was feeling better, there does not appear to be any clinical assessment undertaken by HyperMED to monitor QS's progress.

(c) At Transcript 1417, Dr Terrett stated that he had reviewed the progress notes and there was an absence of any objective measures availed of by Dr Hooper. Dr Terrett stated he could find no base lines recorded with respect to symptoms such as spasticity, range of movement, involuntary movement or pain, no attempts to objectify improvement, no questions as to how QS was feeling on one day compared with the previous day and no reference to measurements for improving gait.

1. In dealing with Allegation 4, we have already dealt with the tests that Dr Carda said could be implemented in order to objectively assess whether QS had made any improvement or otherwise during treatment. Professor Dodd and Dr Patritti also referred to such tests.
2. It is also noted, that both Professor Dodd and Dr Carda were unable to discern any improvement or otherwise from the Lokomat information. They suggested it was all over the place. Dr Carda stated, in his report of 16 October 2012, at page 963 of the applicant's tribunal book:

There is no way to understand from the Lokomat printouts that the treadmill speed, angular speed of joints and unloading has improved due to the patient's amelioration or only are due to a different choice of operator.

1. We accept the views of the experts referred to above and as such we find that Allegation 5 has been made out.
2. Dr Freckelton submitted, as with Allegations 1, 2 and 4 that we should determine that the respondent engaged in professional misconduct in relation to Allegation 5. We believe, that the matters we have set out in Allegation 1, also reflect matters in Allegation 5 as to reasons why we should determine that Dr Hooper engaged in unprofessional conduct rather than professional misconduct. We have set out the law and considerations in what we have written about Allegation 1, relating to unprofessional conduct and we are of the view that the same considerations apply to Allegation 5. We do not believe other determinations referred to in s 77(1) of the Act are appropriate for Allegation 4. Under those circumstances, we determine that Dr Hooper has engaged in unprofessional conduct.

Allegation 6: Misrepresentation of Likely Effectiveness of Treatment

1. At Transcript 2451, Dr Freckelton referred to the basis of Allegation 6. He stated:

The allegation relates to misrepresentation about likely effectiveness, which in itself postulates a contrast between what was communicated and reality. It appears that QS was given to understand that it was worthwhile to submit to hyperbaric oxygen treatment and Lokomat treatment, either to better his symptomatology of cerebral palsy and/or to get him ready for stem cell treatment overseas. The evidence before you is that the organisations to which reference is made in paragraph 170 ANZHMG, ANZSIGDHM, UHMS and European Committee for Hyperbaric Medicine 7th Consensus Conference of 2004, after due consideration, have omitted cerebral palsy from the list of conditions which can constructively be treatment with hyperbaric oxygen treatment. We say that places a heavy onus on anyone suggesting to the contrary, to communicate clearly with a patient or potential patient what they are doing, why they are proposing to do it and what the bases are of their proposed treatment.

We do not take this statement to mean Dr Freckelton suggest that there should be a reversal of the onus of proof.

Hyperbaric Oxygen Treatment or Symptoms of Adult Cerebral Palsy

1. It has already been stated, that the International Hyperbaric Association, which promotes HBOT for neurological conditions, is largely a funding organisation.
2. Dr Hooper submitted that the chiropractic profession is not bound by scientific efficacy. At paragraph 134 of his submissions, it is stated:

The bar, for 'standard of scientific efficacy' embodied in the allegations of this case, is based upon concepts foreign to the working knowledge of practitioners, foreign to the words of the old codes of conduct, and foreign to the new codes of conduct of the fourteen registered health professions, including the medical profession.

1. As we have previously stated, the practice of hyperbaric medicine and, for that matter, Lokomat treatment, is not common or usual amongst chiropractors in Victoria or Australia. Therefore, this particular instance, is something different from normal chiropractic practice.
2. It is not suggested, that Dr Hooper should be prohibited from performing the treatment that he did in relation to QS, what is suggested, is that Dr Hooper should have informed QS of the mainstream views, including those of the peak organisations of Australia, Europe and the United States to which we have already referred. Put differently, a balanced view needed to be given. We agree with Dr Freckelton's comments at paragraphs 179 and 180 of his submissions where he stated:

Dr Hooper appears to want to prioritise his own clinical experience over scientific literature. First, this is illogical in the particular instance as he has conceded that before QS he had only had two other adult patients with cerebral palsy [see Transcript 1742].

In terms of experience of others, Dr Hooper is vague, maintaining that other persons, who for the most he does not want to name, have also had positive experiences of such treatment. They do not include Dr Marois who is a paediatrician. Significantly, whoever these practitioners are, by 2007/2008 they had not communicated their allegedly positive experience in peer review journals.

1. Dr Hooper relied on the evidence of Dr Terrett at 1423 where Dr Terrett said:

There is no requirement of any health practitioner, that I know of, to provide scientific evidence for efficiency of their treatment.

However, that does not mean that a practitioner should not inform a patient of other views contrary to the treatment particularly in a case such as the treatment in this proceeding which is rare in the chiropractic profession and where there is mainstream views which are completely contrary to the treatment being performed. Again, at Transcript 1424 and 1425, Dr Terrett agreed that there was no need to tell the patient whether the treatment is novel or mainstream. However, we find that that is not the position with this particular treatment nor with Lokomat treatment which, is unusual for a chiropractor as we have already stated.

1. Dr Hooper also relied on the writings of Jain in the fourth edition of his book published in 2004. We have already dealt above with the comments of Dr Millar and Dr Bennett in relation to this book. We find that this book, by and large, is not mainstream view and is insufficient to establish Dr Hooper's position. We make these findings on the reasons discussed in paragraphs 35 to 41 inclusive hereof. We note that Dr Steenblock, was supportive of Jain's writings, however, we place little reliance on his evidence for the reasons already stated, including that he did not make himself available for full cross-examination.
2. Dr Hooper also relied on Dr Marois, the co-author of the Collet Study published in the Lancet to suggest that the Collet Study did not exclude the use of HBOT for cerebral palsy for the reasons we have discussed above.
3. In relation to the view of Dr Marois, Dr Freckelton has correctly noted, at paragraph 192 of his submissions, that Dr Marois has never publicly published a repudiation of his role in the Lancet article. We take this to mean that there may be some question over Dr Marois' views.
4. In relation to Dr Stoller, we note that he appeared to misrepresent Dr Marois' views altogether. He stated that the article in the Lancet was published without Dr Marois' consent or knowledge. This did not appear to be correct from the evidence of Dr Marois.
5. We do not intend, nor do we need, to decide the question of whether HBOT can assist patients with cerebral palsy. What we are required to decide is whether there has been misrepresentation by Dr Hooper in relation to the offering of HBOT for cerebral palsy. The material provided by Dr Hooper in his website and other materials given to QS, as well as conversations held between QS and Dr Hooper, all suggested that HBOT would be of assistance to ameliorate his symptoms of cerebral palsy and to help in the preparation for stem cell therapy. Dr Hooper did not give a balanced view. To give a balanced view, Dr Hooper was obliged to inform QS, in clear and unequivocal terms, of the large body of evidence which suggests that HBOT would not assist ameliorating QS's symptoms in relation to his cerebral palsy. This should have been stated verbally and discussed with QS. It was completely insufficient for Dr Hooper to say that there were contrary views on his website. We refer to the statement by Professor Dodd in relation to the interpretation of that website by a lay person. See paragraph 44 hereof.
6. In our view, Dr Hooper acted quite improperly and, in fact, misrepresented to QS that the treatment would assist ameliorating his symptoms of cerebral palsy. Dr Hooper had a responsibility to provide material information within his knowledge or which should have been in his knowledge, which would have delivered a balanced view as to the likely success of the treatment he was providing or seeking to provide.
7. It is no answer, as Dr Hooper would have us believe, to say that he referred to and went through Jain's writings with QS. Jain's writings do not give the whole picture in relation to the treatment of cerebral palsy or many other conditions which Dr Hooper alleges it is suitable to treat. Jain's writings do no more than support Dr Hooper's case for supplying the treatment. They do not provide a balanced view.
8. Dr Hooper also relies on the code of ethics of chiropractors as not precluding the treatment he gave. However, as we have already stated, the code of ethics do not, in principal, and do not, in fact, descend into every particular specific of the chiropractor's obligation. As Dr Freckelton said, 'The essential obligations of practitioners was set out in the code and Dr Hooper failed to comply with it by failing to communicate to QS the realities about the provision of hyperbaric oxygen therapy to an adult with cerebral palsy.'

Hyperbaric Oxygen Treatment to Ready QS for Stem Cell Therapy

1. It seems clear that, at least in part, HBOT was given to QS to ready him for stem cell therapy. A number of matters that we have dealt with in relation to HBOT for improving QS's functionality also apply to stem cell therapy and we not intend to repeat the same.
2. Dr Hooper relied on the evidence of Dr Steenblock to suggest that it was useful to use HBOT in preparation for stem cell therapy. We have already made comment on Dr Steenblock's evidence, and do not intend to repeat the same except to say that we not accept his evidence as reliable for the reasons we have given. Further, it is clear, on the evidence, that Dr Steenblock in 2007 had not used stem cell therapy for adult patients with cerebral palsy. He did that much later.
3. We agree with Dr Freckelton that there has been no satisfactory evidence adduced to the Tribunal that there was any convincing prospect of success of the stem cell therapy which QS hoped to undertake. This should have been explained to QS in some detail. It was not.
4. Dr Freckelton gave a number of examples of the proper attitude an ethical medical practitioner would adopt when somebody like QS, with cerebral palsy, talked about stem cell therapy. He referred to:

(a) Dr Rawicki, a neurologist, who had previously treated QS. Dr Rawicki stated:

Stem cells for therapeutic (or even reasonable experimental) use for people with CP or other significant neurological impairments are still a pipe dream. I doubt very much that either you or I will see such use.' (See file note of Dr Hodgson, Exhibit 9).

(b) In Dr Churchyard's evidence, he stated, Transcript 785:

There is no evidence that hyperbaric oxygen therapy would activate stem cells and ... there is no evidence that stem cell therapy of whatever type has any effect on any neurological disorder.

1. Dr Churchyard also stated at Transcript 816 that the fundamental characteristic of cerebral palsy, whose evidence is 'rock solid' and several centuries old is that 'initial insult to baby or infant's brain is an acute insult, presumably, in most cases, and then after that, the brain has to deal with whatever way with the residual permanent damage'.
2. Dr Hooper made considerable criticism of Dr Churchyard that he was not an expert in stem cell therapy and that there were inconsistencies in his evidence. Dr Hooper also referred to the ischemic penumbra which is the area around the brain that has been affected by the neurological disorder. He said that that area has cells that do not work but are not dead and that those cells can be activated by HBOT and stem cell therapy. As previously said, it is not for us to determine the controversy of stem cell therapy or HBOT in relation to cerebral palsy or any other condition, but what is clear from Dr Churchyard's evidence and others is that there is a considerable body of learned mainstream opinion which is clear that stem cell therapy will not assist a patient such as QS with cerebral palsy. QS should have been informed of these views. Not informing QS of these views, in our view, was a misrepresentation. For a discussion of this evidence, reference should be had to what we have said above, in particular from paragraphs 47ff of these reasons.
3. We would add to what Dr Freckelton has stated, that there is also an obligation to inform any patient or potential patient, of the views of the organisations referred to above, which are mainstream organisations as there is in relation to mainstream views about Lokomat treatment.
4. Dr Freckelton then continued, at Transcript 2452:

In this instance, the overwhelming preponderance of literature is not in favour of the treatment of cerebral palsy symptomatology with either hyperbaric oxygen or Lokomat treatment. And there isn't any substance which is supportive of treating a person with this condition, who's an adult, to ready them for stem cell treatment. This means that it is incumbent upon a person, nonetheless, determined to provide such therapy to let the patient know what they are submitting to. In other words, what the state of the literature is. What the state of conventional approach is ... That it's unsupported by the relevant professional organisations and by most health practitioners working in the field in Australia or in western countries. That it is not supportively the subject of publications in international respective peer review journals. That, in essence, it's a novel, non mainstream, speculative and experimental treatment. (Emphasis supplied).

1. Dr Hooper theorised that QS's cerebral palsy was caused by a stroke in utero. He suggested there was evidence to support this theory, relying on the CT and MRI. However, the European Conference material at page 770N of the applicant's Tribunal Book suggests clearly that neither cerebral palsy nor stroke are acceptable conditions for HBOT (stroke being level D evidence and cerebral palsy, multiple sclerosis being Level F, F being the lowest level of evidence). Anything less than level 'C' evidence is not acceptable.
2. As has been discussed earlier, the view of the mainstream professional organisations to which we referred are not accepted by Dr Hooper and a number of the witnesses that he called, including Dr Steenblock, Dr Stoller and Dr Marois, although Dr Stoller did say that UHMS was the peak organisation. That does not mean that Dr Hooper was not obliged to inform QS of those views.

Lokomat Treatment to Treat QS for Cerebral Palsy or its Symptoms

1. We have already dealt with the efficaciousness of the Lokomat treatment in paragraphs 62ff hereof. Like with the HBOT, it was incumbent upon Dr Hooper to inform QS of the strong view of others that the Lokomat treatment was not efficacious for his condition or that other treatments, such as, overground walking would be just as beneficial. It is noted, that of course, overground walking would be far less expensive than the Lokomat treatment. Further, it could be done at home, without the need for daily trips from the applicant's home to Dr Hooper's rooms. Further, we accept, that there are limited studies on the effect of the Lokomat. Professor Dodd commented at Tribunal Book 709, and her report on 18 January 2010, that, 'because of the relatively small amount of literature in this area (Lokomat training) and the low methodological quality of existing studies, further high quality research needs to be completed before it can be confidently concluded that PBWSTT (partial body weight support treadmill training) has a beneficial effect on the activity and participation of children with CP.' Therefore, even though there may have been some difficulty in Dr Hooper referring to the literature available in 2007, it was incumbent upon him to know and to tell QS that there was little known about this treatment and that further studies were required. He did not do so. It is insufficient for him to rely on material produced by the Hacoma (the manufacturer of the Lokomat). The material is not independent. It is promotional.
2. Professor Dodd also made it clear that it was the view of most mainstream healthcare providers, that as people with cerebral palsy (CP) got older, physical therapy intervention had less impact on changing the underlying impairment associated with CP. (See report of Professor Dodd, 18 January 2010, ATB 709) and Transcript 559.
3. All the matters which we have discussed, in our view, made it incumbent upon the healthcare provider, Dr Hooper, to inform QS that there was doubt as to whether the Lokomat would be able to better his condition or symptoms of cerebral palsy. He could well have referred to the fact that there was little information about these matters and, at the moment, it was very much an untested field. He also should have informed QS that it was possible that practising overground walking at home, which he had been doing since 2004, could have a similar effect to the Lokomat treatment.
4. In relation to the matter of stem cell therapy, Dr Freckelton correctly makes the point that there was, "no peer review scholarly literature which would have justified Dr Hooper in encouraging QS to believe that hyperbaric oxygenation or Lokomat treatment had a realistic prospect of readying QS for stem cell treatment".
5. The clinical file makes no reference to when QS would be likely to be ready for stem cell therapy or if he would be ready for stem cell therapy at all. Dr Hooper should have pointed out to QS that there were many variables in relation to being able to be ready for stem cell therapy and he should have pointed out those variables, for example, when was it proposed for the stem cell therapy to take place? Or was the stem cell therapy to take place at all? We agree with Dr Freckelton's comments at paragraph 238ff of his submission:

It was incumbent upon Dr Hooper, if he had a bona fide belief that hyperbaric oxygen treatment or Lokomat treatment had some potential to assist with stem cell therapy, to explain to QS how that would be so (explaining that such views were idiosyncratic, unrepresentative of what most other reputable practitioners, in Australia and other comparable countries thought, and that peer review, scholarly literature did not support his views as yet), how he would measure such readiness, when he thought QS would be ready and how he would liaise with, for instance Dr Steenblock, to coordinate the provision of their therapies so as to maximise the prospects of their success. The clinical file makes it clear that no measurements were undertaken. In fact, it may well be that such assessment was not feasible, thereby rendering the whole concept of stem cell readying by way of activation or otherwise, dubious in the extreme and a licence for open ended provision of therapy. ...

All these considerations suggest that the representations of Dr Hooper to QS about his provision of hyperbaric oxygen treatment and Lokomat treatment, in so far as they related to readying QS for overseas stem cell treatment, were misrepresentations about the prospect of there being or any significant progress towards that objective. As with other representations, to which reference has previously made, they were not characterised by any or any ethical qualifications by reference to the position of most practitioners, the state of scientific/medical knowledge at the time and the absence of any sound evidence as to the likely efficacy, that should have been provided.

1. As a result of the above considerations, we conclude that Allegation 6 has been made out.
2. As with Allegation 2, Dr Freckelton has submitted, that pursuant to s 77(1)(d) of the Act, we should determine that Dr Hooper is not of good character. However, in line with the considerations that we have discussed in relation to Allegation 2, we are of the view that the proper determination is that there has been professional misconduct in relation to Allegation 6. In coming to this view, we refer to what we have written about the law and the facts relating to Allegations 1 and 2. We are of the view that similar facts apply to Allegation 6 as to we applied to Allegation 2. We do not believe other determinations referred to in s 77(1) of the Act are appropriate for Allegation 6.

1. Section 94(1) of the Act relevantly reads as follows:

A person must not advertise a regulated health service or a business providing regulated health service in a manner which -

(a) is or is intended to be false, misleading or deceptive ...

There is then a criminal penalty provided for such conduct.

1. In relation to matters concerning Allegation 7, we refer to paragraph 31ff of these Reasons. Further, in relation to the evidence of Dr Bennett and Dr Millar in relation to Allegation 7, we refer to Appendix A and B hereof.
2. We note that Dr Steenblock, at Transcript 1856 and 1857, gave evidence as to the 30 conditions referred to in Allegation 7, and he maintained that those 30 conditions could be benefitted by treatment with HBOT, except for condition 27 (pulmonary embolism) which he said that would not benefit and he said he had no experience in relation to infertility and cancer mutation. We have already made comments about Dr Steenblock's evidence and, because of the comments we have already made, where there is a conflict between the evidence of Dr Steenblock and Dr Bennett and Dr Millar, we prefer the evidence of Dr Millar and Dr Bennett.
3. Having said what we have stated above, in our view, it would not make any difference, if Dr Steenblock's evidence was accepted as having some veracity. We accept that there are many practitioners in the United States and elsewhere, that would hold similar views to Dr Steenblock, or the author Jain, on the basis that all the 30 conditions referred to in Allegation 7 are treatable by HBOT. But, like other matters we have discussed, that does not make those views mainstream. These are very similar matters to what has been discussed in Allegation 6 and, to some extent, in Allegation 2. Like there, we conclude here, that the views expressed by Drs Bennett and Millar are the mainstream views. They are the views held by the peak bodies in Australia and New Zealand, USA and the European Conference. Therefore, like other matters, in advertising treatment, it is incumbent upon the practitioner to make these contrary views abundantly clear in such advertising. Dr Hooper has not done this. While we agree that there are some articles in the 900 articles on HyperMED website that do give contrary views to the majority of the articles therein and the views expressed by Dr Hooper, those articles would not be immediately apparent to anyone reading the website. We again refer to the view put forward by Professor Dodd referred to at paragraph 44 of these reasons.
4. It is not unusual for a practitioner advertising that they can cure or ameliorate certain conditions with particular modalities of treatment, which conditions either cannot be cured or ameliorated to which there is a large body of evidence which would suggest that there may be some doubt as they can be cured or improved have been before the Tribunal. In a number of those cases, the conduct of the practitioner has been found to be false, misleading or deceptive. See Hassad v Dental Practice Board of Victoria [2007] VCAT 2489; Dental Board of Australia v Paino [2010] VCAT 1998.
5. At paragraphs 257 and 258 of Dr Freckelton's submissions, he gave a correct and a well-referenced overview as to the meaning of the words 'false', 'misleading' and 'deceptive'. He there stated:

The meaning of 'false' is 'contrary to fact'; it does not require knowledge on the part of the person making the representation.

The meaning of 'misleading' and 'deceptive' overlap but are probably not the same, although it has been suggested that they are tautologous. The meaning that they share is to 'lead into error'. To establish the language used by the practitioner must convey a misrepresentation. A misleading representation must induce or be capable of inducing error. If it is proven that there was an intention to mislead this may make it more likely that advertising was deceptive, but intent is not an essential element. Whether or not a representation is misleading is a question of fact to be determined by reference to the context and the surrounding facts and circumstances. Generally the question to be asked is what is a reasonable person of the class to which the representation is directed, would reasonably understand from the representation.

A prediction can constitute a representation but the fact alone that a representation as a future matter does not come to pass does not necessarily make it false.

Deception has been held to involve some degree of moral turpitude, trickery, craft and guile and typical but not essential elements.

1. The decision of the Victorian Court of Appeal in Noone, Director of Consumer Affairs Victoria v Operational Smile (Australia) Inc (2012) VSCA 91 relates to matters of representation in a health matter. An assertion by the clinic concerned involved 'the claim that Hope Clinic adopted an integrated approach to treatment of chronic illness combining state of the art medical technology with alternative therapy; the explicit description of Hope Clinic therapies as the best scientific complimentary medicine, the obesity scientific names ascribed to the therapies offered by the Hope Clinic, such as 'photodynamic therapy', 'haltmicrowave therapy', 'oxygen therapy' and 'Biolife electrotherapy'. At paragraph 60 of the decision the court stated that:

A statement is misleading or deceptive or likely to mislead or deceive within the meaning of s 9 of the FTA if there is a real and not remote possibility be it more or less than a chance of 50%, of the statement leading into error the readers at which it is directed. Given that the website was not aimed at highly educated class in the community, but at the widest possible range of ordinary readers, I consider that the statement that the Hope Clinic therapies were peer reviewed and published methods for cancer treatment, in the context in which they appeared, and undoubtedly gives rise to that possibility.

1. In this particular instance, the HyperMED website was read by general members of the community not with specific intelligence, but which frequently, like QS, were very sick people. Those people were desperate for a cure or an amelioration of their complaint. They would frequently grab at anything where there was any possibility of their position being improved. Therefore it was very important that the website make it abundantly clear, in the clearest possible terms, that there may have been contrary views to those propounded by the practitioner. Those contrary views should be given at least equal importance to those of the practitioner. It is our view that it is the responsibility of a practitioner to enable the patient to understand where the treatment sits in relation to scholarly views contained in the literature. In Traill v Medical Practitioners Board [2006] VCAT 1920, the practitioner had administered hyperthermia and microwave treatment, which the Tribunal found were not proven treatments for cancer. And that the failure to disclose this information to patients meant that the consent that they had given was not informed. It found that, in recommending and administering unproven treatments to patients, failing to inform them adequately of the proposed treatments, wrongly characterising infusions as chemotherapy and charging them on that basis, as well as charging excessive fees for treatment, Dr Traill's 'conduct represented a deliberate and sustained departure from accepted standards and portrayed indifference and an abuse of privileges which accompany registration'. See [114].
2. The case of Medical Board of Queensland and Tarvydas [2010] QCAT 246 concerned a practitioner with some similarities to the present situation. The proceeding concerned a medical practitioner who had provided stem cell treatment to a patient with adhesive arachnoiditis. It found that he held out to prospective patients 'the hope of relief they were not getting from conventional medical treatment. He told them he was conducting a trial and that his treatment would stimulate the growth of the stem cells and revitalise them'. At [7]. The Tribunal found that the practitioner had:

Failed to assess and monitor his patient's condition. He provided no information about his treatment, conventional options, and the risks associated with both. He made no attempt to obtain informed consent. His cavalier disregard for core requirements of patient care fundamentally challenges his professionalism. At [21].

1. The case Chinese Medical Registration Board v Ghaffurian [2012] VCAT 478 is a very useful guide as to misleading and deceptive representations by a practitioner. In that case, the practitioner was found to have engaged in professional misconduct in the provision of light therapy DMSO injection of high dose vitamin C, and use of the BICOM Bioscience Machine and DISRESONANCE Electronic Energy Machine as treatment to a patient with sarcoidosis and high blood pressure. The Tribunal found [68-72] that Mr Ghaffurian induced the patient:

To undertake a range of treatments outside the scope of Chinese medicine about which there is little if any scientific evidence to support their efficacy. He failed to enable her to either give or withhold informed consent based on advice from him about either issue.

When his patient raised the issue that she did not perceive light therapy to be providing a benefit, without clinical justification he induced her to continue saying if she stopped her health would deteriorate. His desperate patient agreed to continue. ...

When he offered stem cell therapy, he attempted to introduce the Notifier to accept the therapy by in part providing her with a testimonial from someone described as a nurse.

Mr Ghaffurian also failed to in any sense keep adequate medical records of his treatment of the Notifier. This in itself is a serious departure from accepted standards and a threat to the welfare of the patient should the treating practitioner be unable to recall the treatment provided or for some reason become unavailable to provide treatment.

Further, he failed to provide any reasonable form of documentation and or labelling with respect to herbal mixtures he gave the Notifier.

As part of its findings that Mr Ghaffurian engaged in professional misconduct by providing excessive, unnecessary, incompetent and clinically unjustified treatment, also found that 'Mr Ghaffurian failed to advise the Notifier that light therapy DMSO and Biocom BIORESONANCE Machine are not part of Chinese medicine and are not scientifically proven'.

1. The Tribunal found Mr Ghaffurian had engaged in professional misconduct by making misleading and deceptive representations that created in his patient an unreasonable expectation that his treatment would be beneficial.
2. The respondent sought to distinguish Ghaffurian's case from the present on the basis that the proceeding related to traditional Chinese medicine. This distinction is not to the point as that the issues and propositions that we are concerned with in that case relate to health professions generally.
3. The Tribunal, in Ghaffurian's case concluded that the practitioner engaged in professional misconduct in failing to obtain informed consent for his patient by failing:

To advise her that while he thought she may derive benefit, his opinion is supported with scant if any credible scientific evidence. Further, he failed to advise her of potential risks of treatment. Therefore, he failed to obtain informed consent. Also, we note, Mr Ghaffurian failed to record any consent given by the Notifier.

In particular, with respect to the Notifier, Mr Ghaffurian:

• failed to explain the likely outcomes, advantages, disadvantages, side effects, risks and alternatives to the 'light therapy';
• failed to explain the likely outcomes, advantages and disadvantages, side effects, risks and alternatives of the vitamin C injections;
• incorrectly informed her that there were no known side effects from vitamin C injections;
• failed to explain the likely outcomes, advantages, disadvantages, side effects, risks and alternatives of animal stem cell therapy;
• failed to explain that animal stem cell therapy is experimental;
• failed to explain the likely outcomes, advantages, disadvantages, side effects, dangers, risks and alternatives of the DIMETHYL SULFOXIDE solution (DMSO) which prescribed; and
• refused to answer the Notifier's questions about the contents of her Chinese medical prescription.

1. The Tribunal also found [129-130] that Mr Ghaffurian engaged in professional misconduct by creating an unreasonable expectation that his treatment would be beneficial to the patients by what he published on the web, including, by advertising the BICOM BIORESONANCE Machine on the website ... which:
   • Incorrectly suggests the machine is specially effective for treatment of allergic illness such as rash, asthma and hayfever, acute and chronic inflammation of gastric mucosa, rheumatic disease, disease of internal organs/migraine all sorts of pains, injuries/scar interference fields, problems of the teeth/jaw region;
   • Inaccurately stated the machine could treat 'almost all illnesses ... with varying results'; and
   • Misrepresented that the machine could successfully treat depression, irritable bowel syndrome, eczema, bloating, fertility issues, weight loss, arthritis, back pain, candidia, allergies, fatigue, acne and cholesterol and blood pressure.
2. It found that asserting that he merely republished information provided to him, does not justify his actions. This is similar to the present situation, where Dr Hooper published on his website material from the Jain textbook.
3. As previously referred to, Dr Hooper asserted that his website was not advertising but was for the purpose of a forum. We have already rejected this proposition. In our view, looking at the website as a whole, and in particular, the 30 matters referred to in Allegation 7, the material was published on the website for the purpose of attracting customers and/or patients to the HyperMED clinic, that is, advertising. The treatments were referred to in order to attract people like QS who had very serious conditions and were desperate to find some amelioration or relief from their symptoms. To put it simply, to attract vulnerable people.
4. Like in Gurfurian's case, here it is no answer that the material on the website is extracted out of the Jain textbook. The material was a representation by Dr Hooper and published by HyperMED of the facts asserted. Therefore, it was incumbent upon Dr Hooper to ensure that the representations contained sufficient information for people to be able to judge whether or not they desired the treatment. That is, the website should have contained clear information that the treatment and results claimed by HyperMED, were thought by a large section of the medical community and in fact mainstream medicine to be non-efficacious. No such statements were made.
5. It is clear from the evidence of Dr Millar, Dr Bennett and Dr Churchyard that there is considerable doubt as to the efficaciousness of the treatment in relation to the 30 named conditions.
6. In relation to the neurological conditions, Dr Churchyard stated, without reservation, at Transcript 784:

I would not consider any of these treatments - any of these conditions - likely to respond to hyperbaric oxygen nor on the basis of my reading and my experience as a clinician nor is there any evidence that hyperbaric oxygen would have efficacy with these conditions.

1. Again, Dr Hooper relied upon evidence of Dr Terrett, Transcript 1423:

There is no requirement of any health practitioner, that I know of, to provide scientific evidence of efficacy of their treatment.

1. The evidence in this regard of Dr Terrett is not to the point. First, because, as we have previously stated, this is a different situation from everyday chiropractic treatment. Secondly, the complaint by the Board is not that Dr Hooper failed to state the scientific efficacy of the treatment, but that he failed to warn patients, or prospective patients, searching the website that there was a strong body of evidence which was from mainstream medicine, that believed this treatment was not efficacious for the 30 conditions referred to.
2. Dr Hooper also relied on Dr Terrett's evidence that the Board's complaint in regard to this matter was not covered by the Chiropractic Codes of Conduct. However, as Dr Freckelton has pointed out, the Codes of Conduct do not cover every situation. The Act itself forbids misleading and deceptive conduct (5.94(1)(a)).
3. Dr Hooper also relied on his third witness statement at 5 to the effect that:

Hyperbaric oxygen was incorporated into treatment protocols during 1996; in excess of 80,000 separate chamber sessions have been performed without incident.

Again, this is not to the point. The fact is, that, as people were not warned and informed of the strong body of evidence holding contrary views to the efficacy of the treatment offered by Dr Hooper, they were clearly misled into believing that the treatment was efficacious without question. That does not necessarily mean that Dr Hooper was saying that the treatment, in all cases, would be beneficial. It means that he was neglecting to tell people who read the website that experienced medical practitioners did not believe there was efficaciousness in the treatment and, more particularly, the three peak organisations to which we have referred did not recommend hyperbaric treatment for those 30 conditions referred to on the website.

The evidence establishes in respect of the conditions that it was misleading and deceptive, on a fair reading of the representations, and placing them in fair context, for it to be represented that the 30 'conditions' were 'also' treated. This could only have been conveyed to the reader that such conditions could be treated with reasonable prospect of a positive outcome to the provision of treatment. ... A reasonable prospect of a positive outcome from such treatment did not exist in respect of all or at least the overwhelming majority of the conditions.

1. At paragraph 284 of Dr Freckelton's submissions, he sets out, in clear terms, what should have been included in HyperMED's website in order for it not to be misleading and deceptive:

... Dr Hooper would have needed to present a balanced view of the effectiveness of hyperbaric oxygen treatment for the (30) conditions. Such a balance could only have been achieved by incorporation of a clear statement about the real status of his claims, namely that such treatment was not conventionally used in Australia and western countries with a comparable health service culture between 2007 and 2008 in treating such conditions. Nor was such treatment for this wide number of conditions advocated by qualified health practitioners practising in such countries in hyperbaric medicine or by four organisations to which reference had previously been made. Nor did medical and scientific evidence support the effectiveness of his representations in respect of either hyperbaric or Lokomat treatment. Nor did in internationally respect peer review journals establish that substantive benefits would be provided by such treatment for the 30 conditions.

Dr Hooper made the point that the current editor of UHMS Journal supports the use of HBOT for neurological conditions. However, Dr Millar, who is a Board member of the UHMS, made it clear that the editor did not represent the view of UHMS.

1. Thus, we determine that Allegation 7 has been made out. In relation to a determination in this matter, like Allegations 2 and 6, Dr Freckelton has requested that we determine that Dr Hooper is not of good character pursuant to s 77(1)(d). However, for the reasons given in relation to Allegation 2, which, for the purpose of determinations, is very similar to the similar present, we determine that the respondent has engaged in professional misconduct in relation to Allegation 7. In coming to this view, we refer to what we have written about the law and the facts relating to Allegations 1 and 2. We are of the view that similar facts apply to Allegation 7 as to we applied to Allegation 2. We do not believe other determinations referred to in s 77(1) of the Act are appropriate for Allegation 7.

1. In relation to this issue, we refer to paragraphs 88 to 92 inclusive hereof and, 100 to 107 inclusive hereof. In relation to the clinical file, Dr Hooper relied on the fact that the file contained a diagnosis of QS condition, that is, cerebral palsy, and that part of the outcome of treatment was for preparation of stem cell therapy. He also stated that the chiropractics Code of Conduct did not require notes of greater extent than what he had. However, we have made the point repeatedly in these Reasons, that the matters that Dr Hooper was concerned with in treating QS were somewhat very different from the normal practice of a chiropractor. Dr Hooper also made reference to the Lokomat computer print out notes which he said were part of the file. However, we have already made reference to the comments which we accept that were made by Dr Carda in relation to those notes. That is, briefly, those notes do not really reflect the condition of the patient but the setting of the machine.
2. Dr Terrett gave evidence that it is the obligation of a registered practitioner to generate proper clinical records, irrespective of the particular kind of treatment or modality provided. Both Dr Terrett and Dr Ebrall were of the opinion that Dr Hooper's clinical file does not meet the test of being an appropriate patient record expected of a registered chiropractor. See Transcript 1448 and Exhibit N ATB 955.
3. There were a number of clinical deficiencies observed in the file:

(a) Dr Terrett said, in his witness statement, at ATB 938:

It would be expected for an average chiropractor demonstrating reasonable care that such a history (the 8 point history) would be documented in the clinical notes.

(b) Dr Terrett stated that basic components of a physical examination were missing [see Transcript 1412]. He said that an assessment of the patient's clinical problems can consist of three steps, being taken a clinical history, performing a physical examination and formulating a working diagnosis hypothesis as the cause and nature of the patient's condition. See Exhibit N, page 938 ATB. There was no history or physical examination of QS noted in the file. Dr Terrett identified the following omissions from Dr Hooper's clinical notes:

• The notifier's disability.
• Whether some limbs (were affected by QS's condition) more than others.
• Whether the notifier had involuntary movements.
• Whether the notifier had any intellectual disability.
• Whether the notifier had joint contractures.
• Whether the notifier has pain.

1. Professor Ebrall, in his report, (Exhibit L at p 10) stated that the notes did not provide a working diagnosis based on Dr Hooper's assessment of QS; nor could he identify a management plan that proposes the frequency and duration of treatment or desired milestones, nor was there a signed consent form.
2. Dr Hooper made a rare concession, at Transcript 1764, that there was no notation of QS's suitability or otherwise for HBOT or Lokomat treatment.
3. Dr Freckelton correctly makes the point that:

There is nothing in the clinical notes as to what advice Dr Hooper provided QS, based on QS's personal medical circumstances as to the risks, options, disadvantages, limitations, contraindications or side effects of hyperbaric oxygen therapy or Lokomat therapy for QS; nor was there any written response by QS to that advice.

1. Further, the file does not contain any reason why further treatment was necessary or details of QS's clinical progress, or lack thereof. There were no records of communication between Dr Hooper or HyperMED staff with QS other than practitioners notation about QS's treatment; it was submitted on behalf of Dr Hooper that he performed an examination of QS which he referred to as the Valsalva's manoeuvre, however, that does not appear to be noted in the notes. It was also said by Dr Hooper that it was unnecessary to make notes as to the advantages and disadvantages of the kind of treatment because the patient had been given a handbook. Dr Hooper said the handbook was similar to the Alfred Hospital Protocols. In our view, Dr Hooper's clinic was very different from the Alfred Hospital. At the Alfred Hospital, it is very likely that a patient would have been referred to the hospital with a referral from a medical practitioner who is the primary healthcare provider. In Dr Hooper's case, he was the primary healthcare provider, therefore, it is very important that conversations between the patient and the provider be noted, which Dr Hooper failed to do.
2. Dr Hooper also asked QS whether he recalled instructions given by one of the practitioners at the clinic to QS in regard to the use of the hyperbaric chamber. QS did recall some instructions being given and the nature of those instructions. However, it is very important that those instructions be noted. They were not.
3. Dr Hooper also relied on the Lokomat printout and said that formed part of his clinical file. In our view, not only are the Lokomat print outs inadequate for the clinical file for the reasons stated by Dr Carda in his evidence, but, it is unlikely those notes would be able to be interpreted by another practitioner who may take over QS's treatment.
4. Dr Hooper also relied on several matters that QS was told as to the use of the Lokomat. However, in our view, that does not take the matter further as they do not appear in Dr Hooper's clinical file.
5. Dr Hooper also relied on the answers QS gave in cross-examination in relation to questions that were asked as to his suitability for treatment. See Transcript 221. Those questions appeared, apparently, in an ABC report. In our view, an ABC report is not part of a clinical file.
6. Dr Hooper also refers to many conversations that were had with QS and he maintains that those conversations fulfil the requirements referred to in the particulars to Allegation 8. However, as we have said, in relation to other specific matters, the matters do not appear in the notes.
7. Taking all the evidence together in relation to Allegation 8, we have formed the view that Allegation 8 has been made out. Dr Freckelton has submitted that we should determine that Dr Hooper has engaged in professional misconduct in relation to Allegation 8. However, in our view, Allegation 8 falls into the same category as Allegations 1, 3, 4 and 5. For the reasons we have stated in Allegation 1, we find that the matters concerned in Allegation 8 constitute unprofessional conduct by Dr Hooper. We have set out the law and considerations in what we have written about unprofessional conduct in dealing with Allegation 1, relating to unprofessional conduct and we are of the view that the same facts of law apply to Allegation 7. We do not believe other determinations referred to in s 77(1) of the Act are appropriate for Allegation 7.

1. Submissions made by Dr Hooper or on Dr Hooper's behalf by Mr Little were difficult to follow. Frequently, they did no more than quote lengthy passages from the Transcript, apparently inviting attention to inconsistencies which the respondent perceived. It was not clear to us what point the respondent was seeking to make thereby.
2. The respondent made lengthy additional submissions relating to:

(a) attacking the motivation and general conduct of the proceedings on behalf of the applicant. The respondent alleged the applicant incited hostile media coverage against Dr Hooper;

(b) the applicant caused difficulties with the renewal of Dr Hooper's 2012 registration as a chiropractor;

(c) reference to writings from those involved with the applicant, including senior counsel, which writings did not relate to the proceeding;

(d) matters which occurred in directions hearings and preliminary issues that did not bear directly upon issues before the Tribunal;

(f) misplaced understanding of the importance of scientific efficacy to the proceedings;

(g) issues of conspiracy with bodies such as 'The Friends of Science';

(i) trying to draw a distinction between the Notice of Allegations and matters raised by QS in his notification to the respondent; and

(j) suggesting a conspiracy amongst those involved on the applicant's side of the proceeding.

None of these matters bear on the merits of this proceeding. It is unsurprising the evidence in this proceeding would not have enabled us to make findings on these submissions even if they were relevant. Noting these facts, we put these submissions to one side as irrelevant.

1. In the respondent's submissions, Dr Freckelton was taken to task in relation to a reference, 'Saint Freckelton' had made to the story of Sampson in the Book of Judges. Mr Little referred to the Book of Hebrews, while there was some reference to Sampson in the Book of Hebrews, it does not support the proposition that 'Sampson is going to rule with Christ'. There was also reference to the 'Book of Hope', however we are not aware of such book appearing in either the Old or New Testament of the Bible. We are unaware of that work (Book of Hope) and no reference was given in relation thereto (other than it was mentioned on the internet).

1. This proceeding commenced in May 2010 and has occupied many days before the Tribunal. Dr Freckelton has prepared a document entitled, "A Short History of the Litigation" which we have reproduced as Appendix "C". Insofar as we can ascertain, the document is true and correct save and except that the hearing went for one further day after 29 April 2013, ie 1 May 2013. It is noted that the proceeding took an excessive amount of time as a consequence of the failure of the respondent to take directions on both time wasting and irrelevance of many of his arguments. There was also clearly a lack of understanding of the process of examination in chief and cross-examination procedures, which led to the frustration of Dr Hooper not being able to enter information into his examination in chief that he intended to rely on. All of this has also increased the costs to the Chiropractors Registration Board, a comment made on many occasions by Dr Freckelton, which included the phenomenal amount of material required to be photocopied and the many volumes of material potentially to be read and used during the proceedings. This was further exacerbated by the frequent failed challenges to the constitution of the Panel itself, and the perception of bias.

1. Subsequent to the hearing of this proceeding concluding, Dr Waterhouse (a panel member of the Tribunal) received and email from HyperMED on or about 6 May 2013. The email contained a series of brochures and a research paper. We find the sending of such material to a member of the Tribunal, while the proceeding is being considered, to be both surprising and unorthodox. No leave was given by the Tribunal to file further material after the hearing concluded. Therefore, we will not take account of the material received by Dr Waterhouse. The normal way for any party to file material with the Tribunal is to file it through the Registry, not to send it by email to an individual member of the Tribunal.

1. As a result of the findings we have made above, in relation to Allegations 1, 3, 4, 5 and 8, we determine, pursuant to s 77(1) of the Act, that the respondent has engaged in unprofessional conduct. In relation to Allegations 2, 6 and 7, for the reasons stated above, we find that the respondent has engaged in professional misconduct. We intend to list this proceeding for a directions hearing so arrangements can be made to determine the appropriate order to be made pursuant to s 77(4) of the Act.

1. On 27 August 2007, Dr Malcolm Hooper failed to undertake or direct that a proper clinical assessment be undertaken prior to recommending that his patient, QS, undertake costly treatment in the form of more than 150 hours of hyperbaric oxygenation (HBO) treatment (which by 13 May 2008 totalled approximately 230 hours) and approximately 40-60 hours of Lokomat treatment (which by 13 May 2008 totalled approximately 70 hours).

(a) On 27 August 2007, QS attended Dr Hooper's HyperMED Neurorecovery Australia Clinic at Level 13, 15 Collins Street, Melbourne and sought HBO treatment, including in preparation for possible future overseas stem cell treatment of cerebral palsy.

(b) On 27 August 2007, Dr Hooper conducted an initial consultation with QS.

(c) Dr Hooper's clinical notes from the initial consultation on 27 August 2007 do not record that he undertook a physical examination and proper assessment of QS prior to him commencing HBO and/or Lokomat treatment.

(d) The cost per hour for undertaking HBO treatment at HyperMED was between $100-$150 per hour and the cost of undertaking Lokomat treatment at HyperMED was $220 per hour.

(e) On 27 August 2007, QS commenced HBO treatment and undertook two hours of HBO treatment at HyperMED following the initial consultation with Dr Hooper.

(f) On 27 August 2007, Dr Hooper recommended during the consultation with QS that he undergo an MRI scan, whose results were communicated to Dr Hooper on 7 September 2007.

(g) Between 29 August 2007 and 5 September 2007, prior to QS submitting to an MRI scan and Dr Hooper receiving the results of the MRI scan on 7 September 2007, QS undertook the following treatment at HyperMED:

(i) 2 hours of HBO treatment and 1 hour of Lokomat treatment on 29 August 2007;

(iii) 2 hours of HBO treatment and 1 hour of Lokomat treatment on 3 September 2007;

(iv) 2 hours of HBO treatment and 1 hour of Lokomat treatment on 5 September 2007.

(h) Dr Hooper failed prior to the commencement of HBO and Lokomat treatment to consult or communicate with QS's treating health practitioners in relation to his condition (cerebral palsy), his symptomatology and his general health.

1. Prior to commencing HBO and Lokomat treatment on 27 and 29 August 2007, respectively, Dr Hooper failed to obtain informed consent, or sufficiently informed consent, from QS in relation to undertaking the costly HBO and Lokomat treatment which he recommended.

(a) Dr Hooper failed to advise QS prior to the commencement of either the HBO or the Lokomat treatment what were its advantages, disadvantages or contra-indications.

(b) Dr Hooper failed to advise QS prior to the commencement of either the HBO or the Lokomat treatment what were its limitations for his condition (cerebral palsy), symptomatology, or readiness for stem cell treatment for cerebral palsy.

(c) Dr Hooper failed to advise QS prior to the commencement of either the HBO or the Lokomat treatment what were its likely outcomes (including what permanent or temporary improvements in his condition (cerebral palsy), symptomatology or state of his stem cells could reasonably be expected.

(d) Dr Hooper failed to advise QS of any options other than the HBO and/or the Lokomat treatment which he might consider, rather than submission to and expenditure on HBO and Lokomat treatment.

(e) Dr Hooper failed to advise QS of risks that could arise in the course of the provision of the HBO and/or the Lokomat treatment.

(f) Dr Hooper's clinical notes between 27 August 2007 and 13 May 2008 do not record that he discussed with or advised QS in respect of those issues set out in paragraphs (a) to (e) above.

1. On or around 27 August 2007 and 13 May 2008, Dr Hooper failed to prepare a treatment plan, or adequate treatment plan, for QS which set out the planned recommended HBO and Lokomat treatment, and/or how and when such treatment would be periodically reviewed and/or assessed in order to clinically evaluate any improvements or progress (or lack thereof) by reference to the contrast (if any) as assessed by Dr Hooper between QS's initial presentation and any later presentation in his condition (cerebral palsy), symptomatology or the state of his stem cells.

(a) Prior to the provision of HBO and Lokomat treatment to QS, Dr Hooper did not discuss a treatment plan with QS, including, for example, an end point to treatment or degree of improvement (including what permanent or temporary improvements in his condition, symptomatology or state of his stem cells could reasonably be expected) that were sought to be attained through the recommended HBO and/or Lokomat treatment.

(b) Dr Hooper allowed QS to commence undertaking, costly HBO and/or Lokomat treatment in the absence of a treatment plan, or adequate treatment plan.

(c) Dr Hooper's clinical notes on or around 27 August 2007 do not provide a record of a treatment plan, or adequate treatment plan, in respect of those issues set out in paragraphs (a) and (b) above.

1. Between 27 August 2007 and 13 May 2008, Dr Hooper failed to modify and/or properly modify any treatment plan which did exist for QS to set out the planned recommended further HBO and/or Lokomat treatment and how and when such treatment would be periodically reviewed in order to clinically evaluate any improvements or progress (or lack thereof) by reference to the contrast (if any) as assessed by Dr Hooper between QS's initial presentation and any later presentation in his condition (cerebral palsy), symptomatology or state of his stem cells.

(a) During the provision of HBO and/or Lokomat treatment to QS Dr Hooper did not discuss a treatment plan with QS, including, for example, an end point to treatment or degree of improvement (including what permanent or temporary improvements in his condition, symptomatology or state of his stem cells could reasonably be expected) that were sought to be attained through the recommended HBO and/or Lokomat treatment.

(b) Dr Hooper allowed QS to continue undertaking costly HBO and Lokomat treatment in the absence of modifications or proper modifications to any treatment plan.

(c) Dr Hooper's clinical notes between 27 August 2007 and 13 May 2008 do not provide a record of modifications to a treatment plan in respect of those issues set out in paragraphs (a) and (b) above.

1. Between 27 August 2007 and 13 May 2008, Dr Hooper failed to clinically monitor or evaluate any measurable improvements (or otherwise) in QS's condition (cerebral palsy), symptomatology or state of his stem cells or readiness for stem cell therapy for cerebral palsy cells attributable to the HBO treatment and/or Lokomat treatment provided to him

(a) During the HBO and Lokomat treatment, Dr Hooper did not conduct ongoing clinical evaluation of any measurable improvements (or otherwise) in QS's condition, symptomatology or state of his stem cells or his readiness for stem cell treatment for cerebral palsy attributable to the HBO and/or Lokomat treatment provided.

(b) Dr Hooper continued to allow QS to undertake costly HBO treatment and Lokomat treatment in the absence of any measurable improvements or progress (or lack thereof) in QS's condition, symptomatology or state of his stem cells or readiness for stem cell treatment for cerebral palsy.

(c) Dr Hooper failed to keep adequate and detailed records of any clinical observations as to improvements or progress (or lack thereof) in QS's condition (ie cerebral palsy), symptomatology or state of his stem cells or readiness for stem cell treatment for cerebral palsy attributable to the HBO treatment and/or Lokomat treatment provided.

Misrepresentation of Likely Efficacy of Treatment

1. In recommending the provision of HBO and/or Lokomat treatment by his clinic HyperMED to QS, Dr Hooper misrepresented the likely effectiveness of HBO and/or Lokomat treatment in relation to cerebral palsy either generally or for the purpose of QS undertaking possible future overseas stem cell treatment of his cerebral palsy.

(a) In recommending such treatment to QS, Dr Hooper did not provide a balanced view as to the effectiveness of such treatment in relation to cerebral palsy, including a statement that such treatment is not conventionally used in Australia and/or in Western countries with a comparable health service culture in treating cerebral palsy or readying persons for stem cell treatment for cerebral palsy.

(b) Dr Hooper did not disclose to QS that such treatment in relation to cerebral palsy or readiness for stem cell treatment for cerebral palsy is not advocated by a significant percentage of qualified registered medical practitioners or medical representative organisations in Australia.

(c) Dr Hooper's recommendation of such treatment to QS did not set out the health risks associated with such treatment.

(d) Dr Hooper did not disclose to QS that available medical and scientific evidence published in internationally respected peer reviewed journals does not support the effectiveness of treatment of cerebral palsy or its symptomatology either generally or for the purpose of preparation for stem cell treatment with the use of HBO and/or Lokomat treatment.

(e) Dr Hooper did not disclose to QS that HBO and/or Lokomat treatment for adults with cerebral palsy is novel and non-mainstream.

(f) Dr Hooper did not disclose to QS that HBO treatment was not appropriate for the treatment of adults with cerebral palsy or its symptomatology in that, in spite of its expense, it has not been proved to provide specific and/or lasting benefit to the patient.

(g) Dr Hooper did not disclose to QS the outcomes or improvements that could reasonably be expected from the provision of HBO and/or Lokomat treatment in preparing QS for future stem cell treatment.

1. In promoting the provision of HBO and/or Lokomat treatment by his HyperMED clinic on its website (http://www.hypermed.com.au/) in relation to numerous listed medical conditions (namely (1) soft tissue musculoskeletal injuries; (2) fracture repair; (3) acute and chronic spinal instability; (4) facet dysfunction; (5) disc protrusion; (6) canal stenosis; (7) inflammatory arthritides; (8) spinal cord neuropathy due to crush and neurovascular degeneration; (9) paraplegia and quadriplegia due to incomplete neurovascular compression; (10) peripheral nerve injury and neuropathies; (11) cerebrovascular stroke; (12) multiple sclerosis; (13) multi-infarct dementia; (14) cerebral palsy; (15) Parkinson's disease; (16) Alzheimer's disease; (17) Autism; (18) epilepsy due to hypoxia; (19) coronary heart disease; (20) heart insufficiency (post-surgical); (21) heart contractile dysfunction; (22) acute and chronic arterial insufficiency, (23) gastric and duodenal ulcers; (24) hepatitis; (25) diabetes; (26) lung abscess; (27) pulmonary embolism (as an adjunct to surgery); (28) complications of pregnancy (including gestational diabetes, eclampsia, heart disease, placental hypoxia, foetal hypoxia and congenital disease of the neonate); (29) infertility; and (30) reducing risk of cancer cell mutation) between 27 August 2007 and 3 March 2010, Dr Hooper engaged in advertising that was misleading and deceptive in that he invited inaccurate inferences to be drawn by potential patients about the effectiveness of such treatment in relation to those listed conditions.

(a) Dr Hooper did not provide a balanced view of the effectiveness of HBO and/or Lokomat treatment in relation to the listed medical conditions, including a statement that such treatment is not conventionally used in Australia and/or Western countries with a comparable health service culture in treating such medical conditions.

(b) Dr Hooper did not disclose that HBO and/or Lokomat treatment in relation to the listed medical conditions is not advocated by qualified registered medical practitioners or medical representative organisations in Australia.

(c) Dr Hooper's HyperMED advertising and literature did not disclose that available medical and scientific evidence does not support the effectiveness of treatment for the listed medical conditions with the use of HBO and/or Lokomat treatment.

(d) Dr Hooper's HyperMED advertising and literature did not disclose that HBO treatment is not appropriate for the treatment of the listed medical conditions in that no medical or scientific evidence published in internationally respected peer reviewed journals exists to demonstrate it provides substantive benefits.

1. Between 27 August 2007 and 13 May 2008, Dr Hooper failed in his professional responsibilities by generating seriously inadequate clinical documentation in relation to the provision of costly HBO and Lokomat treatment to QS, including making a record in QS's clinical notes of:

(b) any physical examination and proper assessment of QS (if there was any) prior to him commencing HBO and Lokomat treatment;

(c) QS's current symptomatology and level of spasticity at the commencement of treatment;

advice provided by Dr Hooper to QS (if there was any) as to risks, options, advantages, disadvantages, contra-indications, limitations, or side-effects of the proposed treatment for his condition, symptomatology or state of his stem cells or readiness for stem cell treatment for cerebral palsy;

(e) questions and issues raised by QS with Dr Hooper as to the HBO and/or Lokomat treatment;

(f) treatment planning (if there was any), including likely outcomes or improvements (including what permanent or temporary improvements in QS's condition, symptomatology or state of his stem cells or readiness for stem cell treatment for cerebral palsy could be expected) from the treatment to be provided and/or treatment goals;

(h) QS's response to the HBO and/or Lokomat treatment as clinically evaluated by Dr Hooper and/or HyperMed staff;

(i) any clinical progress in or improvement from treatment;

(j) reasons for the need for further treatment; and

(k) communications between him and his patient about significant matters arising during the course of provision of treatment (other than moneys owed).

Dr Hooper's opinion, including percentage of patients treated at HyperMED (transcript p 1622-3, lines 43ff)

"there are a number of randomised control trials looking at muscle injury and they're universally unsupportive of hyperbaric oxygen much to the surprise of most of us, to be honest."

"The two randomised control trials looking at soft tissue - actual soft tissue injuries, one in the knee and one in the ankle, both of - neither of those suggested a definitive benefit from hyperbaric, so it's somewhat unhopeful and all that was there in 2007 as far as I'm aware."

"It's a very broad category, but I think there is some evidence that some conditions that would fall within that category would be treatable. Many others would not."

"There's very little evidence and that's not a routinely accepted indication and we've done a Cochrane review on that as well."

"I don't believe there is sufficient evidence to support that. There are some small animal trials that suggest fracture repair in small bones in small animals may be accelerated and possibly better in quality, but, to my knowledge, no evidence that this applies to humans at all, so not something we would recommend or expect to see benefit from necessarily in humans."

"It's very difficult to extrapolate, and it quite often leads to incorrect conclusions if you extrapolate from rodents and small animal research to humans with neurological conditions"

"I've listed that as under 3, 4, 5 and 6 including facet joint dysfunction, disc protrusion and canal stenosis I've said is approximately 50 per cent of the patients attending."

"For the next few items I can't find any data at all, aid to prosthesis, acute and chronic spinal instability - I don't if you want me to go through each of the individually, but they're all, as far as I'm aware, data-free areas."

"I don't believe there's any evidence nor any expectation that there would be any change to a mechanical/structural situation affecting the spinal column"

"I've listed that as under 3, 4, 5 and 6 including facet joint dysfunction, disc protrusion and canal stenosis I've said is approximately 50 per cent of the patients attending."

Dr Freckelton: "So that includes osteoporosis, facet dysfunction, disc protrusion, canal stenosis, post-surgical instability, degenerative joint disease, inflammatory arthritides?"

"I don't believe so. I don't believe there's any evidence nor any expectation that there would be any change to a mechanical/structural situation affecting the spinal column."

"I've listed that as under 3, 4, 5 and 6 including facet joint dysfunction, disc protrusion and canal stenosis I've said is approximately 50 per cent of the patients attending."

Dr Freckelton: "So that includes osteoporosis, facet dysfunction, disc protrusion, canal stenosis, post-surgical instability, degenerative joint disease, inflammatory arthritides?"

"There's certainly no evidence I've seen. Mechanistically there is some possibility but its speculation only."

Yes - "I've listed that as under 3, 4, 5 and 6 including facet joint dysfunction, disc protrusion and canal stenosis I've said is approximately 50 per cent of the patients attending."

Dr Freckelton: "So that includes osteoporosis, facet dysfunction, disc protrusion, canal stenosis, post-surgical instability, degenerative joint disease, inflammatory arthritides?"

"No. That would - that's my first comment. No reason why one would expect any change to any structural problem with a spinal column."

"I've said yes, but I haven't put a percentage because its in the true sense of inflammatory arthritis it's actually quite minimal as far as attending at HyperMED."

Dr Freckelton: "So that includes osteoporosis, facet dysfunction, disc protrusion, canal stenosis, post-surgical instability, degenerative joint disease, inflammatory arthritides?"

Prof Bennett: "Yes, all of those. Arthritides, yes. Good to go."

"No literature but clinical experience of a number of people, including myself, would suggest that there's maybe some temporary ameliorative effect which goes away as soon as treatment is finished and which is an occasionally observed side effect for treatment for other conditions and therefore not a treatment as such, but some people have observed temporary reduction in symptoms during treatments but no net change. So that's a clinical observation but no evidence that I'm aware of otherwise."

Spinal cord neuropathy due to crush and neurovascular degeneration

"Spinal cord injury, including 8 and 9, neuropathy due to crush and neurovascular paraplegia and quadriplegia due to incomplete neurovascular compression I've stated is approximately 50 per cent"

"These are all theoretically interesting uses for hyperbaric, but, as far as I'm aware, there's nothing but theory and for peripheral nerve injury there's some data, but it's not conclusive."

"We don't have evidence to support the fact that oxygen therapy will make any difference to the outcome in those things, but there are some hopeful indications in there that await to be provide and some where there is absolutely no data at all."

"I believe there's some evidence that hyperbaric oxygen may have some effect in the very acute situation. If I remember correctly, the prime window was in the order of four to six hours...but in a number of centres which tried to implement this clinically, they failed to see beneficial results so research didn't proceed any further...at the time period you're talking about that there's no evidence of practically deliverable treatment with any - within any time window and certainly not outside of a major trauma receiving hospital and it proved impractical to hit that time window."

Paraplegia, quadriplegia due to incomplete neurovascular compression

"Spinal cord injury, including 8 and 9, neuropathy due to crush and neurovascular paraplegia and quadriplegia due to incomplete neurovascular compression I've stated is approximately 50%"

"These are all theoretically interesting uses for hyperbaric, but, as far as I'm aware, there's nothing but theory and for peripheral nerve injury there's some data, but it's not conclusive."

"We don't have evidence to support the fact that oxygen therapy will make any difference to the outcome in those things, but there are some hopeful indications in there that await to be provide and some where there is absolutely no data at all."

"Not aware of any good data. I am aware of some centres that have undertaken treatments and feel that there may be some acceleration in resolution or some affinity with physiotherapy done under hyperbaric conditions during a subacute phase of several days to weeks after treatment, but not aware of any convincing literature, but I am aware of centres in Europe that have supported that indication."

"I would not offer them [a patient] treatment in that situation in my practice. I would suggest that there's some very limited speculative suggestions that there might be some benefit there, but that we were not in a position to provide a trial of treatment."

"These are all theoretically interesting uses for hyperbaric, but, as far as I'm aware, there's nothing but theory and for peripheral nerve injury there's some data, but it's not conclusive."

"We don't have evidence to support the fact that oxygen therapy will make any difference to the outcome in those things, but there are some hopeful indications in there that await to be provide and some where there is absolutely no data at all."

"some animal data to suggest there may be improved rates of healing and, possibly, also, quality of healing, but no human clinical data"

I'm not aware of any evidence of good response for the - what's conventionally referred to in that sense. However, there are regular observations of side effects of treatment for diabetic patients who often have neuropathy of some minor degrees of improvement in function. There are also some results noted in trials of hyperbaric oxygen where they - although it has not been the primary outcome of the study, there has been some improvement in autonomic and small nerve function. So there's possibly some small effect present there in - demonstrated in several clinical trials that have quite good methodology, and it has appeared as a side effect, not as a primary reason for doing treatment, but the effect does appear to be there to a very limited degree. It's not clear whether it provides any long-term benefit to the patient and, therefore, as far as I'm aware, it's not offered clinically, but there may be something there."

"People in the acute period after developing signs of a stroke may well be a useful target for hyperbaric oxygen therapy."

"There have been three randomised control trials attempting to show that, that that - you know, that demonstrates, I think, the interest the field has taken in that area. They all have some failings, it must be said, but none of them showed any useful benefit to patients."

"The chronic treatment of stroke is much more controversial."

"There has been one piece of work on what we might call subacute strokes, not - talking about months after the stroke rather than years, there was some evidence of benefit, but it wasn't considered clinically significant."

"There is some promise in acute stroke trials, less so in the chronic stage."

"I don't think you could say that at the time period you're talking about there was a body of evidence, although there had been some previous interest in that area."

"there are now something like 13 or 14 randomised control trials and when one puts them all together it's pretty clear that hyperbaric has no meaningful effect on the course of the disease or on the function or ability of the individuals. So we get an answer. If people are advocating treating something as common as multiple sclerosis with hyperbaric oxygen, a case report here and there is not sufficient."

"MS is a condition where it's widely accepted that the evidence is overwhelmingly that hyperbaric makes no difference - no better, no worse."

"This is one of the conditions, chronic neurological conditions, where we have pretty good evidence that hyperbaric does not work."

"It was clearly put away that there is no major therapeutic effect and that all the benefits were things that were discussed early, participation effect, healthy survivor effect and so on, so that despite all the promise, it disappeared completely off the therapeutic radar."

"So there were practitioners at the time including some of the people who went on to become proponents for cerebral palsy - Philip James of the UK, for instance, was one such person - who were believers on mechanistic grounds in this once a week or so therapy, that it provided something that was of value for the neurological system. But that has fallen into general disrepute."

"Multi-infarct dementia is blank because it's not something that is treated at HyperMED"

"I'm not aware of any evidence of benefit in that field, no"

Dr Freckelton: "From your knowledge of the literature, is there a proper basis for provision of hyperbaric therapy to an adult with cerebral palsy?

Professor Bennett: "No, I'm not aware of any rational basis for doing so."

"My knowledge of the evidence surrounding the use of hyperbaric oxygen therapy in the treatment of cerebral palsy in adults would lead me to conclude that there is no purpose in treatment, and I would not be persuaded to offer treatment."

now say that, well, on the basis of the evidence that's out there, we're sufficiently convinced that there's nothing really big there, that we don't want to get into this and use our energy."

"No. The control trial in children and the degree of benefit seen in less well controlled studies and uncontrolled studies suggests that there's no difference in the outcomes between hyperbaric oxygen and low pressure air. And the benefits seen in the trials are consistent with a broad range of research related effect which can be, I suppose, generally summarised as various types of placebo effects."

"Yes, but however, one patient. I had one patient in my last 15 - well 17 years of using hyperbaric - is only to one patient, it happened to be my auntie who I treated for Parkinson's disease for about five to six years."

"I'm not aware of any substantial evidence at all. There may be a case or two around, but it doesn't immediately come to mind. I don't think that is a reasonable thing to treat with hyperbaric."

"No, no expectation of benefits especially from hyperbaric oxygen"

"The placebo effect in Parkinson's disease is very, very powerful. But in Parkinson's it appears to be about - I'm informed about twice as powerful as in many other conditions."

Alzheimer's disease, degenerative motor neuron disorders, amyotrophic lateral sclerosis

"No evidence that I'm aware of and no reason to expect benefit."

"In 2007, there was relatively little evidence around."

"I think that trial does raise the possibility that there may be a beneficial effect, but it's highly controversial. I've disputed the findings significantly of that trial. However, it is a small RCT that raised the level of evidence in support of autism from the previous few case reports. So of itself, that was interesting but not sufficient to convince us this was a good routine treatment, and subsequent evidence has suggested that was the appropriate."

"no reason to expect benefit at that particular time."

"There was a study that - a randomised controlled study in autism that suggested the possibility of some benefit but which has since been countered by a better one. Mechanistically, I wouldn't have had any expectation of improvement other than as a result of a placebo effect on behaviour or in changes, but there was a study, and as I sort of said, I can't remember the date, but it might have fallen around about the end of that period that we're talking about which seemed to suggest some benefit, even though there were some problems and biases with the study and that have subsequently been corrected in subsequent studies."

"That would be very controversial as hyperbaric oxygen can cause fitting. In fact, it's one of the reasons we occasionally have to decline treatment if people are - have epilepsy and it's very poorly controlled by their medication. We advise them that we're likely to make their condition worse."

"As far as I'm aware, there's no evidence that you can treat the underlying cause"

"I'm not aware of any evidence that the cause of the epilepsy will make any difference, and I'm certainly not aware of any evidence that hyperbaric should be used to treat epilepsy. I've never read such a case."

"Not aware of any benefit. I'm aware - I came across or had a look at the titles of the paper in Dr Hooper's response document, but I'm not aware of any convincing data or - and, indeed, there is a concern that epilepsy may be - well, that epilepsy is a risk factor for oxygen administration, and epileptics may actually have seizures whilst receiving hyperbaric oxygen, so reasons not to treat and - with hyperbaric oxygen because of risks that may be associated with it."

Coronary heart disease (angina pectoris, myocardial ischemia)

"heart disease, heart insufficiency, heart contractile function, acute and chronic arterial insufficiency, duodenal and gastric ulcers, none"

"There's a suite of randomised controlled trials that altogether add up to a confusing picture, and it's certainly not true that coronary heart disease is a routine - well, infarct, rather, that people suffering a heart attack should be treated. There are those who advocate it, but I'm not aware of anywhere where that is done in the acute phase, and there's very little evidence in the more chronic phase.?

"some evidence of potential and some clinical trials undertaken in association of - with acute hospital treatment of myocardial infraction in the first few hours...but not aware of any evidence for benefit in the post-acute stage, so other than in the - that very acute stage and certainly not established practice because of the high risk that such patients happen."

"heart disease, heart insufficiency, heart contractile function, acute and chronic arterial insufficiency, duodenal and gastric ulcers, none"

"There's no data that I know of, apart from a case report, for that."

"Not entirely clear to me what that refers to as a concept, and I'm not aware of any evidence that was suggest treatability."

"there is indeed some evidence that hyperbaric oxygen might reduce postsurgical cardiac dysfunction, but to represent that as a condition that could be provided in a clinic I believe would be suggesting to the patient that if they had problems after surgery, they could possibly be treated, and that's certainly not the case to my mind."

"heart disease, heart insufficiency, heart contractile function, acute and chronic arterial insufficiency, duodenal and gastric ulcers, none"

Dr Freckelton: "The same thing with heart contractile dysfunction?"

Professor Bennett: "Indeed, yes. Similar. Very much the same kind of thing."

"some theoretical benefit for acute benefit but only in that contractile dysfunction after surgery, after acute surgery, so no data and no evidence, no reason to suggest it's a useful treatment once that situation is established."

"heart disease, heart insufficiency, heart contractile function, acute and chronic arterial insufficiency, duodenal and gastric ulcers, none"

"This is an example of an indication which is - it's hard to pin down the exact meaning. I've put speculative only there and, you know, that's perhaps even being generous."

"Our common response is that hyperbaric oxygen can do nothing to improve blood supply because of blockages in the larger arteries of the body. What we can do is assist in growing new capillaries, the micro-vasculature, but someone with a physical blockage to an artery is not amenable to treatment with hyperbaric oxygen except in very few circumstances and where there's no other recourse through surgery or some other procedure to clear those arteries. So taking that to be what the term means, it's not a hopeful indication."

"In the acute phase possibly as an adjunct to surgical repair in an impatient [sic] hospital surgical setting, but not of any value in a clinical outpatient situation and lots of pretty solid experience to suggest that any improvements seen whilst you're in the chamber in vascular insufficiency doesn't actually produce any lasting benefit...if you have had vascular insufficiency and then had it surgically corrected, then hyperbaric oxygen in conjunction with the surgical correction is generally considered to be quite a useful treatment and although the controlled trial evidence is weak, it's fairly well established clinical practice to utilize hyperbaric oxygen in wounds associated with corrected vascular insufficiency or partially corrected vascular insufficiency."

1 Mar 2013 Page 1351 lines 21-31

"heart disease, heart insufficiency, heart contractile function, acute and chronic arterial insufficiency, duodenal and gastric ulcers, none"

"I believe the answer is "no", although I understand there has been some use of hyperbaric oxygen in eastern Europe and Russia for these conditions, however that has essentially been superseded by effective drug therapy that has managed to actually not quite eliminate but almost eliminate surgical treatment which used to be required frequently"

"hepatitis, I've had one patient which was in the last 12 months"

"No evidence of benefit. I believe that most people would take that word to imply either immune or, more likely, infective hepatitis, and some people might take both, and neither of those, I believe, have anything evidence of evidence - for benefit."

"Then 25, diabetes, certainly there are many, many patients attending with a range of different problems, but not specifically for their diabetic condition"

"I don't think there is any evidence of benefit for diabetes. It would be inappropriate to make my - that statement, because I think most people would read that as a treatment for the diabetes condition itself. Hyperbaric oxygen - oxygen is routinely used, and there's some evidence to supports its use, for some of the complications of diabetes, particularly...skin ulceration, but not for the diabetes itself."

"I'm not aware of any evidence so I think the answer to that is no."

"some theoretical attraction to the idea of using hyperbaric oxygen with certain particular bacteria, but no evidence of benefit, and I'm not aware of anyone around the world using it, so I think it would be inappropriate to make the statement."

"I think that's quite inappropriate. A pulmonary embolism is very much an inpatient hospital condition, and to suggest hyperbaric oxygen would be a benefit would be very inappropriate. I'm not aware of any evidence of benefit or mechanistic reason why one would expect benefit, and it would potentially complicate the surgical management of the condition in a way that could be dangerous."

There is no published evidence of which I'm aware that supports the routine use of any of these obstetric indications."

"So for example, in Russia if a woman who was had a miscarriage before shows signs of having a miscarriage a second time, they will be put in the hyperbaric chamber, but we have absolutely no figures from them despite many attempts to get them to see whether that reduces the chance of the miscarriage going through. It's an unfortunate situation but at the moment in Australia, New

Zealand, the US, Europe none of those are routine indications. There is virtually no evidence on which to go good or bad."

"But in general, I would say there's no evidence or basis to suggest treatment is useful, except in one - well, there's two specific areas; one is that there is practice that's understood - understood - I understand has been used in Russia, of having a birthing suite inside a hyperbaric chamber, so that high-risk pregnancies can be delivered in that situation, with the idea that, if the baby becomes distressed and acutely lacking oxygen, the hyperbaric oxygen can be used as a temporary bridge,

just while the baby is delivered, so in a very high-tech, complex acute-care arrangement, that actually does make some sense, even though there's limited published - publicisation of that, and it's not a practice that has been spread elsewhere in the world, to my knowledge, but it does have some rationale. There are also several conditions of newborns, particularly necrotising eterocolitis, which may respond - that's an acute vascular insufficiency of the bowel with bacterial overgrowth, and proceeds to cause most of the bowel to die, and there's some suggestions - some observational reports out of a small number of areas, that there may be some value in that condition, but with the exception of those two particular subsets, there's no evidence. So particularly no evidence for placenta insufficiency, that I'm aware of, or any reason I would expect that, other than in that acute rescue situation, I may suggest - I mentioned in Russia, and no reason to expect a congenital abnormality to improve in any way."

"infertility, no patients attending specifically for that."

"An experimental indication...the potential harm, particularly to a developing embryo or foetus, so I think to suggest that hyperbaric is a commonly accepted or routine treatment that improves those problems is not one that can be sustained."

"I think there actually is some reasonable suggestion that there may be benefit. There's a Croatian group that have produced some results which were sufficiently promising to interest the IVF and infertility treatment practitioners... so although it's not good clinical evidence that would support funding or routine use, there was actually some intriguing suggestions of benefit."

Dr Freckelton: "At the relevant time frame was it accurate or proper to say fertility was treatable by HBOT?"

Dr Millar: "As a statement in isolation, I believe no."

"Reducing the risk of cancer cell mutation, I've said about there were about five per cent of patients attending with cancer, but it's in combination with their chemotherapy, their radiation therapy, and certainly not attending specifically with the anticipation that it's going to cure them of the cancer."

"I think as a statement of pathophysiology, it's not unreasonable, because I believe the word "may" is in there, and there was certainly some conjecture in that time period that that may be the case. I'm certainly not aware of good evidence from clinical trials to suggest one way or the other whether that is true...the conclusion drawn by Feldmeier is, I think, one that would be widely accepted, and that is that we have no evidence that hyperbaric speeds up the growth of tumours, and no good evidence that it slows down the growth of tumours, or evidence that the growth of tumours is prevented in the first place. So I think it is an unreasonable statement to make as a purpose for treating people with hyperbaric oxygen."

Dr Freckelton: "Between those same years, was there evidence suggestive of hyperbaric oxygen being of assistance in treating breast cancer, gastric cancer, or prostate cancer, or bowel cancer?"

Prof Bennett: "Using hyperbaric oxygen of itself, I think that's an unreasonable statement, and there's little or no evidence of which I'm aware to support that."

"I think the body of opinion is exactly the opposite, that there was a substantial concern that it might increase the risk of cancer mutation."

"So I think it would be quite inappropriate to make that statement at that time...the view is now that - fairly strongly that in most cancers hyperbaric oxygen is probably neutral and we don't have to worry about it too much. But it's not an active therapeutic. So the statement that it has any - or at the time had any role in preventing or minimising cancer mutation, I think is quite incorrect."

Treatment received by the Notifier, which is in part the subject of the referral to VCAT

Chiropractors Board of Victoria decision to refer the Respondent's conduct to VCAT

Board referral to VCAT with original "Notice of Allegations"

Matter listed for a 10 Day hearing commencing on 11 April 2011 before Lambrick DP and Members Drinkwater and El Moussalli with the Respondent represented by Mr Kewley (VCAT Day 1)

Application by the Respondent for reconstitution of VCAT on the basis of apprehended bias (VCAT Day 2)

Lambrick DP refused the application for reconstitution: Chiropractic Board of Australia v Hooper [2011] VCAT 641 (VCAT Day 3)

Matter listed before Ross J with the Respondent represented by Mr P Holdenson QC and Mr B Murphy of counsel; matter adjourned (VCAT Day 4)

• 26 October 2011 for 5 VCAT Days;
• 11 November 2011 for 3 VCAT Days; and
• 19 December 2011 for 4 VCAT Days (VCAT Day 5)

Compulsory conference with the Respondent represented by Mr M Titshall QC and

Compulsory conference concluded with proposed agreed findings and determinations filed by Mr Titshall QC before Justice Ross P (VCAT Day 8)

Hearing before Lambrick DP and Members Waterhouse and Draper in relation to findings and determinations (VCAT Day 9)

The Respondent informed VCAT that he wished to withdraw from the proposed agreed findings and determinations

VCAT hearing regarding the Applicant's objection to the Respondent's withdrawal of agreement (VCAT Day 10)

Lambrick DP ruled that the Respondent was permitted to withdraw his agreement: Chiropractic Board of Australia v Hooper [2011] VCAT 2400 (VCAT Day 11)

Directions hearing before Lambrick DP resulting in procedural orders being made (VCAT Day 12)

Directions hearing before Lambrick DP, in which the Respondent foreshadowed the making of a strike-out application, procedural orders made (VCAT Day 13)

Strike out hearing brought by the Respondent before Lambrick DP and Members Draper and Waterhouse (VCAT Day 14)

Lambrick DP and Members Draper and Waterhouse dismissed the Respondent's strike out application: Chiropractic Board of Australia v Hooper [2012] VCAT 1042 (VCAT Day 15)

Directions hearing before Judge Hicks with the Applicant represented by Ms Kummrow in relation to the Respondent's applications pursuant to ss 81 and 104 of the VCAT Act (VCAT Day 16)

Directions hearing before Judge Hicks with discussion about allegations and further applications made by the Respondent pursuant to ss 81 and 104 of the VCAT Act (VCAT Day 17)

Further Directions hearing and orders made by Judge Hicks (VCAT Day 18)

Further Directions hearing before Davis SM and procedural orders and 15 VCAT Day hearing to commence 8 October confirmed. (VCAT Day 19)

Further Directions hearing before Davis SM. Matter set down for hearing commencing 21 January 2013, for a period of 30 VCAT Days, with every Friday to be a lay VCAT Day**. (**VCAT Day 20)

The Respondent sought written reasons from Davis SM

Written reasons declined by Davis SM under s117 of the VCAT Act on the basis that the hearing did not include final orders

Further procedural orders made in chambers by Davis SM, permitting Final Notice to be filed and allowing strike out application to be filed by 8 November 2012 (VCAT Day 21)

Application to have Final Notice set aside, filed by the Respondent in VCAT

Originating Motion of the Respondent filed in the Supreme Court

Referral by Zammit AJ under Rule 77.04 of the Supreme Court Rules of the Respondent's application for leave to appeal to a judge of the Practice Court

Letter from Respondent to Applicant's lawyers foreshadowing an application for leave to appeal the orders of Judge Hicks to the Court of Appeal

Respondent's unsuccessful application for leave to appeal before Habersberger J; costs awarded against the Respondent [the 1st costs award]

Respondent's strike out application before Davis SM dismissed: costs awarded against the Respondent in favour of the Applicant, Dr Sipser & Dr Pyke(VCAT Day 22) [the 2nd, 3rd & 4th costs awards]

30 VCAT Day VCAT hearing commenced before Davis SM and Members Waterhouse and Draper, with every Tuesday being a lay VCAT Day (VCAT Day 23).

Respondent made application for reconstitution of Tribunal. Application dismissed. (VCAT Day 37)

Respondent made further request for reconstitution to VCAT President

Reconstitution hearing after 13 days before Judge Macnamara V-P declined and costs awarded against the Respondent: Chiropractic Board of Australia v Hooper [2013] VCAT 236 (VCAT Days 38-39) [the 5th costs award]

On 33rd-34th days of the trial hearing, the Respondent made application for reconstitution of Tribunal on the ground of bias. The application was declined by Davis SM. (VCAT days 58-59)

Respondent made request for reconstitution to the President.

Reconstitution hearing before Garde J (VCAT day 60)

Garde J declined reconstitution and costs awarded against Respondent: Hooper v Chiropractors Board of Australia [2013] VCAT (VCAT day 61) [the 6th costs award]

Evidence before the Tribunal with costs awarded against the Respondent in favour of Dr Reggars (VCAT day 63) [the 7th costs award]