This case considered if the practitioner posed a serious risk to persons and whether the Tribunal should make a prohibition order under s 113(4) of the Health Ombudsman Act 2013 (Qld).

Background Facts

The Respondent was a provider of health services in Warwick Queensland, and practiced as an equine chiropractor and alternative healer using Neuro Emotional Technique. The Respondent was previously a registered chiropractor in Queensland, surrendering his registration on 7 August 2015. On 2 November 2015, a complaint was made that the Respondent was holding himself out as a chiropractor despite not being registered as such, and that he was promoting a remedy for treating Hendra virus that was 'clearly unfounded and spurious'. The Australian Health Practitioner Regulation Authority issued a notification to the Respondent that he may have practiced, used the title, or held himself out to be a chiropractor and, further, advertised a regulated health service that was false, misleading or deceptive or was likely to be deceptive in a way that created unreasonable expectations of a beneficial treatment.

The Office of the Health Ombudsman issued an interim prohibition order on 24 November 2015, which prevented the Respondent from: a) advertising or promoting any alternative remedy or treatment to Hendra Virus; (b) supplying any alternative remedy or treatment to Hendra virus; or c) administering or recommending the administering of any alternative remedy or treatment to Hendra virus to any human or animal.

There were four grounds relied on by the Health Ombudsman in the referral to the Tribunal for the making of an order, those being:

  1. the advertisement and promotion of an alternative product to the medically recognised Hendra vaccine (being plain bottled water with a handwritten label);
  2. the Respondent supplied the alternative product to consumers for a fee between 1 January 2013 and 1 January 2015;
  3. The Respondent continued to maintain the effectiveness of the alternative product, and then asserted that the product could also be used to treat other illnesses, and that he would continue to supply the alternative product if no order was made restricting it; and
  4. the Respondent's conduct constituted a breach of the Australian Charter of Health Rights in that he failed to provide safe and high quality health services. The parties filed affidavit evidence, include an independent expert report by the Health Ombudsman, and the matter proceeded by way of a hearing on the papers.

Findings

The Tribunal considered whether the Respondent posed a serious risk to persons, for the purposes of s 113 of the Health Ombudsman Act 2013 (Qld). The Tribunal found that the Respondent's conduct fell squarely within the type of conduct covered by s 113. Further, throughout the proceedings the Respondent continued to maintain the claim that his alternative products were an effective treatment to, or prevention of Hendra virus and other illnesses such as German measles and chicken pox, while also claiming that a similar alterative product could be used to treat snake bites, herbicide and pesticide poison, and paralysis ticks. The Tribunal found that those claims had the potential to place the public at risk through reliance on the claims and the failure to effective vaccinate and protect themselves otherwise. The continuance of such conduct posed a serious risk to persons.

Sanction

The Tribunal found that:

  1. Pursuant to section 113(1) of the Health Ombudsman Act 2013 (Qld), Mr Esdaile is found to pose a serious risk to persons.
  2. Pursuant to section 113(4) of the Health Ombudsman Act 2013 (Qld), Mr Esdaile is prohibited from advertising, promoting and/or supplying any remedy, vaccine and/or treatment, which is not recognised and endorsed by conventional science-based medicine, for any of the following in respect of humans:
  • Hendra virus, chicken pox, German measles, and other infectious viral ailments;
  • Snake bites;
  • Herbicide poison, pesticide poison;
  • Paralysis ticks; and
  • Other poisons or substances toxic to humans.
  • Each party bears their own costs.