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Raynor v Health Ombudsman[2019] QCAT 139

Raynor v Health Ombudsman[2019] QCAT 139

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Raynor v Health Ombudsman [2019] QCAT 139

PARTIES:

BRANDON RAYNOR 

(applicant)

 

v

 

HEALTH OMBUDSMAN

(respondent)

APPLICATION NO/S:

OCRO67-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 June 2019

HEARING DATE:

3 April 2019

HEARD AT:

Brisbane 

DECISION OF:

Judge Allen QC, Deputy President 

ORDERS:

  1. The decision of the Health Ombudsman on 26 October 2017 to issue an interim prohibition order is confirmed, except to the extent that the interim prohibition order is amended as follows.
  2. The interim prohibition order is amended in terms of annexure A.
  3. The respondent is to file submissions on costs by 4.00pm on 11 June 2019.
  4. The applicant is to file submissions on costs by 4.00pm on 18 June 2019.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the applicant is an unregistered health practitioner – where the applicant provides health services including massage therapy – where the Health Ombudsman alleges that the applicant has performed manipulation of the cervical spine in contravention of section 123 of the Health Practitioner Regulation National Law – 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 interim prohibition order restricted the applicant’s provision of health services by prohibiting the applicant from providing, or promoting, a health service involving manipulation of the cervical spine and from providing any training, demonstration, education or instruction on manipulation of the cervical spine and from publishing or making available any documents demonstrating manipulation of the cervical spine – where the applicant applied for review of the interim prohibition order – whether the interim prohibition order is necessary to protect public health or safety

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

C Templeton instructed by the Office of the Health Ombudsman

REASONS FOR DECISION

Introduction

  1. [1]
    The applicant is the owner and operator of Brandon Raynor’s School of Natural Therapies.  He provides massage services and training in massage services, including in Queensland.  The applicant is not a registered health practitioner but is a “health service provider” within the meaning of s 8 of the Health Ombudsman Act 2013 (“HO Act”).  The applicant is not registered in the chiropractic, osteopathy, medical or physiotherapy health professions. 
  2. [2]
    The applicant advertised services and massage courses on his website www.raynormassage.com.  He also published videos on a YouTube channel called “Brandon Raynor’s School of Natural Therapies”.  This channel contained a series of videos showing the applicant massaging persons.  During the course of an investigation conducted by the Office of the Health Ombudsman (“OHO”), an investigator made recordings of 14 videos posted on the channel (“the YouTube videos”). The YouTube videos are in evidence before the Tribunal. The Health Ombudsman alleges that the YouTube videos show the applicant performing manipulations of the cervical spine of persons in apparent breach of s 123 of the Health Practitioner Regulation National Law (“National Law”) which provides as follows:

123Restriction on spinal manipulation

  1. (1)
    A person must not perform manipulation of the cervical spine unless the person—
  1. (a)
    is registered in an appropriate health profession; or
  1. (b)
    is a student who performs manipulation of the cervical spine in the course of activities undertaken as part of—
  1. (i)
    an approved program of study in an appropriate health profession; or
  1. (ii)
    clinical training in an appropriate health profession; or
  1. (c)
    is a person, or a member of a class of persons, prescribed under a regulation as being authorised to perform manipulation of the cervical spine.

Maximum penalty—$30,000.

  1. (2)
    In this section—

appropriate health profession means any of the following health professions—

  1. (a)
    chiropractic;
  1. (b)
    osteopathy;
  1. (c)
    medical;
  1. (d)
    physiotherapy.

manipulation of the cervical spine means moving the joints of the cervical spine beyond a person’s usual physiological range of motion using a high velocity, low amplitude thrust.

  1. [3]
    On 26 October 2017, the Health Ombudsman issued the applicant with an interim prohibition order pursuant to s 68(1) of the HO Act.  Under the interim prohibition order, the Health Ombudsman imposed restrictions on the applicant’s right to practice as a health practitioner, including that:
    1. (a)
      The applicant must not provide, or promote himself as providing, any health service involving manipulation of the cervical spine, paid or otherwise;
    2. (b)
      The applicant must not provide any training, demonstration, education or instruction on manipulation of the cervical spine; and
    3. (c)
      The applicant must not publish or make available any documents demonstrating manipulation of the cervical spine. 
  2. [4]
    On 9 February 2018, after considering submissions of the applicant, the Health Ombudsman confirmed the interim prohibition order pursuant to s 72(3) of the HO Act. 
  3. [5]
    On 7 March 2018, the applicant applied pursuant to s 74 of the HO Act to the Tribunal for a review of the decision of the Health Ombudsman to issue the interim prohibition order.

Nature of the proceeding

  1. [6]
    Section 94 of the HO Act gives the Tribunal jurisdiction to review a decision of the Health Ombudsman to issue an interim prohibition order to a health practitioner.  The terms of s 94 of the HO Act, read together with s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), make it clear that the review is to be conducted by way of a fresh hearing on the merits on the material before the Tribunal.  The purpose of the review is to produce the correct and preferable decision.  Pursuant to s 24 of the QCAT Act, the Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker.  The Tribunal must apply the terms of s 68 of the HO Act and decide whether it “reasonably believes that… because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons… and it is necessary to issue the order to protect public health or safety”.  The health and safety of the public is the main consideration for the Tribunal when deciding the matter.[1]

Issues

  1. [7]
    In this matter, the questions for the Tribunal are:
    1. (a)
      Does the Tribunal reasonably believe that the applicant poses a serious risk to persons if permitted to perform manipulation of the cervical spine of the persons?
    2. (b)
      Does the Tribunal reasonably believe that it is necessary to issue an interim prohibition order to protect public health and safety?
    3. (c)
      What prohibition of, and/or restrictions on, the provision of health services by the applicant should be imposed to protect public health and safety?
  2. [8]
    The applicant does not dispute that he has performed manipulations of the cervical spine.[2] He contends that s 123 of the National Law is bad law in that it wrongly reserves performance of the procedure to a cartel of practitioners who are less qualified than the applicant to perform such procedure safely. The applicant contends that he is better qualified than chiropractors, osteopaths, medical practitioners and physiotherapists to perform such procedure. He contends that his practice in performing the procedure is safer than that of chiropractors, osteopaths, medical practitioners and physiotherapists. The applicant contends he poses no more risk to persons in carrying out the procedure than those health practitioners authorised to do so by s 123 of the National Law and that the Tribunal would not reasonably believe that he poses a serious risk to persons in carrying out the procedure or that an interim prohibition order is necessary to protect public health and safety.
  3. [9]
    This proceeding is not a prosecution of the applicant for a contravention of s 123 of the National Law. Whether or not he has contravened the offence provision is not determinative of the issues in dispute in this proceeding.
  4. [10]
    What has to be determined is whether the procedure of manipulation of the cervical spine carried out by the applicant as shown in the YouTube videos poses a serious risk to persons upon whom such procedure is performed. In determining such matter the Tribunal has had regard to all the evidence before it and has placed particular weight upon the opinion evidence of a relevantly qualified expert.

Evidence of Steven Derek Purcell

  1. [11]
    Mr Purcell is a Specialist Musculoskeletal Physiotherapist.  He obtained a Bachelor of Science in Physiotherapy degree in 1993 and a Masters of Physiotherapy degree in musculoskeletal physiotherapy in 2000.  He has practiced as a physiotherapist since 1993 and lectured and tutored at an undergraduate and postgraduate level at the University of Queensland and Griffith University.  He has provided further education to physiotherapists through the Australian Physiotherapy Association and participated in research trials as a treating clinician for the University of Queensland.  He is a fellow of the Australian College of Physiotherapists. He gained the title Specialist Musculoskeletal Physiotherapist from the Australian College of Physiotherapists in 2007.  In 2010 he was appointed to the panel of physiotherapists for the Queensland Civil and Administrative Tribunal.
  2. [12]
    The Tribunal accepts that Mr Purcell is qualified to express the opinions he does as to the matters in issue in these proceedings. The Tribunal does not accept the submissions of the applicant to the effect that Mr Purcell’s experience and qualifications being limited to physiotherapy means that he is not suitably qualified to express opinions as to any risks associated with the applicant’s practice. The Tribunal finds that Mr Purcell’s expertise means that he is eminently qualified to express opinions as to any risks associated with the applicant’s manipulation of cervical spines of persons as shown on the YouTube videos as well as such risks more generally.
  3. [13]
    Mr Purcell impressed as a considered and thoughtful witness. He was forthright and frank in his evidence, including under cross-examination. The Tribunal accepts Mr Purcell to be an honest and reliable witness who gave objective and impartial evidence to assist the Tribunal. The Tribunal rejects entirely the baseless attacks upon the honesty of Mr Purcell by the applicant in written submissions subsequent to the hearing.
  4. [14]
    Mr Purcell has viewed the YouTube videos. Mr Purcell has identified occasions in each of the videos when the applicant performs manipulation of the cervical spine of persons.  During the course of his evidence before the Tribunal, Mr Purcell identified the part of one of the YouTube videos during which he says the applicant performed a manipulation of the cervical spine.  He gave evidence that the technique by which the applicant manipulated the cervical spine was essentially the same in all the other videos he viewed. 
  5. [15]
    An issue arose during the evidence of Mr Purcell relating to the definition of “manipulation of the cervical spine” in s 123 of the National Law.  Such definition was adopted in the notice of interim prohibition order issued by the Health Ombudsman in the following terms:

Manipulation of the cervical spine means moving the joints of the cervical spine beyond a person’s usual physiological range of motion using a high velocity, low amplitude. 

  1. [16]
    Apart from the apparent inadvertent omission of the final word “thrust”, such definition is in the same terms as the definition of such term in s 123 of the National Law quoted earlier in these reasons.  The issue explored by the applicant in his cross-examination of Mr Purcell was whether in fact the applicant’s technique of manipulation of the cervical spine used “a high velocity, low amplitude thrust”.  Mr Purcell expressed the opinion that the technique of the applicant was to be more accurately described as using “a high velocity, high amplitude thrust”.  He was of the opinion that both the velocity and the amplitude of the applicant’s technique were excessive.  He was of the opinion that the technique used by the applicant was even more dangerous than a technique using “a high velocity, low amplitude thrust”.
  2. [17]
    As noted earlier, this proceeding is not a prosecution of the applicant for a contravention of s 123 of the National Law. The fact that the technique used by the applicant might not fit squarely within the definition of “manipulation of the cervical spine” in s 123 of the National Law does not mean that it is not capable of posing a serious risk. Indeed, the opinion of Mr Purcell is that the applicant’s technique poses a greater risk to persons than one that would fit the terms of the definition. It does mean however that if the interim prohibition order is to continue, the definition of “manipulation of the cervical spine” in the order will need to be reconsidered.
  3. [18]
    Mr Purcell expressed the opinion that a generally accepted definition of manipulation of the cervical spine could be expressed as “a manual therapy technique intended to bring the cervical joints beyond their normal anatomical range of movement with the intention of producing cavitation or a crack within the joint”.  Such definition would encompass the applicant’s technique as shown on the YouTube videos. 
  4. [19]
    Mr Purcell opined that the most significant risk of cervical spine manipulation is damage to the vertibrobasilar artery leading to disruption of the blood supply to the brain resulting in a stroke or death.  Other risks include herniation of cervical intervertebral disks that could result in nerve irritation producing arm pain or spinal cord compression, damage to soft tissues such as ligaments or muscle, exacerbation of symptoms such as general neck pain or headache and fractures of the bone as a result of underlying disease or pathology.  Mr Purcell opined that these risks are minimised when undertaken by appropriately trained health professionals including chiropractors, osteopaths, physiotherapists and medical practitioners who have the anatomical knowledge, understanding of presenting pathology and clinical skill to undertake such techniques in a manner that reduces the possibility of complications. 
  5. [20]
    Mr Purcell opined that the techniques utilised by the applicant are unsafe as a result of excessive rotational force being applied to the neck.  Such technique is more likely to cause damage to the vertibrobasilar artery. 

The applicant’s evidence

  1. [21]
    The applicant filed an affidavit deposing to his qualifications of Diploma of Naturopathy (1994), Diploma of Remedial Massage (1991), Diploma of Shiatsu and Oriental Functional Medicine (1992 or 1993), Diploma of Ayurvedic Medicine (2000), Certificate of Thai Massage (2003), Certificates I and II in Touch for Health (Applied Kinesiology) (1993) and Diploma of Chinese Herbal Medicine (1995) and his 28 years of experience as a health practitioner.  The applicant detailed his training and experience in performing cervical manipulations.  The applicant deposed to the holistic approach he adopts and his belief that it is far safer to perform cervical manipulations in the context of a whole treatment of the person from a mind, body and soul perspective.  He explained why his integrated approach of loosening muscles and working on an emotional and psychosomatic level to release trapped emotion along with manipulation of the spine is like a more advanced form of osteopathy and superior to the approach of mainstream chiropractic training. 
  2. [22]
    The applicant relies on the contents of his interview by OHO investigators on 14 November 2017 during which he explained his belief as to the advantages of the techniques he adopted on occasions he performed cervical spinal manipulations.  He explained that he was not in Australia at the time of the enactment of s 123 of the National Law and was unaware of the legislative prohibition.  The applicant provided detail as to how he would make careful decisions as to whether or not a cervical spinal manipulation should be performed and how he would go about obtaining informed consent before doing so.  He explained his training and experience in performing the procedure.  He explained how and when he would train others to perform such procedure.  The applicant answered questions concerning the contents of some of the YouTube videos.  The applicant acknowledged the potential risks of cervical spine manipulation identified by Mr Purcell and stated his belief that such risks were better minimised by the technique he adopted as compared to the practice of the four authorised health professions.
  3. [23]
    The applicant relies on the contents of the statement of Timothy Hayter dated 29 November 2017, and an email from Mr Hayter exhibited to the affidavit of the applicant.  Mr Hayter undertook training by the applicant to obtain a Certificate of Raynor massage and a Diploma of Raynor massage in 2017.  Mr Hayter stated that in the course of the training the applicant used Mr Hayter for demonstration purposes.  Mr Hayter consented to the applicant cracking his neck and described the experience of having his neck adjusted by the applicant as excellent.  When interviewed by an OHO investigator Mr Hayter identified parts of the YouTube videos showing the applicant cracking his neck.  Mr Hayter contrasted the “very successful healing techniques of Raynor massage” with the less effective treatment he had received from physiotherapists and chiropractors.  He detailed clients of his own who had similarly benefited from Raynor massage after not achieving such benefits from chiropractors or physiotherapists. 
  4. [24]
    The applicant relies on the statement of Grant Partridge dated 1 December 2017.  Mr Partridge undertook the Certificate of Raynor massage and the Diploma of Raynor massage training in 2017, and in the course of such consented to the applicant adjusting his neck by way of demonstration.  He described the experience of having his neck adjusted and the overall experience of being massaged by the applicant as excellent.  When interviewed by an OHO investigator Mr Partridge identified parts of the YouTube videos showing the applicant cracking his neck. 
  5. [25]
    The applicant relied upon a short statement of Jason Leue.  Mr Leue stated that he had had his neck adjusted by the applicant hundreds of times and it had always given him a tremendous relief.  He stated he had seen the applicant give hundreds of adjustments to hundreds of people and they all have had the same experience from what he perceived. 
  6. [26]
    The Tribunal has had regard to the submissions of the applicant and other documentary material forwarded by the applicant to the Health Ombudsman and listed as items 22 to 48 under the heading “Correspondence from applicant” in the index to the agreed bundle of documents admitted as exhibit 2 in the proceedings. 

Submissions of the applicant

  1. [27]
    In addition to those written submission directed towards the Health Ombudsman and contained in exhibit 2, the Tribunal has had regard to the written submissions of the applicant to the Tribunal (exhibit 11) and the oral submissions of the applicant on 3 April 2019. 
  2. [28]
    Subsequent to the date of hearing, the applicant emailed further submissions to the Tribunal on 4 April 2019.  The Health Ombudsman indicated by email on 5 April 2019 that it would not object to those submissions being received. The Tribunal has had regard to the further submissions. The emails to the Tribunal from the parties on 4 and 5 April 2019 will be admitted as exhibit 12 in the proceedings.
  3. [29]
    The Health Ombudsman has objected to the Tribunal receiving further submissions forwarded by the applicant subsequent to 4 April 2019.  By email of 9 April 2019 the applicant forwarded an email from Westminster Insurance Ltd to the applicant dated 5 April 2019, attaching a certificate of professional indemnity and public liability insurance for Brandon Raynor’s Massage and Natural Therapy School Pty Ltd.  The email is in response to a submission made on behalf of the Health Ombudsman at the hearing to the effect that an element of protection of the public by operation of s 123 of the National Law is that patients are protected by the procedure of manipulation of the cervical spine being limited to those health practitioners with appropriate professional indemnity insurance.  The applicant submits in the email of 9 April 2019 that his professional indemnity insurance does cover his carrying out of cervical spine adjustments including high velocity, high amplitude adjustments in Australia.  Given that the self-represented applicant seeks to respond to a submission on behalf of the Health Ombudsman which had not been flagged in the written submissions for the Health Ombudsman, the Tribunal considers it just that the applicant’s email of 9 April 2019 and the attached certificate of insurance be admitted as exhibit 13 in the proceedings.
  4. [30]
    It is convenient to deal with the competing submissions of the parties as to this issue of professional indemnity insurance now. The Health Ombudsman has not had an opportunity to address submissions as to the contents of exhibit 13. The Tribunal makes no finding as to whether or not the applicant’s policy of insurance provides protection of the public equivalent to policies applicable to health practitioners authorised by s 123 of the National Law to perform cervical spine manipulations. The Tribunal treats the issue of insurance as entirely neutral in the circumstances. It has not factored in the Tribunal’s determination of this matter.   
  5. [31]
    Despite the latitude that should be given to a non-legally qualified and self-represented litigant in the position of the applicant, there must be some finality to submissions by the parties.  The Health Ombudsman had objected to the Tribunal receiving further email correspondence from the applicant on 15 April 2019, 20 May 2019 and 21 May 2019.  I have considered the content of such email correspondence.  It does not assist the Tribunal in determining the issues in dispute in these proceedings and in some respects it is, in its intemperate and baseless attacks upon the character of Mr Purcell, scandalous.  The Tribunal declines to have regard to those further submissions on behalf of the applicant other than for the purpose of noting and rejecting the attacks upon Mr Purcell. The email correspondence of the parties from 9 April 2019 onwards concerning the receipt of further submissions on behalf of the applicant will be marked as exhibit A for identification and placed with the file. 
  6. [32]
    In his written submissions to the Tribunal (exhibit 11) and oral submissions on 3 April 2019, the applicant submits that no one has ever been hurt by Raynor massage.  He refers to the evidence of Tim Hayter, Grant Partridge and Jason Leue.  He submits that he has performed thousands of manipulations of the cervical spine without any adverse incidents.  There is no evidence of him causing harm by such procedure but much evidence of him helping persons by such procedure.  The applicant submits that the risk alleged by the Health Ombudsman is theoretical rather than real. 
  7. [33]
    The applicant submits that he is a very qualified health professional due to his qualifications in massage therapy and worldwide experience in a range of techniques that he incorporates into his practice.  The applicant’s technique has the benefit of extensive massage preceding the manipulation with the warming up and softening up of the muscles prior to the manipulation.  He submits that his technique is far safer than those undertaken by the authorised health practitioners who do not incorporate such massage in their practice.  The applicant submits his technique is innovative and safer than that carried out by the authorised health practitioners. 
  8. [34]
    The applicant submits that Mr Purcell has a narrow area of expertise in physiotherapy with no actual experience of chiropractic, osteopathy or medical practice.  He rejects the criticism by Mr Purcell of his technique and submits that having a physiotherapist judge his practice is comparing apples and oranges.  He criticises Mr Purcell as only having considered the critical moment of the cracking of the neck rather than taking into account the surrounding treatment involved in the applicant’s practice.  The applicant specifically rejects the criticism that his technique involves excessive rotational force. 
  9. [35]
    The applicant submits that he is not reckless but rather a conscientious and caring person who seeks to achieve the highest standard possible in his practice. 
  10. [36]
    The applicant criticises the legislative prohibition in s 123 of the National Law.  He submits it does not really protect the public because it permits health practitioners without relevant training to undertake the procedure.  He submits that it merely protects the profits and professional standing of a cartel of health practitioners engaged in a turf war. 
  11. [37]
    In his further written submissions forwarded by email of 4 April 2019 (exhibit 12), the applicant makes further submissions as to the benefits of Raynor massage in the context of manipulations of the cervical spine. 

Submissions of the Health Ombudsman

  1. [38]
    The Health Ombudsman submits that it is significant that manipulation of the cervical spine is one of a very few health procedures specifically reserved to particular health practitioners.  An assessment of the degree of risk presented by the applicant depends upon the seriousness of an adverse outcome if the risk materialises.  An adverse outcome as a result of manipulation of the cervical spine may be very serious indeed.  The Health Ombudsman submits that the Tribunal would accept the expert opinion evidence of Mr Purcell as to the very real risks presented to persons by the applicant’s technique of manipulation of the cervical spine.  The Tribunal would accept the evidence of Mr Purcell that both the velocity and amplitude of the applicant’s technique is excessive and beyond what could be considered safe. 
  2. [39]
    The Health Ombudsman submits that in addition to the risk presented by the applicant performing the procedure himself there is a further risk presented by the applicant teaching others to undertake such a procedure.  Further submissions of the Health Ombudsman on such topic will be considered in the context of a consideration of the terms of the interim prohibition order. 

Is an interim prohibition order necessary?

  1. [40]
    The Tribunal notes that there is an absence of evidence of any adverse outcome as a result of the applicant having undertaken the procedure of manipulation of the cervical spine on numerous occasions.  The Tribunal accepts that persons who have undergone such a procedure at the hands of the applicant have experienced benefits from it and hold the applicant in high regard.
  2. [41]
    The Tribunal accepts that the applicant is a caring and conscientious health practitioner.  He genuinely believes that the restriction of practice in s 123 of the National Law is unfair and misguided and that any risk associated with his manipulation of the cervical spine of persons is less than where the procedure is undertaken by the four authorised health professions.  He genuinely believes that the risks associated with his technique of manipulation of the cervical spine are overstated by Mr Purcell and are not such as to justify the interim prohibition order. However, the Tribunal prefers the objective opinion evidence of Mr Purcell to that of the applicant.
  3. [42]
    The Tribunal has been greatly assisted by the expert evidence of Mr Purcell.  The Tribunal accepts his expert opinion that manipulation of the cervical spine carries significant risks which are minimised when undertaken by appropriately trained health professionals including chiropractors, osteopaths, physiotherapists and medical practitioners. It should not be ignored that such opinion is consistent with the legislative intent behind the reservation of practice by s 123 of the National Law.  The Tribunal accepts the opinion of Mr Purcell that the technique of manipulation of the cervical spine adopted by the applicant as shown on the YouTube videos presents particular risks because of what Mr Purcell considers to be excessive velocity and amplitude utilised by the applicant.  The possible adverse consequences if such a risk materialised include catastrophic ones of severe injury or death.
  4. [43]
    Having accepted the expert evidence of Mr Purcell, the Tribunal can only reasonably reach one conclusion in considering whether it has the requisite belief required by s 68 of the HO Act.  The Tribunal believes that the applicant poses a serious risk to persons if permitted to perform manipulation of the cervical spine and that it is necessary to issue an interim prohibition order to protect public health and safety.  Subject to further consideration of the terms of the interim prohibition order, the decision of the Health Ombudsman on 26 October 2017 to issue an interim prohibition order is confirmed. 

Terms of the interim prohibition order

  1. [44]
    Section 67 of the HO Act defines an “interim prohibition order” as:

an order issued to a health practitioner –

  1. (a)
    prohibiting the practitioner from providing any health service or a stated health service; or
  2. (b)
    imposing stated restrictions on the provision of any health service, or a stated health service by the practitioner.
  1. [45]
    The interim prohibition order issued to the applicant, pursuant to s 67(b) of the HO Act, imposed stated restrictions on the provision of any health service by the applicant in the terms of a Schedule of Restrictions. 
  2. [46]
    In the course of submissions on the day of hearing, the Tribunal sought submissions from the Health Ombudsman as to whether particular terms of the Schedule of Restrictions could properly be described as “restrictions on the provision of any health service” within the meaning on s 67(b) of the HO Act.  In particular, the Tribunal sought submissions as to whether that part of paragraph 1 of the Schedule of Restrictions prohibiting the promotion of any health service involving manipulation of the cervical spine and paragraph 2 of the Schedule of Restrictions prohibiting the applicant from providing any training, demonstration, education or instruction on manipulation of the cervical spine could properly be regarded as restrictions “on the provision of any health service”.  The Tribunal accepts the submissions of the Health Ombudsman that the definition of “health service” in s 7 of the HO Act is wide enough to encompass the promotion of a health service and the provision of training, demonstration, education or instruction in a clinical procedure.  The Tribunal accepts the submissions of the Health Ombudsman that the restrictions in paragraphs 1 and 2 of the Schedule of Restrictions are ones that can properly be made pursuant to s 67(b) of the HO Act and should be made to protect public health or safety. 
  3. [47]
    The Health Ombudsman submitted that the restriction in paragraph 3 of the Schedule of Restrictions is unnecessary given the terms of paragraph 2 and the Schedule of Restrictions will be amended to delete paragraph 3. 
  4. [48]
    The Health Ombudsman conceded that paragraph 8 of the Schedule of Restrictions may not be necessary.  The Tribunal considers such restriction to be unnecessary in the circumstances of this matter and the Schedule of Restrictions will be amended to delete paragraph 8. 
  5. [49]
    The Tribunal is concerned that the terms of paragraph 9 of the Schedule of Restrictions on its face would require the applicant to provide a false statutory declaration in the event that he had not complied with the terms of the interim prohibition order.  At the very least, the paragraph would require amendment so as to require the applicant to state whether or not he had complied with the requirements and restrictions, rather than that he had.  Even in that form, it is oppressive in light of the other means available to the Health Ombudsman to monitor the applicant’s compliance and in potentially requiring the applicant to incriminate himself.  The requirement goes beyond what is necessary to protect public health and safety. The Schedule of Restrictions will be amended by the deletion of paragraph 9. 
  6. [50]
    For the reasons discussed, consideration must be given to whether the definition of “manipulation of the cervical spine” in the Schedule of Restrictions should be deleted or amended.  The Health Ombudsman submitted that a definition of the term is necessary to make it clear that the procedure prohibited is not limited to the procedure as defined in s 123 of the National Law but encompasses the procedure as has been performed in the past by the applicant.  The Health Ombudsman contended for a definition along the lines of that proffered in evidence by Mr Purcell.  The Tribunal accepts that submission and the definition of “manipulation of the cervical spine” in the Schedule of Restrictions will be amended accordingly.

Some other matters

  1. [51]
    In fairness to the parties, some other matters the subject of evidence and submissions should be noted.
  2. [52]
    In its written submissions (exhibit 7), the Health Ombudsman submitted that the applicant admitted in his interview with OHO investigators to teaching manipulation of the cervical spine to students in the Certificate of Raynor massage course. The submissions cited a particular passage in a transcript of the interview contained in exhibit 2. The applicant hotly disputed such assertion and submitted it demonstrated incompetence or deliberate falsification of the transcript by the Health Ombudsman. The Tribunal accepts that the relevant portion of the transcript is inaccurate and that the answers in fact given by the applicant in the interview do not support, and indeed contradict, the submission made by the Health Ombudsman. The Tribunal does not accept the assertions by the applicant that there was any deliberate falsification of the transcript. The erroneous submission by the Health Ombudsman was made upon a misunderstanding of the evidence caused by a clerical error in transcription of the interview. The error does not carry the sinister overtones asserted by the applicant.
  3. [53]
    In the Notice of issue of interim prohibition order dated 26 October 2017, under a heading of “Findings of fact”, paragraph 15 inaccurately stated:

In advertising your “Advanced Raynor Massage Course” you incorrectly state:

“We also cover advanced techniques, such as neck adjustments (which we are legally allowed to do so)…”

 The Tribunal has added the emphasis of “which” in the quotation.

  1. [54]
    The Notice attached numerous documents, including one described as “Extracts from www.raynor massage.com”, which included the following statement as it in fact had appeared on the website:

“We also cover advanced techniques, such as neck adjustments (where we are legally allowed to do so)…”

 The Tribunal has added the emphasis of “where” in the quotation.

  1. [55]
    The quotation in the Findings of fact incorrectly used the word “which” instead of “where”.
  2. [56]
    In a written complaint dated 2 May 2018, the applicant complained to the Health
    Ombudsman about the misquotation, alleging that the misquoting resulted in a dramatically different impression of the applicant being a person who makes up laws as opposed to the reality of the applicant being a person who respects the authority of the law. The applicant expressed scepticism that such an error could occur in a process of “cutting and pasting” electronic documents and expressed the belief that it was either intentional or incompetent.
  3. [57]
    Unfortunately, despite the written complaint and the applicant subsequently raising the matter with staff of the OHO, the applicant did not receive any response to his complaint until shortly prior to the hearing. In a letter dated 29 March 2019 (exhibit 10) the Health Ombudsman stated:

It has recently been brought to my attention that you have not received a response in relation to your complaint of 2 May 2018. An investigation of your complaint was undertaken in June 2018 and a response prepared but it does not appear to have been sent due to an administrative oversight. I apologise for this delay.

  1. [58]
    After setting out the relevant extracts of documents and the terms of the applicant’s complaint, the Health Ombudsman further stated:

It is clear that your website was indeed misquoted as claimed, with the consequent alteration of the relevant sentence’s meaning.

Your complaint has been investigated. I am advised that the misquotation was a typographical error made when the relevant quote was transcribed. (The quote was not inserted into the Notice by virtue of a computerised “cut-and-paste” function, but rather was manually transcribed during the drafting of the Notice and was therefore subject to human error).

I apologise for the misquotation.

The investigation determined that the error was not an intentional misrepresentation of your website. This finding is supported by the fact that the source document was attached to the Notice, where the original sentence could be found unaltered and a ready comparison made.

  1. [59]
    The applicant maintained his criticism of the error in written submissions to the Tribunal (exhibit 11) and in verbal submissions at the hearing, expressing his belief the error was not accidental but deliberately designed to justify the decision to place restrictions on his practice.
  2. [60]
    Whilst the applicant has cause to be justifiably aggrieved by the error and the lack of timelier response to his complaint, and the Health Ombudsman’s apologies to him are deserved, the Tribunal does not accept that there was anything other than an honest clerical error on the part of staff of the OHO. The error does not carry the sinister overtones asserted by the applicant.

Further orders

  1. [61]
    The Health Ombudsman has indicated that it seeks costs in the event that the decision under review is confirmed or amended where the decision as amended operates to restrict the applicant’s provision of a health service involving manipulation of the cervical spine: email of 9 April 2019 which will be admitted as exhibit 14 in the proceedings.
  2. [62]
    The parties will be given the opportunity to file submissions on costs.

ANNEXURE A

Interim Prohibition Order

Schedule of Restrictions

The Health Ombudsman has decided to issue an interim prohibition order, under section 68 of the Health Ombudsman Act 2013, on Mr Brandon Raynor (‘the practitioner’).

The practitioner’s right to practise as a practitioner in a paid or unpaid capacity is subject to the following restrictions:

Scope of practice

  1. The practitioner must not provide, or promote, any health service involving manipulation of the cervical spine, paid or otherwise.
  2. The practitioner must not provide any training, demonstration, education or instruction on manipulation of the cervical spine.
  3. The practitioner must not publish or make available any documents demonstrating the manipulation of the cervical spine.

Notice to current and potential employers

  1. Within two (2) business days of the commencement of these restrictions, or of commencing in any new place of practice, the practitioner must notify all employers and/or places where the practitioner provides a health service (practises) as a health practitioner as to the existence of the restrictions imposed on the practitioner’s right to practice and provide them with a copy of this Schedule of Restrictions.

Other matters

  1. Within five (5) business days of the commencement of these restrictions, the practitioner must provide written authorisation to the Office of the Health Ombudsman (by completing the Authority to access information form) to:
    1. inspect, take or copy patient clinical records, log books and/or appointment diaries for any patient at such reasonable time or times as the Health Ombudsman shall determine for the purpose of monitoring compliance with the restrictions imposed on the practitioner’s right to practise; and
    2. exchange information with the practitioner’s employers and/or places of practice.
  2. Within five (5) business days of the commencement of these restrictions, the practitioner must provide written authorisation to the Office of the Health Ombudsman (by completing the Authority to release information form) to obtain the release of information relating to their professional practice and/or prescribing from:
    1. the Department of Health, Queensland Government
    2. the Department of Human Services
    3. Private Health Insurers
    4. any other entity who may provide information relevant to their professional practice.
  3. Within five (5) business days of changing residential address the practitioner must provide written notification to the Office of the Health Ombudsman of that change and provide new contact details.
  4. The practitioner must immediately advise the Office of the Health Ombudsman if at any time they are charged with an indictable offence.
  5. Within five (5) business days of the end of every calendar month (month), the practitioner must provide to the Office of the Health Ombudsman a statutory declaration, using the Statutory Declaration template, stating that they have complied with the Health Ombudsman’s requirements and the restrictions for that month. The statutory declaration must cover the entire period of the month. If the restrictions came into effect part way through the month, the statutory declaration must cover the entire period that the restrictions were in effect during the month.

Definitions

For the purpose of these restrictions:

Document includes:

  1. (a)
    any paper or other material on which there is writings; and
  2. (b)
    any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
  3. (c)
    any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

Employer means an entity that –

  1. (a)
    employs the practitioner to provide health services; or
  2. (b)
    engages the practitioner to provide health services under a contract for services; or
  3. (c)
    operates a facility at which the practitioner provides health services.

‘Employer’ therefore also includes co-owners, co-directors, contractors of service, and/or owners/operators of medical practices, hospitals and/or facilities where the practitioner provides a health service (even if there is no contractual relationship between the practitioner and the owner/operator).

Manipulation of the cervical spine means moving the joints of the cervical spine beyond a person’s usual physiological range of motion using a high velocity, low amplitude normal anatomical range of movement with the intention of producing a cavitation or a crack within the joint.

Practice means working in any role, whether remunerated or not, in which a practitioner uses their skills and knowledge in a health care industry, whether they are required to be a registered health practitioner or not. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a paramedic or any other unregistered practitioner in a direct non-clinical relationship with a patient, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on the safe, effective delivery of services in the health care industry.

Footnotes

[1]HO Act, s 4.

[2]An issue as to whether he performed “manipulation of the cervical spine” as defined by s 123 of the National Law and as defined in the interim prohibition order did arise and will be discussed later in these reasons.

Close

Editorial Notes

  • Published Case Name:

    Raynor v Health Ombudsman

  • Shortened Case Name:

    Raynor v Health Ombudsman

  • MNC:

    [2019] QCAT 139

  • Court:

    QCAT

  • Judge(s):

    Allen QC, Deputy President

  • Date:

    04 Jun 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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