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Legislation


Health Practitioner Regulation National Law 2009 (NSW)
The National Law regulates the use of protected titles and prevents the use of titles that would be reasonably expected to induce a belief that a person is a registered practitioner: National Law, s 113. Nor can a person claim to be a ‘registered health practitioner’ unless they are registered under the Law.

Health Care Complaints Act 1993 (NSW)
Under s 41A, the New South Wales Health Care Complaints Commission (NSWHCCC) can order an unregistered practitioner to act with conditions on their practice, or may ban them from practising all together, if they breach the Code and also pose a risk to the health or safety of members of the public.

Code of Conduct for Unregistered Health Practitioners. NSW
New South Wales unregistered practitioners are subject to negative licensing. The Code applies ‘negatively’, in the sense that it does not need to be consented to by the practitioner. The Code requires safe and competent practice. Schedule 3 of the Public Health Regulation 2012 (NSW) sets out this code of conduct for unregistered health practitioners and registered health practitioners who are providing a health service unrelated to their registration.

An overview of the regulation of complementary medicines in Australia
Therapeutics Goods Administration – Department of Health

Cases

Chinese Medicine Board of Australia v Mei (Occupational and Business Regulation) [2012] VCAT 1875 VIC
A Chinese medicine practitioner was found guilty of professional misconduct for failing to ensure she obtained informed consent for treatment; failing to make and maintain appropriate patient records; failing to issue receipts; failing to or refusing to discuss the patient’s case with his or her family, despite requests; failing to use appropriate sharps disposal methods; acting inappropriately by seeking and accepting lifts from her patient’s family; and discharging a patient without a referral when ongoing treatment was required.

Chinese Medicine Registration Board of Victoria v Eskander (Occupational and Business Regulation) [2011] VCAT 1387 VIC
A practitioner was suspended for six months for, among other things, failing to refer a patient with a locked jaw to a conventional practitioner when it became evident that the patient’s locked jaw was not improving with the acupuncture or electro-acupuncture treatment being provided.

Dix, Registrar of NSW Medical Board v Lin [2007] NSWSC 846 NSW
A Chinese medicine practitioner pleaded guilty to passing himself off as a registered medical practitioner and prescribing misepristone (otherwise known as Ru486). Lin had told an undercover investigator that he could perform an abortion and supply Ru486. The accused also took blood pressure and asked for a urine sample. He also supplied a number of tablets labelled as ‘misepristone’. The judge sentenced Lin to a suspended sentence of 13 months, primarily due to the guilty plea and his general lack of understanding about the laws concerning passing himself off as a doctor.

Wentzel (NSWHCCC Statement of Reasons, 25 January 2012) NSW
The NSWHCCC made a prohibition order against an unregistered practitioner who had no qualifications in health care after he prescribed prescription medicines for the treatment of premature ejaculation and erectile dysfunction. The behaviour was said to have put the public safety at risk.

Guo (NSWHCCC Public Statement, 8 February 2011) NSW
A practising acupuncturist was prohibited from practice because he pushed an acupuncture needle to an unsafe depth resulting in the puncture of the patient’s lung.

Gettar (NSWHCCC Statement of Reasons, 31 August 2012) NSW
A massage therapist was subject to a prohibition order for improperly touching a client on the genitals.

Valenzuela (NSWHCCC Public Statement, 24 January 2012) NSW
A Shiatsu therapist and Reiki Master was likewise prohibited from practice after being convicted of indecent assault.

Haseldine (NSWHCC Statement of Reasons, 19 April 2012) NSW
A hypnotherapist/psychotherapist was prohibited from providing hypnotherapy, psychotherapy, neurolinguistic programming and ‘emotional freedom technique’ because he inappropriately touched a patient.

Commissioner for Fair Trading, Department of Commerce v Perrett [2007] NSWSC 1130 NSW
An alternative health practitioner (Perrett) was found to have engaged in misleading and deceptive conduct in his practice at the ‘Rutherford Health Clinic’ where he provided treatments for cancer, multiple sclerosis and Huntington’s disease (an incurable genetic condition). The court found that the representations were misleading and deceptive in breach of the Fair Trading Act 1987 (NSW) (now to be found in the Australian Consumer Law). The judge ordered that Perrett cease making such claims but refused to make a further order preventing Perrett from continuing to trade.

Commissioner for Fair Trading, Department of Commerce v Hunter [2008] NSWSC 277 NSW
Here the misleading and deceptive conduct related to advertising by a professed naturopath for cures with ‘live blood analysis’ and promoted himself as a ‘PHD MA Doctor of Natural Medicine’. The judge found that the advertising was misleading and deceptive. The legal test was said to be whether it would lead the ordinary readers of the advertising to be misled and deceived on the basis that live blood analysis was found to convey no therapeutic benefits. The judge also issued a permanent injunction preventing the defendant from working in the area.

Medical Board of Queensland v Raddatz (unreported, No d 2392 of 2000) QLD
A doctor Raddatz sold complementary, alternative, unconventional products to his patients, including products as a substitute for insulin in the treatment of a diabetic patient. The Tribunal cancelled the doctor’s registration for two years and imposed a conditions on his  registration.

Medical Board of Queensland v Ian Geoffrey Raddatz [2008] QHPT 3 QLD
Dr Raddatz was again found to have engaged in unsatisfactory professional conduct for, amongst other things, his unorthodox use of dietary testing and advice. He was ordered by the Tribunal to not ‘adopt or advocate unconventional investigations or treatments’.

Tambyrajah (NSW Professional Standards Committee, 28 May 2009) NSW
The NSW Professional Standards Committee found a doctor guilty of unsatisfactory professional conduct when she recommended patients purchase vitamins for a particular brand of which she was a distributor, without disclosing her pecuniary interest. She also tried to recruit a patient to become a distributor which would have led to further financial benefits for her.

HCCC v Cooke [2012] NSWMT 12 NSW
A doctor practised as a wholistic medical practitioner with interests in nutritional medicine, environmental medicine, herbal medicine, Chinese medicine, Ayurvedic medicine and mind/body medicine. A patient complained after seeing the doctor and requesting advice about breast screening, given her family history of breast cancer. The doctor failed to refer the patient or an ultrasound, but did order a mammogram. The doctor later failed to order a biopsy after being advised to do so by a radiologist, after a lesion was discovered. A second patient was referred to the doctor by an osteopath for hardening in her abdomen. The doctor did not perform an abdominal examination, but instead put the patient on a liver detoxification program for two weeks and later a ‘lipotrene’ treatment. The patient had a large fibroid which encompassed most of her uterus which was later removed. The Tribunal reprimanded the doctor and ordered her to undergo retraining.

HCCC v Gorman [2011] NSWMT 7 NSW
Dr Gorman believed that virtually all pathologies could be treated with spinal manipulation before recourse is had to orthodox treatment. He did not inform his patients about how far his views were removed from conventional medicine and the Tribunal found that his patients were misinformed by him. Gorman was found to be not competent to practise. His name was removed from the register and he was ordered not to reapply for registration for three years.

HCCC v Garry [2008] NSWNMT 20 NSW
A nurse was found guilty of unsatisfactory professional conduct when he promoted the taking of goji berries as a treatment for mental illness.

Dental Board of South Australia v Kow [2011] SAHPT 25 SA
A dentist was reprimanded for performing oral surgery on a patient on the basis of his belief in alternative dentistry, which suggested that wisdom teeth sites were related to energy and cardiac meridians which could affect bodily functions. The practitioner was found to have failed to properly inform the patient regarding the treatment.

Lucire v HCCC [2011] NSWCA 99 NSW
A psychiatrist was found guilty of unprofessional conduct because of her management of a patient who, during the treatment period, went on to kill her father and sister, and seriously wound her mother, during a psychotic episode. One of the major failings in the psychiatrist’s behaviour was an inadequate treatment plan in which she failed to prescribe antipsychotic medication. This was alleged to have been because she took unconventional views about such medication.  The Court of Appeal upheld an appeal against the sentence (but not the finding of unprofessional conduct) in Lucire v HCCC [2011] NSWCA 99. In Lucire v HCCC (No 2) [2011] NSWCA 182, the Court of Appeal ordered that the psychiatrist could continue to practise, but must do so under supervision.

Medical Board of Australia v O’Sullivan [2011] QCAT 135 QLD
Concerned a doctor who provided bicarbonate of soda treatment to a patient (who was a naturopath) who had breast cancer. The fact that the treatments may be requested by the patient is not necessary a defence to claims of unprofessional conduct.

Chiropractic Board of Australia v Hooper (Occupational and Business Regulation) [2012] VCAT 1042 VIC
A chiropractor was disciplined for his provision of non-chiropractic treatments to a patient with cerebral palsy, namely hyperbaric oxygenation and Lokomat (gait therapy) treatments. The chiropractor argued that VCAT had no jurisdiction over him when he provided non-chiropractic treatments. VCAT disagreed.

Chinese Medicine Registration Board of Victoria v Ghaffurian (Occupational and Business Regulation) [2012] VCAT 478 VIC
A Chinese medicine practitioner was found guilty of professional misconduct and unprofessional by holding himself out to be both a Chinese medicine practitioner (which he was) and a Western medical practitioner and surgeon (which he was not).

Shakoor (administratrix of the estate of Shakoor (deceased) v Situ (t/a Eternal Health Co) [2000] 4 All ER 181 UK
Case considered what is the standard of care expected of a CAM practitioner. A patient died of liver failure after taking traditional Chinese remedy made from 12 herbs, one of which may be hepatotoxic. The court held that the Chinese medicine practitioner had not been in breach of his duty of care when treating the deceased. The court also found that he had not breached his duty of care by not warning the deceased of any risks, as the risks were too low to have warranted disclosure.

Forder v Hutchinson [2005] VSCA 281 VIC
In that case an osteopath, who was also a naturopath, was sued by a patient for a negligent neck manipulation. The patient had a condition which made the risk of neck manipulation greater but the osteopath had not ordered any X-rays before commencing treatment which would have uncovered the condition. A chiropractic professor (who lectured osteopathic students on how to do manipulations) and a neck surgeon had both given evidence that an X-ray should have been taken and examined before the neck manipulation. The trial judge rejected this evidence as not being relevant to the standard of care for osteopaths and dismissed the claim. The Court of Appeal overturned this decision and submitted the case for re-trial.

Sam v R [2011] NSWCCA 36 NSW
Thomas Sam and his wife Manju were convicted of the involuntary manslaughter of their daughter, Gloria. Gloria died from septicaemia, probably brought on by the combined effects of chronic eczema and malnutrition. Gloria had been suffering from severe eczema for some time. Thomas was a trained naturopath and the trial judge found that his knowledge of homoeopathy was relevant to the question of his liability. The Court of Criminal Appeal agreed and dismissed the appeal against conviction

Papers, Reports

Therapeutics goods regulation: Complementary medicine.
Australian National Audit Office (2011)
Canberra, ACT, Department of Health and Aging.

Ethical issues in the use of complementary medicines
Breen, KJ (2003) 6 (4) Climacteric 268-72.

Does a Doctor Have a duty to Provide Information and Advice about Complementary and Alternative Medicine?
Brophy, E (2003) 10 Journal of Law and Medicine 271 – Subscriber

Potions, promises and paradoxes: complementary medicine and alternative medicine and malpractice law in Canada [PDF]
Caulfield, T and C Feasby (2001) 9 Health Law Journal 183-203.

Ethical and legal issues at the interface of complementary and conventional medicine [PDF]
Ian H Kerridge and John R McPhee
(2 August 2004) 181 (3) Medical Journal of Australia 164-166

Potential physician malpractice liability associated with complementary and integrative medical therapies
Cohen, MH and dM Eisenberg (2002) 136 (8) Annal Internal Medicine 596-603.

The ‘therapeutic footprint’ of medical, complementary and alternative therapies and a doctor’s duty of care’.
Sanderson, CR, B Koczwara, et al (2006) 185 (7) Medical Journal of Australia 373-6.

Obligation to advise of options for treatment – medical doctors and complementary and alternative medicine practitioners
Weir, M (2003) 10 (3) Journal of Law and Medicine 296-307.

General guidelines for methodologies on research and evaluation of traditional medicine
World Health Organisation, Geneva (2000)

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