Zaphir v Health Ombudsman[2017] QCAT 193

REASONS FOR DECISION

1. [1]
   Mr Zaphir was a provider of health services.  He practised using the business name, “Dynamic Therapies”, from premises situated at 12 Jane Street, West End.  On Wednesdays, he practised from rooms located at the back of a business known as “Crystal Connections” located at 19 King Street, Caboolture.
2. [2]
   Under cover of a letter dated 14 June 2016, Mr Zaphir was given notice by the Health Ombudsman of a proposed decision.  With the letter he was provided information detailing the basis of the complaint together with documentation.  The complaint concerned Mr Zaphir’s clinical treatment of Mr Ian Booth, now deceased.  In particular, the complaint concerned advice allegedly given to Mr Booth by Mr Zaphir that he could treat and cure a cancerous tumour growing out of Mr Booth’s right eye and Mr Zaphir’s conduct when his treatment ceased.
3. [3]
   Mr Zaphir provided three written submissions to the Health Ombudsman.  He refuted all the allegations but did not provide any response to the individual allegations made nor any evidence.
4. [4]
   On 16 August 2016, the Health Ombudsman decided to take immediate action by issuing an interim prohibition order (IPO) in relation to Mr Zaphir pursuant to s 68 of the Health Ombudsman Act 2013 (Qld) (HO Act).  Under the HO Act, the Health Ombudsman has power to regulate the conduct of unregistered health practitioners, including the power to issue an IPO.
5. [5]
   The terms of the IPO prohibited Mr Zaphir “from any employment (paid or otherwise) in a clinical or non-clinical capacity which relates to the provision of any health service”.  The letter informed Mr Zaphir that the IPO would take effect on 17 August 2016.
6. [6]
   On 13 September 2016, Mr Zaphir applied to the Queensland Civil and Administrative Tribunal (Tribunal) to have the immediate action decision of the Health Ombudsman reviewed. 
7. [7]
   As the Tribunal has no power to stay the making of such an order, the approach taken by the Tribunal in immediate action matters is to progress such applications to a hearing as quickly as possible.  In this matter, and without directing any criticism towards any party, there were significant delays. 
8. [8]
   As noted by the Tribunal on the hearing of a preliminary application in relation to evidence, delay may impact the manner in which the Tribunal proceeds at the hearing of the final application and in particular, the rights of parties to cross-examine. 

The Nature of the Proceedings

9. [9]
   Section 94 of the HO Act gives to the Tribunal jurisdiction to review a decision of the Health Ombudsman to issue an IPO to a health practitioner.  Pursuant to s 94, the review is to proceed as a review of a decision under the Queensland Civil and Tribunal Act 2009 (Qld) (QCAT Act).^[1] 
10. [10]
    The terms of s 94 of the HO Act, read together with s 20(2) of the QCAT Act, make the approach to be taken by the Tribunal in conducting a review very clear.  The review is to be conducted as a full de novo hearing on the material before the Tribunal.  The purpose of the review is to produce the correct and preferable decision.  The Tribunal can confirm, or amend, set aside or substitute the decision or return the matter for reconsideration, with such directions as the Tribunal considers appropriate.^[2]
11. [11]
    The Tribunal is able to consider evidence of matters which have occurred after the decision under review is made.^[3]  In this case, a preliminary issue arose as to the admissibility of evidence with respect to alleged conduct by Mr Zaphir after the imposition of the IPO.  That evidence had been objected to on the grounds, amongst other things, that the events disclosed post‑dated the original decision.  At the hearing, that objection was not pursued.   Both parties proceeded on the basis that the review was to be conducted as a fresh hearing on the merits. 
12. [12]
    Being a fresh hearing on the merits, the Tribunal must make its decision applying the test prescribed by s 68 of the HO Act.  The Tribunal must decide whether it is satisfied on reasonable grounds that because of Mr Zaphir’s conduct or performance he poses a serious risk to persons, and that it is necessary to take immediate action in the form of a prohibition from practicing to protect public health or safety.  Section 68 contains a non‑exhaustive list of the types of conduct which may constitute a serious risk which includes the making of false or misleading claims about the health benefits of a particular health service.
13. [13]
    Section 68 of the HO Act is in almost identical terms to the immediate action power given to the National Board under s 156 of the National Law. Appropriately, no suggestion was made that the introductory words of s 68 requiring the Health Ombudsman to be “satisfied on reasonable grounds” created any different obligation to the introductory words of s 156 requiring the National Board to “reasonably believe”. 
14. [14]
    The proper approach for the Tribunal to take in immediate action reviews has been considered by the Tribunal in a number of decisions under the National Law.  In Colagrande v Health Ombudsman,^[4] I considered the immediate action power under the HO Act.  There, I referred to the previous decisions of the Tribunal under the National Law.^[5]  Reference was made, in particular to comments made by the Tribunal in I v Medical Board of Australia where the Tribunal said: 

The Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed enquiry by the Board or by this Tribunal. It requires action on an urgent basis because of the need to protect the public.^[6]

15. [15]
    Immediate action is interim in nature but, as I have commented previously, that does not mean the material available to the decision-maker should not be carefully scrutinised in order to determine the weight to be attached to it.^[7] 
16. [16]
    In some cases, the appropriate course may be to require the parties to put before the Tribunal sworn evidence and for the parties to be permitted to cross-examine.  There may be other occasions where the urgency of the decision and the review do not enable that to occur.  In Liddell v Medical Board of Australia the Tribunal observed: 

Where, for example, two allegations of criminal conduct involving serious sexual misconduct by a medical practitioner are made, (as in I v Medical Board of Australia) it would be impractical for s 156 to require that the Medical Board make urgent findings of fact as to the practitioner’s guilt or innocence. Rather, the mere fact and seriousness of the charges, supported by the untested depositions of witnesses, might well be sufficient to create the reasonable belief as to the existence of a risk because of the alleged conduct of the health practitioner.^[8]

17. [17]
    The process to be adopted must be determined on the facts of each case.  In this case neither party had approached the case with any degree of urgency and no question of criminal misconduct has arisen.  The delays which had occurred are such that it was appropriate to require sworn evidence and to permit some cross-examination.   
18. [18]
    The process of scrutinising the material requires the Tribunal only be satisfied on reasonable grounds that the conduct alleged actually occurred and that, because of that conduct, the practitioner poses a serious risk.  In previous decisions, the Tribunal has accepted that it may be sufficient if the Tribunal is left “with something to surmise or conjecture” in terms of its determination as to whether the conduct alleged occurred.^[9]   
19. [19]
    As it happens, in the present case the Tribunal has had the advantage of the cross-examination of each of the complainant, Mr Booth’s former de facto partner (who was living in the same house as Mr Booth through the relevant period) and the health practitioner. The Tribunal has the benefit of being able to more fully scrutinise at least some of the evidence.

The Allegations

20. [20]
    The allegations made in the show cause notice sent to Mr Zaphir dated 14 June 2016 can be summarised as follows: 

1. Mr Zaphir advised Mr Booth: 

1. He could cure his cancer without surgical intervention and the tumour would drop off; 
2. The tumour was all coming out to the front and he could not see anything attached to the back;
3. To stay away from modern medicine and to follow his treatment;

2. In treating Mr Booth, Mr Zaphir:

1. Used high doses of vitamin C injections as a treatment for cancer when its use as a treatment for cancer is not supported by evidence-based medicine; 
2. Supported the use by Mr Booth of black salve as a cure or treatment of cancer; 
3. Organised and interpreted the results of tests and scans;
4. Failed to provide health services in a safe and ethical manner;
5. Charged Mr Booth $175 per consultation and received a total amount of approximately $4000.00; 

3. Mr Zaphir misrepresented himself to Mr Booth as a qualified medical practitioner; and 
4. It can be inferred from the advice given by Mr Zaphir that Mr Booth did not have to worry about the tumour penetrating his brain and manifesting as a terminal illness. 

21. [21]
    In his submissions to the Health Ombudsman and in his submission in these proceedings, Mr Zaphir refutes all allegations.  He says the Tribunal could not accept he conducted himself in the manner alleged and could not be satisfied he poses a serious risk to persons.

The Evidence

22. [22]
    For the purpose of considering the conduct, it is admitted by Mr Zaphir that: 

    1. Mr Booth was diagnosed in February 2015 with a “squamous cell carcinoma on his right lacrimal duct”.  At the time of diagnosis, Mr Booth was advised by the doctors at the Royal Brisbane and Women’s Hospital that the tumour could be successfully removed surgically, but the operation would result in the loss of his right eye and some of the bone surrounding his eye socket;
    2. Mr Booth refused surgery on the tumour and any other form of conventional treatment and was self-administering black salve to the tumour; 
    3. Mr Booth sourced the black salve from a friend, Allyn Barden; 
    4. Mr Barden knew Ms Berryman and in late June 2015, Mr Booth spoke to Ms Berryman about the large tumour that was growing out of his eye; 
    5. Following the conversation between Mr Booth and Ms Berryman, Ms Berryman spoke to Mr Zaphir and asked Mr Zaphir if he would be willing to treat Mr Booth’s tumour.  Mr Zaphir agreed; 
    6. On 30 June 2015, Mr Booth sent Ms Berryman four photographs of his face showing the tumour which by that time completely covered his right eye socket, the bridge of his nose and part of his forehead; 
    7. Mr Booth first met Mr Zaphir on 3 July 2015 at the Dynamic Therapies Clinic in West End.  Mr Zaphir then drove Mr Booth to Centremark Medical Centre in Nerang where Mr Booth saw Dr Power. Dr Power ordered pathology tests for Mr Booth; 
    8. Mr Booth also had a consultation with Mr Zaphir at the Medical Centre that day;
    9. After the initial consultation at Centremark Medical Centre, Mr Zaphir started treating Mr Booth every Wednesday from a room at Crystal Connections in Caboolture.  The treatments continued for approximately three or four months; 
    10. The weekly treatment, given by Mr Zaphir to Mr Booth, involved giving Mr Booth high doses of vitamin C; 
    11. During Mr Zaphir’s treatment of Mr Booth, Mr Zaphir knew that Mr Booth was using black salve on the tumour; 
    12. Mr Zaphir endorsed the use of, or provided to Mr Booth, nutritional supplements; 
    13. Mr Booth was not provided with pain medication or dressings for the tumour; 
    14. Mr Zaphir organised, with the assistance of medical practitioners, for Mr Booth to undergo pathology tests and radiology, CT, PET and MRI scans; 
    15. During the treatment process, the tumour was weeping blood and smelt rotten; 
    16. On 15 October 2015, Mr Booth went to QScan at Redcliffe and had a CT scan (facial bones) and an MRI (brain and face) which had been ordered by Dr Power on 9 October 2015; 
    17. On 22 October 2015, Dr Power ordered further PET/CT scans for Mr Booth; 
    18. On 29 October 2015, Mr Booth attended the Gold Coast University Hospital to consult with Dr Daniel Williams and Dr Raja Sawhney and took to them his most recent scans.
    19. Dr Willams and Dr Sawhney looked at Mr Booth’s scans and advised him that the tumour was in his lymph nodes and that the same volume of tumour was inside his skull as could be seen on the outside; 
    20. Mr Booth also took the most recent scans to Mr Zaphir and Mr Zaphir looked at the scans; 
    21. On a date unknown but possibly in mid-December 2015, Mr Booth telephoned Mr Zaphir; 
    22. On 30 December 2015, Mr Booth had a conversation with his niece, Mrs MacIntyre and a general practitioner, Dr David Lutchman, and that consultation was recorded on Mrs MacIntyre’s mobile phone;
    23. By 14 January 2016, the tumour had grown to cover more than half of Mr Booth’s face; and
    24. On 26 February 2016, Mr Booth died in the Redcliffe Hospital. 
23. [23]
    Given the admitted facts, the factual issue to be resolved was what had been said by Mr Zaphir to Mr Booth when he had first agreed to treat Mr Booth and during the course of treating him.
24. [24]
    Mr Booth’s niece, Mrs MacIntyre, and Mr Booth’s former de facto partner, Ms Mitchell, gave the factual evidence on behalf of the Health Ombudsman in relation to these issues.  Both gave signed statements and were cross-examined. Mr Zaphir gave evidence and was cross-examined. 

Evidence of Mrs MacIntyre

25. [25]
    Mrs MacIntyre became involved in Mr Booth’s care following his visit to the Gold Coast University Hospital where he was told that they could not operate and he had four to eight weeks to live.  She was told about his circumstances by her mother and as a nurse she became concerned whether Mr Booth had any supportive palliative services in place.
26. [26]
    Mrs MacIntyre gave evidence as to various discussions she had after that time with Mr Booth and with Mr Zaphir and Ms Berryman.  She said that through those discussions, she was led to believe that Mr Zaphir was a medical practitioner.  She said that Mr Booth had referred to Mr Zaphir as a doctor.  In cross-examination, she agreed that Mr Booth had never referred to him as a registered medical practitioner.  It was not suggested to Mrs MacIntyre that Mr Booth had never referred to Mr Zaphir as a doctor; rather it was put to her that people other than registered medical practitioners could be called doctors, which appropriately she accepted.
27. [27]
    Mrs MacIntyre said that in discussions with Mr Zaphir, she had been lead by Mr Zaphir’s conduct to believe he was a doctor.  She said when she first tried to contact Mr Zaphir, she had left messages and when he finally got back to her, he had said, “Sorry, I’ve been busy with my patients.”^[10]    Mrs MacIntyre said she recalled in that first call she told Mr Zaphir that Mr Booth was dying and Mr Zaphir responded, “I just can’t understand that.  I have looked at the scans and the tumour is localised.”^[11]
28. [28]
    She said that when she requested scripts for pain relief and the necessary forms in order to arrange palliative care, he had never suggested to her he could not help.  Likewise, when she later requested copies of the MRIs, he never suggested that he would have to get those from elsewhere.  She said, however, that Mr Zaphir was slow in providing the documents requested.  She said she became frustrated by the delays and said to Mr Zaphir, “Are you even a doctor?” and he responded, “I practised medicine, but I stopped practicing in 1988, when I started pursuing natural therapy.”^[12]
29. [29]
    Mrs MacIntyre said that it took her sometime to realise that Mr Zaphir was not a doctor.
30. [30]
    Mrs MacIntyre arranged for Mr Booth to become a patient of Dr Lutchman in December 2015.  In late December, Dr Lutchman ordered more scans.
31. [31]
    Mrs MacIntyre said that it was around the middle of December 2015 that Mr Booth told her that he had rung Mr Zaphir to ask him for his previous scans.  She said Mr Booth told her that he had said to Mr Zaphir that he was getting more scans to compare with the older ones and to get a second opinion.  She said that Mr Booth told her that Mr Zaphir said to him at the end of the conversation, “Leave my name out of it.”^[13]  Mrs MacIntyre said that Mr Booth had said Mr Zaphir had said to him he could be cured and that he was fundraising to send him to Germany for treatment.^[14]
32. [32]
    In her conversations with Mr Booth, she discussed the treatment provided by Mr Zaphir.  She said the treatment had also been discussed in conversations between herself, Mr Booth and Mr Booth’s treating practitioner, Dr Lutchman.  One of those conversations was recorded and the recording provided to the Health Ombudsman.
33. [33]
    She said that Mr Booth had said his treatment involved weekly doses of 70,000 to 80,000mg of vitamin C, administered intravenously.  Mrs MacIntyre was not challenged about that evidence.
34. [34]
    Mrs MacIntrye said that Mr Booth had referred to a salve.   She said at that time she was not sure whether Mr Zaphir had actually physically provided “black salve” to Mr Booth or just endorsed its use as part of the treatment regime.
35. [35]
    It was only after Mr Booth’s death, in going through Mr Booth’s email account, that Mrs MacIntrye learnt that Mr Allyn Barden had provided Mr Booth internal and external black salve.
36. [36]
    In January 2016, Mr Booth asked Mrs MacIntyre for help to write an email to Mr Zaphir seeking the repayment of the money Mr Booth had paid to Mr Zaphir for the treatment.  At the time Mr Booth had told her that he felt he had been led astray and let down by Mr Zaphir and Ms Berryman.  In cross-examination, Mrs MacIntyre confirmed that while she helped Mr Booth to type the email, she typed what Mr Booth told her to type; she said it was all his words. In the email, Mr Booth requested a refund of $4000, being the amount which he had said he had paid for the treatment.
37. [37]
    In cross-examination, Mrs MacIntyre agreed that she had attended Mr Zaphir for a consultation at the request of “A Current Affair.”  She said that what she told Mr Zaphir in terms of her own symptoms was true.  There was no dispute, however, that her attendance was part of a covert operation.  She said that she wanted information.
38. [38]
    Mrs MacIntyre was a very reasonable and believable witness.  Her description of the events was very considered and careful.  Her general approach is apparent from her unsolicited letter of complaint which was objective and comparatively constrained given the circumstances.
39. [39]
    No objection was taken to the receipt of her evidence nor to the evidence of Ms Mitchell as to what they were told by Mr Booth.  Submissions were made only that Mr Zaphir’s evidence as to the conversations between him and Mr Booth was to be preferred and that the content of some of the conversations, as given in the evidence of Mrs MacIntyre and Ms Mitchell, could not possibly be correct. 

Evidence of Ms Mitchell

40. [40]
    In giving her evidence, Ms Mitchell spoke of her numerous discussions with Mr Booth.  Ms Mitchell was living in the same house as Mr Booth, having moved into the house in March 2015.  She said that she had previously been in a de facto relationship with Mr Booth and that they had a son together.  Ms Mitchell said she was staying in the house at this time to support their son, Michael, who was having chemotherapy.  It was while she was at the house that Mr Booth was also diagnosed. Ms Mitchell maintained her separate residence at Bribie Island during this period and would often return there on weekends.
41. [41]
    Ms Mitchell confirmed Mr Booth’s refusal to have surgery and his decision to go the alternative medicine approach.  She confirmed Mr Booth was using black salve ointment.  She believed Mr Booth used the black salve for around 6 months or more.   She said that Mr Booth would apply the salve twice a day, 12 hours apart.  She said that he would do it religiously and that he had told her he had to do it like that.
42. [42]
    She said that in that time the cancer worsened and continued to grow bigger and bigger.  She said it looked horrible and smelt rotten.
43. [43]
    Ms Mitchell had many discussions with Mr Booth where he had indicated to her he was encouraged by the growth of the cancer.  She said that he thought the tumour started as an internal thing that was gradually “coming out of his head and would drop off.”^[15] She said that in her discussions with Mr Booth, he had said that the medical staff had told him the black salve would draw out the tumour and all the roots of the tumour and one day the whole thing would detach and just drop off.
44. [44]
    Ms Mitchell eventually telephoned Mr Booth’s niece, Belinda MacIntyre who was a nurse.  She said she had telephoned Mrs MacIntyre because Mr Booth’s pain had become very bad; not just when he had used the black salve.
45. [45]
    She said she could recall the time when Mr Booth returned from a visit to the Gold Coast University Hospital and was very upset.  She said she could recall that date as being 29 October 2015.
46. [46]
    She said she recalled it was around this time that Mr Booth became very confused.  She said she could recall that he had one doctor telling him that the tumour was coming out and another doctor telling him it was getting bigger and bigger. 
47. [47]
    Ms Mitchell said that after the telephone call to Mrs MacIntyre, Mrs MacIntyre visited and saw Mr Booth and arranged urgent treatments for Mr Booth and for Mr Booth to see Dr Lutchman at Murrumba Downs. 
48. [48]
    Prior to attending Dr Lutchman, she said the main doctor treating Mr Booth was George Zaphir.  Ms Mitchell said that from talking to Mr Booth she knew that Mr Zaphir had a practice at West End, one at the Gold Coast and one at Caboolture. 
49. [49]
    Ms Mitchell said that she knew Mr Booth was getting needles from Mr Zaphir as Mr Booth had told her that himself.  She said that Mr Booth had said he was getting doses of vitamin C.  She said that she did not remember the precise amounts, but Mr Booth had said something like 1,000mg doses from Mr Zaphir each week.  She said Mr Booth had told her that Mr Zaphir injected the vitamin C directly into the tumour growing from his eye.  Ms Mitchell was not challenged about that evidence.
50. [50]
    She said that Mr Booth had a standing appointment with Mr Zaphir every Wednesday.  She said that every Wednesday, Mr Booth’s friend, Jumbo (James Grant), would pick up Mr Booth and drive him to Caboolture for the treatment with Mr Zaphir.
51. [51]
    Ms Mitchell said she had asked Mr Booth how much the treatments with Mr Zaphir cost him and he had told her $175.00 each appointment.  She said Mr Booth had told her that was for the consultation and the injection.  She said that Mr Booth told her he kept cash under the mattress in the room that she eventually occupied at his house.  In cross-examination, she accepted that she had not seen him remove the cash but on a couple of occasions when she was in bed, having returned to the house from her night shift as a cleaner, he had come into the room and disturbed her.  When she asked what he was doing, he had said he had to get money for his appointment.  Mr Booth had told her he had to keep cash on hand to pay Mr Zaphir.
52. [52]
    She said that Mr Booth had also told her that the black salve was an illegal treatment.  Mr Booth had told her he had paid cash because the treatments he was getting from Mr Zaphir were “under the radar.”^[16]
53. [53]
    Ms Mitchell referred to a conversation she had had with Mr Booth in late October 2015.  She said that Mr Booth had told her that Mr Zaphir had assured him the tumour was coming out and was going to drop off.  She said that Mr Booth would frequently ask her, and other people, if they could see it happening.  She said that Mr Booth really believed it was going to happen.  She said that Mr Booth was completely convinced, and often said to her, how lucky he was to have Mr Zaphir looking after him. 
54. [54]
    She said that in her discussions with Mr Booth, Mr Booth had told her Mr Zaphir was a fully qualified and registered doctor.  She said that Mr Booth spoke so highly of Mr Zaphir and used to say how he appreciated that Mr Zaphir provided him the treatments he did, as he knew Mr Zaphir was not supposed to be doing it but was taking the chance to try to save Mr Booth’s life and cure his cancer.
55. [55]
    She thinks it was around the time of his visit to the Gold Coast Hospital that Mr Booth realised Mr Zaphir’s treatment had not worked at all and in fact his condition had become much worse.
56. [56]
    Ms Mitchell presented as a reasonable person who gave her evidence without embellishment and in a matter of fact manner.  Her evidence was generally consistent with the evidence of Mrs MacIntyre and any variances did not affect the veracity of the evidence given.  They had differing recollections as to when Mr Booth’s pain worsened.  Ms Mitchell recalled Mr Booth was suffering bad pain around the time Mrs MacIntyre became involved.  Mrs MacIntyre believed he had discomfort but not bad pain at that time.  Mrs MacIntyre believed the vitamin C injections were given intraveneously whereas Ms Mitchell believed Mr Booth had said he was being given injections into the tumour.  Relevantly, both believed that Mr Booth was receiving the high doses of vitamin C through injections.  This evidence is also supported by the evidence of Mr Grant, whose signed statement was tendered by consent^[17] and the audio recording of statements made by Mr Booth.^[18]

Evidence of Mr Zaphir in relation to Mr Booth

57. [57]
    In his evidence, Mr Zaphir denied that he had ever told Mr Booth to stop or cease receiving any treatment from a registered health practitioner.  In his evidence, Mr Zaphir maintained that before he started treating Mr Booth, he had asked Mr Booth why he had not allowed the surgeons to remove the growth.  Mr Zaphir said Mr Booth made his position very clear.
58. [58]
    In his affidavit, Mr Zaphir described his role as complementary to existing medical practitioners.  He said he always made that clear to his patients.  Mr Zaphir stated, “I do not state that I can cure cancer, but sometimes I can assist and compliment (sic) the treatment provided by the Client’s treating doctor by the use of alternative therapies.”^[19]
59. [59]
    In his affidavit, Mr Zaphir said he informed Mr Booth in the first consultation that while he could assist him, he could not guarantee that he could cure the growth, nor stop it from growing.^[20]  In cross-examination, he agreed he had used the word “cure” but said he had used the word because Mr Booth, in speaking to him, had used the word “cure”.  He was very quick in cross-examination to emphasise that he had said to Mr Booth he would not guarantee that he could cure. 
60. [60]
    It was then put to him, “Why would[n’t] you flat out tell him you can’t cure cancer?”, to which Mr Zaphir responded, “It’s just the words I used at that time.”^[21]  Mr Zaphir would not accept there was any difference and in his responses justified the expression used, saying that he had given him a time frame and had said if he did not follow the protocol and if he [Mr Zaphir] saw the condition deteriorating, he would terminate any further treatment.  Mr Zaphir then said, “I can’t understand how you can’t be more humane than that.”^[22]
61. [61]
    Later in cross-examination he stated, “Many clinics that use only complementary medicine can get up to an 80 per cent success rate… of eliminating an aggressive cancer.”^[23]  Mr Zaphir said there were many clinics around the world.  He denied, however, that  he had ever told Mr Booth, nor in fact any other patients, about the clinics around the world and their success rates using alternative therapies.
62. [62]
    Mr Zaphir stated that by following the “protocols”, a restricted diet, the Budweg procedure, taking high-dose vitamin C and high dose supplements and a high alkaline water intake, cancer can be “reversed”.^[24]  At one stage during cross-examination, when asked, , “Can you help the body cure cancer?”, Mr Zaphir replied, “I can help the body improve its immune system to undertake the process to cure or reverse”.  He then quickly added, “don’t use the word cure, to reverse a tumour.”^[25]
63. [63]
    Mr Zaphir also sought to distance himself from the black salve treatment.  It was not suggested that Mr Zaphir introduced Mr Booth to the use of black salve, but rather that he had endorsed its use.  In both his affidavit and in cross-examination, he denied that. 
64. [64]
    In his affidavit, Mr Zaphir detailed a consultation with Mr Booth on 5 August 2015 and said that was the first time he had been told Mr Booth was taking the black salve internally.  In his affidavit, Mr Zaphir says that at that consultation he told Mr Booth he had never used it, he considered it dangerous and he asked Mr Booth to please stop taking it internally. 
65. [65]
    In cross-examination, when Mr Zaphir was referred to his treatment notes, Mr Zaphir said he made a mistake as to the date of the consultation in his affidavit.  The actual date of the consultation has no particular importance. 
66. [66]
    The issue to be determined from his evidence is what advice he gave Mr Booth about the use of black salve.  In cross-examination, he emphatically maintained his position in relation to the taking of black salve internally.  He emphasised that he told Mr Booth “to stop taking it immediately, especially the internal black salve.”^[26]
67. [67]
    This evidence is not entirely consistent with Mr Zaphir’s treatment notes for Mr Booth, where Mr Zaphir recorded, “I informed him I was not sure of its [black salve’s] affects and effects on the body.  Told him not to take it regularly as it’s toxic if taken to excess.”^[27]  The treatment notes also record, at what appears to be the same entry, “Informed him it was up to him but my recommendation is only 1-2 for the 1^st month then stop.”
68. [68]
    In the subsequent exchange in cross-examination, Mr Zaphir’s responses appear to be directed to the use of black salve externally and, despite earlier statements, it appears Mr Zaphir would not necessarily have told Mr Booth to stop using black salve externally.  Mr Zaphir said, “If it had been helping him, I would have told him to continue.”^[28]  Mr Zaphir said that, if the black salve had been helping him, “[i]t would have started to basically shrink the tumour, kill the tumour or destroy the trauma” and the tumour “may have just fallen off.”  Mr Zaphir was then asked, “So you would have endorsed it, his use of black salve?” and he responded, “If it was helping him but it wasn’t.”^[29]
69. [69]
    Mr Zaphir was also asked why he did not immediately contact Dr Power as Mr Booth’s treating practitioner when he became aware Mr Booth was taking such a dangerous substance.  From his answers, it is clear that Mr Zaphir had no regard for Dr Power and Dr Power was simply used as a way for him to obtain any necessary referrals or tests, including scans.  This is despite earlier evidence from Mr Zaphir that he told Mr Booth he would not start treating him until he had seen a doctor and that, in fact, it was him who drove Mr Booth to see the doctor.
70. [70]
    Mr Zaphir admitted to the use of the high doses of vitamin C.  He denied, however, to having given the vitamin C injections.  He also denied having charged Mr Booth $175.00 per session.  In denying the amount charged, Mr Zaphir referred to his patient notes, which recorded an amount of $60.00 per session or on some occasions, no charge.
71. [71]
    Mr Zaphir also denied having given Mr Booth false hope.  In cross-examination, Mr Zaphir was referred to the statement in his affidavit where he admitted to having said to Mr Booth, during a consultation with Mr Booth on 5 August 2015, “Lets (sic) hope that you wake up one morning with this on your pillow.”^[30]  Mr Zaphir denied that this statement had given Mr Booth hope.  Mr Zaphir stated that the statement was:

… just to keep Ian happy more than anything else.  It wasn’t something I was expecting.  It wasn’t something that I thought would happen.  Ian was expecting that.  Ian was waiting for that so what I did to this was basically turn around and say well, let’s hope that it does fall off on your pillow.  It’s not something I said would happen.^[31]

72. [72]
    Mr Zaphir stated that he was enforcing what Mr Booth was hoping for and believing.^[32]  In response to a question as to whether he always told his patients what they wanted to hear, Mr Zaphir stated:

sometimes when you’re treating a patient with a tumour you basically will turn around and suggest that as long as they follow the protocols, we can only hope that we get a reversal.^[33]

73. [73]
    Mr Zaphir also denied having led Mr Booth to believe he was a medical practitioner.  Mr Zaphir said, in his first discussions with Mr Booth, he made it very clear that he was not a medical practitioner.  Mr Zaphir referred to driving Mr Booth to Nerang to see the doctor before he commenced any treatment.
74. [74]
    Mr Zaphir denied that while treating Mr Booth he had ever interpretted scans.  He accepted that Mr Booth brought him the scans but denied he ever made any comment about the scans.  He denied ever saying to Mr Booth, when looking at the scans, that he “can’t see anything bad here”, “can’t see anything attached to the back” or that “the tumour has all come out to the front.”^[34]  He accepted that the interpretation of scans was something only a medical practitioner is qualified to do.^[35]  Mr Zaphir’s evidence is contrary to the evidence of Mrs MacIntyre and Ms Mitchell as to their conversations with Mr Booth and the statements made on the audio recording by Mr Booth.  The audio recording in particular gives the lie to the denial that he interpreted the scans.
75. [75]
    It is also clear that there were certainly periods when Mr Zaphir used the expression doctor before his name.  His appointment book has in big letters, “Dr George Zaphir.”^[36]  Mr Zaphir tried to distance himself from his appointment book, saying that it had been organised by a former receptionist and the book had been in use since he was a registered chiropractor.  He further said that when people are making an appointment they cannot see the book.  This might be so but it is indicative of his general attitude and supports the other evidence that he held himself out in that way.
76. [76]
    Based on Mr Zaphir’s treating notes, it would seem the treating relationship between Mr Zaphir and Mr Booth ended on 9 September 2015.  Mr Zaphir’s notes record that at that appointment he told Mr Booth to organise to see Dr Power for all the relevant referrals to specialists.  He recorded telling Mr Booth “it was futile to continue as there is nothing more I can do.”  In his affidavit, Mr Zaphir stated he recalled in one of the last conversations with Mr Booth saying that the tumour was “bleeding a heck of a lot.  It’s now starting to become infected, which means it’s starting to break down.”^[37]  He said he told Mr Booth, “I just can’t assist you any longer.”  In cross-examination, Mr Zaphir said that he had always said he would stop treating if his treatments were not working.  
77. [77]
    In his affidavit, Mr Zaphir says that on or about 11 September 2015 he telephoned Dr Sawhney and discussed Mr Booth’s case with him.  He said he told Dr Sawhney that he had Mr Booth as a client and he was in “dire need of medical attention”.^[38]  He said he sent photographs to Dr Sawhney and Dr Sawhney confirmed by email that he could help.  Mr Zaphir said that he told Dr Sawhney that Dr Power would arrange the tests and referral, provided Mr Booth could get to Nerang to see Dr Power. 
78. [78]
    In cross-examination, Mr Zaphir initially said he did not remember calling Dr Sawhney but then seemed to accept he sent him some photos.  He seemed to accept that there were text messages exchanged but not emails. In cross-examination, he also said that he spoke to Dr Power about Dr Sawhney.  There is no reference in his affidavit to having spoken to Dr Power after his final consultation with Mr Booth and certainly, no reference to having spoken to Dr Power after the text message exchange with Dr Sawhney.  The Tribunal has no evidence from Dr Sawhney, nor copies of any emails or text messages. 
79. [79]
    Mr Zaphir accepted he did not make an appointment for Mr Booth with Dr Power during the final consultation, or after that final consultation.  He accepted he did not offer to drive Mr Booth to Nerang for an appointment with Dr Power, as he had previously done and despite the fact that he was still attending at Nerang every Friday.  His evidence was that it was up to Mr Booth to make the appointment with Dr Power.
80. [80]
    Mr Booth was eventually seen by Dr Power but not until 9 October 2015, one month after his final consultation with Mr Zaphir.  Dr Power ordered certain tests.  She gave him a referral to the Gold Coast University Hospital dated 23 October 2015; the referral being given after she had received the results of the tests she had ordered.  Mr Booth was seen at the University Hospital on 29 October 2015, at which time he was told the tumour was inoperable and he was dying.

Other issues arising from the evidence of Mr Zaphir

81. [81]
    During cross-examination, various matters were raised with Mr Zaphir, calling into question his credibility.  Mr Zaphir was asked about his convictions for holding himself out as a medical practitioner along with offences of prescribing restricted drugs.  Mr Zaphir said he was forced to plead guilty to the charges because he ran out of money.  He did not accept he was in fact guilty of the charges.  
82. [82]
    Mr Zaphir was also asked about his past and present conduct relating to his performance of musculoskeletal manipulation.  Mr Zaphir was previously registered as a chiropractor but had allowed his registration to lapse on 30 November 2010.  In earlier disciplinary proceedings brought before this Tribunal as a result of the convictions and the alleged conduct of holding himself out as a chiropractor despite his lapsed registration, an order was made that Mr Zaphir could not make any further application for registration as a chiropractor for a further 12 month period from the date of the order; the order of the Tribunal having been made on 26 May 2014.  In giving evidence in these proceedings, Mr Zaphir did not accept that one of the issues in those proceedings was holding himself out as a chiropractor whilst not registered.  It is accepted that Mr Zaphir has not subsequently sought to renew his registration since the date of the order.
83. [83]
    In his evidence, he seemed to accept that he was not allowed to use the term or to practice as a chiropractor but the inference from his evidence is that he had continued to perform treatments similar to that of a chiropractor.  Indeed, he explained that he was able “to do more with the patient in the form of treatments that I was giving than as a chiropractor where I was restricted to certain…modalities.”^[39]  He referred to the fact that during a manipulation of a patient, the patient may hear “a click” but said “that’s not the intention.”
84. [84]
    Finally, Mr Zaphir was questioned about his continuing to practice as a musculoskeletal therapist following the imposition of the prohibition order.  In cross-examination, with one exception, he denied having treated any patients.  He said, “I’ve been giving recommendations on how the treatments should be done”.  It is clear from the evidence tendered by counsel for the Health Ombudsman that this statement is not true.  The video and audio footage tendered clearly depicts Mr Zaphir conducting a physical examination, administering electro-magnetic therapy, inserting needles into a patient’s back and performing a manipulation on the patient.^[40]  From the footage, it is clear that Mr Zaphir had full control of the consultation.  While another person was present for parts of the consultation, that person was introduced as a student.

Evidence of Ms Berryman and Dr Power

85. [85]
    There was some support for the evidence given by Mr Zaphir in the statements of Ms Berryman and Dr Power; which were admitted into evidence with the consent of the Health Ombudsman for the purpose of these proceedings being dealt with expeditiously.  They both supported the use of vitamin C and nutritional supplements as complementary.  Dr Power said she was told at the first consultation that Mr Booth was using black salve but makes no comment regarding its use.  Ms Berryman did not necessarily agree that black salve was dangerous but rather that it could be dangerous if not used properly.  None of this evidence has much relevance as to what Mr Zaphir actually did in relation to Mr Booth (or anyone else for that matter).
86. [86]
    There were aspects of their evidence, however, that does not assist Mr Zaphir and is in fact contrary to his case.  It is clear from the evidence of Dr Power that, while Mr Zaphir was treating Mr Booth, she was not Mr Booth’s treating doctor.  She says that she only saw Mr Booth on two occasions, namely 3 July 2015 and then on 9 October 2015.  In her affidavit, Dr Power does not refer to any conversations with Mr Zaphir.

Assessment of Mr Zaphir’s evidence

87. [87]
    The Tribunal found Mr Zaphir to be a most unhelpful, evasive witness and a person who was willing to give false or certainly misleading evidence.  In his affidavit, he was very careful to use the term “clients”.  In giving evidence before the tribunal, he most often used the expression “patients”.  Despite his oral statements in evidence that he was not a doctor, and had not used  the term doctor or chiropractor for the last 5 or 6 years, he told a journalist conducting a covert operation for “A Current Affair” that he was a chiropractor and a “doctor of integrated medicine”.^[41]  In speaking to the journalist, he also said, “guys like me, we work under the radar”; interestingly, that was the same expression Ms Mitchell said Mr Booth had used in describing the treatments he was receiving from Mr Zaphir.
88. [88]
    Similarly, the distinction he sought to draw between the words “cure” and “reversal” or “eliminate” does him no credit; particularly when dealing with persons, like Mr Booth, who are very vulnerable and open to suggestion.  Having regard to this evidence, the Tribunal finds that Mr Zaphir would probably have spoken to Mr Booth in terms of “curing his cancer”.
89. [89]
    Mr Zaphir’s conduct following his final consultation with Mr Booth shows a total lack of care for Mr Booth’s welfare.  Despite the view formed by Mr Zaphir as to Mr Booth’s condition on about 9 September 2015, the Tribunal finds that Mr Zaphir took no steps to ensure that a medical practitioner immediately saw Mr Booth. 
90. [90]
    Even if Mr Zaphir made contact with Dr Sawhney, the Tribunal is not satisfied he followed that up with discussions with Dr Power.  It is clear that Mr Zaphir had little regard for Dr Power as a medical practitioner, even though his evidence was that she was Mr Booth’s treating practitioner.  Dr Power’s affidavit certainly makes no reference to any discussions with Mr Zaphir and her statement does not suggest there was any urgency or real concerns for Mr Booth at the consultation on 9 October 2015.
91. [91]
    Mr Zaphir tendered to the Tribunal copies of the treatment notes for Mr Booth.  It was said the notes supported Mr Zaphir’s evidence of having only charged $60 per session and in some sessions having not charged at all.  When asked, counsel for Mr Zaphir did not suggest that the notes were otherwise relied upon.  The notes were not entirely consistent with the evidence given by Mr Zaphir.  Further, it was difficult to accept the evidence of Mr Zaphir that the notes had been made at the time of the consultation.  No explanation was given for their being two entries for the consultation on 22 July 2015 and there being no reference in one of the entries to Mr Zaphir having been told for the first time by Mr Booth that he was taking black salve internally.  The notes give the impression that they were created sometime after the consultations.  They appear to be self-serving.  It is certainly difficult to treat the notes as contemporaneous records which could be used to corroborate any of the evidence of Mr Zaphir. 
92. [92]
    Mr Zaphir’s evidence as to seeing himself as an independent therapist and his behaviour subsequent to the imposition of the prohibition order shows that he has a complete disregard for the system of registration and the role of the regulator.  He works as an independent therapist and sees himself as able to practise, as he said, “using the inventions he has created”, without being accountable to anyone.
93. [93]
    Mr Zaphir tendered a number of references in support from people who had attended Mr Zaphir for various reasons and who stated that they found his treatments helpful.  Only one was from a cancer patient.  Mr Zaphir had previously treated the patient for a thoracic spinal injury.  Upon diagnosis for breast cancer, the patient had the recommended surgery and subsequently attended upon Mr Zaphir for nutritional supplements while undergoing chemotherapy and radiation therapy; a very different scenario to that of Mr Booth.
94. [94]
    There was no objective evidence as to the benefits of the treatment offered by Mr Zaphir which it would seem is outside the scope of conventional medicine.  On the evidence before the Tribunal, it is not possible to make any meaningful assessment of the alternative treatments advocated by Mr Zaphir, nor is it necessary for the purposes of this hearing.  The issue in this hearing is in relation to Mr Zaphir’s conduct in his treatment of Mr Booth and whether that conduct demonstrates that he poses a risk to public health or safety.

Conclusion

95. [95]
    The Tribunal accepts that Mr Booth had rejected conventional medicine to treat his cancer.  It accepts that Mr Booth had decided to use alternative therapies and was using black salve by the time of his first consultation with Mr Zaphir. The Tribunal finds, however, that Mr Zaphir led Mr Booth to believe if he followed his “protocols” his cancer could be cured.  Mr Zaphir endorsed Mr Booth’s continued use of black salve and gave Mr Booth weekly injections of vitamin C.  Mr Zaphir was paid by Mr Booth for the treatments. 
96. [96]
    The Tribunal finds that Mr Zaphir refused to continue treating Mr Booth because his condition was not improving and, in doing so, Mr Zaphir failed to make adequate arrangements for the transfer of Mr Booth’s care to another health practitioner.  By the time Mr Zaphir finished treating Mr Booth he was extremely unwell and, at the very least, in need of urgent palliative care.
97. [97]
    The evidence accepted by the Tribunal in this case shows that there is a real risk Mr Zaphir will encourage people faced with a life threatening illness to rely on his representations that he is a doctor of some kind and that he can cure the illness without the need for conventional medical treatment.  There is the additional risk that those people will be discarded when Mr Zaphir considers the alternative treatments have failed.
98. [98]
    The Tribunal is satisfied Mr Zaphir poses a serious risk to patients.
99. [99]
    In submissions, counsel for Mr Zaphir referred to the possibility of the imposition of conditions rather than a total prohibition order.^[42]  Given the clear evidence that Mr Zaphir has continued to treat patients despite the prohibition order and his evidence that he regarded himself as an independent therapist, it is difficult to see that it would be possible to impose any form of conditions that would protect people like Mr Booth.
100. [100]
     The Tribunal is satisfied immediate action by way of a prohibition order is necessary to protect public health or safety.  The decision of the Health Ombudsman on 16 August 2016 is confirmed.
101. [101]
     As agreed, orders are made requiring the parties to make submissions on costs.