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Queensland Judgments
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  • Unreported Judgment

The Health Ombudsman v Esdaile

 

[2019] QCAT 257

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

The Health Ombudsman v Peter Lindsay Esdaile [2019] QCAT 257

PARTIES:

THE HEALTH OMBUDSMAN

(applicant)

 

v

 

PETER LINDSAY ESDAILE
(respondent)

APPLICATION NO/S:

OCR287-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 September 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

ORDERS:

  1. Pursuant to section 113(1) of the Health Ombudsman Act 2013 (Qld), Mr Esdaile is found to pose a serious risk to persons.
  1. 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 or all of the following in respect of humans:
    1. (a)
      Hendra virus, chicken pox, German measles, and other infectious viral ailments;
    2. (b)
      Snake bites;
    3. (c)
      Herbicide poison, pesticide poison;
    4. (d)
      Paralysis ticks; and
    5. (e)
      Other poisons or substances toxic to humans.
  2. Each party bears their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – HEALTH PRACTITIONERS REGULATION NATIONAL LAW GENERALLY – where the practitioner was an unregistered health practitioner – where the Health Ombudsman took immediate action by issuing an interim prohibition order under s 68 of the Health Ombudsman Act 2013 (Qld) – where the matter was referred to the Tribunal under s 104 of the Health Ombudsman Act 2013 (Qld) – whether the Tribunal believes the practitioner poses a serious risk to persons under s 113 of the Health Ombudsman Act 2013 (Qld) – whether the Tribunal should make a prohibition order under s 113(4) of the Health Ombudsman Act 2013 (Qld)

LEGISLATION:

Health Ombudsman Act 2013 (Qld) s 7, s 8, s 68, s 103, s 104,s 113

REPRESENTATION:

 

Applicant:

L Reibelt from the Office of the Health Ombudsman

Respondent:

Self-represented

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Background

  1. [1]
    Mr Esdaile was a provider of health services in Warwick, Queensland.[1]  He practised as an equine chiropractor and alternative healer using Neuro Emotional Technique.  He owned the website domains entitled www.innate-energy.com.au and www.equine-energy.com.au.
  1. [2]
    Mr Esdaile was previously a registered chiropractor in Queensland, having surrendered his registration on 7 August 2015.
  2. [3]
    On 2 November 2015, a member of the Chiropractor’s Association of Queensland made a complaint that:
    1. (a)
      Mr Esdaile was holding himself out as a Chiropractor despite not being a registered chiropractor; and
    2. (b)
      Mr Esdaile promoted a remedy for treating Hendra virus through his equine website which was ‘clearly unfounded and spurious’.
  3. [4]
    Hendra virus is a zoonotic infection transferred from fruit bats to horses, and in turn from horses to humans, with a high fatality rate.[2]
  4. [5]
    On 11 November 2015, Mr Esdaile was given notification by AHPRA that since his registration as a chiropractor had ceased he may have practised as a chiropractor, performed restricted manipulations, taken or used the protected title ‘chiropractor’ and held himself out as a ‘chiropractor’, advertised a regulated health service in a way that was false, misleading or deceptive or likely to be misleading or deceptive and/or in a way that creates unreasonable expectation of beneficial treatment.  Mr Esdaile was required to, amongst other things, immediately desist from practising as a chiropractor.  Mr Esdaile was reminded that AHPRA was considering whether to lay charges against him in the Magistrates Court.
  5. [6]
    Pursuant to s 68 of the Health Ombudsman Act 2013 (Qld) (HO Act), the Health Ombudsman on 24 November 2015 decided to take immediate action and issued an interim prohibition order (IPO).  Under the HO Act, the Health Ombudsman has power to regulate the conduct of unregistered health practitioners, including the power to issue an IPO.   
  6. [7]
    The terms of the IPO prevented Mr Esdaile:
    1. (a)
      Advertising or promoting by any means, any alternative remedy or treatment to Hendra virus;
    2. (b)
      Supplying any alternative remedy or treatment to Hendra virus;
    3. (c)
      Administering or recommending the administering of any alternative remedy or treatment to Hendra virus to any human or animal.
  7. [8]
    On 10 December 2015, the Health Ombudsman made a decision to investigate the allegations against Mr Esdaile under Part 8 of the Act.[3]
  8. [9]
    On 12 December 2015 and 21 December 2015, Mr Esdaile provided the Health Ombudsman with submissions relating to the interim prohibition order placed on him.
  9. [10]
    In correspondence to Mr Esdaile dated 23 December 2015, the Health Ombudsman confirmed its original decision to impose an IPO and stated that the IPO stands until the decision is set aside by the Tribunal.
  10. [11]
    As part of the investigation conducted by the Health Ombudsman, Mr Esdaile attended an interview with officers of the Office of the Health Ombudsman on 14 January 2016.  The interview was recorded and was placed in evidence before the Tribunal.

Referral

  1. [12]
    The continuance of the IPO against Mr Esdaile became the subject of a referral by the Health Ombudsman pursuant to s 103 (1)(a) and s 104 of the HO Act.
  2. [13]
    Pursuant to section 113(4) of the HO Act, the Tribunal must decide “if, because of the health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons.”  If the Tribunal decides the practitioner poses a serious risk to persons, it may make a prohibition order, prohibiting the practitioner, either permanently or for a stated period, from providing any health service or a stated health service; or imposing stated restrictions on the provision of any health service, or a stated health service, by the practitioner.[4]
  3. [14]
    There are four grounds relied upon by the Health Ombudsman in the referral for the making of the order:
    1. (a)
      Between June 2015 and November 2015, Mr Esdaile advertised and promoted on his website, including through an audio-visual recording, his product (the alternative product) as an alternative to the medically recognised Hendra vaccine, whereas Mr Esdaile’s alternative product was plain bottled water with a handwritten label attached which had not been tested or scientifically proven to be effective against Hendra virus in humans or animals;
    2. (b)
      Between 1 January 2013 and 1 January 2015, Mr Esdaile supplied his alternative product to a consumer upon their request, in exchange for $35;
    3. (c)
      In correspondence from Mr Esdaile to the Health Ombudsman dated 12 December 2015 and 21 December 2015, Mr Esdaile continued to maintain the effectiveness of his alternative product for the treatment of Hendra virus and asserted that the alternative product could be used to treat other illnesses such as German measles and chicken pox, thus suggesting that he would continue his conduct if no order was made restricting it; and 
    4. (d)
      Mr Esdaile’s conduct constituted a breach of the Australian Charter of Health Rights in that he failed to provide safe and high quality health services.
  4. [15]
    Mr Esdaile filed a response to the referral dated 23 April 2018 and a supplementary response dated 8 May 2018. A statement of agreed and disputed facts between the applicant and respondent was filed on 10 May 2018.
  5. [16]
    The parties filed affidavit evidence, including an independent expert report by the Health Ombudsman.  The matter proceeded by way of a hearing on the papers with each party having filed submissions.

The Evidence

  1. [17]
    The foundation of the grounds detailed in the referral relate to conduct engaged in by Mr Esdaile in making the alternative remedy and then supplying and recommending it as an ‘energetic Hendra virus remedy’.
  2. [18]
    Mr Esdaile admits to having prepared the alternative product by purchasing bottled water and placing a label on the bottle with the words ‘Hendra virus’, followed by a number which was said to be for the purposes of ‘potency’. [5]
  3. [19]
    Mr Esdaile stated that the reason the bottled water is ‘200C’ is because he “put a piece of paper on, which stated it was ‘200C’.” [6]  Mr Esdaile said that the placing of the label on the bottle “changes the energy in the water” and “provides immunity to Hendra virus”.[7]
  4. [20]
    Mr Esdaile admits that there is ‘nothing’ in the alternative product apart from water,[8] that it has not undergone any clinical testing[9] and that his only evidence of its effectiveness is from his own anecdotal experience.[10]
  5. [21]
    Mr Esdaile also claims that the method used to prepare the alternative product is applicable to other ailments such as chickenpox and German measles.[11]
  6. [22]
    Mr Esdaile received a request to provide the alternative product to a consumer.[12] Mr Esdaile provided the alternative product by post to the consumer, in exchange for $35 by way of bank transfer.[13]
  7. [23]
    In June or July 2015, Mr Esdaile created an audio-visual recording featuring himself at his residence, promoting the alternative product.[14] In this recording, Mr Esdaile stated:

“I’m here today to talk to you about Hendra… So I am here to offer an alternative….We have developed a preparation that we can use as an alternative to the Hendra vaccine, so this preparation can be safe and effective.  It doesn’t matter whether you give it to a horse or yourself.  That should give you the protection you need.”[15]

  1. [24]
    The audio-visual recording was uploaded to Mr Esdaile’s equine energy website.
  2. [25]
    The expert report filed was from Associate Professor Elliott Geoffrey Playford, Director of Infection Management Services at the Princess Alexandra Hospital in Brisbane.  Associate Professor Playford expressed the opinion regarding the alternative product:

There is no scientific rationale or pre-clinical or clinical evidence that plain bottled water in any way provides human protection from, or treatment of, Hendra virus infection…[16][or] chickenpox, German Measles and/or paralysis ticks.[17]

  1. [26]
    In his affidavit affirmed on 1 August 2018, whilst acknowledging Associate Professor Playford’s extensive involvement with Hendra virus, Mr Esdaile claims that his expert opinion is invalid because he lacks qualifications or experience in the field of “energy” health care.[18]
  2. [27]
    In his submissions, Mr Esdaile states:

The claim by the Health Ombudsman’s Office that [the alternative product is] ‘ineffective to treat or prevent Hendra virus’ is unfounded and unsubstantiated by any authority with any experience or qualifications in ENERGY, so I propose that the argument is totally invalid until we are able to demonstrate my claims.”[19]

  1. [28]
    Mr Esdaile seems to rely on the alleged harm caused by the approved Hendra vaccine, and the comparative non-toxic nature of his alternative product as a basis for his claim that his alternative product is effective.[20]
  2. [29]
    Mr Esdaile has not provided any scientific, non-anecdotal evidence of the success of his alternative product.
  3. [30]
    In those circumstances, the Tribunal does not accept that the alternative product produced by Mr Esdaile can be promoted as a remedy for treating Hendra virus or any other ailments.

Serious risk

  1. [31]
    The Tribunal must decide whether Mr Esdaile poses a serious risk to persons, for the purpose of s 113 of the HO Act.
  2. [32]
    Section 113 of the HO Act provides:

113 Prohibition order

  1. (1)
    QCAT must decide if, because of the health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons.
  1. (2)
    Without limiting subsection (1), the serious risk posed to a person by a health practitioner may be a serious risk of harm caused by the practitioner—
  1. (a)
    practising the practitioner’s profession unsafely, incompetently or while intoxicated by alcohol or drugs; or
  1. (b)
    financially exploiting the person; or
  1. (c)
    engaging in a sexual or improper personal relationship with the person; or
  1. (d)
    discouraging the person from seeking clinically accepted care or treatment; or
  1. (e)
    making false or misleading claims about the health benefits of a particular health service; or
  1. (f)
    making false or misleading claims about the practitioner’s qualifications, training, competence or professional affiliations.
  1. (3)
    In deciding under subsection (1) whether, because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons, QCAT may have regard to a prescribed conduct document under section 288.
  1. [33]
    Mr Esdaile’s conduct fits squarely within the types of conduct listed in s 113, in that:
    1. (a)
      Mr Esdaile made false and misleading claims about the effectiveness of the alternative product, claiming that it would protect humans and animals from the Hendra virus, despite it containing ‘nothing’ except water.  These claims put the public at risk from unvaccinated horses who may contract the virus upon their owners’ reliance on Mr Esdaile’s alternative product;
    2. (b)
      Mr Esdaile financially exploited a consumer when he sold them the ineffective alternative product for a profit; and
    3. (c)
      Mr Esdaile has failed to provide ‘safe and high quality health services’ by making misleading representations about an ineffective and untested product to be used for the purposes of preventing a potentially deadly infection.[21]
  2. [34]
    Throughout these proceedings, and in the face of an independent expert report, Mr Esdaile continued to maintain his claim that his alternative product is an effective treatment to, or prevention of Hendra virus and other illnesses such as German measles and chicken pox.[22] Mr Esdaile also claims that a similar alternative product can be used to treat snake bites,[23] herbicide and pesticide poison,[24] and paralysis ticks.[25]
  3. [35]
    Those claims have the potential to place the public at risk through reliance on those claims and the failure to effectively vaccinate and protect themselves otherwise.  Such action could result in the potential spread of infections and harm to humans.  It is clear that Mr Esdaile would continue, if unrestrained, to produce, supply and promote his alternative product.
  4. [36]
    The continuance of such conduct by Mr Esdaile poses a serious risk to persons.
  5. [37]
    The Tribunal considers it is appropriate to make a prohibition order under s 113 HO Act and that such order should permanently prohibit Mr Esdaile 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 or all of the following in respect of humans:
    1. (a)
      Hendra virus, chicken pox, German measles, and other infectious viral ailments;
    2. (b)
      Snake bites;
    3. (c)
      Herbicide poison, pesticide poison;
    4. (d)
      Paralysis ticks; and
    5. (e)
      Other poisons or substances toxic to humans.
  6. [38]
    The Health Ombudsman made no application for costs.

Orders

  1. [39]
    Accordingly, it is the decision of the Tribunal 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.
  1. 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 or all of the following in respect of humans:
    1. (a)
      Hendra virus, chicken pox, German measles, and other infectious viral ailments;
    2. (b)
      Snake bites;
    3. (c)
      Herbicide poison, pesticide poison;
    4. (d)
      Paralysis ticks; and
    5. (e)
      Other poisons or substances toxic to humans.
  2. Each party bears their own costs.

Footnotes

[1]A health service provider is defined in sections 7 and 8 of the Health Ombudsman Act 2013 (Qld) as an individual who provides or purports to provide a service for maintaining, improving, restoring or managing people’s health and wellbeing.

[2]Applicant’s Submissions dated 31 August 2018, [32(a)].

[3]Statement of agreed and disputed facts, filed 10 May 2018, [13].

[4]S 113(4), HO Act.

[5]Transcript of record of interview with Health Ombudsman, 14 January 2016 (Transcript), page 12, line 1-14; Statement of Agreed Facts filed 10 May 2018 (SOAF), [14].

[6]Transcript, page 28, lines 21-26; SOAF, [15].

[7]Transcript, page 11, lines 42-45; SOAF, [17].

[8]Transcript, page 11, lines 12-14; page 28, lines 28-31; SOAF, [19].

[9]Transcript, page 21, lines 25-28; SOAF, [20].

[10]Transcript, page 22, lines 5-17; SOAF, [21].

[11]Transcript, page 49, lines 3-19; SOAF, [32].

[12]Transcript, page 13, lines 32-34; SOAF, [28].

[13]Transcript, page 14, line 46 and page 15, lines 1-18; SOAF, [29]-[30].

[14]Transcript, page 19, lines 8-31; SOAF, [22]-[23].

[15]Audio-visual recording at 4.05.

[16]Affidavit of Associate Professor Elliott Geoffrey Playford, affirmed 16 May 2018, EGP-4.

[17]Affidavit of Associate Professor Elliott Geoffrey Playford, affirmed 16 May 2018, EGP-9.

[18]Affidavit of Mr Peter Esdaile, affirmed 1 August 2018, [4]; Respondent’s Submissions dated 13 September 2018, [5].

[19]Respondent’s Submissions dated 13 September 2018, [4].

[20]Affidavit of Mr Peter Esdaile, affirmed 1 August 2018, [6]-[7]; Respondent’s Submissions dated 13 September 2018, [6].

[21]This is a breach of the Australian Charter of Healthcare Rights, which is a “prescribed conduct document” for the purposes of s 113(3) of the HO Act.

[22]Transcript page 49, lines 12-21.

[23]Transcript page 22, lines 8-13; page 30, line 26 to page 31, line 26; page 43, line 43 to page 44, line 7; SOAF [21].

[24]Transcript, page 22, lines 8-17; page 31, line 28 to page 33, line 10; page 43, line 43-44; SOAF [21].

[25]Transcript page 49, line 38 to page 50, line 15.

Close

Editorial Notes

  • Published Case Name:

    The Health Ombudsman v Peter Lindsay Esdaile

  • Shortened Case Name:

    The Health Ombudsman v Esdaile

  • MNC:

    [2019] QCAT 257

  • Court:

    QCAT

  • Judge(s):

    Sheridan J

  • Date:

    06 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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