Pearson-Gills v Chiropractors Registration Board

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50 The applicant's credit is important both as to motivation in the preparation of the care and payment plans and his report of the information sessions that he gave to DC which sessions would have in total lasted between two and three hours. The applicant gave evidence that the CCP guidelines now incorporated in the ICA guidelines were accepted by the government of the United States. This statement is not correct. In fact all that can be said is that the guidelines have been accepted as fulfilling the criteria of the guidelines Clearing House of the United States. The website of that Clearing House makes it very clear that that body does not endorse the publication in any way.

51 From the body of the evidence given, the applicant makes it very clear that he informed DC of the benefits of his treatment for CC. However, it is not apparent from the evidence he gave that he informed DC of any of the difficulties that may result from the treatment or of the contrary views held by many of his chiropractic colleagues as to the treatment that was given. For example, the applicant admitted on questioning from me that he had not informed DC of the views held by Drs Charlton and Crawford. This is particularly concerning because he admitted that DC was particularly stressed at the time that the plan was submitted to her, and yet he did not tell her that some members of his profession would not think there was any need for treatment of CC at all. Further, other members who had a similar idea of subluxation and wellness to the applicant might say that the treatment plan was excessive and he could have referred to the type of view that Professor Davies held, which he (the applicant) did not.

52 In December 2002, the respondent Board published findings in relation to allegations against the applicant relating to an infant RB who was a few weeks older than at the relevant time the infant was examined in this case. In that case, the applicant admitted the following allegations :

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53 In spite of admitting these allegations, the applicant consistently stated that it was his paperwork that was the problem. He prepared a treatment schedule very similar to the one he prepared for CC. However, that treatment schedule alongside the number of visits had the word "adjustments". He said it was the fact that he wrote adjustments against each one of the visits that was to take place that caused him to admit the allegations of the respondent.

54 He maintained that because the word "adjustments" did not appear in the treatment plan for CC, it was not of the same character as the RB case. He further said that by deletion of the word "adjustments", he had cured the problem considered by the Board in the RB case. When one reads the document entitled "Findings" and the allegations made against the applicant in the RB case, it is perfectly clear that the allegations which were made against the applicant in that case were far wider than just the word "adjustment" appearing and they went to the whole nature of the treatment and payment scheme that was proposed.

55 Thus, by the applicant stating the limited nature of the RB case to relate to the word "adjustment" he was at best deluding himself, and at worst attempting to deceive me in the evidence he was giving.

56 Mr Hurley submitted that I should not place a lot of emphasis on the applicant's admission in the RB case because of his belief that the problem with that case plan was that it referred to "adjustments" and not "consultations". Throughout the hearing of this proceeding, both in giving evidence and sitting behind his counsel, the applicant appeared both astute and careful. When giving evidence, he was reluctant to give answers before thoroughly thinking about the question and then if he thought answering the question was not to his advantage would attempt to avoid giving an answer. While sitting behind his counsel, the applicant appeared to make continuous notes and frequently passed notes to his counsel or his instructor. Thus, the applicant does not strike me as a man who could have misunderstood the allegations to which he was admitting in the RB case.

57 Subsequent to the RB case, the applicant maintained that he sent a schedule similar to the one used for CC's treatment to the respondent Board and that the respondent Board had no objection to the same. It is not clear whether the respondent Board received that schedule. In any event, it does not seem to me to be very important. The applicant states that the schedule he sent to the respondent Board did not have any figures on it. That is, it did not state the number of treatments, the number of weeks for treatment or the amount of money the treatment would cost. If this is the case, I fail to see how any approval or non-approval by the respondent of that document could relate to this case. Clearly, what the respondent is concerned with in this situation is, inter alia, the amount of treatments and the cost of such treatment. Therefore, without the figures inserted, it would have been impossible for the Board to make any conclusions about the same.

58 The applicant was challenged as to whether DC was permitted to pay per visit for CC's treatment. He stated on several occasions "that was always an option". He did this so that I would believe that it was an option known and given to DC. However, the option did not appear on the payment plan, and I have no confidence that the option was ever told to DC. Further, the applicant stated that approximately 80% of his patients are on care plans with planned prepayment. Under these circumstances, I have formed the view that paying by visit was never an option given to DC.

59 In the applicant's second witness statement, he stated that :

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60 However, it is noted that prior to that time (7 February 2006), the applicant had written a lengthy letter to the respondent and had made a previous witness statement before the respondent Board. On neither of those occasions did he make a statement such as quoted above. Ms McLeod suggested that this was suggestive of recent invention. I agree with the suggestion of Ms McLeod and also agree that the possible explanation for the recent invention is that the applicant's experts gave evidence that what was said to DC was very important and that she had to be empowered to make a proper decision whether or not to accept treatment.

61 The applicant gave evidence that the care plan submitted to DC for CC was personalised for CC. However, as the evidence unfolded, it became clear that the only real personalisation in the plan was related to CC's name being inserted. It is true that the amount of visits may not appear on all the applicant's care plans, but it is also clear that they would appear on many of them. It is noted a similar amount of visits appeared on the RB care and payment plan.

62 The applicant appeared prone to exaggerate the effects that might occur if DC did not accept the applicant's recommendation for treatment of CC. In the applicant's advertising, it is clear that he suggested that if patients were not treated for subluxation, the effects could be "spinal fusion" and "heart attacks". When being cross-examined, the applicant claimed that he observed a patient with no previous surgical or chiropractic care with spinal fusion. However, he then appeared to qualify this statement by referring to "degeneration" rather than "fusion".

63 I have already referred to the applicant's relationship with WLP, and the fact that he stated subsequent to November 2003 he had no relationship with that organisation. However, he relied on Di Coleman from that organisation to assist him with this proceeding (see paragraph 33).

64 The applicant stated that CC was likely to have subluxations in utero because DC was treated with medication for Lupus. However when I questioned him about what medication was used to treat DC for her Lupus or what medication is used to treat Lupus generally, the applicant had no idea whatsoever. It seems to me that it is impossible for the applicant to have deduced that CC could have a subluxation in utero because of DC using medication, when he had no idea either what that medication was or what it may have been.

65 The applicant stated on the care plan that he provided a copy of "Optimal Health University" at no charge. When questioned about this, the applicant revealed that "Optimal Health University" was in fact a newsletter. It was not published by any "university" at all and it was published by some private organisation of which he was unable to remember the name. It seems to me that by using the words "Optimal Health University" it is very suggestive on the care plan that anyone being involved would receive something from a tertiary institution which is the common meaning of university. While it was not the applicant that was printing this document (Optimal Health University), it was certainly the applicant who was distributing it and happy to go along with any belief that it may incur in his patients that it related to a tertiary institution.

66 On a number of occasions while giving evidence, the applicant voluntarily stated that if a patient was committed to chiropractic care, he would provide treatment at a reduced cost or at no cost if the patient could not afford to pay for such treatment. In the telephone conversation between the applicant and DC, it was apparent that DC was concerned about the cost of treatment to CC because she was otherwise committed in relation to her husband's child's custody case. However, even though DC stated she was concerned about the cost, the applicant made no offer to treat at a reduced cost. Thus, I am sceptical that the applicant does treat patients in need of chiropractic care at no cost or at a reduced cost. By claiming that he did treat the poor at no cost or reduced cost, the applicant was attempting to show that he was generous, committed to the treatment he gave and that his motives were pure. I have considerable doubt about those matters.

67 Further, the applicant appears to have used ploys on his care plan to make it appear that the patient was going to save more than was actually saved. For example, he refers to "traction wedges" which may not even be provided. He refers to "re-x-rays" when initial x-rays were not taken.

68 In spite of the Board issuing newsletters warning against advertising pamphlets containing a heading "A Doctor's confession to the State of Victoria" and providing self testimonials, the applicant continued to do precisely that and continued on doing that until a few weeks prior to this hearing. It is noted the applicant's advertising pamphlet was headed "A Doctor's confession to the City of Knox".

69 On numerous occasions during the hearing, the applicant was warned by me to answer the questions. He seemed to be taking pains not to answer questions in a responsive manner, where to do so would not have been in his best interest. As a result, on several occasions, I was required to warn the applicant.

70 The applicant gave evidence that he was able to remember the visits of CC because of the remarkable similarity with the RB case. However, he agreed in cross-examination, that he had no reason to consider specific details of the consultation with CC at any time between February 2004 and at the earliest April 2004 when he received notification of the complaint. Further, it should be noted that the applicant sees more than 400 patients a day, including many infants, and he agreed that he had no particular reason to recall CC or DC. It is further noted that then senior counsel for the applicant, submitted before the respondent Board, during the original hearing of this matter before the Board :

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I agree that this is a proper basis on which treatment should be given and agree with the submission of Ms McLeod.

77 Mr Hurley referred to the ICA Guidelines and in particular to the quotation referred to above which is to be found on p 231 of those Guidelines (see paragraph 30 hereof). However, it must be remembered that those guidelines do not refer to infants; and they also refer to weekly or semi-monthly office visits.

78 Having regard to the principle that the care must be justified in terms of time and cost, it is difficult to understand why the applicant prescribed weekly visits for wellness care rather than fortnightly. Particularly in light of some of the witnesses that were called by the applicants indicating that even though they did not have a problem with the care plan, they would have prescribed a less amount of visits. It should be mentioned that Dr Gold stated that CC was his patient, "I would monitor the spine daily for the first month". Even though Dr Gold was not cross-examined because he was in the USA, he was prone to exaggeration. For example, he stated "in such a case (CC) ... subluxations are extremely difficult to detect and can have serious life-threatening implications for a child".

79 It should also be noted that the ICA Guidelines should be treated with some suspicion. These guidelines incorporate the CCP Guidelines and appear to be espoused by the World Chiropractic Association which seems to have a similar membership to those that studied under Dr Mertz to whom I have previously referred. Thus, in my view, it is likely that these guidelines were written in order to justify the author's own practices, ie practices espoused by Dr Mertz, CCP and those subluxation/wellness practitioners, including the applicant and most of his witnesses. That is, the advocating of frequent wellness case consultations.

80 Further, it is stated that these guidelines have peer reviews. However, one of the peer reviews to the CCP Guidelines was the applicant himself. He reviewed these guidelines in 1997 or 1998, which was a little after a year since he commenced practice. It would seem to me unbelievable that a chiropractor who has been in practice for approximately one year would be able to properly review such important documents. Under those circumstances, in my view, those guidelines should be treated with some considerable caution. Ms McLeod acknowledged that in the Standard Practice Guidelines (Victorian Guidelines), there was a reference to an adaption of the ICA Guidelines. However, she stated that this "is not an indicator that the practitioner need go beyond the document for the source (it is) only acknowledgement or attribution". In my view, this is a correct statement.

81 The Victorian Code of Professional Conduct (Victorian Code) provides that a chiropractor must, amongst other things, explain the nature and purpose of the care proposed to a patient. In this particular instance, I believe rather than attempting to explain the care to DC, the applicant was more concerned with a "sales pitch" (see paragraph 119 below). It may well have been that in giving this "sales pitch", some of the care was in fact explained. However, such explanation of care should be given in an impartial manner and I do not find that that was given in this case.

82 The respondent conceded that both the Victorian Code and Victorian Guidelines did not prescribe a specific period of accepted care for any patient. On this basis, it was argued on behalf of the applicant that where the Code and the Guidelines are silent, it was up to the practitioner to adopt whatever care plan they felt appropriate. However, such a care plan must be done in a professional manner and not one calculated to benefit the practitioner rather than the patient. Further, the plan must be justified.

83 Ms McLeod has also noted that the Chiropractic Association (Victoria) (CA Vic) is a professional association representing the interests of approximately 700 of more than 1000 registered chiropractors in Victoria. This organisation has its own code of ethics which provides at section C paragraph 6 that a member, "shall not exaggerate for his/her own advantage the condition of any patient to that patient, but shall given an honest evaluation of the patient's condition and prognosis". The applicant is a member of the CA Victoria. In my view, in promoting the fear that the applicant did to DC about her daughter's health, he was exaggerating for his own advantage.

84 Further, it is noted that CA Vic is a member of the National Chiropractors Association of Australia (CAA). The CAA has published a code of professional conduct for chiropractors which postdates the care provided by the applicant to CC. That code recommends that the use of outcome measures as essential in every case and at least 12 visits or every six months which is ever the sooner.

85 Mr Hurley referred to the South Australian Guidelines. I disagree with Mr Hurley that the model used in the South Australian Guidelines corresponds with the model used by the applicant for CC. This is because the example referred to in those guidelines by Mr Hurley is silent as to the frequency of visits beyond the initial period of acute care. Also, as Ms McLeod notes, when referring to the South Australian Guidelines, "the fact that it recommended musculo/skeletal work during the acute phase (not possible in a 30 second to 3 minute session most likely)" with the applicant.

86 I agree with Ms McLeod's submissions that there were no guidelines which were produced by the applicant which "provide the applicant with support for visits of any frequency higher than weekly. Weekly visits are only mentioned in the ICA Guidelines but not with respect to infants". She also stated that the witnesses appeared to all agree that there were no guidelines related to the frequency of care for children and none for infants under 12 months.

87 Weighing all the matters up in relation to guidelines, I have come to the conclusion that the applicant can gain little comfort by referring to the ICA Guidelines, as they do not refer to the care of infants, and are in any event somewhat of a dubious quantity.

88 Mr Hurley mentioned that the respondent has power to produce guidelines and has not done so. Therefore, he concluded that this has made it very difficult for the profession. I can only guess at the reason why no guidelines as to the frequency of care have not been produced by the respondent and it would be unwise for me to enter into such a debate. However, I do not believe that the lack of guidelines produced by the respondent entitles the applicant to recommend a frequency of treatment that he has in the plan that he prepared for CC. CC's condition at the time of the applicant's examination, while having a subluxation, did not suggest any serious problems with her body. Under those circumstances, in my view, it may well have been proper for the applicant to correct subluxation, have a further appointment to make sure that the subluxation remains stable and then a programme of wellness care as prescribed by Dr Davies in the work to which I have referred. It is noted, that when CC was referred to Dr MB, he corrected seven subluxations in a period of 12 months with 14 visits. This is far less than that proposed by the applicant. I note that the applicant said that his care programme was subject to alteration. However, such alteration would have needed to be so drastic as to have made the care plan useless. It is difficult to see at the time the care plan was produced that, in all the circumstances of this case, it is justified by the guidelines. I realize that in comparing the treatment given by Dr MB to that proposed by the applicant, I have the benefit of hindsight, but that does not alter my view. Had the applicant looked at CC's condition one visit at a time, it would have been obvious 60 visits in 12 months were unnecessary.

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89 Mr Hurley in his submissions relied on the findings of Dr Lantz and the writings of Dr Videmann to support the proposition that subluxation leads to change in osseous (bony) development of joints within two weeks.

90 The Videmann's studies were performed on rabbits by immobilizing them with the intention of producing osteoarthritic changes in their joints. In particular, the hip and knee joint. Drs Crawford and Charlton were of the view that such studies were of little assistance in calculating a care plan for a young infant. An infant human is obviously not the same as a rabbit, the study concerned cartilaginous joints whereas an infant's spine is bony with some portion of cartilage and the study of the knee and hip joints which are weight bearing which is distinctly different from the vertebra of a 4 week old child. It should also be noted that while osseous changes in the joint were apparent microscopically after two weeks, no macroscopic changes would be detectable by a practitioner on palpation after two weeks.

91 Thus I conclude that the experimentation by Videmann on rabbits in relation to the hip and knee joint, bear no relationship and gives no guide to the care plan that would have been suitable for CC. I come to this conclusion in spite of the writings of Dr Lantz who is highly regarded in the chiropractic profession, because his writings are largely based on the experimentation of Videmann. There was evidence from Drs MB, Turner-Jensen, Dr Keil, Dr Sawyer and Dr Snodgrass for the proposition that subluxation based chiropractors accept that frequent examination, up to daily, is desirable. In the case of Dr MB, he was commenting on a proposition that was put to him about "an ideal world". Clearly, this world is not an ideal world, and chiropractors must have regard to whether the care is justified in terms of time and cost. When examined in this light, I believe it would be stretching the truth too far to say that Dr MB was of the view that there should be daily examinations, except in the most exceptional type cases.

92 Again, Dr Turner-Jensen while agreeing there may be some cases where asymptomatic subluxations are examined daily, he said : "it is not practical. I don't even examine my own children every day" (see transcript p 356).

93 Again, Dr Keil was referring to an ideal world when he made this statement about daily examinations. It is further noted that Dr Keil accepts that the frequency of treatment as set out by Professor Davies in his text, namely, six times in the first twelve months is appropriate for infants.

94 As far as Dr Sawyer is concerned, in my view, his evidence became badly tainted when he asserted that one third of children delivered by forceps extraction suffered skull fractures and he would treat those with manipulation. Even a number of the other witnesses called on behalf of the applicant were aghast at such a thought. Further, it should be noted that at p 1203 of the transcript, Dr Sawyer said that he adjusted his own children weekly, "because I can. I would be happy if they were adjusted fortnightly, I would consider that to be an adequate minimum for them for wellness". Clearly, when Dr Sawyer was referring to the weekly adjustment, he was referring to his own children which is not something that would have to be justified in terms of time and cost.

95 As far as Dr Snodgrass is concerned, he has no post graduate chiropractic paediatric qualifications and he stated that he was before the Tribunal representing WCA Australia of which he is the President and he is still a member of WLP. Again, Dr Snodgrass was referring to examining his own children each week. He also stated that although he sees patients weekly, it is also common practice for fortnightly and some go out as monthly.

96 Taking the evidence as a whole, including witnesses that I have not specifically referred to, unless an infant child has a serious problem, in my view, there is no justification for examining the child CC weekly and I would doubt very much if there is even justification for examining fortnightly. I say this with knowledge that the ICA Guidelines recommend weekly or bi-monthly, however, they are not dealing with infants and they were written and/or reviewed by those who had an interest in maintaining their practice of seeing patients frequently for wellness care.

97 Mr Hurley referred to the fact that the applicant and 12 of his witnesses all agreed that the applicant's care plan was appropriate. This was entirely different to the view expressed by the respondent's witnesses. It should be noted that Dr Keil is an experienced chiropractor specialising in paediatrics and obtained a Masters of Chiropractic Science (Paediatrics) by degree in 1999. Further, he is the senior lecturer in chiropractic paediatrics at RMIT University and he supervised Dr Sipser with Professor Davies. He is highly qualified to give an opinion and expressed the opinion that a patient with an atlas subluxation should resolve after two to five treatments. He also agreed with the well child programme espoused by Professor Davies in his book. It is noted that Mr Hurley suggested that Dr Keil's evidence should be treated with some caution because he requested to amend his witness statement by deleting the word "adjustment" on two occasions and inserting the word "consultation" instead. As this request was made prior to the statement being adapted on oath, I find it difficult to understand how this alteration can be cause for criticism of Dr Keil.

98 Also, Dr Turner-Jensen has a degree in paediatrics from RMIT and his practice involves predominantly that of treating children. He also subscribed to the frequency of treatment set out by Professor Davies.

99 Dr MB was also of the view that Professor Davies' plan of treatment should be followed. It is noted that Dr MB is part way through his course in Master of paediatrics at RMIT and currently treats a lot of children.

100 Against this view, were the views of all the applicant's twelve witnesses plus the applicant that the care plan was reasonable. It is noted that none of the applicant's witnesses specialise in paediatrics (although one was currently undertaking paediatric study), and with the exception of Dr Sipser, they all belong to WCA (World Chiropractic Association) and have at one time or another been coached by Dr Mertz from WLP. Further, none of those witnesses are qualified with a specialised paediatrics qualification.

101 Also, Ms McLeod noted the following :

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116 Mr Hurley submitted that the care plan was supported by the teachings of the chiropractic profession therefore, the care that it provided would be that which was expected by the public of a registered chiropractor within the definition of paragraph (a) of the definition of "unprofessional conduct" in s 3 of the Act. He stated that the care plan was supported by the applicant's peers and in particular, he referred to 12 witnesses who were either called by the applicant to give evidence or whose statements were tendered into evidence. Mr Hurley also supported this submission by the ICA guidelines, the findings of Dr Lantz and writings of Dr Videmann. He also stated that the respondent's witnesses MB, Turner-Jensen and Keil, accepted that there could be frequent chiropractic examinations in relation to subluxation. Further, he stated that the model used by the applicant in respect of CC corresponded with the example of a care plan adopted by South Australia in October 2005.

117 In relation to the support of the care plan by practitioners, the support seemed to be coming basically, with the exception of Dr Sipser, from those practitioners that had been involved with WLP. All those practitioners practised in wellness care (at least in part) and described themselves as subluxation based practitioners. Most also stated that they did not treat asymptomatic conditions. However, it will be remembered that this principle was challenged by Drs Crawford and Charlton on the basis that there was no objective scientific evidence for wellness care or for the existence of subluxations.

118 While it is very difficult to say there is any consensus in the chiropractic profession as to whether wellness/subluxation care is the proper way to treat, but it is clear that there is a substantial number of people in the profession in Victoria that adopt that method of treatment. However, the majority of the applicant's witnesses caveated their approval of the care plan on the basis that the same was properly explained to the patient and the patient was empowered to make a proper decision. Most witnesses said it was important that DC make an informed decision. I note that the applicant said on several occasions that he gave DC all the necessary information. However, he did not provide details of the necessary information that he alleges he provided. Mr Hurley also referred to the words in the welcome document and the words in the care plan itself (see paragraphs 4 and 12 hereof) on consideration of the whole of the evidence, in my view, unlikely that DC both read and understood the information contained in those written documents. And I am certainly not of the opinion that it was properly explained to her by the applicant.

119 The fact that the applicant came away from the session where "the care and payment plan was explained to her" with fear for the safety of her child and a concern that her child's health and spine would be damaged for the rest of the child's life, indicates to me that the applicant certainly did not empower DC to make any proper decision as to whether or not to accept the care plan. In fact after hearing both the applicant and DC, I have gained the firm impression that what the applicant did in the three sessions to which DC and CC attended, was to provide a sales talk of his service, rather than information sessions. Thus, I find that DC was not only not empowered to make a proper decision; she was frightened as a result of the applicant's conduct and was unable to make an informed decision.

120 Ms McLeod submitted that whatever the belief of individual practitioners in the profession or a proportion of them was the treatment and recommendations for treatment must be appropriate and justifiable. She stated that if the treatment and recommendations are not justifiable, they are "prima facie unethical". I agree with that submission.

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123 In relation to the discontinuation policy in the schedule of payments, it is clear that in the event of a discontinuation, the patient would have to pay at the higher rate of $40 per visit rather than at the contracted discounted rate. I agree with the respondent newsletter when it says that this is extremely undesirable. Not only I think it is undesirable but, in my view, it is unfair to the patient.

124 Further, Ms McLeod made it very clear when cross-examining the applicant, that it would be approximately six months pursuant to the care plan or 35 weeks before the patient would "get ahead". In that time, the applicant's practice would have use of the patient's money by way of interest of which none would be refundable at the discontinuation.

125 Further, even though it is not suggested that it would happen, the applicant could decide after 35 weeks that no further visitation or treatment was necessary in which case the patient probably would not be welcome at the clinic. Thus, the patient would have received no benefit from the payment plan at all.

126 Further, there were matters concerning the payment plan which, in my view, would likely lead a patient to consider that they were saving more than they actually were by agreeing to such plan. For example, the applicant included the cost of traction wedges and re-x-raying when such may not actually happen and as far as the x-ray there was no x-ray in this particular instance.

127 Further, the applicant referred to re-examination every 12 visits, that is five re-examinations at $50 per examination. When I asked the applicant about this matter he said that the re-examination consisted of more than the normal assessment that takes place in each visit. In my view, a thorough assessment should take place each visit before any adjustment is done. If this were to take place, there would be no need for any re-examination to include such matters as thermo scans or x-rays.

128 Thus, in my view, the payment plan is unfair, not appropriate or in the interests of the patient and, in this particular instance, in all probability, using the Briginshaw test, I believe was not properly explained to DC.

129 In coming to this conclusion, I have taken into account the views expressed by the applicant's expert witnesses. I note that one of the applicant's expert witnesses stated that he does not have a payment plan but rather provides blocks of assessments or treatments to a patient at a certain discounted rate. The blocks he offers are up to 50 visits at a time. In the event that the patient stops using his services, he allows them to either transfer these blocks of time or gives a full refund on a pro rata basis relating to the cost per visit paid for the block of treatment. This system sounds a much fairer system if the practitioner is desiring to give a patient who may have to attend on a number of times some type of discount.

130 It should also be noted that I find it curious that the applicant said in relation to both the care plan and payment plan that he did not intend to see CC each week no matter what and what he gave was an outline only. However, the outline was based on 60 visits. While the applicant said he would credit the 60 visits into the following years if they were not all used up in year 1, that is not made clear on the payment plan. Under those circumstances, I believe that makes the payment plan in itself quite unfair.

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133 Mr Hurley submitted that the word "peers" as referred to in s 3 paragraph (b) of the definition of "unprofessional conduct" in the Act should be in this case confined to subluxation/wellness care practitioners practising in a similar manner to the applicant. However, the Act does not differentiate between types of chiropractors' practices. There is no provision in the Act for chiropractors practising differently or pursuant to different principles. Thus, in my view, the word "peers" means those practising chiropractic in Victoria. The difficulty it is not a homogenous profession and, as a consequence, there is little consensus between various groups of members.

134 In this particular instance, the care plan did fall short of what members of the profession would have expected in that Drs MB, Keil and Turner-Jensen all disapproved of both the care plan and payment plan. However, Mr Hurley submitted that the applicant's witnesses who represented a substantial body of people in the profession said that the care plan and payment plan were both reasonable. However, most of the applicant's witnesses made that statement on the assumption that the applicant had explained the matters contained in the plans properly to DC so that she could make an informed decision. I have found that no such explanation was forthcoming. In fact I have found that the applicant made a "sales pitch". Under these circumstances, applying the principle laid down by Mandie J in my view, the applicant's conduct fell short to a substantial degree of the standard of professional conduct expected by the profession or by the applicant's peers.

135 I also note that the evidence of both Dr Efron (the paediatrician) and Dr Pyke (the chiropractor) stated that the public might reasonably expect a practitioner to comply with or observe the body of professional learning and ethics, science and objective evidence. In this particular instance, in my view, for the reasons stated in relation to both the care plan and the payment plan, the applicant's conduct has fallen well short of what may be expected by both the public and the profession.

136 However, there does appear to be a strong view even though it may not be unanimous that any treatment must be justified and that patients should not be asked to make a decision about treatment unless it is an "informed" decision. In this particular instance, in spite of the evidence from the applicant's witnesses, it is difficult to see how the proposed treatment could be justified bearing in mind all the circumstances of the case, including the age of the child. It may be in relation to an adult or adolescent that such a plan could be justifiable but not at the age the applicant was treating CC.

137 I make these findings conscious of what Morris J has said at VCAT in the case of Vissenga v Medical Practitioners Board (2004) VCAT 1044 (2 June 2004 para 33). There his Honour stated :

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154 There has been evidence given that the applicant sees some 400 to 500 patients per day. The applicant also gave evidence that the retail cost of each patient is $40 but that 80% of his patients are on payment plans. Ms McLeod stated that on this basis, if the submission of Mr Hurley was to be accepted, the applicant could not be suspended for more than half a day.

155 In my view, if I were to accept Mr Hurley's submission, it would create a nonsense situation. The Act does not relate one type of penalty to another. In my view, the fact that the applicant can be fined $2000, does not in any way limit the period of suspension that I may impose pursuant to s 46(2)(g). It certainly would not be in the public interest or serve any purpose. It is important that professional standards of the chiropractic profession be maintained in the eyes of the public so the public can have confidence in the profession. If the applicant was suspended for ½ a day, such a period would be no more than "a joke".

156 Ms McLeod has submitted that I am at large in determining what is the correct determination in this matter and that I am at liberty to increase or decrease the period of suspension made by the respondent Board, she stated I am even at liberty to cancel the applicant's registration pursuant to s 46(2)(h). I agree with this submission and in fact, at the outset of the proceedings, I warned the applicant through his counsel, that if it found the allegations proved, I was at large should it be appropriate to increase the suspension of four months that was given by the respondent Board. Mr Hurley informed me that his client was well aware of that matter. In considering all the matters referred to above, I have formed the view that the period of suspension of four months given to the applicant by the Board is inadequate. Such a period is too little in light of what I have found to be in the public interest and for the protection of the public. This type of serious unprofessional conduct cannot be tolerated.

157 I was referred to a number of other determinations of the respondent Board where chiropractors had been suspended for periods of up to four months. However, I am aware that this is the first instance of a disciplinary matter concerning a chiropractor that has been before VCAT. While I could have regard to the previous determinations of the Board, I think it is important that all cases be determined on their own merits and with reference to the unprofessional conduct of the applicant, other matters to which the applicant has engaged and my findings in this instance.

158 One of these other matters is that in spite of the respondent Board sending a newsletter stating that it did not approve of a particular type of advertising that is advertising beginning with "A Doctor's Confession to the State of Victoria", the Board also disapproved in that newsletter of self-testimonials by chiropractors. In spite of that newsletter and in spite of these proceedings pending, a few weeks before this proceeding was called on for hearing, the applicant distributed a pamphlet throughout the city of Knox which began with the heading "A Doctor's Confession to City of Knox" and contained self testimonials. It should be noted as a matter of interest that this was similar advertising, but not identical, which attracted DC to the applicant's surgery in 2004. This conduct indicates to me that the applicant has little or no regard for the views of the Board, which Board was set up to regulate the profession of which he is a member.

159 Given all these circumstances, in my view, the applicant's registration to practise as a chiropractor should be suspended for a period of 10 months commencing 28 days from the date of this decision. I make the decision to increase the period of suspension taking into account matters referred to above, and to borrow a phrase from Batt JA in DPP v Goldberg [2000] VSCA 107 (27 July 2000) that my intervention is justified to correct the determination which is so disproportionate to the seriousness of the circumstances "as to shock the public conscience". I realise his Honour made this statement in the context of a criminal appeal, however, having regard to the appropriate factors in this proceeding, his Honour's phrase is appropriate.

160 I further intend to make similar orders to that ordered by the respondent for education, training and mentoring. However, because I do not believe there is any power to make those orders while the applicant's registration is under suspension, those orders will not come into force until the applicant's period of suspension has concluded.

161 It should be noted that because of the period of suspension, I have decided that a fine would not be appropriate in these circumstances.

Pearson-Gills v Chiropractors Registration Board - [2006] VCAT 436 - VCAT 2006 case summary — Zoe

At a glance

Court

Decision date

Source

Judgment (99 paragraphs)

Parties

Cases Cited (1)

Pearson-Gills v Chiropractors Registration Board (Occupational and Business Regulation) [2006] VCAT 436 (22 March 2006)