Noone, Director of Consumer Affairs Victoria v Operation Smile

Noone, Director of Consumer Affairs Victoria v Operation Smile - [2012] VSCA 91 - VSCA 2012 case summary — Zoe

[71]

Cancer Treatment Objectives

Hope Research

The Hope Clinic offers complementary therapies for a wide range of illnesses and conditions. It provides peer reviewed and published methods of cancer treatment.

Your good health is assured through integrated complementary and conventional medicine to treat the body as a whole.

Holistic Approach:

Prof. Campbell together with the staff at The Hope Clinic, are totally committed to a multidisciplinary, holistic approach to cancer treatment.

Versatile Safe Alternate Therapies;

The Hope Clinic offers a wide spectrum of complementary treatment and therapies.

There are many conditions that are not successfully addressed by conventional medicine. At the Hope Clinic for Integrated Medicine, we offer what we believe is a more balanced and effective approach to the treatment (or support) of such conditions which range, for instance, from a number of life threatening illnesses and chronic fatigue syndrome to nutritional disorders and allergies.

We combine a range of approaches, which are broadly described as Integrated Medicine and focus on chronic illness. The techniques we use include state-of-the-art medical technology and subtle energy therapies such as homeopathy and acupuncture.

'It's always encouraging and a positive experience to visit the Hope Clinic -something I look forward to, rather than the dread of hospital visits and depressing, negative attitudes'.

It is the goal of Hope Clinic to provide the highest quality of care to patients. Since cancer is really a spectrum of diseases ranging from very aggressive to indolent; no single treatment can adequately be applied to all patients.

Our philosophy is to tailor a cancer management course for each individual patient that provides optimal control while minimizing the chances for debilitating complications. In some patients with low risk disease/cancer this means a careful monitoring with a course of combined modalities.

These techniques are proving to be the best treatment option for patients that have previously failed conventional therapies.

The key for an individualized approach to cancer treatment is an accurate assessment of a patient's disease. At the Hope Clinic, we provide an unique diagnostic processes [sic] that can better assess the patient's cancer.

The Hope Clinic is happy to review your current information and give you a preliminary outline of possible courses of further diagnosis and treatment.

WHY WE ARE DIFFERENT

The network of colleagues who make up this institute are committed to reading and researching all published information. We contact scientists and physicians all over the world to learn at first hand from these eminent colleagues in hospitals, universities and laboratories.

Our foundation finds treatments from integrative, complementary and conventional medicine. We investigate and combine support therapies to enhance efficacy and decrease side effects for faster, safer and more comfortable treatment in many different diseases.

SUCCESSFULLY TREATED DISEASES

Autoimmune diseases including Rheumatoid Arthritis, Graves' Disease, Hashimoto' Syndromes, Ulcerative Colitis, Chrohn's disease, Borreliosis/ Lyme Disease.

Cancer including Gastrointestinal Thyroid, Pancreas, Breast cancer with brain metastases, Cervical cancers, Lymphoma, Leukaemia and many others.

Viral Diseases including Mononucleosis (EBV) cured in 24-48 hours. Coxsackie B virus, Herpes, HIV, and upper respiratory viruses.

RESEARCH

The newest research in cancer indicates involvement of bacteria and parasites including Chlamydia, borrellia and mycoplasm. In tumour cells the acidic conditions cause pathogenic changes in normally non-pathogenic bacteria allowing them to release tumour growth factors as well as effecting [sic] the immune system.

Some of these bacteria and parasites appear to pleomorphic, living inside cells including leukocytes, lymphocytes and red blood cells (erythrocytes). We are presently investigating identification of these pathogens and methods for their eradication. The work is being carried out in England and the USA and may lead to many exciting and effective new treatments for cancer.

WHAT ARE WE OFFERING IN NUTRITION?

We have a booklet showing the best nutrients and diets for a wide range of diseases.

The Hope web site is for those who seek information about complementary alternative medical therapies (CAM) and access to economic integrated cancer treatment, which combines Western Medicine with Complementary and Alternative therapies.

In the majority of cases these treatments lead to an extension of life and an improvement in the quality of life.

For those who have chosen physical well being as a meaningful way of life, Hope offers a balanced combination of the best orthodox and complimentary approaches to healing cancer in the body.

The body has the innate power to heal itself from cancer but we must first treat any toxic burden, and then nourish body mind and spirit with live organic food, supplementation, exercise and emotional healing.

We also need to provide natural cancer destructive therapies to reduce the number of cancer cells that the body has to treat. We offer many complementary cancer therapies which are compatible with western medical therapies leading to an integrated approach to cancer.

The Hope Organisation was created in 1998 with the goal of offering patients a comprehensive multidisciplinary integrated approach to the treatment of cancer, and other chronic diseases, emphasizing early detection, accurate staging, and a full range of minimally invasive western and complementary options, without significant side effects, using the latest advances in medical technology against cancer.

Integrated oncology has the potential to transform both individuals and the system of cancer care. In the process, a more sustainable approach to cancer health care can emerge, grounded in the guiding principles of medicine and focusing on all participants at all levels of their experience. Integrative oncology also has the potential to improve outcomes with regard to prevention, supportive care, and anti cancer therapy.

We are at a critical juncture in the evolution of complementary cancer therapy. In order for the development of an integrated approach to cancer to be successful the efforts of researchers, clinicians, patient advocate groups, corporate health care workers, and policymakers must be combined. Such a process will allow for rational planning, development, and implementation in the setting of diminishing resources for cancer therapy.[27]

[73]

Dr Holt argues radiowave therapy has its place with most cancers and can cure; can reduce tumours; can stabilise disease progression; can achieve remission; can bring life extension and can be a useful palliation instrument. This may be the case, as there are patients with different forms of cancer who will testify to its efficacy. The Clinic however, can make only the claim that it can provide the treatment that Dr Holt was providing at the time of his retirement, together with seven other complementary and alternative medical procedures.

It has also been argued that radiowave therapy and photo dynamic therapy should be considered in certain cases as a first line of treatment because it has no long-term side effects, can be repeated, is non invasive and may work best when there has been no previous patient history of chemotherapy. An example of where this could be a good approach would be where a patient undertook the treatment and their tumour reduced to the point where they could have a more effective outcome from surgery. This would be a great outcome. However, it would have to be the patient's decision entirely to undertake Hope therapies in preference to other more conventional treatments. The Clinic can only strongly recommend patients talk with those they trust most and share their thoughts with their medical advisors.

All too often, it seems that the Clinic is treating patients as a last resort measure. It may well be that some people are not getting what they seek from conventional treatments or that the opportunity for their best results have passed. It is quite understandable that in these instances, people become open to other options like Hope therapies which may well be able to help in a way that other treatments have not. Yet the same cautions must apply - the patient must choose the therapy through their own decision-making and have met the conditions of the Clinic to be eligible.

Whatever it is that you are intending to gain from whichever treatment you undertake, it is important to be realistic, have been a part of the decision-making and have sensible expectations.

A last word on this topic; it is better to meet a fair expectation that to never reach a higher one. To this end, there are options for patients. The more one knows about their condition, the better equipped they are to set, govern and meet fair expectation than never reach their own objectives.

[140]

The Director's recourse to conventional medicine and scientific evidence to impugn the assertion of fact that the techniques used at the Hope Clinic were not proving, in fact, to be 'the best treatment option' for the specified class of patients was met by Professor Campbell relying upon broad generalisations with little probative value. Professor Campbell made a series of assertions purporting to be statements of fact. His submissions contended that the Hope Clinic had been in operation since 1998 and that the overall results of the treatment program were assessed by a Dr Ballard as showing that: (a) approximately 80% of patients experienced a worthwhile improvement in quality of life; (b) approximately 60% of patients had a noticeable improvement in their cancer and in their immune system function; (c) that they had tended to see patients with advanced stages of cancer which had spread remotely through the body; (d) that patients with early localised cancer tended to respond much better; (e) that they saw the best results in prostate cancer where about 80% of patients experienced major tumour reduction; and (f) that they had seen some very good results with breast cancer and bowel cancer.

An obvious legal problem with Professor Campbell's attempt to rely upon this material was his attempt to give evidence of the findings made by Dr Ballard about matters requiring proof through a suitably qualified expert giving expert testimony that was reliable and admissible. The findings of Dr Ballard could not be tested if admitted through Professor Campbell. Professor Campbell may conceivably have been able to give expert testimony based upon his qualifications and experience but he did not establish his qualifications to do so. The fact that he may be a dentist may both entitle him to use the title 'doctor' and to hold himself out as having some scientific training, but it is not, of itself, sufficient to enable him to give expert testimony of the matters he sought to tender about Dr Ballard's findings. An additional problem for Professor Campbell was that the conclusions he expressed were stated with such generality as to be unhelpful for the basis of a decision by a court...

[145]

Mr Jones [the alleged deceiver] did not, in terms, state in his affidavit that the material which admittedly emanated from him and came to comprise the material termed 'Annexure A' by Dr Snyder also constituted the grounds upon which he made representations in which he stated that he had reasonable grounds for making a statement in that representation. Even though if, as a matter of fairness, this is how 'Annexure A' should be understood, this material does not, having regard to the critique made of it by Dr Snyder constitute 'reasonable grounds' for the making of the statements in these representations.

None of this is to suggest that Mr Jones is under any onus to disprove the alleged contraventions, much less that he must do so with scientific certainty. The onus of proving the contraventions on the balance of probabilities always lies on the Commission. In demonstrating why the Commission had not discharged that onus it would be open for Mr Jones, with an appropriate evidentiary foundation, to call in aid the kind of intuitive reasoning described by Herron CJ in EMI (Australia) Ltd v Bes:[47]

Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.

The evidence led by Mr Jones does not admit of a conclusion, reached by the application of this kind of intuitive reasoning, that the Commission has not discharged its onus. The areas of the curing of cancer and cancer survivorship are not ones where common experience could be a permissible touchstone for deciding the truth (or, strictly, a failure by the Commission to prove the untruth) of the admitted representations.

[224]

The Director's response to this statement was in part that there are no clinical trials in the scientific literature which demonstrated any benefit of the therapy in the treatment of people with cancer, and in part that the use of the therapy was the subject of an investigation by the NH&MRC which 'failed to find evidence of benefit'. To some extent the nature and basis of the falsity contended by the Director in respect of the statements were, therefore, misdirected. The Director's submissions generally maintained, and for present purposes I assume maintained justifiably, that the treatments offered are not regarded as beneficial by conventional medicine and prevailing scientific opinion. That, however, does not go to or falsify assertions of fact. Thus, by way of further example, statement 23 asserted as fact that active oxygen therapies have been used in Germany for over 50 years and were said to be very effective against cancer. In partial response to this statement the Director relied upon Associate Professor Snyder's observation, no doubt correct, that the fact that therapy may be used for over 50 years 'is not evidence of its efficacy'. Nonetheless, accepting the accuracy of the observation of Associate Professor Snyder, as I do, it does not falsify the statement of fact impugned as being false and misleading.

The specificity of each of the statements in this tranche might be said to establish the more general challenge against the defendants that what appeared on the website as authoritative statements carried the false and misleading statement (by implication) that the therapies were effective and had foundation by reference to conventional medicine and science. However, what the impugned statements show is that the opinions expressed in the statement, however wrong, are based upon the views found elsewhere. It may be that those views themselves are wrong when judged by reference to conventional medicine and prevailing scientific opinion, but a person expressing an opinion (however wrongful) is not making a false and misleading statement by identifying the sources of what may for the purpose of the argument be presumed to be the error.[54]

[294]

This court has on several occasions observed that the Charter is not an instrument to be used by the well-positioned to roll back legislative protections enacted on behalf of the vulnerable. This principle was first enunciated by Dickson C.J.C. for the majority in R. v. Edwards Books & Art Ltd.).[87] He wrote,

In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.[88]

The same principle has been repeated and emphasized in Irwin Toy Ltd v. Québec (Attorney General).[89] This principle recognizes that much government regulation is designed to protect the vulnerable. It would be unfortunate indeed if the Charter were used as a weapon to attack measures intended to protect the disadvantaged and comparatively powerless members of society...

Regulatory legislation is essential to the operation of our complex industrial society; it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves. The extent and importance of that role has increased continuously since the onset of the Industrial Revolution...The differential treatment of regulatory offences is justified by their common goal of protecting the vulnerable.

The importance of the vulnerability concept as a component of the contextual approach to Charter interpretation has been recognized in the employer/employee field in Edwards Books, supra, and Slaight Communications, supra, and in the sphere of commercial advertising in Irwin Toy, supra. The same considerations should apply whenever regulatory legislation is subject to Charter challenge.

It follows that a contextual approach is required in the present case in order that the distinctive nature of regulatory offences and their fundamental importance in Canadian society may be considered. Both licensing and vulnerability considerations justify differential treatment, for the purposes of Charter interpretation, of crimes and regulatory offences. This, then, is the basis upon which the present case must be approached.

At a glance

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Judgment (369 paragraphs)

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Cases Cited (21)