Traill v Medical Practitioners Board (Occupational and Business Regulation) [2006] VCAT 1920

Mr C O'Neill of counsel, instructed by Minter Ellison

1 On 19 October 2005, Dr Traill was found by a Panel of the Medical Practitioners Board of Victoria ("the Board") to have engaged in unprofessional conduct within the meaning of section 3 of the Medical Practice Act 1994 ("the Act") in failing to exercise the care and skill of a competent medical practitioner in his treatment in 2000 and 2001 of three patients suffering from cancer. The Board determined unanimously that Dr Traill be reprimanded, and, by majority, that his registration be cancelled as of 26 October 2005 and that he be disqualified from applying for registration for a period of three years. The Board released its written reasons for decision on 30 November 2005.

2 On 20 October 2005, Dr Traill applied to the Tribunal for review of the Board's decision. On 28 October 2005, upon undertakings given by Dr Traill to the Tribunal, the Tribunal granted him a stay of the Board's orders pending the hearing and determination of his application for review.

3 Dr Traill largely agrees that he provided the treatments in question, but says that his conduct was not unprofessional conduct and that the penalty imposed by the Board was excessive.

4 Throughout these reasons, for the sake of consistency with the nomenclature given to the patients in the Board's reasons for decision, the patients are referred to as "Ms SO", "Ms ST" and "Master TU".

5 In its decision, the Board had found a number of allegations not proven. These allegations were not pressed before us.

6 On 17 and 18 May, during the course of the hearing before us, the respondent filed two Further Amended Notices of formal hearing. These amendments were made to more accurately and consistently describe the nature and modality of treatment provided to each patient, in the light of Dr Traill's evidence, and to correct some typographical errors. Dr Traill was given the opportunity to respond, orally and in writing, to each of the allegations as amended.

7 Omitting the allegations which were found not proven by the Board (and which are referred to below as "not made out") and were not pressed at the hearing before us, the allegations as set out in the Further Amended Final Amended Notice (Amended 18 May 2006)("the Notice") were as follows:

1. That you engaged in unprofessional conduct within the meaning of paragraphs 3(1)(a) and/or 3(1)(b) and/or 3(1)(c) and/or 3(1)(d) and/or 3(1)(e) of the definition of "unprofessional conduct" in the Act, in that:

(a) During the period on or about 23 September 2000 to 27 November 2000, you failed to exercise the care and skill of a competent medical practitioner in your treatment of your patient, Ms SO, who was diagnosed in August 2000 with small cell carcinoma of the lung.

(i) In or about September to November 2000 you recommended and provided or attempted to provide to Ms SO:

(A)

whole body hyperthermia treatment; and

(B)

434 mghz microwave therapy treatment,

which treatments were unproven, and/or not beneficial nor effective in respect of small cell carcinoma of the lung, the condition from which Ms SO was suffering.

(ii) In the course of providing your treatments to Ms SO, you failed to:

(A)

provide adequate information to obtain Ms SO's informed consent for your treatments;

(B)

advise her that her withdrawal from the planned chemotherapy cycles could adversely affect her health and prognosis; and

(C)

advise her the most effective treatment for small cell carcinoma of the lung was cytotoxic chemotherapy and thoracic radiation;

(iii) You charged the Health Insurance Commission for 15 professional services for item 13915, cytotoxic chemotherapy, intravenous (less than one hour) but did not administer this treatment to your patient at all;

(iv) On or about 5 October 2000 until the end of October 2000, you prescribed lithium to the patient, an experimental treatment, administrated under your knowledge and supervision, that was unnecessary or not reasonably required in the treatment of your patient;

(v) (not made out)

(vi) You charged your patient a sum of between $6,500 -$7,000 for your treatment of the patient, which in the circumstances of the patient was excessive

(vii) (not made out)

(viii) You claimed to the patient to be an oncologist, but you did not have any formal oncology qualification or recent oncologic training;

(ix) (not made out)

(x) (not made out)

(b) Between 22 January and 9 February 2001, you failed to exercise the skill of a competent medical practitioner in your treatment of your patient, Ms ST, who suffered from recurrent cutaneous metastatic breast cancer of the right breast:

(i) In or about January to February 2001 you recommended and provided to Ms ST:

(A)

434 mghz microwave therapy treatment; and

(B)

superficial local hyperthermia treatment,

which treatments were unproven, and/or not beneficial nor effective in respect of recurrent metastatic breast cancer, the condition from which Ms ST was suffering;

(ii) In the course of your treatments, you failed to provide adequate information to obtain Ms ST's informed consent for the treatments;

(iii) You failed to forward records of your treatment of the patient, when requested by her treating surgeon in Tasmania in a timely manner. Dr Linacre requested information from you on 5 January 2001 and you replied to him on 29 March 2001;

(iv) You failed to investigate and diagnose lesions on the skin over Ms ST's right breast at the time of providing the treatment to her;

(v) You failed to obtain a biopsy and histology of the lesions;

(vi) You charged the patient the sum of $10,734.85 for treatment which in the circumstances was excessive; and

(vii) You billed the Health Insurance Commission for item 13915 for the patient on the following dates: 22-26 January 2001, 29-2 February 2001 and 5-9 February 2001 for cytotoxic chemotherapy, administration, either by intravenous push or intravenous infusion but did not administer the treatment to Ms ST.

(c) During the period on or about October and November 2001, you failed to exercise the care and skill of a competent medical practitioner in your treatment of your patient, Master TU, a five-year-old child with a malignant brain tumour, a widely disseminated anaplastic ependymoma.

(i)

In or about October to November 2001, you recommended and provided to Master TU, 434 mghz microwave therapy treatment which treatment was unproven, and/or not beneficial nor effective in respect of a widely disseminated anaplastic ependymoma, the condition from which Master TU was suffering.

(ii)

(not made out)

(iii)

(not made out)

(iv)

You provided treatment without informing, consulting or involving Master TU's treating oncologist.

8 Section 3(1) of the Act relevantly provides that "unprofessional conduct" means any of the following:

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or

(e) providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person's well-being.

9 Professional misconduct may be found in more serious cases where the Tribunal finds breach of trust, misuse of power and exploitation of vulnerability[1], or where there has been a deliberate departure from accepted standards or such serious negligence as to indicate indifference and an abuse of the privileges which accompany registration as a medical practitioner[2].

10 The most serious form of unprofessional conduct is that of infamous conduct, which involves satisfaction that the medical practitioner has in the course of medical practice acted with reckless indifference to the possible harmful consequences of his acts, or with gross incompetence, and that the conduct would be regarded by competent medical practitioners as shameful, disgraceful or dishonourable[3].

11 If the Tribunal finds that the allegations proven constitute unprofessional conduct, it should then determine whether the unprofessional conduct is of a serious nature, or not of a serious nature, pursuant to section 45A of the Act.

12 To be regarded as unprofessional conduct of a serious nature, the conduct must be a "departure in a substantial manner from the standards which might reasonably be expected" of a practitioner[4].

13 Where satisfied that the practitioner has engaged in unprofessional conduct of a serious nature, the Tribunal may make one or more determinations as set out in section 45A(2) of the Act, including: caution or reprimand the practitioner; impose a fine; or suspend or cancel registration. Where the determination is to cancel the practitioner's registration, the Tribunal may also disqualify the practitioner from applying for registration within a specified period.

14 In making a determination under section 45A(2) of the Act, the role of the Board, and of the Tribunal on review, is to protect the public and maintain the standards and reputation of the profession, not to punish the medical practitioner[5].

15 In exercising its review jurisdiction by way of hearing de-novo, the Tribunal's task is to reach the correct or preferable decision in the light of all the evidence before it. In carrying out this task, it is appropriate to consider the detailed reasons for decision of the Board, whose panel included two medical practitioners[6].

16 The nature of the inquiry to be conducted by the Tribunal is inquisitorial rather than adversarial, and the concept of the onus of proof does not apply[7].

17 We note that the Tribunal is not bound by the rules of evidence and may inform itself as it sees fit[8]. In addition, section 55 of the Evidence Act 1958 does not apply in civil proceedings where a person who might be called to give evidence is dead or unfit to attend to give evidence of factual matters contained in documents. Accordingly, it is appropriate for us to consider all of the documents tendered in support of the allegations involving Ms SO and ST.

18 Prior to the hearing, the parties filed Tribunal Books in accordance with directions given by Senior Member Davis on 12 December 2005. These were tendered into evidence during the course of the hearing, along with a number of additional documents.

19 Dr Traill gave evidence at the hearing and was extensively cross-examined. He called Professor Richard Fox to give evidence on his behalf. Associate Professor Roger MacManus, Professor Peters and Professor Scarlett gave evidence on behalf of the Board, and were cross-examined by Dr Traill.

20 It was agreed that the Tribunal would consider those parts of the transcript of the hearing before the Board upon which the parties sought to rely, as well as any viva voce evidence called at the hearing before us and any other documentary material relied upon and tendered by the parties.

21 At the conclusion of the hearing, orders were made for the filing and exchange of written submissions. The Board's submissions were received on 9 June 2006 and 31 July 2006 and those of Dr Traill on 7 July 2006 and 7 August 2006[9].

22 Ms SO was diagnosed with small cell carcinoma of the lung in late August 2000. She completed the first of four three-day cycles of chemotherapy under the care of Dr John Scarlett[10] in late September 2000, but had difficulty coping with the chemotherapy and sought alternative treatment from Dr Traill. She received one incomplete whole body hyperthermia treatment and a number of 434 mghz microwave therapy treatments between 6 October and 2 November 2000.

23 In December 2000, tests revealed that the mass in her lung had grown, and Ms SO underwent chemotherapy and radiation therapy. Unfortunately, her condition worsened and she died on 31 August 2002.

24 Ms SO lodged a complaint about the treatment given by Dr Traill with the Office of the Health Services Commissioner in February 2001 which was referred to the Board. She was interviewed in early November 2001 by an investigator employed by the Board about her complaint and treatment. However, she died before an affidavit could be finalised and sworn.

25 Ms ST was diagnosed with breast cancer in late 1996. She began chemotherapy from January 1997, and, after a lumpectomy operation in April, commenced radiation therapy as well. She also had further surgery in November 2000 and developed a skin lesion around the site of the surgical scar. Further chemotherapy was recommended by her oncologist. Ms ST was treated by Dr Traill at the Oncocare clinic from 22 January to 9 February 2001, receiving fifteen 434 mghz microwave therapy treatments each lasting 20 to 30 minutes and fifteen superficial local hyperthermia treatments, each lasting 45 minutes.

26 Ms ST's cancer recurred in March 2001 and she had further surgery and recommenced chemotherapy treatment. In April 2001, Ms ST went to Germany for two months for treatment including whole body hyperthermia, local hyperthermia and chemotherapy. Upon her return, she continued to receive treatment as advised by her specialist medical practitioners. On 23 July 2001, Ms ST complained to the Health Services Commissioner about the treatment given to her by Dr Traill. Her condition deteriorated severely from 2002 onwards and, although she gave evidence before the Board, her doctor's report dated 7 May 2006 indicated that she was receiving in-patient palliative care and was unfit to participate in the hearing before us.

27 In July 2001, Master TU was 5 years old when he was diagnosed with an anaplastic ependymoma, an aggressive form of brain cancer which in his case was untreatable. He was referred to Dr Peter Downie at the Royal Childrens' Hospital. He was also examined by another doctor there, Dr DD. Dr Downie recommended palliative chemotherapy and radiotherapy. However, the treatment did not proceed, as he was taken instead to Sydney for surgery. When he returned, a further CT scan arranged by Dr Downie revealed that the surgery had not been successful. Dr Downie planned to review him with a MRI scan of the head and spine in mid-August 2001, and to prepare a palliative treatment plan. However, Master TU's parents informed Dr Downie that they were considering alternative treatment.

28 Between 11 October and 9 November 2001, Master TU was treated by Dr Traill with 10 sessions of 434 mghz microwave therapy treatment. Master TU died on 1 December 2001.

29 In the context of cancer treatment, hyperthermia is the controlled heating of cancerous tissues to temperatures that kill the cells or make them more susceptible to destruction by other forms of treatment. Most tumour types require heating to at least 41°C before tumorous cells are killed. The number of cells killed is a function of the temperature distribution attained throughout the tumour as well as of the duration of heating. Accordingly, detailed thermometry (through the use of implanted temperature sensors or surface sensors) is required to ensure that the required temperature is achieved.

30 Hyperthermia treatment is given in three forms: whole body hyperthermia (using a Heckel tent); regional (such as for the treatment of prostate cancer); and local or superficial (directed at an area of skin). In this case, Dr Traill provided (or attempted to provide) one session of whole body hyperthermia to Ms SO. In addition, he provided superficial local hyperthermia treatment to Ms ST.

31 UHF cancer therapy exposes tumour tissues to electromagnetic radiation, delivered within the radiofrequency range of 300 MHz-300 GHz. The particular therapy relevant in this case is that of ultra high frequency ("UHF") therapy, at a frequency of 434 MHz ("434 mghz microwave therapy treatment").

32 Dr Traill's use of 434 mghz microwave therapy treatment was modelled on the protocol developed by Dr Holt in Western Australia. Dr Holt offered this treatment in combination with radiotherapy until 1991, when he lost access to radiotherapy. After 1991, Dr Holt offered UHF cancer therapy in combination with glucose blocking agents ("GBA"). It appears that no other clinician used this compound in combination with UHF cancer therapy.

33 Dr Holt hypothesised that the mechanism of action of UHF cancer therapy was not thermal, but, rather, that there was a specific radio-sensitising effect of UHF. This hypothesis has not been validated by high quality published animal or human data[11]. Dr Holt used a Tronado machine to administer the 434 mghz microwave therapy treatment.

34 In late 1974 or early 1975, a sub-committee[12] of the National Health and Medical Research Council ("NHMRC") prepared a report[13] ("the 1975 NHMRC Report") on the status of microwave therapy in the treatment of cancer as practised in Western Australia with the use of the Tronado machine.

35 The authors of the report concluded, inter alia, that the machine was "incapable of producing a cancericidal rise of temperature in any specified region within the body", that none of the machine's monitors gave any reliable information while the machine was in operation, and that use of the machine by itself produced no beneficial effects on the malignant tumours of the patients studied. Accordingly, the report recommended that the machine not be used in connection with diagnosis or treatment of malignant tumours, nor in clinical trials of hyperthermia treatment, until it was demonstrated to be capable of producing a controllable rise of temperature uniformly throughout an appropriate volume of tissue. Finally, the report concluded that the UHF therapy being used in Western Australia was "ineffective and undesirable".

36 Dr Traill never worked with Dr Holt. However, in around 2000 he acquired one of the Tronado machines from Dr Holt and followed Dr Holt's protocol in administering GBA at the same time as the 434 mghz microwave therapy treatment when treating Ms SO, Ms ST, and Master TU.

37 In September 2005, the Review Committee on Microwave Cancer Therapy of the NHMRC published its report on the use of microwave therapy for the treatment of patients with cancer ("the 2005 NHMRC Report"). The authors undertook a detailed review of 179 case notes of patients with bladder and other cancers treated by Dr Holt with radiotherapy (RT) alone or in combination with either UHF or GBA. They also conducted a detailed matching study with the Western Australian Central Cancer Registry, which compared the survival outcome of 1701 patients with seven different cancer sites treated with RT or with RT plus UHF. The authors concluded[14]:

In summary, a meticulous audit of historical patient records did not find any advantage for the addition of UHF with RT in terms of tumour response or symptomatic control. Moderate or severe toxicity was higher for patients who received UHF in addition to RT. Further, a comprehensive date matching of 1701 patients treated by RT alone or by RT plus UHF found no benefit from the addition of UHF to RT. Further, in four sub-groups of patients (breast, lung, lymphoma and prostrate) accounting for over 1200 patients, survival was significantly inferior for patients treated by RT plus UHF compared to RT alone.

There is no published scientific evidence or clinical data currently available to the Review Committee that supports the effectiveness of UHF either alone or in combination with RT or GBA treatment for cancer in humans.

39 In relation to the whole body hyperthermia treatment allegedly administered to Ms SO, Dr Traill said he recommended whole body hyperthermia to her in combination with cytotoxic chemotherapy, and not on its own, but did not perform it or charge her for it. Moreover, he did not administer whole body hyperthermia treatment to her; she only received some warming before leaving the session, and he therefore "allowed an experience in heating as a trial", knowing that the temperature reached could not provide treatment.

40 In relation to 434 mghz microwave therapy treatment, Dr Traill said that he provided the treatment using the protocols developed by Dr Holt, although he disagreed with Dr Holt's theory of the mechanism of action of 434 mghz microwave therapy. Dr Traill said he had been shown a picture of the so-called "resonance phenomenon at 434 mghz" which he believed demonstrated an effect on the tumour of the administration of UHF therapy at that frequency. Dr Traill said that it was in 2004 that he developed his own theory of the mechanism of action of the therapy, based on his concept of an athermal impact of 434 mghz microwave on the centriole of the cell. Dr Traill said he had submitted his theory of athermal delivery to the centriole to the authors of the 2005 NHMRC Report but it was ignored because it had not been published in a peer review journal.

41 Dr Traill said in his oral evidence that at the time he treated the patients, he could not say 434 mghz microwave therapy treatment was proven treatment, but that he "went largely by the claims of Holt and Spall". He agreed that when he treated the patients he knew of the 1974 NHMRC report, and that it was "unfavourable". He agreed that this treatment had not been the subject of review in any scientific centre in the world, that it is not used in any recognised cancer centre in the world, and that the 2005 NHMRC Report unequivocally concluded that there is no evidence that the treatment, either alone or in combination with GBA, has significant activity against human cancer. He agreed that he did not tell any of the three patients that his treatment differed from that delivered by Dr Holt[16] nor that there was no scientific literature to support the use of the treatment.

42 However, Dr Traill said that some of the figures in Table 44 on page 100 of the 2005 NHMRC Report supported his claim that there was some benefit associated with 434 mghz microwave therapy treatment combined with GBA.

43 In relation to the provision of 434 mghz microwave therapy treatment to Ms ST, Dr Traill said that she had no evidence of disease when she saw him and although Dr Holt had not treated patients of this kind, he could "not see any reason why it would not be effective" in Ms ST's case in helping to prevent recurrence of the tumour. He said that "photomicrographic comparisons of sections of her tumours before and after treatment indicated desirable changes". In Ms SO's case, Dr Traill said that while she was receiving such treatment, "her tumour changed only minimally, and the uric acid released increased", which in turn meant that she derived a benefit and "demonstrated an effect" of the 434 mghz microwave therapy treatment. In relation to the provision of the treatment to Master TU, Dr Traill said that the treatment has been reported to be effective in cases of malignant brain tumours; and such findings are relevant to the particular malignant tumour suffered by Master TU; that he was not being actively treated by an oncologist at the time, the treatment was "adjunctive and safe, with no significant risks by itself or in conjunction with anything active the Hospital may have done".

44 In relation to the superficial local hyperthermia treatment provided to Ms ST, Dr Traill said in his oral evidence that "she probably got to 42°C" because the skin "seemed to get hot" and that there was no scientific means to test temperature but that "usually you can get to 43°C before they start complaining".

45 In his written submissions, Dr Traill said there is evidence that superficial local hyperthermia is an accepted form of treatment for lymphangiomatous skin metastases, and that such treatment may be used alone or with cytotoxic chemotherapy. Further, he said, the evidence of Dr Peters and the Position statement relate to treatment of tumour masses which have skin over them (and are not superficial), when combined with radiotherapy, and that material was not relevant to the treatment provided to Ms ST. Finally, he said, in Ms ST's case, the results of the treatment in terms of histological changes was of nuclear forms "consistent with regressive changes - a desirable finding".

46 In relation to charging for intravenous cytotoxic chemotherapy which was alleged to have not been provided to Ms SO or Ms ST, Dr Traill said that the infusion of a glucose blocking agent at the time of 434 mghz microwave therapy treatment satisfied the definition of cytotoxic chemotherapy because it was a chemical which changed the character of the cell, and that Dr Holt in Western Australia received payments in respect of the same infusions over 10 years until Medicare ceased payments for such infusions in the light of the 2005 NHMRC Report.

47 In cross-examination, Dr Traill said that GBA did not have cancer killing potential and that it was a "primer" which "makes 434UHF "more toxic". He later said that GBA "does damage the cells in the context of UHF". He agreed that since receiving a letter from the Department of Health in May 2006[17], it was no longer possible to claim under that item number in respect of that infusion.

48 In relation to the prescription of lithium to Ms SO, Dr Traill said that he used it to stimulate the patient's immune system, and relied on two scientific articles including one published in the New England Journal of Medicine in the 1980's concerning clinical trials for patients with small cell lung cancer not having conventional chemotherapy which showed a survival advantage for patients taking Lithium.

49 In relation to the information and advice given to Ms SO, Dr Traill said in his oral evidence that he advised her to continue planned chemotherapy, along with radiotherapy, and tried to restart chemotherapy in conjunction with hyperthermia, and only proposed other treatment when she rejected cytotoxic chemotherapy. He said that Ms SO and Associate Professor McManus were liars and their evidence in relation to this allegation should be given no weight by the Tribunal. He said that he showed Ms SO the x-ray which showed a reduction in the size of her lesion.

50 In relation to the information provided to Ms ST, Dr Traill said Ms ST was advised of the nature of the treatments, and had done her own research on the 434 mghz microwave therapy treatment as performed by Dr Holt. He said Ms ST's accounts of her treatment were "false and misleading throughout".

51 Dr Traill said that the amounts charged by him for treatments provided to Ms SO and Ms ST were governed by commercial factors and were modest when compared with fees for other forms of cancer treatment here and abroad.

52 Dr Traill concluded his written submissions to the Tribunal with the following comments[18]:

The UHF has been shown to have an effect, so all allegations to the contrary drop out; the Lithium issue is a deception from start to finish; Ms SO refused treatment because she knew she was incurable and was pursuing a deception (or two) with at least one exposed collaborator; Ms ST was a perjurer, probably to obtain money for her treatments after she wrecked her survival prospects; and an academic created a storm in a teacup pursuing a "turf war" and possibly obtaining a bribe......the VCAT Panel should disregard completely the Findings and Determinations of the Panel of 2005......the VCAT panel should find that he does not have a case to answer and that he has not conducted himself at any stage in a manner which could be found or regarded as being unprofessional or infamous.

53 He submitted that the Board's experts were not "experts in the relevant fields and were biased"; and that the Board was biased and its findings and determinations should be disregarded. Ms SO's evidence should carry no weight because it was unsworn, was produced in collusion with Associate Professor MacManus and contains discrepancies indicating a "deception" involving Ms SO and the legal firms representing her and the Board. The evidence of Associate Professor MacManus and Dr Downie should be given little weight because they were hostile or biased "prosecuting complainants".

54 Dr Traill submitted that the Board "had not proved that the treatments, background knowledge and fee structures were/are wrong"[19]. He also submitted that cancellation of his registration was an excessive penalty which was not warranted in the circumstances, particularly as he was semi-retired and no longer providing hyperthermia or 434 mghz microwave therapy treatment to patients.

Are the treatments proven treatments for the conditions of the patients?

55 The weight of the expert evidence before us was to the effect that whole body hyperthermia and 434 mghz microwave therapy treatment are not proven treatments in relation to the cancers suffered by Ms SO, Ms ST and Master TU. Dr Traill agreed with this proposition. It is therefore unnecessary to fully canvas the expert evidence in these reasons.

56 Dr Traill agreed that whole body hyperthermia was an adjuvant, to be used in conjunction with chemotherapy or radiotherapy. We accept that he initially recommended whole body hyperthermia in conjunction with chemotherapy to Ms SO, but that she refused the chemotherapy at the time of the treatment. Dr Traill agreed that he allowed her to proceed to whole body hyperthermia alone, even though the session stopped after 40 minutes because she was unable to tolerate the temperature, which it appears was less than 41°C. We find that his agreement to provide whole body hyperthermia on its own amounted to an implied recommendation. Dr Traill conceded that only "warming" took place, and denied that this constituted whole body hyperthermia at all. In the light of this concession, the fact that there was no thermometry to measure the temperature reached, we accept the conclusion of Professor Peters that the treatment was ineffectual and of no benefit to Ms SO. It follows that particular 1(a)(i)(A) is made out.

57 In relation to the efficacy of 434 mghz microwave therapy treatment, we have considered all the expert material before us, including the 2005 NHMRC Report. We have given particular weight to the evidence of Professor Peters, Professor of Radiation Oncology at the Peter MacCallum Cancer Centre and the Chairman of the Peter MacCallum Cancer Foundation, in the light of his qualifications, eminence and expertise as a researcher and clinician.

58 Professor Peter's evidence before us was that there is no scientific proof of the efficacy of 434 mghz microwave therapy treatment and that such treatment has never been provided by any legitimate cancer institute in the world. Professor Peters said that scientific validation as a proven treatment required research following a very structured path involving a number of steps including pre-clinical data, in vitro studies, experimental animal studies; the construction of clinical investigation treatment protocol for testing; approval by an ethics committee; controlled experiments and publication of results. None of these had occurred in relation to 434 mghz microwave therapy treatment, which was of no proven therapeutic benefit, not a rational treatment, and therefore more appropriately described as an intervention rather than treatment.

59 We note Dr Traill's claim that the data in Table 44 on page 100 of the 2005 NHMRC Report supports a conclusion that there was some efficacy associated with 434 mghz microwave therapy treatment combined with GBA. We accept the evidence of Professor Peters and Professor Fox (who was called on behalf of Dr Traill) that the data was meaningless because they had not been obtained as part of a randomised clinical trial. In any event we note that the 2005 NHMRC report was produced a number of years after Dr Traill treated the patients.

60 We note that Dr Traill produced no coherent or scientifically rational explanation as to how the treatment in fact works, beyond his expression of an untested hypothesis and production of photographs said to demonstrate "the resonance phenomenon". Even if he had been able to produce a compelling scientific hypothesis, such a hypothesis would have to be tested and validated according to the usual scientific principles before the treatment expounded therein could be administered to patients in a routine clinical setting.

61 The weight of the expert evidence before us is to the effect and we therefore find that 434 mghz microwave therapy treatment as provided by Dr Traill is of no proven benefit in the treatment of cancer, and is not used in conventional cancer treatment. It follows from this conclusion that none of the matters relied upon by Dr Traill, including extracts of scientific articles, or documentation in relation to the patients' conditions allegedly establishing efficacy of his treatment, can take the matter any further. We note in any event that this documentation was reviewed by Professor Peters and Associate Professor MacManus and found not to be supportive of his claims.

62 The weight of the expert evidence was also to the effect that the 434 mghz microwave therapy treatment was inappropriate for Master TU, provided no benefit to any of the three patients, and in the case of Ms SO, disadvantaged her by diverting her for some time from chemotherapy which might have enhanced her chances of survival[20]. We will return to the significance of this evidence later in these reasons.

63 As 434 mghz microwave therapy treatment was unproven in relation to the treatment of the conditions suffered by Ms SO, Ms ST and Master TU, and of no benefit to them, it follows that we find that particulars 1(a)(i)(B), 1(b)(i)(A) and 1(c)(i) are also made out.

64 According to the expert evidence of Dr Roslyn Drummond given before the Board, local hyperthermia treatment is not considered standard treatment of breast cancer anywhere in the world, and is to be regarded as experimental only[21]. The only proven benefit of local hyperthermia in the treatment of breast cancer is where used in addition to local radiation therapy for an advanced primary or local chest wall recurrent breast cancer. She cited a 1996 report of five randomised phase III trials evaluating the advantage of hyperthermia in addition to local radiation therapy for an advanced primary or local chest wall recurrent breast cancer with complete response as the end point. In those trials, the addition of hyperthermia to local radiation improved the overall complete response rate over local radiation alone. She concluded that the use of clinical hyperthermia in treatment of breast cancer remained experimental treatment, but that institutions having access to appropriate specialised equipment may continue to use it as an adjunct to radiation in particular clinical circumstances.

65 Dr Drummond said in her evidence before the Board that the essence of providing hyperthermia was to monitor and ensure that the appropriate temperatures were being reached. She said that this would involve use of surface thermistors and implanted thermocouples in a grid around the area to be heated. She acknowledged that the implanting of thermocouples was not practicable for patients because of the discomfort involved, and that the problem of ensuring proper thermometry was one reason why hyperthermia had not been adopted by oncologists.

66 According to Professor Peters, hyperthermia treatment could be of no measurable, and thereby, proven, benefit without a record of: the patient and site characteristics; thermometry and sensor locations to the tumour site during treatment; equipment coding and operation. He said there also needed to be evidence of maintenance and calibration of hyperthermia equipment; toxicity evaluation in respect of the patient; and follow-up evaluation of the patient. Professor Peters' evidence was supported by the Position Statement produced by the Australian and New Zealand College of Radiologists in 2003[22].

67 Professor Peters concluded that the local hyperthermia treatment given by Dr Traill to Ms ST did not meet these requirements and in any event was of no effective benefit to her. Professor Peters and Dr Drummond told the Board that before and after photomicrographs were meaningless as an indicator of clinical benefit. Dr Drummond told the Board that treatment of a few millimetres into the skin surface would not necessarily control a tumour, and that failure to treat the deeper tumour would lead to further local recurrences.

68 We prefer the evidence of Professor Peters and Dr Drummond to that of Dr Traill in this regard and find that superficial local hyperthermia alone in the manner provided by Dr Traill was not a proven treatment in the treatment of Ms ST's condition, and could not have been of benefit to her in the manner provided. Accordingly, we find that particular 1(b)(i)(B) is made out.

Did Ms SO and Ms ST give informed consent to the treatments?

69 It was alleged that Dr Traill failed to give Ms SO adequate information to obtain her informed consent for the whole body hyperthermia treatment and 434 mghz microwave therapy treatment, that he failed to advise her that withdrawal from her chemotherapy treatment could adversely affect her health and prognosis, and that the most effective treatment for her condition was chemotherapy and radiotherapy.

70 Dr Traill relied on the terms of two documents executed by Ms SO on 5 October 2000 entitled "Deed of Acknowledgement Informed Consent and Indemnity" ("Deed") and "Addendum to Informed Consent, Understanding and Indemnity" ("Addendum"). Paragraph 1.2 of the Deed distinguishes the treatment offered by OncoCare from "other modes of therapy for cancer", including chemotherapy and paragraph 1.3 states that the treatment regime offered by the OncoCare Clinic is "NOT held out as a cure and that in the opinion of the majority of mainstream medicine, particularly oncologists in Australia, this therapy is regarded as being of little or even no value in the treatment of my cancer".

71 Ms SO's evidence was that Dr Traill told her she could not be seen by two doctors, such as Dr Scarlett and Dr Traill, at once. Dr Traill agreed that he told Ms SO she had to choose between doctors, although he insisted he told Ms SO she could seek Dr Scarlett's consent to the treatment. Both Ms SO and Dr Traill agreed that Ms SO elected not to continue seeing Dr Scarlett.

72 On the expert material before us, we find, as did the Board, that once Dr Traill knew Ms SO was no longer seeing Dr Scarlett or another medical practitioner for advice about conventional treatments, including chemotherapy and radiotherapy, he could not rely on the terms of the Addendum in relation to obtaining informed consent. We also consider that it was necessary for Dr Traill to ensure that Ms SO understood the consequences which could flow from the decision to cease chemotherapy.

73 Dr Traill insisted that he recommended that Ms SO have chemotherapy. However, his evidence before us demonstrates that he accepted her refusal with alacrity and did not try to persuade her to reconsider chemotherapy. Moreover, Dr GG said that when he talked to Dr Traill about Ms SO by telephone in February 2001, he received the impression that Dr Traill did not realise Ms SO's disease was potentially curable. Dr GG also relayed a conversation with Ms SO in which she described her understanding that the treatments proposed by Dr Traill were mainstream and not completely unproven.

74 In cross-examination about this conversation before the Board, Dr Traill said he believed that Ms SO had rejected chemotherapy and so was thereafter a palliative patient. Ms SO's evidence was that he did not recommend chemotherapy, and in particular that he did not tell her about chemotherapy offering a chance of long-term remission. Dr Traill's evidence to the effect that he intended to ease her into chemotherapy after gaining her confidence through the whole body hyperthermia, also suggests that he did not give Ms SO clear and direct information about the value of chemotherapy.

75 In addition, Dr Traill did not claim to have separately and clearly spelled out to Ms SO the effects of 434 mghz microwave therapy treatment. Ms SO said in her statement to Dr Middleton that she understood the 434 mghz microwave therapy treatment was additive and was included in the regime as a favour to her. Dr Traill agreed that on his invoices both whole body hyperthermia treatment and 434 mghz microwave therapy treatment were referred to as hyperthermia. His explanation for this[23] was that this was what patients could understand.

76 Dr Traill made scathing accusations about the credit of Ms SO and Dr GG, but produced no evidence to substantiate them. While we accept that Dr Traill may have recommended chemotherapy to Ms SO, we consider that the information and advice provided to her fell far short of that which ought to have been provided to such a vulnerable patient with a treatable cancer who was no longer receiving chemotherapy, but who nonetheless relied on the treatment provided by Dr Traill as being of therapeutic benefit in the treatment of her cancer. On the basis of all the material before us, we consider that particulars 1(a)(ii)(A),(B) and (C) are made out.

77 In her affidavit, Ms ST said that after surgery in late November 2000, her oncologist recommended more chemotherapy. However, she had read about hyperthermia treatments and sought referral for this treatment to the OncoCare Clinic. The referral to that clinic was for "radiowave hyperthermia treatment". Ms ST signed a Deed with the same wording as that signed by Ms SO. Ms ST's evidence[24] suggests that she was aware of the nature of the treatment, and consented to "hyperthermia" treatment. Her evidence was to the effect that she was told by Dr Traill that the treatment to be administered was that used by Dr Holt, and that it was experimental. She said she was told that whole body hyperthermia was usually given with chemotherapy, but "Dr" Spall[25] told her she had developed chemical sensitivity due to previous chemotherapy, and it would not be advisable to have more chemotherapy. Regional and local microwave therapy were recommended to her. She understood that they were to be given as an alternative to radiation and chemotherapy, but that the treatments would be effective in preventing recurrence of the cancer. She told the Board she would have liked to have received more information about the effectiveness of the treatment.

78 Dr Drummond told the Board[26] that a local recurrence in the surface of the skin usually indicated the presence of a tumour in the deeper structures, and while superficial local hyperthermia for treatment of the skin surface may control the surface skin ulceration, a failure to treat the deeper tumour would lead to further local recurrences. Professor Peters told the Board[27] that without the use of surface thermistors and implanted thermocouples in a grid around the area that was being heated there was no way of knowing what thermal dose was being imparted to the patient. At the very least, he said, surface thermistors should have been used, as they involve no discomfort for the patient. He said that in the scientific literature, it was clear that where thermometry was not done properly there were poorer results in terms of tumour control and unwanted complications.

79 On the material before us, we consider that Ms ST consented to the administration of a treatment known as local hyperthermia. However, we consider that she was not given adequate information about the proposed method of administration to enable her to give informed consent. In particular, she was not informed that the treatment would not prevent recurrence of tumour (as opposed to further skin ulceration), nor that no thermometry would be in place to measure and monitor the thermal dose being administered to her, nor that the equipment being used could not be demonstrated to be directed to the appropriate area, nor that there was no scientific rationale underpinning the administration of the treatment.

80 In the light of our earlier findings about the adequacy of information given to Ms SO about 434 mghz microwave therapy treatment, and our finding that the treatment was not proven in relation to Ms ST's condition, we consider that the information given to Ms ST about this treatment was inadequate to obtain her informed consent. We therefore find that particular 1(b)(ii) is made out.

81 Dr Traill said that he billed the Health Insurance Commission for item number 13915 in respect of the GBA administered to Ms SO and Ms ST in conjunction with the 434 mghz microwave therapy treatment. He submitted that GBA fell under the category of 'cytotoxic chemotherapy' administered by intravenous infusion because it changes the character of cells and because it was a chemical. He submitted that Dr Holt had used GBA for 35 years and had successfully claimed payment from the HIC.

82 We reject Dr Traill's submission in this regard. We note that in his correspondence with Ms SO concerning the cost of proposed treatment, item No 13915 was referred to as an infusion. We also note that in cross-examination Dr Traill said that GBA does not have cancer killing potential itself, and is a "primer" which "makes 434 more toxic". Later in cross-examination, he said that GBA "does damage cells in the context of UHF", but agreed that by itself, it had no significant effect on cancer cells. However, he agreed that he did not tell Ms SO that he was claiming for chemotherapy. This is consistent with Ms SO's evidence, with his treatment notes which are blank under the column set aside for details of chemotherapy, and with the complete absence of reference to GBA as chemotherapy in his correspondence with the Board.

83 Each of the experts who gave evidence before the Board denied that GBA could be described as having any therapeutic effect on cancerous cells. In our opinion, the term chemotherapy can only refer to a substance or treatment which has a proven therapeutic effect on cancerous cells. This conclusion was echoed by Dr Jane Cook on behalf of the Medical Benefits Branch of the Department of Health and Ageing[28] who said that the service for the infusion of GBA was not eligible to be claimed under item 13915 as the drugs "were not cytotoxic chemotherapy agents; special precautions were not required for their administration; and the safety, effectiveness and clinical relevance of the drug infusions was unknown"

84 We therefore find particulars 1(a)(iii) and 1(b)(vii) are made out.

85 The weight of the expert evidence, which we accept, was to the effect that at the time she received treatment from Dr Traill Ms SO ought to have been receiving chemotherapy and radiation therapy in order to maximise her chances of survival. We also note the apparent belief of Ms SO that the treatment from Dr Traill was intended to treat her illness, and was more than palliative. We have found that the consent obtained from Ms SO in relation to all treatments given was inadequate, that none of the treatments were proven in relation to her condition, and that the 434 mghz microwave therapy treatment was not beneficial or effective. We also note that Ms SO had to go to some lengths to access her superannuation funding in order to pay for treatment by Dr Traill. In the light of these conclusions, we consider that the charges for the treatments administered by Dr Traill were excessive.

86 In relation to the fees charged to Ms ST, Dr Traill said that the amount was not excessive given the amount spent by Ms ST on treatment in Germany. Having regard to our conclusions that the treatments were unproven in relation to her condition and were of no beneficial effect to her, and that she did not give informed consent to the treatments for which she was charged, we consider that the charges for the treatment were excessive.

87 It follows that particulars 1(a)(vi) and 1(b)(vi) are made out.

88 Dr Traill said at the hearing before us that he prescribed lithium for Ms SO as an immune stimulant on the basis of two published articles in the 1980's which attributed a survival advantage to patients with small cell lung cancer who were treated with lithium.

89 The experts who gave evidence before the Board said that lithium had no beneficial effects in cancer treatment. Those who appeared at the hearing before us gave evidence to similar effect. Professor Fox said that lithium is not used in the treatment of cancer. Dr Scarlett said he had never heard of its use in the treatment of small cell lung cancer. Professor Peters said that prior to the development of GSF as specific growth factors, lithium had once been used to assist recovery of bone marrow after chemotherapy, but is no longer used for that purpose. He said that lithium had no proven efficacy as an anti-cancer agent.

90 We prefer the evidence of the experts to that of Dr Traill in this regard. We accept the evidence of Professor Peters that the article relied upon by Dr Traill[29] was completely irrelevant to the assessment of the therapeutic benefit of lithium on cancer.

91 We therefore find that particular 1(a)(iv) is made out.

Did Dr Traill claim to Ms SO that he was an oncologist?

92 It is clear on the material before us that Dr Traill claimed to be an oncologist. Dr Traill agreed that he described himself as a pathologist-oncologist.

93 According to his Curriculum Vitae, Dr Traill holds an MB BS (1963) from the University of Melbourne and has been a Fellow of the Royal College of Pathologists of Australasia since 1971. From 1965 to 1969, he worked as a medical officer in the department of Pathology at the Repatriation General Hospital. During that time, he published some medical-scientific papers alone and in association with Dr Roy Bean. He also attended the Haematology/Oncology Outpatients Clinics of Dr Bolton and Dr Bean, and said he "effectively ran Haematology for several years".

94 He was a consultant pathologist at the Mental Health Authority at Royal Park, Willsmere and Mont Park between 1969 to 1975. He worked in private practice as a pathologist from 1975 until the late 1980's. He was employed at the OncoCare Clinic from April 2000 until it closed in 2003.

95 In his materials Dr Traill claimed to have had "extensive training under a consultant physician oncologist", and said his qualification as a Fellow of the Royal College of Pathologists of Australasia involved "formal postgraduate training in the study of all aspects of cancer". Further, he submitted that Oncology is an "interest sub-classification within the Colleges of recognized specialties", and radiation oncologists and medical oncologists do not have an exclusive right to use the term.

96 The expert evidence before us (as well as before the Board) was to the effect that oncology is a specialist area of practice and not merely an area of special interest as claimed by Dr Traill, and that this is reflected in recognition by the Health Insurance Commission, by the College of Physicians and by the Colleges of Radiology and Surgery. Having regard to the expert evidence, and to the evidence of Dr Traill, we have concluded that Dr Traill does not have the qualifications or training which qualified him to be considered a specialist oncologist. Nor do we consider that his extensive training and experience in pathology can be said to be the equivalent of the qualifications and training necessary for an oncologist.

97 We agree with the Board[30] that in the eyes of patients, the term "oncologist" suggests that a medical practitioner has specialist knowledge of the particular disease, has experience in the treatment of that disease, and recommends proven or recognised treatments for that disease. In our opinion, Dr Traill does not have the qualifications, training and experience in the treatment of cancer as would justify describing himself an oncologist.

98 Dr Traill said at the hearing before us that he used the description oncologist to describe his special interest in oncology. He said, however, that he deferred to medical oncologists, and that his "level of oncology is lower than those who treat patients", that he was dealing with "patients who were not having treatment" and that he was "operating at a lower level". There is in our view no place for such a lower standard to be provided, much less defended, by a medical practitioner claiming to be a specialist. According to the experts who gave evidence before us, standard treatment for cancer patients in this State is by highly specialised, highly trained and expert, multi-specialist treating teams at major teaching hospitals. Treatment of child cancer patients is even more specialised, with multi-disciplinary treatment and palliative care co-ordinated and monitored by the Royal Children's Hospital. In this context, we find that there is no basis upon which Dr Traill can lay claim to holding the appropriate qualifications, training and expertise of an oncologist.

99 We therefore find that particular 1(a)(viii) is made out.

100 In relation to the late forwarding of information to Ms ST's treating surgeon, Dr Traill said he could not provide confidential reports to Dr Linacre, who was not the referring Doctor, until authorised to do so by Ms ST on 1 March 2001, but on 8 March he did send Dr Linacre a copy of a letter written to Dr Cooper saying that further chemotherapy and/or radiotherapy would be best managed in Tasmania, and he sent a longer letter on 28 March to Dr Linacre. We consider that Dr Traill did not respond to the correspondence in a timely manner. However, we agree with the conclusion reached by the Board that in the circumstances this conduct does not amount to unprofessional conduct.

101 In relation to failing to investigate and diagnose right breast skins lesions and failing to obtain a biopsy and histology of Ms ST's lesions, Dr Traill said that the referring letter to Dr Traill did not instruct him to take over Ms ST's medical management, there was no urgency to obtain a biopsy at the time, and her medical carers in Tasmania were best placed to arrange for investigation and follow-up treatment.

102 Dr Drummond told the Board[31] that any skin change in a mastectomy area needed to be investigated and that early diagnosis of a skin lesion is an advantage in terms of maximising treatment options. She said the urgency depended really on the circumstances, including the patient's need for information. Professor Peters also expressed the view that it was important that a biopsy be obtained[32].

103 We are also satisfied that Dr Traill failed to obtain a biopsy and histology of the lesions. However, we agree with the Board's conclusion that while the particulars are made out, the conduct does not amount to unprofessional conduct, given that Dr Traill was providing only limited forms of treatment to Ms ST and had not taken over Ms ST's care, and that Ms ST's treating doctors did not perform a biopsy until March 2001.

104 Master TU's treating doctors, Dr DD and Dr Peter Downie, are highly qualified experts in the treatment of cancer in children. According to their evidence, Master TU suffered from anaplastic ependymoma, a highly malignant and progressive brain tumour. This was a rare condition which should only be treated by suitably trained experts such as a paediatric oncologist. Dr DD and Dr Downie both told Master TU's parents that Master TU was likely to die from the condition, but that treatment in the form of chemotherapy and radiotherapy could improve the quality of his life, and possibly prolong it. Both doctors agreed that his condition was incurable by surgery. Both doctors agreed that the Royal Children's Hospital was best placed to coordinate and provide treatment and palliation to Master TU. Both doctors agreed that 434 mghz microwave therapy treatment had no place in the treatment of Master TU's condition, and that there was no evidence that such therapy could prolong his life or improve his quality of life. Professor Peters said that Master TU's condition was terminal and 434 mghz microwave therapy treatment was inappropriate in the circumstances.

105 Dr Traill said he had never treated this condition before, and that his aim in providing 434 mghz microwave therapy treatment was to alleviate symptoms and possibly prolong life. He conceded that there was no basis upon which he could demonstrate that the therapy had prolonged Master TU's life. He said that Master TU's parents wanted the 434 mghz microwave therapy treatment and he gave it to them. He said it might help the family, who wanted to get Master TU to a thrill park. He denied that travel to and from Warragul each day for treatment was onerous for Master TU and the family, although Dr DD said that palliative treatment at the Royal Children's Hospital would have included accommodation for the family.

106 We are satisfied on the basis of Dr Traill's willingness to offer 434 mghz microwave therapy treatment to Master TU that he recommended such treatment to him. We are also satisfied on the evidence that the treatment was unproven in relation to Master TU's condition, whether as therapeutic treatment or as palliative treatment, and that there is no basis upon which to conclude that the treatment had any beneficial effect, although Dr Traill expressed the belief that it did have such an effect. We find that particular 1(c)(i) is made out and that the conduct was unprofessional conduct.

107 The Board found that particular 1(c)(iv) was made out but that the conduct did not amount to unprofessional conduct because Master TU's referring doctor and Dr Downie knew that he was seeing Dr Traill. We consider the weight of the expert evidence to be that best available treatment and palliation for a patient such as Master TU would have been by the multidisciplinary team available at the Royal Children's Hospital. However, we agree with the Board's conclusion that in the circumstances of this case, that although particular 1(c)(iv) is made out, Dr Traill's conduct did not constitute unprofessional conduct.

108 We have found that all the particulars have been made out, but we are not satisfied that the conduct proven in particulars 1(b)(iii), (iv), (v), and 1(c)(iv) amounts to unprofessional conduct within the terms of section 3(1) of the Act.

109 We are satisfied that in respect of the remainder of the conduct found proven that such conduct constitutes unprofessional conduct. We note that the conduct involved recommending and administering a number of unproven and ineffective treatments to three vulnerable patients. We note that in relation to two of the patients, the conduct includes failing to give adequate information to enable them to give informed consent to the treatments provided, excessive charging of fees for the treatments; and charging the HIC for so-called chemotherapy. We also note that in relation to one of the patients, Dr Traill represented himself as an oncologist, and that he maintained his entitlement to do so throughout the hearing before the Tribunal. Finally, we note that the conduct involves prescribing a drug (lithium) which has no therapeutic value in the treatment of cancer, to a cancer patient, for the purpose of treating her cancer.

110 We found Dr Traill's conduct and attitude very disturbing in a number of respects. He acknowledged that there is no scientifically proven basis for claiming an effect of 434 mghz microwave treatment on cancer cells, and that his use of such treatment was experimental, but defended his administration of such treatment to cancer patients on the basis that he believed it had a therapeutic effect, or, at least, a palliative effect, or, failing that, some unidentified beneficial effect, or that the patients asked for it, or were dying anyway, or that it would not do any harm. He agreed that it was while treating Ms SO that he decided to try to measure uric acid levels to establish that one of the treatments, 434 mghz microwave therapy treatment, had "some effect". The experts agreed that measuring uric acid levels was completely useless as a tumour marker.

111 In relation to the provision of whole body hyperthermia to Ms SO, we consider that Dr Traill behaved inappropriately in allowing a session of treatment that he knew to be ineffective to occur on the basis that this would enable him to persuade her to resume chemotherapy.

112 We also consider that Dr Traill failed to acknowledge the importance of his role in fully informing his vulnerable patients about the proven medical treatments that were available to them and appropriate for them in the context of explaining the treatments he proposed, including the extent to which they were unproven and the fact that there was no way of telling what temperatures the equipment being used to administer the treatment was delivering to the particular areas of the body, nor whether any benefit would be derived from them. We found Dr Traill's claim that his patients "were not especially vulnerable" to be indicative of his lack of training in the clinical treatment of cancer patients, and his lack of insight into his deficiencies as a clinician.

113 We consider that Dr Traill engaged in unprofessional conduct in the sense of sub-paragraphs (a) and (b) of the definition of unprofessional conduct in section 3(1) of the Act, in that it was conduct of a lesser standard than that which is reasonably expected of a registered medical practitioner both by the public and by his peers. In addition, we are satisfied that the conduct was unprofessional also in the sense of sub-paragraph (c) of the definition of unprofessional conduct, in that he provided health services which were excessive, unnecessary or not reasonably required for each patient.

114 In claiming to be an oncologist, recommending and administering unproven treatments to the patients, failing to inform them adequately of the proposed treatments, wrongly characterising infusions as chemotherapy and charging for them on that basis, as well as charging excessive fees for the treatments, we consider that Dr Traill's conduct represented a deliberate and sustained departure from accepted standards, and portrayed indifference and an abuse of the privileges which accompany registration.

115 Dr Traill lacked insight into the vulnerability of his patients. He knew the theory propounded by Dr Holt had not received scientific validation such as to lay the foundation for it to be considered standard medical treatment. He knew his own theory of the centriole, developed only in the course of treating his patients, had not been subjected to any scientific scrutiny as would give 434 mghz microwave therapy treatment legitimacy as standard medical treatment. He nonetheless ignored the requirement of all medical practitioners to practise evidence-based medicine and to recommend and administer proven standard medical treatments to patients in accordance with the standards of practice required of the whole profession. To the extent that he conceded that his interventions were adjunctive, it was his obligation to ensure that they were administered not in lieu of but in addition to the best standard medical treatment available to his patients. Instead, he practised in a scientific vacuum, administering experimental treatments to patients with life-threatening illnesses. In our view, the conduct amounted to professional misconduct. We are therefore also satisfied that Dr Traill's conduct amounts to unprofessional conduct as defined in sub-paragraph (c) of the definition of unprofessional misconduct in section 3(1) of the Act.

116 We also consider on the material before us that the unprofessional conduct of Dr Traill was of a serious nature, in that it was not trivial, nor of momentary effect, but rather constituted a departure in a substantial manner from the standards expected of a medical practitioner. The public relies on medical practitioners to practise medicine which delivers best available proven medical treatments to all patients, particularly to vulnerable patients such as cancer patients and children with cancer. The public also relies on the adherence of all medical practitioners to the standards required by the profession.

117 The role of the Tribunal, standing in the shoes of the Board, is to protect the public and maintain standards of the profession[33]. The factors relevant to the decision as to the appropriate determination include the likelihood of repetition of the conduct, the need to signal to the practitioner and to the public the seriousness of the practitioner's departure from professional standards, and the need to signal to other practitioners and to reassure the public that a certain type of conduct is not professional conduct[34].

118 We note that the majority of the Board's Panel considered it appropriate to cancel Dr Traill's registration for two reasons. The first was that Dr Traill did not accept that he had acted unprofessionally at all, notwithstanding the evidence from his peers in relation to the treatment provided by him. The second was that Dr Traill gave the Board no confidence that he would not administer other unconventional treatments if he believed they would have an effect. For this reason, the Board was not confident that a period of suspension would have any impact on the approach Dr Traill would take as and when he resumed the practice of medicine[35].

119 We note that in his evidence before the Board, Dr Traill said that he was semi-retired, and not currently treating any cancer patients, nor providing the treatments which were the subject of the Notice. He had not been able to make claims on Medicare for three years up to September 2005, but had continued acting as a specialist clinician treating around 20 patients, including those with WorkCover claims, victims of crime and patients requiring pain management. He said he practised from home and had around 10 hours per week of patient contact, and that he practised as a specialist "in aspects of disease and the treatment" and said he was "in a better position to investigate, initiate treatments and follow up treatments than many other practitioners". We note that Dr Traill produced to the Board a number of testimonials from patients expressing their gratitude for his attention and treatment over some years.

120 One medical member of the Board accepted that Dr Traill genuinely believed he was offering the patients some solace, and that there was little evidence that Dr Traill's treatment adversely affected the final outcome of the patient's illnesses, except perhaps in the case of Ms SO. On this basis, that member concluded that cancellation of Dr Traill's registration was not warranted given that Dr Traill was no longer practising at the OncoCare Clinic, nor administering the microwave therapy treatments the subject of the Notice.

121 We note that Dr Traill has given no clear indication to us that he would not practice other forms of unconventional medicine if he believed they would have an effect. We also note that the reasons given by him to the Board for no longer offering the treatments the subject of the Notice was that he was semi-retired and since the OncoCare Clinic closed, there was no market for the treatments in Victoria. There was no admission by him, either before the Board, or before us, that the treatments were inappropriate.

122 We consider it essential to the protection of the public, and particularly of patients in the community, as well as to the maintenance of public confidence in the standard of medicine practised by medical practitioners, that registered medical practitioners provide standard proven best available medical treatment to their patients, and that they not test their theories on patients (nor charge for such treatments) except in accordance with approved scientific research protocols.

123 We have considered carefully whether in all the circumstances of this case we could be satisfied that it would be sufficient, in order to protect the public and maintain standards of the profession, to place conditions on Dr Traill's registration such that, for example, he confine himself to the practice of pathology, for which he is qualified and in respect of which he has experience until the late 1980's. We have concluded on the material before us that such a course would not be appropriate

124 Having regard to Dr Traill's defence in this proceeding, his lack of insight into his conduct, his ignorance of or contempt for the process of scientific verification and clinical validation of theories which is the hallmark of modern evidence-based medicine, his disregard for the standards set by his peers for the treatment of cancer patients, and his refusal to acknowledge

his duty to conform to the standards required by the profession, we consider it appropriate in the circumstances to cancel his registration, in order to protect the public, to maintain the standards of the profession, and to protect the community's confidence in the profession. We acknowledge that there will be some adverse impact of cancellation of his registration upon his capacity to earn income, but consider that this is outweighed by the necessity to protect the public from any such further conduct by him, and by the necessity to signal to the public and to other members of the profession that the profession considers such conduct unacceptable. We consider that it is appropriate pursuant to section 45A(2)(i) of the Act to disqualify Dr Traill from applying for registration under section 5 of the Act for a period of 3 years.

125 We also consider it appropriate to reprimand Dr Traill for his conduct pursuant to section 45A(2)(c) of the Act.

126 It follows that the decision under review is affirmed.

[1] See Richter v Walker, Unreported, NSW Court of Appeal 15 June 1993.

[2] See Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 at 200.

[3] See Basser v The Medical Board of Victoria [1981] VicRp 88; [1981] VR 953 at 968.

[4] See Kellam J in Parr v Nurses Board of Victoria (1998) 16 VAR 118.

[5] New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177.

[6] Aavelaid v Dental Board of Victoria [1999] VSC 54; and Ha v Pharmacy Board of Victoria [2002] VSC 322.

[7] Bausch v TAC (1996) 11 VAR 117 at pp.136, 138.

[8] s.98, Victorian Civil and Administrative Tribunal Act 1998.

[9] In his further written submissions dated 7 August 2006, received well after the final date for the receipt of written submissions, Dr Traill submitted that Exhibit E should not be considered by the Tribunal. In the light of his objection, we have not considered that Exhibit.

[10] Consultant physician of haematology, medical oncology and palliative care at the Latrobe Regional Hospital.

[11] See 2005 NHMRC Report, p.2.

[12] The Therapeutic Methods (reference) Sub-Committee.

[13] The report was entitled: "Report on the present status of microwave therapy in the treatment of cancer as currently practised in Western Australia", and was presented to the Commissioner of Public Health, Western Australia.

[14] At page 106.

[15] At page 7.

[16] According to p.180 of the 2005 NHMRC Report, Dr Holt considered that the combination of glucose blocking agents and UHF treatment was unlikely to be of benefit to patients with active disease, those who had received carboplatin in the previous three months, or those with tumours larger than 2 cms in diameter. Ms SO received carboplatin in her first cycle of chemotherapy treatment from 25-27 September 2000. Master TU had active disease consisting of multi-focal lesions in the brain stem and pons.

[17] At page 48 of Exhibit 10.

[18] At page 75 of his volume of final written submissions.

[19] At page 76 of his volume of final submissions to the Tribunal.

[20] According to the expert evidence before us, Ms SO had the prospect of cure of small cell lung cancer at the time she was treated by Dr Traill. That prospect ranged between 10% to 15% (or a little better) according to Dr Scarlett, or up to 20% or more according to Associate Professor MacManus. Even Professor Fox agreed that Ms SO had shown a clear responsiveness to the first cycle of chemotherapy and that completion of the recommended cycles of chemotherapy might have put her in the category of patients with a good prospect of total remission

[21] T265.

[22] The Position Paper concluded that the effective and safe administration of hyperthermia required: administration with radiotherapy in a level 5/6 tertiary referral oncology hospital; a comprehensive quality assurance programme; a properly constituted hospital based radiation safety committee; written departmental protocols for treatment; a senior radiation oncologist with experience in hyperthermia administration, and a clinical team including radiation therapists and nursing staff with regular documented COD and competency assessment; and qualified medical engineer support with experience in ultrasound, microwave, EMG generation and thermometry.

[23] In his letter to the Board dated 26 December 2001, Exhibit 9, Tab 13.

[24] See T71-72, 193.

[25] Whom she described as Dr Traill's assistant. Mr Spall is not a registered medical practitioner in Victoria.

[26] T271-273.

[27] T24-28.

[28] Pleadings Volume A, p 48.

[29] A paper by Hager and others relating to the effects of Lithium carbonate on haematopoietic cells in patients with persistent neutropenia.

[30] See page 44 of its reasons for decision.

[31] T281-2.

[32] T431, as it is not possible to make a clinical diagnosis of cancer.

[33] See New South Wales Bar Association v Evatt (1968) 11 CLR 17.

[34] See Craig v The Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545; Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637.

[35] See the Board's reasons at page 69.