Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Hearing dates: 12 and 13 July 2018 Date of orders: 30 July 2018 Decision date: 30 July 2018 Jurisdiction: Occupational Division Before: J Millbank, Senior Member K De Luca, Senior Member A Lyell, Senior Member G Alder, General Member Decision: (1) The practitioner's registration as a chiropractor is cancelled pursuant to s 149C(1)(c) and (d) of the National Law; (2) The practitioner is prohibited from providing any health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) for the duration of the cancellation of registration; (3) Pursuant to s 149(7) of the National Law the practitioner may not apply for review for two years from the date of these orders; (4) Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: TRADES AND PROFESSIONS – chiropractor – practitioner convicted of criminal offences – advertising regulated health service in a false, misleading way – website purporting chiropractic treatment can cure, treat and/or prevent various forms of cancer – patient testimonials – whether circumstances of offences render practitioner unfit in the public interest to practise – whether practitioner not a suitable person for registration Legislation Cited: Health Practitioner Regulation National Law NSW 2009 (NSW) ('The National Law') ss 3; 3A; 133(1)(a),(c); 144(a),(e); 149C(1)(c)(d); 149C(7); cl 13(1) of Sch 5D; Health Care Complaints Act 1993 (NSW) s 4; Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 HCCC v Do [2014] NSWCA 307 HCCC v Karalasingham [2007] NSWCA 267 HCCC v Roopra (No 2) [2013] NSWDT 3 HCCC v Vu [2012] NSWPYT 1 Texts Cited: AHPRA, Guidelines for Advertising Regulated Health Services (2014); Chiropractic Board of Australia, Statement on Advertising (7 March 2016) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Hance Limboro (Respondent) Representation: Counsel: A Bonner (Applicant) Solicitors: HCCC (Applicant) Self-represented (Respondent) File Number(s): 2018/00085143 REASONS FOR DECISION Background 1. The practitioner was first registered as a chiropractor in February 1997. He operates a chiropractic practice, 'Action Health' located in the Sydney CBD. 2. On 15 February 2017 the practitioner pled guilty in the Local Court to 11 counts of advertising a regulated health service in a false, misleading way contrary to s 133(1)(a) of the National Law and 2 counts of advertising a regulated health service with the use of testimonials contrary to s 133(1)(c) of the National Law. He was convicted of these offences and fined $29,500. 3. The 11 counts of false and misleading advertising relate to a series of articles posted on a website with the address: cancercuresydney.com.au. The articles were titled, 'Prepare Yourself with Information about Cancers', 'Cancer Prevention with Regular Chiropractic Treatment', 'Chiropractic to Ease Cancer Symtomps' [sic], 'Is Chiropractic Treatment a Cancer Cure?', 'The Treatment of Cancer Diseases', 'Cancer Radiation Therapy or Chiropractic?', 'Chiropractic Treatment along with Other Breast Cancer Treatments for a Total Recovery', 'Chiropractic Treatment as A Cancer Cure', 'Can Chiropractic Become Anti Cancer Alternative Treatment?', 'Chiropractic Is A New Treatment for Brain Cancer and Tumor', 'Pain and Metastasis of Cancer Diseases'. The articles appeared with key words listed under each heading which included: 'cancer, cure', 'cancer, prevention', and 'cancer, chiropractic treatment'. The dates on which the materials were originally posted is unclear but the date at which they were viewed and the charges based was 2 May 2016. 4. The articles were typically structured to include a few paragraphs of introduction containing general information about cancer followed by one or two concluding paragraphs containing specific claims about chiropractic treatment. These claims included: [C]ancer is 100% preventable. … Another kind of cancer prevention that is believed to most effective and beneficial is chiropractic treatment. Chiropractic can help prevent cancer as it focuses on getting rid of any problems in the spine and other postural area which are believed to be the root problems of all kinds of disorders and diseases, including cancer. By having a regular visit to a chiropractor, people can rest assured that are [sic] prevented from having cancer. … Many people also opt for chiropractic treatment to help ease cancer symptoms and relieve the disease in the long term. Since it is natural, chiropractic is relatively safe for everyone and has no side effects. … A natural cancer cure that most people choose nowadays is chiropractic treatment as it has no significant side effects and guarantees long-term relief In chiropractic, the postural problems are believed to be the cause of any disease in the body. So by improving your postural condition, it is believed that you can also be healed from the cancer. Chiropractic is also often use to help relieve the side effects of other cancer treatments, like radio [sic] therapy and chemotherapy. … One of the alternative treatments for cancer help is chiropractic. Chiropractic focuses on treating any misalignment in your posture (which mostly is in the spine) which is believed to be the cause of all diseases in the body, including cancers. When the posture problems are solved, the cancer can also be cured. … By having regular chiropractic treatment, you can slowly but sure [sic] cured from your cancer. … Chiropractic is natural, side-effect free, hands-on approach focuses to cure any disorder in the musculoskeletal system. It is believed that by treating the disorder the brain can function normally, and any kind of disease can be cured. 1. The two complaints about the use of testimonials concerned material placed on the website actionhealth.com.au, titled, 'Would have been in wheelchair' and 'Sports Injuries and Chiropractic Care' in which a number of statements about the benefits of chiropractic treatment are attributed to 'Sheila', 'Anthony', 'Damien', 'Julian', 'Danielle', 'Anita' and 'Therese'. The date of these offences was, respectively, 6 July 2016 and 4 July 2016. 2. At sentencing in the criminal proceeding the Magistrate was critical of the practitioner's claim that his responsibility was lessened because he had not personally uploaded the cancer related articles onto the website. She stated: Now, to suggest that you were not responsible or did not have any knowledge of that material, when you are aware of what the name of the site is in cancer cure, you have a link directly to you…as a professional ethical person, operating in a health environment, the obligation is on you at every turn, to ensure that the material that is any way linked to you is as far as possible accurate, well researched, and provides an overall assessment of the good and the harm that it can do to an individual person. … When somebody has the ability to put doctor in front of their title, that carries with it again a huge amount of responsibility. To suggest that you were not personally responsible for the loading and acknowledging of that material on the site, in my view has to be rejected because quite frankly you may not have put the material physically on the site, but your linking with it, the knowledge that that the name of the site in the first place, and the fact that you were clearly aware that it was going to be used. Random people, healthy people, do not access sites cure cancer. They just do not. Most people do not want to have anything to do with it unless they are afflicted with that awful, awful disease. So the people you are targeting in that site are very specific and in my view very vulnerable. 1. On 28 March 2017 the Chiropractic Council of NSW sought to lodge with the HCCC a complaint against Dr Limboro arising out of the criminal conviction. 2. On 16 March 2018 the HCCC filed a complaint with this Tribunal. The two complaints are that the practitioner has been convicted of criminal offences within the meaning of s 144(a) of the National Law and that he is not a suitable person to hold registration pursuant to s 144(e) of the National Law. The HCCC initially sought orders that the practitioner's registration be cancelled and that he not be permitted to apply for review for three years. At the conclusion of the hearing, the HCCC also sought a prohibition order preventing the practitioner from providing any health service for the duration of the cancellation order. 3. The practitioner conceded that he had admitted and been found guilty of the relevant offences, but maintained that he was a suitable person to be registered as a chiropractor and that he practised safely. His position was that he had delegated very poorly and had paid a heavy price. He gave 'a full undertaking never to repeat these errors of judgement'. 4. There was no real dispute that the particulars underlying both complaints were proved, although the parties differed as to the question of Dr Limboro's degree of involvement and responsibility for the publication of the material. The issue for the Tribunal was whether the practitioner is a suitable person to hold registration and/or is unfit in the public interest to practise by reason of the criminal conviction. Relevant Law 1. The Tribunal must determine whether, on the balance of probabilities, at the time of the hearing the practitioner is a suitable person to hold registration in the profession of chiropractic. 2. The National Law s 149C(1) provides that the Tribunal may suspend or cancel a registered health practitioner's registration if satisfied that: (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. 1. A prohibition order can only be made if the Tribunal either suspends or cancels a practitioner's registration or makes a disqualification order under s149C of the National Law. The Tribunal must be satisfied that a person 'poses a substantial risk to the health of members of the public' prior to making a prohibition order under s149C(5) or (5A). 2. The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A. 3. Section 3 provides relevantly that: (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. 1. Section 3A provides that: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. In HCCC v Do [2014] NSWCA 307 (per Meagher JA, Basten and Emmett JJA agreeing) the NSW Court of Appeal characterised the objective of protection of the public as follows: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. In HCCC v Karalasingham [2007] NSWCA 267 the Court of Appeal considered the meaning of the phrase 'not of good character' used in the Medical Practice Act 1992 (NSW), a precursor to the National Law regulating medical practitioners in NSW. Basten JA, with whom Giles JA and Bergin J agreed, stated at [45] that: The concept of "good character", though given statutory recognition, is not one which bears some special or technical meaning: rather, the words are used in their ordinary meaning. … [46] Statutory language may involve a composite phrase of which individual words have an ordinary meaning. …[It] is fallacious to think that meaning is to be determined by taking the individual components of a sentence or phrase and identifying separately the ordinary meaning of each. Once it is accepted that construction of a statutory provision will usually involve a consideration of words in their context, and that this will involve a question of law, it can readily be seen that most questions of construction will involve questions of law. That approach gains support from the obligation imposed by s 33 of the Interpretation Act 1987 (NSW) (which has its equivalents in most jurisdictions) to adopt a construction that will promote the purpose or object underlying an Act or statutory rule. The identification of that purpose or object is itself likely to involve a question of law. Accordingly, it may be accepted for present purposes that a misapprehension on the part of the Tribunal as to the scope and operation of the phrase "not of good character" will involve an error in point of law. 47 In relation to membership of a profession, it is necessary to consider aspects of character which are relevant to the exercise of professional functions. … 51 In the present case, the Commission did not ultimately contend that the Tribunal misstated the relevant legal principles. Rather it suggested that the principles were correctly stated but not properly applied. Thus the relevant principle was accepted, both by the Tribunal and by the Commission, to be that derived from McBride v Walton (unrep, NSWCA, 15 July 1994) to the following effect: "To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner." 1. The Court of Appeal characterised these 'principles' as appropriate 'guidance by way of a checklist of considerations' which may be of varying relevance depending upon the facts, and which do not substitute for the language of the statute [at 54]. 2. In HCCC v Vu [2012] NSWPYT 1 at [69] the Physiotherapy Tribunal of NSW (prior to the creation of this Tribunal), considering a complaint under the National Law that a practitioner was not a suitable person to hold registration. The Tribunal listed the following factors that provide assistance to the determination of suitability: professional integrity, personal integrity, insight into the reason why the conduct attracted the severe criticism of the Tribunal, insight into the steps required to remediate any personal or professional deficits identified by the offensive conduct, steps taken towards such remediation, the Respondent's otherwise good character, and the nature of the Respondent's prior professional practise including any prior misconduct. 3. In HCCC v Roopra (No 2) [2013] NSWDT 3 the Dental Tribunal (prior to the creation of this Tribunal) noted that 'suitable person' is not defined in the National Law, however some assistance as to its meaning is provided by section 55(1) of the National Law which gives the grounds upon which the National Board may decide that an individual is not a 'suitable person' to hold a general registration in a health profession. Section 55(1) provides: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if- … (b) having regard to the individual's criminal history to the extent that it is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (h) in the Board's opinion, the individual is for any other reason- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. 1. From the above legislative extracts and interpretive statements it is clear that criminal conduct is a distinct factor when determining suitability to practise which must be assessed in light of a holistic inquiry into suitability. This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and since any investigation or sanction. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards, and through this, public confidence in the health professions. Evidence 1. The HCCC filed two volumes of evidence concerning the subject of the criminal conviction. A range of material concerning other articles associated with the relevant websites, but not particularised in the complaints, was withdrawn and not relied upon by the HCCC. The Tribunal had no regard to that material. 2. The HCCC evidence included two peer expert reports from Colin Crawford, a chiropractor and medical practitioner, and Michael Barton, a radiation oncologist. The views expressed in those reports were also read by the Tribunal only in relation to the particularised matters. 3. The expert reports were in agreement that there is no credible evidence that: misalignment of the spine is a cause of any form of cancer; that chiropractic treatment can prevent any form of cancer; or that chiropractic treatment can cure or treat any form of cancer. These views were also in accord with the understanding of the current state of scientific knowledge concerning the limits of chiropractic treatment held by the professional members of the Tribunal. The Tribunal proceeded on the basis that it is undisputed that chiropractic treatment is not a treatment for, or preventative of, any kind of cancer. 4. The practitioner filed a brief written statement and gave oral evidence on his own behalf on the first day of the hearing. At the Tribunal's request the practitioner produced three character references from fellow chiropractors, all dated 8 February 2017, which had originally been submitted on his behalf at the criminal proceeding but were not included in the HCCC materials. The references come from three practitioners with a long association with Dr Limboro and all were written with knowledge of the charges faced. These references describe the practitioner as a dedicated and caring health professional who is embarrassed and remorseful about an unintentional oversight concerning the relevant materials. 5. With the Tribunal's leave, and no objection on behalf of the HCCC, the practitioner called one of his referees, Paul Calladine, to give oral evidence by telephone on the second day of the hearing as to the respondent's practice and his insight since the criminal conviction. Dr Calladine stated that he had known the respondent professionally for almost 20 years, was in regular monthly contact with him, that they treated each other as patients, and that they had discussed these proceedings. 6. The practitioner's consistent evidence was that he did not believe, and had never believed, that chiropractic treatment is a treatment for, or preventative of, any kind of cancer. Nor did he ever inform patients that he could treat, or cure, cancer. 7. The practitioner submitted that he provides all of his patients with a standard form to read and sign which states that they understand that 'We do not guarantee that we can prevent or cure any illness, injury or disease. The chiropractor's purpose it to restore health through the natural flow of energy in the nervous system. This gives the body the maximum opportunity to heal itself.' 8. The practitioner's position at the hearing was essentially the one he had taken at the criminal proceedings: he accepted legal responsibility for the offences because he maintained control of the website, cancercuresydney.com.au, but that he had not knowingly promoted false and misleading material concerning the utility of chiropractic treatments for cancer. Rather, his failing was one of 'poor delegation and not checking the material because it was made available in the general public.' 9. Dr Limboro stated that he had not written and did not read the relevant articles before they were posted online, and had only read 'some' of them after they were drawn to his attention by AHPRA. 10. The unchallenged documentary evidence demonstrates that the business Action Health Centre is registered as a company wholly owned by the practitioner's wife, Melissa Wong, who is also listed as the sole director. 11. The domain name for Action Health Centre was originally registered to Hance Limboro and assigned a specific member number. On 29 April 2015 the member name on this account was replaced by Melissa Wong with a new business address. The business name of the owner was changed from Action Health Centre to Miracle Chiropractic ATF PPP Trust. The email contact, an address which included the full name Hance Limboro, was retained. 12. Invoices from the domain name provider for actionhealth.com.au dated August 2009, June 2011, and July 2015 list Ms Wong, her business address and the email address yaroslav.zaulochnyy@mail.ru under the heading 'profile'. 13. On 11 May 2015 the domain name cancercuresydney.com.au was registered to the member account that had been registered to the practitioner and which now listed Ms Wong in the profile (but with the practitioner's email address still present). An invoice from the domain provider for cancercuresydney.com.au dated 11 May 2015 was sent to Miracle Chiropractic and addressed to Ms Wong. The account was paid with a credit card which the practitioner stated was his shared credit card with Ms Wong. 14. In October 2015 the practitioner communicated via email with a website hosting business and entered into a contract with them for hosting and 'engine optimisation'. On 2 November 2015 the hosting of actionhealth.com.au and cancercuresydney.com.au were shifted to this new host server. The CEO of the host business provided a witness statement in which he stated that invoices for his service were charged to Hance Limboro at Action Health. He stated that he had engaged in a phone conversation on 29 March 2016 with a man who identified himself as Hance Limboro, and received a series of emails from an email address that utilised the full name Hance Limboro between 29 March and 30 March 2016. This correspondence related to a disputed unpaid invoice; the recollection of the CEO was that Mr Limboro stated that he was not getting results from the marketing campaign. The business relationship with that hosting service ended on 30 March 2016. 15. A letter from AHPRA dated 11 May 2016 about a possible breach of the National Law by reason of the relevant material was delivered to the practitioner on 17 May 2016. 16. On 18 May 2016 the practitioner's email address was removed from the domain provider member account and replaced with the email yaroslav.zaulochnyy@mail.ru; this was substituted later that evening for a different email address (ivansoyoj@mail.ru) and then restored yet later that evening to yaroslav.zaulochnyy@mail.ru. On the same day the practitioner's email address was removed from the contact details for the domain name cancercuresydney.com.au and replaced with the email address ivansoyoj@mail.ru. 17. Dr Limboro denied any knowledge of the yaroslav.zaulochnyy@mail.ru email address. 18. At the hearing the practitioner gave an account of how the relevant material came to be posted to the website cancercuresydney.com.au, which linked to his business website actionhealth.com.au, as follows. At some point in 2015 he met with a man called Dwijat who is based overseas. Dwijat does 'affiliate marketing' to get websites more highly ranked. Dwijat did research on keywords and produced a list of websites and terms with high searchability and low competition. The idea was to register those website domain names and build content around them to draw clients to those sites, and then direct them to the practitioner's businesses through a link offering a 'free spinal check'. The practitioner paid for this service and viewed the list of website names. There was a list of around 100 names which Dwijat produced. The practitioner personally registered all of the names that had Australian domains. The others he left to Dwijat to register. Tellingly, the practitioner stated that he had registered the Australian sites himself because he was concerned that otherwise Dwijat could take control of them. 19. The Australian website addresses that the practitioner personally registered included: adhdcure.com.au; autismcure.com.au; backcure.com.au; bestchiropractorsydney.com.au; cancercure.sydney.com.au; chiropracticspecialsit.com.au; chiropractorbackpian.com.au; chiropractorinsydney.com.au; fibromyalgiasyndrome.com.au; headcure.com.au; healthmd.com.au; localchiropractor.com.au; naturalcancercure.com.au; neckcure.com.au and tmjspecialsitsydney.com.au. These website addresses were registered to no less than six different business names and discretionary trusts. 20. When questioned by the Tribunal the practitioner conceded that he understood how the content for the websites was generated because Dwijat had showed him how it was done. This involved him sitting with Dwijat as Dwijat went 20 pages or so deep into existing websites and cut and pasted their content so that search engines would not pick up that the content was duplicated. 21. The practitioner contended throughout that he never viewed the websites he had registered and had no direct knowledge of what was contained on them. The Tribunal asked whether the practitioner had taken the cancercure or other websites down following communication from AHPRA and he said he had directed Dwijat to take down 'some'. When pressed to specify which ones, and why, the practitioner indicated that he directed Dwijat to take down the ones that could be most 'trouble': those with cancer, adhd and autism in the titles. The remaining websites still remained active to his knowledge. 22. The practitioner denied that he had made the changes to the contact details in the account profile and website on 18 May 2016, but stated that he may have directed Dwijat to make some changes because there was a 'problem' and he didn't want to be implicated 'for anything I didn't do'. He could not recall if he asked Dwijat to take down the content or the cancercure website at that time, although he did direct this at some later time after he had seen a lawyer. 23. At no stage before or after the criminal proceedings did the practitioner take active steps to ensure that all of the websites which he had registered and maintained effective control of complied with his legal and professional obligations. The practitioner also professed to have no knowledge of the current content on Action Health facebook page, and said that he did not regularly check it. 24. On the second day of the hearing the practitioner stated that he had sat up very late the night before and had personally taken down the remaining websites with Australian domain names that he had been responsible for registering. 25. Dr Limboro's evidence was that he did not have any concern that websites with names such as cancercuresydney.com.au could give an unrealistic view of treatment to the public as it 'did not cross his mind' that this would be the case. The practitioner stated that, 'just because the name says that doesn't mean that's what it's going to be.' At one point under cross examination the practitioner suggested that the use of the word 'cure' wouldn't necessarily lead the public to believe that an effective treatment was being promoted, as the word also means 'pickled'; however, when repeatedly pressed, he did eventually concede that at least some of the people searching the word 'cure' in association with 'cancer' may actually have a diagnosis of cancer and be seeking to be cured from it. 26. The practitioner maintained that just because the cancercure.sudney.com.au website linked to his practice website actionheath.com.au it didn't mean he was connected to it or responsible for the content. 27. The practitioner's position was that he had not harmed anyone because he had not actually claimed to treat cancer and all of his patients signed a disclaimer so they understood the limits of the treatment he offered. He did not believe that any patient had come to his chiropractic service as a result being directed to it by the website cancercure.sydney.com.au. 28. Fellow chiropractor Paul Calladine expressed a similar view on the harmless nature of the offences to that noted above, but put it rather more forcefully. Dr Calladine repeatedly stated that as no one complained and no one was hurt or injured he could not see 'what all the fuss was about'. He said, 'I can't find anything that mispresents chiropractic or Hance in those supposedly horrible articles. He's not trying to fix cancer and he doesn't say he is.' 29. When Counsel for the HCCC took the witness to a number of the cancer-related claims in the materials and asked whether he thought they were accurate, and whether he saw any risk to the public in them being made, the witness responded, 'Chiropractic may or may not cure cancer, who knows? It is just medical dogma that says it can't – we're not allowed to say so. You don't know, in 20 years' time we'll know that chiropractic does help.' When asked about the current professional standards for advertising chiropractic services, the witness responded, 'There's all these rules about what we can say and do. I'm not up on all the rules – now we can't say things about cancer and we are censored so we can't talk about vaccination.' 30. The current national Guidelines for Advertising Regulated Health Services were produced by AHPRA in May 2014, and were in evidence. Cl 6.2 concerns prohibited advertising under s 133 of the National Law, and Cl 6.2.1 explains in some detail in plain language what this provision means, as follows: A common meaning of 'mislead or deceive' is 'lead into error'. The courts have considered the phrase 'mislead or deceive'. People who are misled are almost by definition deceived as well. Misleading someone may include lying to them, leading them to a wrong conclusion, creating a false impression, leaving out (or hiding) important information, and/or making false or inaccurate claims. As the ACCC explains, 'Patients can be physically, psychologically or financially affected by misleading conduct, and these effects can be long lasting. It is essential that patients be given honest, accurate and complete information in a form they can understand.' Examples of advertising that may be false or misleading include those that: •mislead, either directly, or by implication, use of emphasis, comparison, contrast or omission •only provide partial information which could be misleading •use phrases like 'as low as' or 'lowest prices', or similar words or phrases when advertising fees for services, prices for products or price information in a way which is misleading or deceptive •imply that the regulated health services can be a substitute for public health vaccination or immunisation •use words, letters or titles that may mislead or deceive a health consumer into thinking that the provider of a regulated health service is more qualified or more competent than a holder of the same registration category (e.g. 'specialising in XX' when there is no specialist registration category for that profession) •advertise the health benefits of a regulated health service when there is no proof that such benefits can be attained,6 and/or •compare different regulated health professions or practitioners, in the same profession or across professions, in a way that may mislead or deceive. Using comparative advertising often risks misleading and/or deceiving the public because it can be difficult to include complete information when comparing one health service with another. The ACCC has provided tips on how to avoid being misleading and deceptive when advertising. They may be useful for advertisers considering the requirements of the National Law: •Sell your professional services on their merits. •Be honest about what you say and do commercially. •Look at the overall impression of your advertisement. Ask yourself who the audience is and what the advertisement is likely to say or mean to them. •Remember, at a minimum, that it is the viewpoint of a layperson with little or no knowledge of the professional service you are selling that should be considered. 1. The Chiropractic Board of Australia in a statement dated 7 March 2016 noted that the Board 'is very concerned about any chiropractors with advertising (including websites) that may not meet the required standards despite repeated guidance being provided by the Board.' To provide 'further clarity' the statement included the following 'clear advice' on advertising: Patients must be adequately informed when making health care choices. Advertisers must ensure that any statements and claims made in relation to chiropractic care are not false, misleading or deceptive or create an unreasonable expectation of beneficial treatment. The Board is concerned about a number of practitioners who are making claims in advertising that there is a relationship between manual therapy (e.g. manipulation) for spinal problems and achieving general wellness or treating various organic diseases and infections; or that spinal problems may have a direct role in various organic diseases and infections. There is insufficient scientific evidence to support these claims. Of particular concern is the number of treatment claims in advertising relating to infants and children. Claims suggesting that manual therapy for spinal problems can assist with general wellness and/or benefit a variety of paediatric syndromes and organic conditions are not supported by satisfactory evidence. This includes claims relating to developmental and behavioural disorders, ADHD, autistic spectrum disorders, asthma, infantile colic, bedwetting, ear infections and digestive problems. Advertising claims that are contrary to high level evidence are unacceptable. High level evidence will usually take the form of meta-analyses, systematic reviews or one or more high quality and well respected and acknowledged studies. The Board devoted its September 2015 newsletter to providing information to practitioners on advertising related matters and strongly encourages practitioners to review their advertising and ensure it complies with the requirements of the National Law or they risk prosecution and/or disciplinary action. Findings 1. The Tribunal determines that the practitioner is not a suitable person for registration in the profession of chiropractic and that the circumstances of his offence render him unfit in the public interest to practise as a chiropractor for the following reasons. 2. The circumstances of the criminal conviction bear directly upon the question of the practitioner's fitness and suitability to practise as they arise from, and relate to, his profession as a chiropractor and business methods in promoting his chiropractic services. 3. The two testimonial offences demonstrate that the practitioner took no steps to stay up to date with current professional laws and standards on advertising, and failed to understand why such material may be dangerously misleading to patients. 4. Of far greater concern is the finding that the practitioner was an active participant in a calculated scheme to cast a wide net of false and misleading website names, keywords and content intended to capture the traffic of those searching for health information and assistance concerning cancer, and then divert them to his business. The 11 advertising offences concerning cancer are extremely serious in misrepresenting the benefits, and risks, of chiropractic treatment. This scheme of misrepresentation was designed in a targeted manner to attract the attention of a select group of potential patients; those experiencing cancer who were searching for cancer treatment information, including through the use of the search term 'cure'. 5. This conduct was extremely unethical and unprofessional; it was from the outset a predatory business venture, not an unintentional failing through oversight or lack of attention to developing standards. At all times the practitioner retained effective control over cancercure.sydney.com.au and therefore over the dissemination of the relevant material. The Tribunal rejects the practitioner's claim to have delegated control of this enterprise. The practitioner was aware of the website names; he paid for them to be registered in the knowledge that they would link to his chiropractic business; he personally registered those with Australian domain names in order to ensure control of them; he paid the bills (and argued about them) with a hosting service that hosted cancercure.sydney.com.au; and he directed the selective removal of some but not all of the websites he had registered when called to account by the regulator. 6. The practitioner's claim not to have read or vetted the relevant material does not in any way mitigate the unethical and improper nature of the final product; rather it underscores his profound lack of any sense of professional responsibility in that he directed, paid for and was prepared to profit by this scheme while seeking not to be held accountable for it. The complicated web of legal and beneficial ownership of the various websites and business structures behind this scheme underscores this finding, as does the fact that identifying information about the practitioner was removed from the domain account in association with the relevant material being advertised, and additional identifying information about him was removed following contact from AHPRA. 7. Reflecting on the factors raised in previous case law we find that the conduct is of the utmost seriousness, and cannot be explained as an isolated or momentary lapse in judgment. The conduct displayed a patent disregard of professional standards that require frankness and accuracy in promoting health services, and a commitment to delivery of services that offer a realistic prospect of benefit to patients. Moreover the conduct of the practitioner following the events, following the criminal proceedings, and up to and including these proceedings, demonstrate a profound and continuing failure to understand and act upon his professional responsibilities. He maintained a head-in-the-sand attitude to web-based materials under his control and took no real steps to mitigate the risk that they posed at the same time that he attempted to evade accountability for having promoted them. 8. While the three references produced by fellow chiropractors speak of their high professional regard for Dr Limboro as a dedicated practitioner, we place very limited weight upon them in assessing his suitability to practise. This is because two of these references were written on the express understanding that the relevant materials were 'an unintentional oversight'. We have found directly to the contrary. The third referee, Dr Calladine attested that he did not believe that the practitioner had acted inappropriately at all in his breaches of the National Law, and rather reserved his criticism for the rules themselves and the bodies upholding them. We cannot therefore place any weight upon this practitioner's good opinion of the respondent; indeed it was a source of grave concern to the Tribunal that the respondent was seeking professional advice and guidance from such a quarter. 9. These offences are not mere technicalities nor are they victimless. The public interest in ensuring access to accurate health information is very significant. The importance of this interest is reflected in the inclusion of advertising provisions of the National Law and the fact that criminal sanctions attach to them. 10. Practitioners who engage in misleading and deceptive conduct cannot be permitted to avoid professional accountability by hiding behind legal veils, such as those that disguise ownership of their enterprises, or those that present blanket disclaimers as treatment consent documentation. 11. The importance to the chiropractic profession of their members ensuring that they provide accurate health information is reflected in the statements of the Chiropractic Board, and in the actions of the Chiropractic Council of NSW in bringing a timely complaint against the practitioner. In their letter of 28 March 2017 the Council states that 'false claims to treat serious illness through unproven methods' had brought the profession into disrepute. 12. A non-review period is not a punishment, it is a protective order used in the public interest to set and maintain professional standards, and to ensure that the practitioner has sufficient time to remedy defects in their practise before attempting re-registration. 13. A finding of unsuitability to practise does not lend itself to any particular non-review period. It is for the practitioner to demonstrate, on application for review, that he has addressed and overcome the matters relating to his or her unsuitability and can now be trusted to act ethically, legally and with appropriate care. In matters such as this one that task will likely require the practitioner to demonstrate substantial changes, and setting any time limit on such change could be viewed as artificial. 14. In this case a non-review period of two years is ordered to signal to the profession and to the public the extreme gravity with which the Tribunal regards offences involving registered health practitioners misleading and deceiving the public about serious diseases such as cancer. 15. A prohibition order may only be issued if the Tribunal is satisfied that the practitioner poses a substantial risk to the health and safety of the public. We do find that such substantial risk exists in this case as a result of the conduct of the practitioner in repeatedly, and over a considerable period of time, seeking to distance himself from responsibility for the predatory and deceptive business venture that he created. The evidence in this matter means that the Tribunal can have no faith that the practitioner's conduct would not be repeated in a different health care setting. Costs 1. The HCCC has been successful in its case and is entitled to costs. Orders 1. The practitioner's registration as a chiropractor is cancelled pursuant to s 149C(1)(c) and (d) of the National Law; 2. The practitioner is prohibited from providing any health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) for the duration of the cancellation of registration; 3. Pursuant to s 149(7) of the National Law the practitioner may not apply for review for two years from the date of these orders; 4. Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** ​ I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2018