Health Care Complaints Commission v Gorman

[2011] NSWMT 7

Medical Tribunal

New South Wales

Medium Neutral Citation:	Health Care Complaints Commission v Gorman [2011] NSWMT 7
Decision date:	17 August 2011
Jurisdiction:	Civil
Before:	Mr Russell Smith Dr Katherine Ilbery Dr Helen Pedersen Judge Peter Johnstone (Deputy Chairperson)
Decision:	Findings as to unsatisfactory professional conduct, professional misconduct and incompetence to practice medicine, de-registration of the Respondent and consequential orders, Respondent to pay the Commission's costs
Catchwords:	Medical Practitioner - unsatisfactory professional conduct - professional misconduct - competence to practice medicine
Legislation Cited:	Medical Practice Act 1992 Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Gorman v Health Care Complaints Commission [2002] NSWCA 396 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Ohn v Walton (1995) 36 NSWLR 77
Category:	Principal judgment
Parties:	Health Care Complaints Commission (Complainant) Richard Francis Gorman (Respondent)
Representation:	Ms K Richardson (Complainant) The Respondent was self-represented Ms M Richmond (Complainant) The Respondent was self-represented
File Number(s):	40027/10 (Consolidated with 40010/2011)
Publication restriction:	Suppression order in relation to the names of patients the subject of the complaints Pursuant to Clause 6 of Schedule 2 of the Medical Practice Act 1992, the Tribunal has made a non-publication order in respect of any matter capable of identifying the PATIENTS/WITNESSES referred to in this decision.

REASONS FOR DECISION

The complaints

1. By Notices of Complaint dated 30 June 2010 and 17 March 2011 the Health Care Complaints Commission (the Commission) has made complaints against the Respondent, Richard Francis Gorman, a registered medical practitioner, alleging that he has been guilty of unsatisfactory professional conduct and professional misconduct, and that he is not competent to practice medicine.

1. The Commission seeks a de-registration order. It seeks further orders preventing the Respondent from making an application for review for 3 to 5 years, and an order for costs in its favour against the Respondent.

1. The Commission also seeks a prohibition order preventing the Respondent from either performing spinal manipulations or from educating other persons in the performance of spinal manipulations.

1. The first Notice of Complaint is brought pursuant to s 36 and s 37 of the Medical Practice Act 1992 . The second Notice of Complaint is brought pursuant to s 139B of the Health Practitioner Regulation National Law (NSW) .

1. The complaints were heard together by the present Medical Tribunal over 10 hearing days in May/June 2011. The Respondent was self-represented. During the course of interlocutory appearances he made it expressly clear that he did not wish to have legal representation. However, at his request and with the leave of the Deputy Chairperson, he was assisted during the hearing by a friend and supporter, Mr Jim Sullivan, who sat with him at the Bar table, and who led him through his evidence-in-chief.

1. The four complaints set out in the two Notices of Complaint allege deficiencies in the care and treatment of various patients whilst working as a general practitioner between October 2006 and November 2008:

• Complaint 1.1 in the first Notice of Complaint relates to 5 patients of the Respondent seen at the Bankstown Medical Centre:

Patient KS Paragraphs [141] - [170]

Patient MP Paragraphs [171] - [186]

Patient PD Paragraphs [187] - [206]

Patient JE Paragraphs [207] - [218]

Patient CR Paragraphs [219] - [244]

• Complaints 2.1 and 2.2 in the second Notice of Complaint relate to a further 8 patients of the Respondent seen by him at the Primary Health Care Clinic in Bankstown:

Patient NC Paragraphs [245] - [260]

Patient JEK Paragraphs [261] - [280]

Patient CC Paragraphs [281] - [297]

Patient DL Paragraphs [298] - [313]

Patient ZZ Paragraphs [314] - [328]

Patient ST Paragraphs [329] - [345]

Patient AT Paragraphs [346] - [362]

Patient RP Paragraphs [363] - [386]

• Complaint 2.3 in the second Notice of Complaint relates to the alleged incompetence of the Respondent to practise medicine.

1. The Respondent seeks to justify his care and treatment of these patients, and to answer the complaints, relying upon his particular medical philosophy, involving the application of forceful spinal manipulation therapy.

1. The Commission maintains, however, that the Respondent has demonstrated that the knowledge, skill and judgment possessed, and the care exercised by him is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience, and that he breached the Medical Practice Regulation . The Commission also maintains that the Respondent does not have sufficient physical capacity, mental capacity, knowledge and/or skill to practise medicine.

1. The Tribunal accepts the Commission's submission that it bears the onus of proving the complaints to the Tribunal's reasonable satisfaction on the balance of probabilities. In applying that standard, the Tribunal will have regard to the gravity and importance of the matters to be determined in accordance with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, such that the Tribunal should not lightly make any findings in respect of the serious allegations made against the Respondent: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.

The Respondent's medical philosophy

1. The Respondent was born on 24 August 1932. He is now 78 years old and will shortly turn 79. He comes from a medical family: both his mother and father were medical practitioners. He went to school in Victoria and then to the University of Melbourne graduating MBBS in 1955.

1. His clinical training was undertaken at St Vincent's Hospital. He undertook post-graduate training in general medicine, surgery, anaesthesia, orthopaedics and ophthalmology. He was awarded a diploma in ophthalmology in London in or around 1965, became a member of the Royal Australian College of Ophthalmologists in or around 1969 and was subsequently "grandfathered" to fellowship status. In 2004 he qualified as a fellow of the Royal Australian College of General Practitioners by examination.

1. He practised in the United Kingdom, Africa and Australia, in Victoria, Western Australia, the Northern Territory and New South Wales. From 1967 to 1970 he worked as an ophthalmologist at the Bendigo Regional Hospital. From 1971 to 1983 he was in private practice in Darwin and Mt Isa, concentrating on ophthalmology. After this period of 12 years the Respondent came to Sydney, where he was in private practice in Sydney from 1983 until December 2008 when he was suspended under s 66 of the Medical Practice Act 1992 .

1. During the period that the Respondent worked in the Northern Territory and North Queensland he met Dr Eric Milne, a general practitioner working at Mt Isa, who developed a technique of forceful spinal manipulation that in his view led to the recovery of patients suffering from migraine headaches. Dr Milne believed that spinal derangement was the cause of migraine headaches and 'many other mental and physical disabilities'.

1. The Respondent embraced Dr Milne's philosophy and his technique of forceful spinal manipulation and it became the guiding force in his approach to the practice of medicine. He now describes himself as a "spinomigrainologist" (T 356.33 and T 551.30).

1. The Respondent's medical philosophy is described in his own words as follows:

"I have developed a medical philosophy (which is repugnant to orthodox medicine)...which has formed the basis of my life in medical practice...I have strongly and repeatedly recommended that this new medical philosophy should supersede orthodox medical practice where appropriate to do so."

1. In his view, the medical philosophy that he espouses has been deliberately suppressed by an 'arch-villain', the Royal Australian and New Zealand College of Ophthalmologists (RANZCO): see Exhibit 2 at p 240.

1. Accordingly, he regards himself as a whistleblower, seeking to alert the community to aspects of orthodox medicine, which, he alleges, damage New South Wales citizens, and their fellow citizens worldwide, on a daily basis:

"The failure of this Tribunal to take its place in the history of mankind is augured by his Honour's legal inability or disinclination to publicly acknowledge that I am a whistleblower of the major travesty in health care since homo sapiens appeared on earth."

1. It is the Respondent's view that his philosophy is outside conventional medical practice, such that he should not to be judged by the Medical Tribunal, where 'the theme, the bias, is that orthodox medicine rules supreme': cf Gorman v Health Care Complaints Commission [2002] NSWCA 396 at [69]ff. Rather he should be judged in some other court where medical innovations can be assessed (T 30.35). He says:

"I see medical practice in two lights: 'commonsense' medical practice and 'medical practice is an ass' medical practice. Commonsense medical practice generally involves resuscitation, trauma, complicated obstetrics, anaesthesiology and public health. Essentially it deals with measurable pathologies. Medical practice is an ass medical practice is the inferior way that medical practitioners deal with nonmeasurable pathologies: illnesses which do not have finite dimensions; the best example is mental health. My philosophy replaces medical practice is an ass medical practice with the treatment of interictal migraine by spinal manipulation therapy. Thus my philosophy involves best practice in resuscitation, complicated obstetrics, anaesthesiology, public health and interictal migraine."

1. Broadly speaking, the Respondent's philosophy is that there is a universal illness, for which there is a single, standard, effective cure, namely forceful spinal manipulation therapy. The procedure is not dangerous, and is cheaper and more effective than conventional medical treatment.

1. The Respondent believes that orthodox medical practice is not competent or complete once it leaves the parameters of trauma, resuscitation, complicated obstetrics, pain relief and public health. Thus:

"My style of medical practice is economical, panoramic in philosophy, effective and safe. In comparison, orthodox medical practice is inordinately expensive, generally palliative, restrictive in philosophy and often dangerous."

1. The universal or ubiquitous illness for which this forceful spinal manipulation is the standard cure is, primarily, a spino-migraine illness (T 558), which is scan and blood test negative. According to the Respondent it has various interchangeable names (T 564):

"Well I'm - I'm - we're talking about my opinion. I - I think they're all - that all those names, the first one was railway brain, concussion of the spine, that was the first one. Then it became concussion of the brain. Then it became railway brain and railway spine because most of these patients litigated and the railways at that time were the fastest transport, so the whiplash injury was very likely to occur in railway accident. And then when those litigations went on, instead of talking about concussion of the spine, concussion of the spine, they took it into a litigation aspect and then they called it colloquially "railway brain" - "railway spine" first, and then they realised that it was a brain illness, so they called it railway brain.

And then by the 1890s it was being called traumatic neurasthenia because they'd gone off to thinking of it as being a psychiatric illness, and then in 1921 the researchers Barre-Lieou put forward the BarreLieou syndrome which was the same illness by another name and then about 1956, an orthopaedic surgeon at the University of Texas called it the cervical syndrome and she wrote the definitive tome on the illness at that time. Then the next one it was, of course, whiplash came up about that time and that was another name for it."

1. His therapy, consisting of forceful spinal manipulation is a 'rough procedure' designed to break any 'rigid end fields' encountered in the neck (T 555.37). The procedure is more fully described by him as follows (Exhibit 4 at p 89):

"Forced-thrust means a short, low amplitude manipulation directed to the spine in the end field of rotation or angulation. In the hands of chiropractors, this thrust is the key manoeuvre following 'taking up of the slack' until the rigid block to further movement is reached; then a high velocity, low amplitude force is applied...In my hands, the whole business of manipulation is a forceful continuous movement, which takes the joint, without pause, forcibly to the ultimate limit of its excursion - the aim to smash any obstructions, which limit full movement."

1. The Respondent has written a number of publications in support of his medical philosophy (see Exhibits 2, 3 and 4) and created a series of DVD's (see Exhibit 9) depicting his therapy in action. (One of these was written under the pseudonym Franz von Kurbel. As the Respondent explained, kurbel is a German word for 'crank' (T 362): Dr Milne and others sometimes affectionately referred to him as 'Frank the Crank'.) It is not the purpose of these reasons to analyse the totality of this material, but aspects and features from it will be referred to.

1. According to the Respondent, a cardinal feature of the ubiquitous illness is lowered sensitivity of vision, which reflects as a constriction of the visual fields towards the centre: tunnel vision (Exhibit 4 at p 89):

"On the 22 nd of June 1986, on the 60 Minutes program, in a segment entitled, " A Dangerous Twist ", I demonstrated that this visual abnormality: this migrainous, brain condition, recovered immediately when the spine was forcefully manipulated by Dr Milne's technique, while the patient was anaesthetised with full muscle relaxation..."

1. This phenomenon is the platform upon which the Respondent's medical philosophy rests. He contends that the scientific dimension of the recovery of vision as a result of spinal manipulation therapy is that it changes deficient capillary blood flow. In his final written submissions he said:

" Using my textbook: 'The Scientific Basis of Spinal Manipulation Therapy for Constitutional Illnesses' as a guide, I discussed the only logical hypothesis, which explains the scientific dimensions of the recovery of vision with spinal manipulation therapy.

In this discussion, I stressed that appreciation of the concepts of Interictal Migraine, the Ischemic Penumbra State, Watershed Ischemia and Intercapillary Watershed Ischemia were critical to comprehension of why vision improved when the spine was manipulated.

In my introduction to science in the 'Scientific Basis' book, I noted that interictal migraine, the ischemic penumbra state and the recovery of vision with spinal manipulation therapy all appeared as cast members on the stage of scientific discovery in the late 1970s.

I argued that, together, these three phenomena made the point that spinal manipulation changed deficient capillary blood flow for the better on most occasions."

1. Thus, a central tenet of the Respondent's medical philosophy is that the universal or ubiquitous illness, or interictal migraine, is related to diminished blood supply, or ischemia. Integral to his theory are his concepts of the 'osteopathic aura', the 'ischemic penumbra state', 'watershed tissue in penumbra' and the 'polynya concept', each of which he discusses at length in his publications: see in particular the booklet " The Scientific Basis of Spinal Manipulation Theory for Constitutional Illnesses " (Exhibit 4).

1. In Chapter 4 of the booklet which is Exhibit 4, the Respondent discusses his concept of 'the osteopathic aura' at pp 33 - 35:

"It has been left to me, by no means a scientist, to raise the concept of the 'osteopathic aura', which I see as a halo-like, quasi-electrical field, which occurs around joints, which are disturbed by trauma such that their kinetic mechanics (capacity to articulate) are impeded..."

"As a result of passing through this halo, blood vessels gain a pathological, vasomotor, constrictive influence; this vasospastic influence causes arterioles to constrict in a sporadic fashion in areas, which the influence can reach..."

"Gorman's rule: that is, my rule, states that any joint with abnormal kinetic mechanics for whatsoever reason, will generate an aura which will induce a voltage potential in the nervous systems of blood vessels, which lie adjacent to the abnormal joint..."

"Single arterioles can go into spasm anywhere in the body; but the result will not be a clear cut definition of the pathology so caused. We have to extrapolate from our knowledge of what happens in the optic nerve..."

"Thus, blood vessels which supply adjacent nerves, will be affected, causing their arterioles to contract; the subsequent restriction of blood flow to the nerve could cause a malfunction in nervous conduction..."

"When the kinetic mechanics are normalised by giving the joint a physical workout, the aura disappears..."

"My belief is that any joint can be affected by a 'subluxation', so to produce a 'subluxation complex'; thus it is possible to have ankle migraine, knee migraine, hip migraine and so on; any joint in the body can be involved in the migraine process..."

1. When the Respondent was cross-examined about his concept of the 'osteopathic aura', he acknowledged that it has not been verified scientifically, such that his theory explaining the phenomenon involves a 'leap of faith' (T 316 - 317 and 321).

1. The Respondent describes the link between spinal manipulation and migraine and interictal migraine as 'immensely important'. Dr Milne's discovery, in defining that there was a measurable abnormality in interictal migraine is the 'most significant medical discovery in the history of medicine', for which discovery Dr Milne should have been awarded a Nobel prize:

"Now the third reason why he (should get) a Nobel Prize is he defined that there was a measurable abnormality in interictal migraine, and that was this constriction of the visual fields. He measured - he and I found that and that was a coincidence, too, really. It wasn't a cleverness on our part. It was just so happens that I was an eye specialist and that part of my routine examination I examined the visual fields, and then we found these people with visual field abnormality. So that - he should have got a Nobel Prize for that because that is the most significant medical discovery in the history of medicine. "God, you're arrogant, Dr Gorman. You're such an arrogant person", but that's the reality. That's the link between spinal manipulation and migraine and interictal migraine. It's immensely important. That's why it so sad that the College of Ophthalmologists have been so foolish. They had it in their hands"

1. The Respondent says that the ubiquitous illness is hard for intelligent people to grasp. In fact, the less intelligent one is and the less educated, the more able one will be able to understand his medical philosophy:

"And what that's saying is that the more intelligent you are, the harder it is to understand this illness and this is what I refer to as the beautiful people" (T 407.25)

"And then we come to the picture on page 17, your Honour, where we've got orthodox medicine and unorthodox medicine or fanciful medicine, if you like. And orthodox medicine is known, definite, cut and dry, orthodox. It's something that can be measured.

And then there's - outside that, there's a vague cloud which some people can see and the more - in my opinion, the more intelligent you are, and the better educated you are, you'll have very great difficulty seeing that cloud. The people that see that cloud are weirdos, like me. They - they can see spiritual things, if you like. They - and - so there we go.

So the person who deals in that cloud and we can talk about it, acupuncturists, probably - probably they might be on the other side. But certainly, iridologists and certainly reiki. Reiki is when they do therapy by bringing the aura of the healer close to the person and - reflexology. Reflexology is when you massage the feet and that makes the patient better and - so - generally, orthodox medicine. "Oh, God, these people, they're conmen and they" - I use the word, "snake oil salesmen". You know, they are selling snake oil. But a lot of them are - in fact, very generally they really believe that what they're doing is doing something and that's a foible of human nature, if you like, that they can see this cloud so clearly.

Anyway, what happened was, that when we discovered that tunnel vision came to be part of the cloud and we were able to measure it, we moved it out of the cloud and moved it into the organic side. And at the same time as that happened, an illness appeared. A very vague nebulous, esoteric illness, called interictal migraine appeared in the literature, about the same time. We found tunnel vision in the late 1970s and interictal migraine appeared in the medical literature at the same time"

1. The proposition that tunnel vision can be cured by spinal manipulation is the cornerstone of the Respondent's medical philosophy.

1. He contends that all illnesses have to be challenged under the auspices of that discovery (T 825.17):

" Q. So you're saying this discovery that was made, was this the discovery about tunnel vision in the 70s?

A. That's right, about 78.

Q. Are you saying that that discovery is relevant to most of the illnesses or ailments that present to you in general practice?

A. Yes, that's totally correct. All illnesses have to be challenged under the auspices of that discovery. That's why it's so important. That's why they're trying to put me down so hard because it's so challenging that I'm saying to the tribunal you virtually - if you make a decision to exonerate me or allow me to continue, you're making a decision that, you know, says that my criticisms of the medical profession in Australia are valid ."

1. The Respondent considers that forceful spinal manipulation is the answer to patients complaining of a wide range of conditions, even where the patients have not in fact presented with loss of any vision. His medical philosophy, based on the 'leap of faith', is relevant to many if not most conditions encountered by him in general practice including allergic conditions, acne, dermatitis, arthritis, sinusitis, tonsillitis, colic, diarrhoea, influenza, glaucoma, pneumonia, autism, morning sickness, depression, hypertension and panic attacks. It is also relevant to the treatment of mental illness, suicide, and drug addiction. It could even be used to help the behavioural or cognitive function of prisoners, to reduce recidivism. Thus:

" Q. So is it the case it's not just relevant, it's the centrepiece of your philosophy? A. Yes, it is certainly the centre piece of my philosophy because it's a - an area of brain function that was previously not measured, now measurable and it's opened up tremendous doors and that's why it's been opposed so strongly by the HCCC and by the medical profession. "

Dr Beaumont's evidence as to the Respondent's medical philosophy

1. It is not the role of the Medical Tribunal to assess or determine the validity or otherwise of the Respondent's medical philosophy; its role is to consider and judge his professional conduct against the standard reasonably expected of a practitioner of an equivalent level of training and experience. It is, however, appropriate to observe that to the extent that the Respondent relies upon his medical philosophy to justify his care and treatment of the patients concerned, his philosophy has never been independently validated. Even the expert witness called in his case, Dr Beaumont, rejects the philosophy.

1. Dr Beaumont is an experienced ophthalmologist who has been involved in patient care, teaching and research for 30 years. He has a special interest in diabetic retinopathy, retinal venous occlusion, macular degeneration and neuroophthamology. The majority of his patients are referred from other eye specialists or optometrists due to his specialist expertise in medical retina. He has published over 70 articles in peer-reviewed journals, and is a frequently invited speaker at international meetings. He is a fellow of Royal Australasian and New Zealand College of Surgeons and Chairman of the New South Wales branch of the Royal Australian and New Zealand College of Ophthalmologists. He has other impressive qualifications and appointments as detailed in his curriculum vitae. He is clearly an expert in his field and an eminent practitioner, whose evidence before this Tribunal was articulate, forthright and dispassionate.

1. He was given the Respondent's three publications that are in evidence to read: "The Great Australian Medical Scientific Fraud" (Exhibit 2), "Chiropractic Medicine for Rejuvenation of the Mind" (Exhibit 3), and "The Scientific Basis of Spinal Manipulation Therapy for Constitutional Illnesses" (Exhibit 4). He read two of those publications (T 418.39). In his view it would take approximately three to six months to adequately discuss everything that is in those publications (T 418.33).

1. Accordingly, Dr Beaumont prepared a report dated 18 May 2011 (Exhibit 6) by way of a preliminary overview of the booklet "The Scientific Basis of Spinal Manipulation Therapy for Constitutional Illnesses" (Exhibit 4).

1. It is Dr Beaumont's view that a number of the theories and ideas postulated by the Respondent are very unlikely, that his philosophy is not 'evidence based' and that spinal manipulation is inappropriate therapy in most of the situations in which it has been employed by the Respondent.

1. As to the Respondent's concept of the "osteopathic aura", Dr Beaumont believes that the concept is highly unlikely, and says there is no evidence that there is a heightened electrical potential around joint derangements, nor that the arterioles are caused to constrict:

"...because I haven't read anything in the literature around this, that there are electrical impulses which occur when you move a joint a little bit, that then cause the vessels around it to go into spasm, I find it unlikely" (T 458.2).

1. As to the Respondent's theory that migraine illness is primarily a problem associated with any joint dysfunction (eg. "elbow-induced migraine"), Dr Beaumont describes that as "incredibly bizarre":

"They're not terms within the medical literature, and so he's got to postulate that there's electrical activity around the joint and that it's causing an elbow migraine. Well, the electrical activity around the joint was a bit unusual and then he's defined an entirely new thing called elbow migraine. I find that bizarre because I'm limited in my conservative approach to the medical language that migraine is a head phenomena" (T 458.39).

1. As to the Respondent's theory that bilateral altitudinal hemianopia occurs as a brain phenomenon and not as an optic nerve problem, Dr Beaumont believes that the theory is very unlikely (T 434.35).

1. While the Respondent would treat retinitis pigmentosa with spinal manipulation, Dr Beaumont expressed the view that he would not adopt such a treatment and would not send a patient with retinitis pigmentosa for manipulation.

1. In response to the suggestion that macular degeneration should be treated with spinal manipulation, Dr Beaumont responded:

"... in terms of macular degeneration I'd find it totally unacceptable to think that spinal manipulation would have anything to do with it, and yet you do" (T 503.23).

1. Dr Beaumont's rejects the theory that the explanation for the recovery of vision with spinal manipulation is a vascular hypothesis. The "vascular hypothesis", which is the central component of the Respondent's medical philosophy that justifies the extension of his use of manipulation to a wide variety of conditions, is "untenable" (T 454.18).

1. In his report Dr Beaumont discusses his involvement in the assessment of 12 patients presented by the Respondent exhibiting constricted visual fields, headaches and hypersomnolance. Dr Beaumont noted that the signs and symptoms of each subject had disappeared when evaluated after the Respondent performed forceful spinal manipulation therapy upon them. He considered that this intervention had a 'dramatic beneficial effect'. But in his view, it is not reasonable to use this evidence base to formulate the various postulates, hypotheses and proposals that are encompassed in the Respondent's medical philosophy as set out in his booklet "The Scientific Basis of Spinal Manipulation Therapy for Constitutional Illnesses" (Exhibit 4). Thus, Dr Beaumont is of the view that the Respondent's treatment of a wide range of 'constitutional illnesses' with spinal manipulation, the appropriateness of which is the central controversy in this proceeding, 'is not evidence based and is not reasonable' (at p 8).

1. Thus, in Dr Beaumont's opinion, the Respondent does not have enough evidence for what he does, such that it is to be classified as 'inappropriate and dangerous' (T 503.12). Accordingly, he said (T 441.06)

" One of the problems we have is Frank (the Respondent) wanting to extend it out into other areas before the area where it's fairly clear cut and works has been more rigorously evaluated."

1. As to the Respondent's contention that the therapy is safe, Dr Beaumont said (at p 8 of his report):

"The incidence of complication of spinal manipulation is unknown. There are no large prospective studies to shed light into this area. Evidence suggests that complications are grossly (nearly 100%) under reported. The true incidence therefore can't be estimated by the number of reports. The complications however include quadriplegia."

1. As to the existence of the "ubiquitous illness" Dr Beaumont said (T 426):

" Q. Good, so you're saying what I said in the first book which I wrote, "The Chiropractic Medicine for Rejuvenation of the Mind", that we're having to learn more and more about less and less and so that would you believe then that if there was a method whereby the brain's part in the management of the body could override the treatment of these illnesses down in the body, if there was a ubiquitous illness which was there that hadn't been recognised and if you treated that you didn't have to worry about what was down the body because you solved the problem at root source, can you comment on that?

A. That would be a wonderful situation if it existed.

Q. You don't think it exists?

A. Well, if it did, I think it would be implemented."

Background to the first Notice of Complaint (Complaint 1.1)

1. The procedural background to the first Notice of Complaint is set out in detail in the written submissions of Ms Richardson, counsel for the Commission. The following is a summary. The section references are from the Medical Practice Act 1992 (the MP Act):

(i) A Performance Review Panel was convened to be held on 4 January 2008 under s 86K to review the professional performance of the Respondent as a general practitioner.

(ii) The role of the Panel was to conduct a performance review in accordance with the performance assessment provisions set out in Part 5A and Part 13A.

(iii) The Panel made a finding that the professional performance of the Respondent was unsatisfactory:

"In accordance with s 86N of the MP Act, on 4 January 2008 the Panel finds that the professional performance of Dr Gorman is unsatisfactory in that the knowledge, skill and care possessed and applied by Dr Gorman in the practice of medicine is below the standard reasonably expected of a practitioner on an equivalent level of training or experience"

(iv) Section 86B defined the professional performance of a doctor as "unsatisfactory" if "it is below the standard reasonably expected of a practitioner of an equivalent level of training or experience".

(v) In accordance with the Panel's finding that the Respondent's professional performance was "unsatisfactory", it imposed the seven new conditions (numbered 2-7) on his registration in accordance with section 86N(2).

(vi) Condition 3 provided that within 3 months a performance assessment of the Respondent's practice of spinal manipulation be obtained by two health professionals with relevant experience. The rationale for Condition 3 was:

"The Performance Assessment undertaken prior to this hearing was not able to adequately assess Dr Gorman's practice of spinal manipulation, as this is not recognised part of general practice and was therefore outside the expertise of the Assessors. The Panel believes that this part of Dr Gorman's practice needs to be assessed by health practitioners who are appropriately trained and experienced. Such an assessment should include, but not be limited to, Dr Gorman's assessment of a patient's suitability for spinal manipulation, his method of spinal manipulation, the information he provides to patients and his process for obtaining informed consent. If Dr Gorman wishes to recommence spinal manipulation under general anaesthetic, the assessment should also include this, but only if the assessment of spinal manipulation without a general anaesthetic has not resulted in an adverse report."

(vii) On 28 August 2008, a Performance Assessment of the Respondent took place at the Bankstown surgery by Dr Ayscough and Mr Milazzo in accordance with condition 3 on registration - that is, to assess his spinal manipulation techniques.

(viii) Dr Ayscough is the President of the Australian College of Physical Medicine and Associate Professor of Musculoskeletal Medicine and Head of Discipline at the Australian School of Advanced Medicine at Macquarie University. Mr Milazzo is a physiotherapist and a physiotherapy lecturer. As a result of the Performance Assessment a Performance Assessment Report 29 August 2008 was prepared

(viii) During the Performance Assessment, Dr Ayscough and Mr Milazzo observed the Respondent carrying out a spinal manipulation on 5 patients. The first four of those patients were included in the Performance Assessment (Patients KS, MP, PD, and JE). The fifth patient observed (Patient CR) was observed receiving a spinal manipulation but was not included in the Report.

(ix) The assessors did not include a specific reference to the fifth patient (Patient CR). Both Mr Milazzo and Dr Ayscough confirmed that their role at the August 2008 assessment was to assess the Respondent's skills and standard of care in relation to spinal manipulations and that each of the five patients they observed were manipulated in exactly the same way. The two assessors made comments in their report on patients one to four and both confirmed in their evidence before the Tribunal that the fifth patient (Patient CR) would have made no difference to their comments. This was because she was manipulated in exactly the same fashion as the first four patients. Indeed, a key concern of the assessors was the fact that all five patients were manipulated in exactly the same way regardless of their presenting symptoms.

(x) After observing the Respondent carry out the spinal manipulations on these patients, the Performance Assessors formed the following views:

(a) In Dr Ayscough's opinion, as a musculoskeletal physician, the Respondent's standard of care in carrying out spinal manipulations was unsatisfactory.

(b) In Mr Milazzo's opinion, the Respondent's method of manipulation was below the standard used by physiotherapists when carrying out spinal manipulations.

(xi) On 28 October 2008, following consideration of the Performance Assessment Report by Dr Ayscough and Mr Milazzo, the Medical Board's Performance Committee resolved that a complaint should be made to the Commission under s 86J(2).

(xii) The Medical Board suspended the Respondent on 5 December 2008 under s 66. An appeal against that suspension was upheld by a separate Medical Tribunal on 2 July 2009 (the appeal).

(xiii) The Commission received a letter of complaint from the NSW Medical Board (now the NSW Medical Council) on 26 November 2008. That letter stated that on 28 October 2008, the Board's Performance Committee resolved that a complaint should be made to the Commission under s 86J(2).

(xiv) On 30 June 2010, the Commission commenced the first complaint against the Respondent as set out in the First Notice of Complaint.

1. None of the five patients referred to in the First Notice of Complaint were called to give evidence in the proceeding. The Tribunal accepts that the nature of the allegations made in relation to each of those patients arises from:

(a) the observation of the performance assessors on 29 August 2008 (both of whom gave evidence);

(b) the peer expert evidence of Dr Young (who gave evidence);

(c) the clinical notes prepared by the Respondent in relation to the 5 patients;

and other documents. The presenting symptoms of the five patients and the treatment they were given was not in dispute.

Overview of the evidence of Dr Ayscough and Mr Milazzo

1. The Commission alleges, in relation to each of the first four of the patients in the First Notice of Complaint, that:

(a) the Respondent did not perform an adequate re-assessment of their clinical symptoms or impairments; and

(b) the spinal manipulation undertaken by the Respondent was unsafe by current manipulative standards.

1. The evidence is that among health care practitioners who do use spinal manipulation as a treatment - relevantly, musculoskeletal physicians, physiotherapists and chiropractors - each undertakes extensive pre-manipulation assessments in order to determine whether or not a manipulation is likely to be safe. It is accepted practice that there are provocation tests employed to demonstrate a contra-indication to manipulation. For example, in modern medicine theory, health care practitioners practice under the principle that vascular insufficiency to the brain is a contra-indication for spinal manipulation.

1. The Respondent, however, eschews these safeguards. In his view, such tests are actually done in order to identify that manipulation is indeed indicated. He believes that spinal manipulation actually resolves the risk of having a stroke (T 849.50).

"I do very minimal investigation of these people because, first of all, illness is scan negative. I've explained that, why the illness is scan negative. So it's no good looking for hard evidence of as [sic] are scan negative so that's the first thing. The second thing is about it, I don't - if we could go to the provocation test. The provocation tests are useless, because what I am looking for is the provocation test to be positive, and that for me is an indication to manipulate" (T 752.29 of the appeal hearing).

1. Furthermore, the Respondent's approach was that "one size fits all", hence his pre-manipulation assessment is the same for each patient, irrespective of their individual presentation. Mr Milazzo, for example, observed that the Respondent's manipulation technique used on each of the four patients described in the report was identical. Mr Milazzo was particularly concerned that the Respondent manipulated areas of the spine that did not appear to require manipulation.

1. The two skills assessors concluded that the Respondent's treatment of all four of the patients was significantly below the standard to be expected of a medical practitioner practising spinal manipulation techniques.

1. Specifically, Dr Ayscough and Mr Milazzo considered it inappropriate that the Respondent:

(a) did not perform spinal articular assessment;

(b) did not palpate the area to be manipulated;

(c) holds the view that the only contra-indications for spinal manipulation are a patient taking warfarin or aspirin;

(d) does not follow an accepted clinical standard of normal orthopaedic physical assessment, let alone apply the detailed assessment considered to be necessary prior to utilising spinal manipulation techniques;

(e) does not perform any screening tests for the risks of possible adverse effects;

(f) holds the view that established contra- indications for spinal manipulation are in fact indications.

1. The Respondent's attitude to the two skills assessors was that they are incompetent (T 550.8). They subscribe to a different philosophy that doesn't apply to him (T 77.29). So far as chiropractors are concerned, The Respondent's view is that the training they receive is useless (T 356.30), and the treatment they administer is different from his technique (T 555.50 - 556.35):

"Q. Well, what I'm putting to you is that in the skills assessment of you in 2008, the skills assessors - that the practice that was revealed by you is that it's not your practice to test for barriers. Do you accept that?

A. What barriers are you referring to...the barriers that I'm referring to--

Q. Barriers as to a range of movement.

A. Well, that's what I said. There's - I have a very significant barrier. I'm looking for what the end field does. They're looking for where - they're looking for where that barrier is in the spine. They check each one and then they - "not going to do this" and "do that" and fiddle about--

Q. And what are you doing by contrast?

A. I'm doing by contrast - I find there is a barrier but I'm not interested in where the barrier is. It's not relevant, really.

Q. Why isn't it relevant?

A. Well, it's just not relevant. It doesn't make - tell you anything about the function of the vertebral artery. It doesn't tell you anything about the danger of the - of the treatment. It just...there are so many bones there. It's really immaterial which one is blocking the movement. So long as the danger bit is - you're covering the danger bit, basically and you - you - there is no real relationship between the actual appearances and locks and things between that and danger. There's no direct connection.

Q. So is that another aspect where you're at issue with the practice of chiropractors?

A. Yeah, of course.

Q. That's not part of what you smash through, though, is it? Those barriers?

A. Yeah - that's it, your Honour. You've got these end field blocks where there's a bit of osteofibre going between--

Q. So that's part of the smash through technique?

A. That's so - and you just - you've got - you found the end field is limited, that they doesn't - can't move around and if you can correct that end field abnormality, you'll give the patient relief from migraine and things like that.

The evidence of Professor Bonello in the appeal hearing

1. Dr Ayscough is a musculo-skeletal physician. Mr Milazzo is a physiotherapist. Professor Bonello, who was called by the Respondent in the appeal hearing, is a chiropractor. He was, at the time, an Associate Professor in chiropracty at Macquarie University. His evidence at the appeal hearing was relied upon by the Respondent before this Medical Tribunal. It is not clear why, because, as Ms Richardson submitted, Professor Bonello's evidence made plain that the Respondent's practices in relation to pre-manipulation investigation, and his method of spinal manipulation, was below the standard expected of chiropractors:

"First, Professor Bonello confirmed that an extensive history-taking from the patient is an important part of good practice prior to doing a manipulation. By contrast, it is apparent that Dr Gorman's practice is not to take a detailed history but is rather to primarily rely on the Milne Score checklist...

Secondly, Professor Bonello's evidence was that the appropriate standard of care requires pre-manipulation assessment and testing as a layer of safety. It is apparent from Dr Gorman's own evidence that he does not carry out what are considered standard pre-manipulation assessments..."

1. As Ms Richardson submitted, Professor Bonello confirmed that a whole series of matters were potential or likely contra-indicators to manipulation, such as excessive weight loss, symptoms indicating a progressive neurological disorder, cancer, tumours, elderly patients, osteoporosis, steroids and so on. He referred also to a series of medications that are seen as contra-indicators. By contrast, the assessment of the Respondent revealed that he sees very few contra-indications to spinal manipulation.

1. Professor Bonello's view was that a responsible competent chiropractor would always take an appropriate history and carry out a pre-manipulation assessment, including a physical examination. This includes assessing the joint system and the muscle system. It also includes tests to determine vascular insufficiency. For example, Professor Bonello's considered it important before carrying out a manipulation to do an articular assessment to determine the barriers as to the range of movement of the particular patient.

1. These pre-manipulation precautions are an important part of good practice prior to undertaking a manipulation. A failure to undertake them would be sub-standard practice.

1. The need for pre-manipulation testing and investigation is equally important even when a person is returning for a repeat manipulation, to monitor the patient's current state.

1. By contrast, the Respondent does not consider it necessary to carry out what are considered standard pre-manipulation assessments (T 553.05 and 554.15), even on the first occasion he sees a patient, let alone by way of re-assessment (T 559.14). In particular, it is not his practice to test for barriers prior to carrying out a manipulation. His practice is to carry out minimal investigation. Indeed, in the case of the 200 to 250 care plan patients involved in repeat manipulations, the 'rule' was that it took one minute (T 585 - 589), with no discussion or assessment (T 554.15):

"Q. So you would agree that you do not do the pre-manipulation assessment and testing that chiropractors consider is necessary?

A. Yeah, well - I would say yes, to that, really. I don't - no, I don't do it.

DEPUTY CHAIRPERSON: He goes further than that, he says--

DEPUTY CHAIRPERSON: I said you go further than that. You say doing those things contra-indicates the type of treatment that you want to give. Because it limits them.

WITNESS: That's--

RICHARDSON: Well, I think Dr Gorman's evidence is that the type of pre-manipulation assessment and testing - that if it produced a particular result, might mean it's a contra-indication for a chiropractor. In most instances--

DEPUTY CHAIRPERSON: And he doesn't want a contra-indication. RICHARDSON: In most instances--

DEPUTY CHAIRPERSON: Because it inhibits the sort of treatment that he wants to give.

WITNESS: Exactly.

Q. Is that correct?

A. That's exactly right. What your Honour said - his Honour said.

Q. So, as an example of that, where a chiropractor can see if they produced dizziness as part of a pre-assessment technique, if the person became dizzy, the standard chiropractor would see that as a contra-indication but you would see that as expressly an indication for manipulation?

A. I love your word "expressly". Yes.

Q. That's correct?

A. Of course."

1. Dizziness in a patient when in the pre-manipulation position, in Professor Bonello view, is an important indicator of the need for further investigation. If further investigation revealed that the cause of dizziness was vascular, rather than mechanical, this would be a contra-indication to a manipulation being performed, due to the risk of a stroke following the manipulation.

1. Professor Bonello was also critical of the Respondent's 'one size fits all ' manipulation technique. In the Professor's view the type of manipulation a practitioner should do depends "absolutely" on the particular patient and on what the particular problem is:

"Well, every patient is different in that some people are very loosely jointed. For example, a younger female patient who did gymnastics would be a very mobile person. The tall slender person has a very - has typically a more mobile body than a short stocky person. Overweight people versus very thin people. These people have different needs in terms of physical medicine, and so when manipulation is applied to them one needs to be cognisant of what their body can withstand and be judicious in applying that, in the same way as delivering a dose of drug...

If the technique was executed in exactly the same fashion, then in my view... sometimes the treatment would be too weak and other times too strong, or sometimes inappropriate..."

1. The Respondent described Professor Bonello's evidence that it's important not to adopt a 'one size fits all' manipulation technique as immature. He applies a standard technique for all cases involving the ubiquitous illness.

1. His view is that all musculoskeletal physicians, physiotherapists and chiropractors are "ignorant" and are trying to make him "fit into their lowest common denominator". The Respondent's assertion is that "all these practitioners around the world are getting away with this really inferior type of spinal manipulation".

Background to the second Notice of Complaint (Complaints 2.1, 2.2 and 2.3)

1. The procedural background to the second Notice of Complaint is set out in detail in the written submissions of Ms Richardson, counsel for the Commission. The following is a summary. The section references are from the Medical Practice Act 1992 (the MP Act):

(i) On 4 December 2008, delegates of the NSW Medical Board (now the NSW Medical Council) decided that the Respondent would be suspended under s 66, with effect from 9 am on 5 December 2008.

(ii) When such an action is taken, the Board must refer the matter to the Commission for investigation. Under s 66B(2), the matter is to be dealt with by the Commission as a complaint made against the practitioner concerned.

(iii) The Commission thus received a letter of complaint from the NSW Medical Board on 9 January 2009. That letter referred to the Council's letter dated 9 December 2008 advising the Commission of the suspension order imposed by the Board on the Respondent under s 66 and enclosed a copy of the delegates' reasons for decision date 9 January 2009.

(iv) After investigation of the matter, the Commission commenced the second Notice of Complaint against the Respondent on 17 March 2011. This second Notice of Complaint is brought under the Health Practitioner Regulation National Law (NSW) (the National Law ) and was heard concurrently with the first Notice of Complaint. Complaints 2.1 and 2.2 in the second Notice of Complaint relate to alleged deficiencies in the care and treatment a further 8 patients. Complaint 2.3 relates to the alleged incompetence of the Respondent to practise medicine.

The Commission's case

1. By Complaint 1.1 the Commission asserts that the Respondent has engaged in:

(a) unsatisfactory professional conduct within the meaning of section 36 of the Medical Practice Act 1992 ; and/or

(b) professional misconduct within the meaning of section 37 of that Act

in that he has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and has contravened the Medical Practice Regulation.

1. Complaint 1.1 relates to the first set of 5 patients. There are comprehensive particulars setting out the detail of the conduct complained about. The Commission relies principally on the evidence of the two skills assessors, Dr Ayscough and Mr Milazzo, the evidence of Professor Bonello given at the appeal hearing in 2009, and the peer expert evidence of a general practitioner, Dr Young.

1. Dr Young provided a written report dated 9 September 2009, in which he deals with each of the 5 patients the subject of Complaint 2.1 in some detail, aspects of which will be referred to later in these reasons. Dr Young also made some global assessments of the Respondent's practice. He said (at p 14):

"Although 5 patients are only a 'snapshot' of a practitioner's practice, I believe that there are enough patterns in the cases and other documents examined to be able to make global assessments."

1. Dr Young then went on to express the following opinion as to the Respondent's clinical judgment:

"Dr Gorman appears to have a belief system in the applicability of his form of manipulation to a wide range of conditions that departs significantly from conventional assessment and treatment opinions in a General Practice setting. As can be seen ...he single-mindedly sticks to this treatment modality despite lack of longitudinal clinical improvement (as in Patient 3 and CR) or when the patient is requesting other treatments (as in Patient 4). As also mentioned in the specific cases, performing manipulation to patients who are acutely febrile or after administering IM narcotic medication also places Dr Gorman's clinical judgement in doubt.

It is my opinion that Dr Gorman's clinical judgement is significantly below the standard expected of a practitioner of an equivalent level of training and experience. This departure invites my strong criticism."

1. In respect of the Respondent's patient management skills, Dr Young concluded:

"The cornerstone of good patient management in the General Practice setting is continuous and comprehensive patient centred care. As I have outlined in detail... Dr Gorman's management of these patients primarily with spinal manipulation obstructs more comprehensive care of their conditions. While continuous care is displayed in patients 1,3 and CR, their care is by no means comprehensive.

Most GPs of Dr Gorman's level of training and experience use a safe diagnostic strategy in their initial and ongoing management of their patients. As outlined in my detailed discussion, Dr Gorman did not demonstrate such a strategy in diagnosing patient complaints. Dr Gorman's broader management skills display serious deficiencies and errors, as highlighted above.

His belief system in spinal manipulation and its application mean that his management is not patient centred.

It is my opinion that Dr Gorman's management skills are significantly below the standard expected of a practitioner of an equivalent level of training and experience. This departure invites my strong criticism."

1. Finally, Dr Young commented on the respondent's concept of a ubiquitous illness:

"I note Dr Gorman's statement in his letter to the HCCC dated 4.1.09 "that interictal migraine is presently the most serious and most rampant illness affecting mankind." This statement is clearly discordant with current medical opinion and supports my concerns about Dr Gorman's clinical judgement."

1. By Complaint 2.1 the Commission asserts that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that he has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and has contravened the Medical Practice Regulation 2003 and 2008 (both repealed).

1. By Complaint 2.2 the Commission asserts that the Respondent has been guilty of professional misconduct within the meaning of section 139E of the National Law in that he has:

(a) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or

(b) has engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration.

1. Complaints 2.1 and 2.2 relate to the second set of 8 patients. There are comprehensive particulars setting out the detail of the conduct complained about. The Commission relies principally on the expert evidence of a general practitioner, Dr Jammal, and the evidence of Dr Susan Ieraci, the Senior Staff Specialist at the Bankstown Hospital Emergency Department.

1. Dr Jammal provided a written report dated 12 September 2010, in which he deals with each of the 8 patients the subject of Complaint 2.1 and Complaint 2.2 in some detail, aspects of which will be referred to later in these reasons. He did, however, express some global opinions.

1. On the question of the Respondent's overall clinical judgment and reasoning, Dr Jammal said:

"The process of clinical judgement and reasoning is a complex one, and is influenced by a number of factors, Judgement and reasoning involves a process of analysing and comprehending data (history, examination findings, test results), reconciling this with knowledge and experience, and then synthesising and evaluating a judgment.

The final two steps are also influenced by factors such as the patient's demeanour and emotion, the doctor's emotion, level of fatigue, concentration, and also the doctor's belief or preconceived ideas on the value of the individual parts of the data. It takes insight into these issues to understand the effect of these factors on judgement...

Dr Gorman stated that he would always consider the spinal neurological syndrome first, manipulate the spine, and if it doesn't work refer on.

His view is that spinal manipulation should be used as a first-line treatment for a wide range of conditions that present in general practice.

In my opinion, Dr Gorman's views and theory so radically depart from generally accepted medical practice that it borders on being more than just a theory, but a belief, of (for the lack of a better word) a religion. Furthermore, Dr Gorman displays a lack of insight into the manner in which his views affect his judgement, by simply stating that anyone who disagrees with him is ignorant or 'inadequate'. These comments ignore all essential features of rational clinical reasoning. In doing so, it is my opinion that Dr Gorman's clinical judgement is no longer that of a conventional general practitioner (or conventional medical practitioner), and this lack of clinical judgement depart significantly from the standard expected of a practitioner equivalent level of training and experience. This departure attracts my strong criticism."

1. In relation to the question of informed consent, in Dr Jammal's opinion, the Respondent failed at a number of levels:

i. He did not take an adequate history or undertake an adequate examination of the patients.

ii. He did not reach a diagnosis that reasonable medical practitioners would reach, supported by the information available.

iii. He did not document that he had given enough information to patients that would allow them to reach an informed decision regarding both the conventional and complementary treatment he was offering.

1. Furthermore, in his opinion, this lack of information may have misled patients into believing that the Respondent's views on their illness were widespread conventional knowledge.

1. By Complaint 2.3 the Commission asserts that the Respondent is not competent to practise medicine within the meaning of section 139 of the National Law in that he does not have sufficient physical capacity, mental capacity, knowledge and/or skill to practise medicine.

1. Complaint 2.3 relates to both the first set of 5 patients and the second set of 8 patients. In addition the Commission has particularised the following further matters (Particular 3):

"The practitioner gave evidence and made submissions before the Medical Tribunal in May 2009 (the appeal hearing) which demonstrate that he holds the following rigid and firmly-held views in relation to medical practice as a result of which there is a real risk that the practitioner:

[1] .will fail to correctly diagnose a patient's medical condition, and

[2] is unlikely to give impartial advice to patients to enable them to give informed consent."

1. In respect of these allegations, the Commission particularised a series of assertions (a) to (l) and set out the evidence upon which it relies to prove that the Respondent does indeed hold such rigid and firmly-held views in relation to medical practice as set out below. The Respondent specifically agreed with the assertions (T 826.19 and 827.35ff).

1. The Commission relies upon the opinion of the experts to establish that in holding these views, and adhering to them so rigidly, in conjunction with the Respondent' express disdain for aspects of conventional medical practice, and his lack of insight, he presents an unacceptable risk of misdiagnosis, delayed diagnosis, and an inherent inability to obtain informed consent.

1. These are themes to which these reasons will return.

1. The specific matters upon which the Commission relies as matters in respect of which the Respondent has rigid and firmly-held views in relation to medical practice are:

(a) there is a ubiquitous illness affecting all of mankind that can be treated by the very simple and safe treatment of spinal manipulation (T 647.40). Interchangeable names for this ubiquitous illness are whiplash, spinal arthritis, cervical syndrome, spine-induced neurological syndrome and interictal migraine (T 648.03);

(b) the ubiquitous illness manifests itself in different conditions, such as acne, panic attacks, lower back pain, tonsillitis and viral infections (T 648.15).

(c) spinal manipulation should be used as a firstline treatment for a wide range of conditions that present in general practice (and this is the approach he in fact takes to general practice) ( T 645.36 - 45);

(d) all pathologies can be challenged by spinal manipulation before recourse is had to orthodox treatment (T 645.09);

(e) every single patient who walks in the door of a general practice is likely to respond beneficially to spinal manipulation (T 648 - 649);

(f) the reason why every single patient who walks in the door of a general practice is likely to respond beneficially to spinal manipulation is that there is a ubiquitous illness that affects all of mankind (T 649.27);

(g) any illness whatever it is will be better after spinal manipulation ( T 629.41);

(h) spinal manipulation is appropriate virtually always ( T 696.27);

(i) general practitioners practising in accordance with accepted general practice are the lowest common denominator and are conducting inferior practices ( T 706.30, T 731.21-731.34);

(j) the accepted principles and framework of general practice are held in disdain by the practitioner ( T 706.30);

(k) the Respondent would be unlikely to talk to patients about treatments other than spinal manipulation because he does not see any point in advising patients to have inferior treatments (T 743.10 - 40);

(l) on being instructed in the philosophy of spine-induced neurological syndromes by the Respondent, most patients proceed to have spinal manipulation performed by him (the Amended Notice of Appeal in the appeal hearing at paragraph 4.6.1).

Some common themes

1. Before turning to consider the Commission's case as it relates to the individual patients the subject of the complaints it is appropriate to examine some of the common themes that the Commission asserts arise from an examination of the evidence relating to the Respondent's treatment of these patients. The common themes are set out under a series of headings.

1. These reasons draw upon the detailed written submissions of Ms Richardson, in particular her submissions in relation to the second Notice of Complaint at paragraphs [257] - [393].

1. These reasons seek only to summarise illustrative aspects of the themes addressed in the submissions.

Most illnesses respond beneficially to spinal manipulation

1. The first common theme is the Respondent's view that the entire "universe of patients" presenting to a GP in general practice would be likely to respond beneficially to spinal manipulation. Any illness, whatever it is, will be better after manipulation. Hence, the Respondent believes:

"...it's really quite reasonable to treat a patient with sore eyes or whatever - doesn't really matter, any brain function is liable, you improve if you do it. So over the course of 20 years, I've been challenging all the norms and I'm very, very satisfied that my theory about brain function is totally okay. Yes, you can treat someone's back and their whole function will improve, so their illness - whatever it is - will be better."

1. Thus, all pathologies can be challenged by spinal manipulation without recourse to orthodox treatment. There is no need to consider alternative diagnoses. The best approach is to challenge the condition with spinal manipulation as a first-line treatment and see if it works.

Spinal manipulation should be the first-line treatment

1. A second, related, common theme is the Respondent's view that spinal manipulation should be the first-line treatment for a wide range of conditions that present in general practice. He says you should "Do the brain first before you start trawling about the body" .

1. In response to criticism by Dr Young the Respondent said:

"The assessor advocates vague, complicated management, while ignoring a direct path to a likely diagnosis, for which the treatment is simple, safe, expeditions and totally inexpensive."

1. If spinal manipulation is ineffective the first time, you do it again in a month's time.

1. If it still doesn't work, only then would you resort to conventional medicine, because " you haven't got any penumbric tissue" (T 354.12) :

"Q. Just to go back to what you said, it takes one minute and if it doesn't cure the problem then do it again in a month and if that doesn't work there are no penumbra. So what do you do then?

A. They'll start--

Q. They'll go back to conventional medicine?

A. Yeah, whatever you like, your Honour. I mean, you've got to give them the chance. You've got to say well this is very safe, let's do it."

Disdain for the accepted principles of general practice

1. Another common theme in the respondent's approach to his patients is his disdain for the accepted principles and framework of general practice. In his opinion conventional general practice is inferior, incompetent and involves "the lowest common denominator".

1. The Respondent said, for example:

"Let there be no confusion - it is my sincere opinion that orthodox medical practitioners potentially injure patients at every consultation. This is because they do not recognise, as a result of inferior training, the existence of the "Traumatic Cervical Spine Syndrome".

"... current medical opinion does not have a clue about interictal migraine. As a result, patients are potentially being injured in every doctor-patient interaction under the prevailing, incompetent and incomplete medical philosophy."

"Of course I don't do what a doctor with good standing would do. I think that they are doing such harm. Why would I want to be associated with them?"

1. It was submitted that the Respondent made numerous grandiose statements that reveal he thinks he is superior to every other medical practitioner and that he is the only person who can make patients better (T 370.50). There is no other practitioner in the world with an equivalent level of training and experience, hence he should not be judged by such a standard (T 830.25):

"I don't think these ordinary general practitioners are competent, and when they say that I don't come up to their standards, I'm thinking, 'Well, God, this is strange. I am so far ahead of them it's ridiculous'."

Inflexibility and rigidity

1. The next common theme pointed to by the Commission is the Respondent's inflexibility and rigidity. It was submitted that although he is completely at odds with (and denigrates) the entire medical profession (and with the physiotherapy and chiropractic professions), and can identify no health care professional to support his theory or approach, he has no ability to reflect on why this might be the case or whether he might be wrong (T 371.30):

" Well, I'm not a good general orthodox practitioner. I'm a madman..."

1. This mindset reflects his approach to practice, an approach that Dr Beaumont described as bizarre (T 463).

1. The concern for the Commission is that the Respondent's rigid medical philosophy and faith in spinal manipulation as a treatment means that he would be mostly unlikely to alter his course and investigate alternative diagnoses if manipulation did not work after two or three treatments. Thus there are risks of failing to diagnose the actual problem, and risks that a patient, convinced by the Respondent's diagnosis, will not return for further treatment so the "red flag" (and the opportunity to explore alternative diagnoses) never arises.

1. Dr Young gave evidence of the risk of setting up patients with wrong expectations (T 151.30):

" Of one size fits all? Well that you - that you miss other things, that you set up a state of possible expectation of the patient, at best collusion at worst of continuing a certain style of treatment with the patient."

1. Dr Beaumont also gave evidence of the risks, in particular the risk of a missed diagnosis (T 490 492):

" Q. And would you agree with me that if a doctor has such a medical philosophy or has extended his medical philosophy from the core group or the first postulate to this wide variety of conditions that present in general practice, that there is a very real risk that he will fail to diagnose the obvious or fail to diagnose what's really wrong with a particular patient? Do you agree with that?

A. I think he's coming at it with such a biased point of view there is a risk he will miss a diagnosis of an illness but exactly how high that risk will depend on the ability of the practitioner..."

" Q. ...if you could put to one side what chiropractors do and focus on Dr Gorman as a general practitioner, holding himself out as a general practitioner, my proposition to you is that if Dr Gorman approaches medical practice with such a rigid and biased medical philosophy, that there is a very real risk that he will fail to diagnose the patient's medical condition in accordance with generally accepted principles?

A. Yes, I think if you come at it with a rigid paradigm then you may miss the obvious..."

" Q. So if you have an unorthodox approach to what's causing the symptoms it's obviously going to affect the treatment that you think is appropriate?

A. Yeah."

1. Dr Ieraci also gave evidence as to the risks associated with the Respondent's rigid approach (T 643.21 and T 637.10):

" Q. Are you able to express a view, one way or the other, on how that medical philosophy manifests itself in treatment and can you talk, in particular, about these four patients? How that philosophy manifests itself in terms of diagnosis.

A. The evidence I've seen here reflects a tendency to attribute the same physical or pathophysiological cause to a wide range of presentations and within this group, almost the same pathophysiological cause to an enormous range of ages and pathologies which would suggest both a lack of acceptance of orthodox medical understanding and also a tendency to use a blanket explanation for a range of different pathologies.

Q. What, in your professional opinion, is the risk of a medical practitioner who is applying the same explanation or pathophysiological explanation to a wide variety of conditions? What sort of risk does that present?

A. There are two main risks. The first would be a failure to effectively diagnose and treat both the cause and the effects of the pathology. And the second would be the potential risks of treatment by manipulation."

" Q. What do you see as the particular risk if a practitioner were applying a particular type of treatment to a symptom that might be caused by various different conditions? What do you see as the risk?

A. The main risk would be failure to either diagnose the root cause or to give effective treatment for that condition."

Inadequate assessment and clinical note taking

1. The Commission next submitted that the Respondent's medical philosophy translates into inadequate assessment and clinical note taking. It points to the evidence that his clinical notes do not accord with accepted general medical practice, and are generally inadequate.

1. The Respondent acknowledges the criticism, but seeks to justify it by reference to his medical philosophy. Referring to Patient KS, he said, for example (T 582.47):

" ... I'm looking at her from a different point of view and you know, I just don't hold with orthodox medicine's point of view and I don't hold it in any respect in this regard...I don't conform and I don't approve of orthodox general practice..."

1. The Commission similarly pointed to the Respondent's disparagement of standard pathology and diagnostic imaging (T 564.01):

" Q. What do you think is the explanation for the fact that compared to other general practitioners, the amount of pathology and diagnostic imaging ordered by you is a tiny fraction of what other general practitioners do? What do you say would be the explanation?

A. Well, first, I've got practitioners that have got nowhere to go. They're - they're stuck with finding something physically wrong with the patient before they can move on to give him treatment. I don't have that problem because I'm dealing in an illness that doesn't have very - there's a scan and blood test negative, so that I don't need to do those tests for the type of patient that consults me."

1. Accordingly, the Respondent spurns the conventional use of scans as a diagnostic tool (T 566.45):

" So to take a scan, you just get no information at all. And that's a very important part of this thing because with millions of scans being done looking for negativity - we say, "Do a scan just to make sure you're okay". Now, those scans cost money, maybe $400 each and if you've got a mentality that says, "Well, most of these scans area going to negative and really the best way to check whether this is a polynya or not is to do a manipulation and if the patient gets better, you don't have to do the scan."

Failure to obtain informed consent

1. Finally, but perhaps most importantly, is the common theme that the Respondent' does not obtain informed consent for the application of his therapy. As Dr Beaumont said, the Respondent's rigid and firmly-held views creates a real possibility that patients will not give informed consent for his therapy, and will be misled where the Respondent is practising as a general practitioner, not as a chiropractor. Dr Beaumont agreed (T 63.28):

"...it come[s] down to a question of informed consent in relation to a strange philosophy".

1. Hence, Dr Beaumont believes that patients or parents of young patients attending at a multi-doctor clinic (T 478):

(a) would trust the doctor they see in that context as being someone who is practicing general practice;

(b) would trust that the doctor is practising evidence-based medicine;

(c) would be likely to trust the advice they get because of the context in which it is given; namely, by a general practitioner in a multi-doctor clinic.

1. When patients come to the Respondent in general practice, most of them are instructed on his medical philosophy of "spine-induced neurological syndromes". As a result his patients almost invariably proceed to have a spinal manipulation. The Respondent gives patients this advice even when they have "inadvertently" come to him for ailments "not usually considered treatable by spinal manipulation".

1. Such conditions include conditions such as acne, dermatitis, panic attacks, flu, hay fever, sore eyes, sore backs, autism and developmental delay (T 640.14 of the appeal hearing).

1. The Commission submitted that the Respondent convinces patients to undergo his spinal manipulation by telling them they have a "syndrome" (T 642.24 of the appeal hearing):

"Q. ...So you agree with me that it is your practice to instruct patients who inadvertently come to you for ailments not usually considered treatable by spinal manipulation in the philosophy of spineinduced neurological syndromes, and after you've instructed them, most patients then proceed to spinal manipulation. Does that reflect your general practice?

A. The question is "most". I would think - I must be very convincing or something like that, because a terrible lot of them do. And I just say, these people are sensible. They understand what I'm saying..."

1. Thus, submitted the Commission, the particular risk is that patients treated by the Respondent will trust him as a GP in circumstances where it is apparent that his practice is actually inconsistent with accepted general practice. Further, the level of trust afforded by patients will affect whether they are in fact giving informed consent to being treated by spinal manipulation.

1. The Respondent has his own views on what informed consent involves. The Commission submitted that he believes it is for a patient to specify whether they prefer orthodox treatment to his particular therapy (T 640.45 of the appeal hearing):

"If the patient indicates to me that they want orthodox treatment I'm very happy to give them orthodox treatment. But I wouldn't be encouraging them to come back to me, because they really want some other doctor, not me."

1. Unfortunately, as Dr Beaumont points out, such patients don't know that the Respondent's therapy is not orthodox treatment, and the Respondent does little to enlighten them.

1. The Respondent does not explain to his patients that his treatment is not in accordance with accepted practice for a particular condition, or that other conventional treatments are available. He agreed that (T 820.37):

"I wouldn't normally do that."

1. In fact, the Respondent deliberately avoids advising patients about orthodox alternatives:

"I just don't see that it is in my interest to advise patients to have those inferior treatments."

1. The Respondent also fails to properly inform his patients about the risks associated with forceful spinal manipulation. In his opinion, the risks are so small that they don't warrant frightening the patient and thereby unnecessarily deterring the patient from undergoing the procedure (T 849.43). He considers that if a patient gets up on the bench and lets him manipulate them, that is sufficient consent (T 734.50).

1. The Commission also complains that the Respondent misleads patients into believing that his procedure has a scientific basis, without making it clear that his theory is not accepted by conventional practitioners. In fact, it is widely regarded as resting on a "shaky foundation". Even on his own exposition of the theory, it involves a "leap of faith".

1. The Commission submitted that these factors operate to vitiate the consent the Respondent relies upon to treat his patients with his therapy:

" First , any consent is not informed consent where the patient gives consent on the basis a doctor has convinced them they have a syndrome - such as "spine-induced neurological syndrome" or "dorsal spine syndrome" - these being conditions which are not accepted by general practice as existing." [363]

" Secondly , any consent is not informed consent where the patient gives consent on the basis a generalised diagnosis of a "brain failure" or a lack of blood flow to the brain - in circumstances where there is no clinical findings or assessment in relation to that patient to support such a diagnosis." [366]

" Thirdly , any consent is not informed consent where the patient is not informed of the risks associated with the spinal manipulation procedure (and in particular where, not only is there no explanation of the risks, the patient is positively told the procedure is "safe")." [369]

" Fourthly , any consent is not informed consent where the doctor provides the patient with materials which leads the patient to believe that there is a scientific basis for use of this treatment in relation to a particular condition (in circumstances where there is no such scientific basis)." [371]

" Fifthly , any consent is not informed consent where the doctor does not explain to the patient that the treatment he is recommending is not in accordance with accepted general practice (or at the very least is not the treatment that the majority of general practitioners would recommend for this condition)." [375]

" Sixthly , any consent is not informed consent where the doctor does not explain to the patient that other treatment options (which are consistent with accepted general practice) are available to treat the patient's condition." [381]

1. The Commission's allegations in respect of Patient RP were clearly made out. The witnesses were critical of the Respondent on each of the matters about which it complains and for the reasons already given, the Tribunal prefers those witnesses to the Respondent.

1. The Tribunal finds that the Respondent provided Patient RP with inappropriate treatment, namely spinal manipulation, and failed to provide him with appropriate treatment.

1. The Tribunal also finds that the Respondent failed to provide him with sufficient information to give informed consent to spinal manipulation.

1. Accordingly, the Tribunal is satisfied that the Respondent's management and treatment of Patient RP was significantly below the standard expected of a practitioner of an equivalent level of training and experience.

The Respondent's submissions

1. The Respondent relies upon his medical philosophy to justify his conduct.

"There is no evidence that...my dissenting philosophy and practice has been proven to be incorrect or even misguided."

1. He submitted that his style of medical practice is economical, panoramic in philosophy, effective and safe. Hence, no patient came to any harm as a result of his treatment, apart from Patient CR, and the majority of his patients were satisfied with his treatment.

1. He submitted that the Tribunal should find that his medical actions do not warrant the criticisms of unsatisfactory professional conduct or professional misconduct. It should remove all conditions and return him to full medical practice with a record unblemished by any criticisms.

1. The Respondent contends that his spinal manipulation treatment is scientifically based. In comparison, orthodox medical practice is inordinately expensive, generally palliative, restrictive in philosophy and often dangerous. Once orthodox medical practice leaves the parameters of trauma, resuscitation, complicated obstetrics, pain relief and public health, it is incompetent and incomplete. The witnesses who criticised his medical behaviour, like most medical practitioners, are ignorant of the basic principles of neurovascular medicine. The Commission's case is based on ignorance:

"I submit that it was based on ignorance - this inference is based on the ignorance, as demonstrated by the HCCC's so-called, "expert witnesses"', of the recovery of vision with spinal manipulation, Interictal Migraine, the Ischemic Penumbra State and Watershed Infarction.

1. He criticised the Commission for the complaints made against him:

"I believe that, what the Health Care Complaints Commission wished to demonstrate, was that I had not enunciated the benefits of pharmacological (drug) medicine and surgical medicine.

If effective in producing a valid criticism of my medical practice, this ploy will have demonstrated the bias of the Tribunal - the Tribunal will have been shown to be the sycophant of 'Orthodox Medicine', which the medical practitioner, panel members had formally disavowed in their personal cases."

1. The Respondent defended his conduct in respect of the criticism that he failed to obtain informed consent for his spinal manipulation treatment. Firstly, he submitted that the patients were not denied information on which they could give informed consent. Second, he submitted that it was not necessary for his patients to be instructed in the mores of health care in Australia in order to give informed consent to his treatment.

1. His final written submissions continue:

"As a subheading, was my decision: not to canvass other forms of treatment with the patient, a medical crime at all; and if it were a crime, is it a crime, which warrants the penalty of suspension or deregistration?

In this regard, 'omission of discussion' of which available, alternative (meaning other) treatments, made the omission so offensive, such that the omission warrants suspension or deregistration?"

1. He went on to discuss this issue in terms of the placebo effect:

"This is not to say that I would not have fully discussed the advantages and disadvantages of any of the above forms of therapy, with any patient who sought such a discussion.

A main reason for not raising alternatives therapies to replace my projected therapy is the nullification of the 'placebo response'. Essentially this means that the more committed that the practitioner is to the therapy, which is recommended, the more likely that it will be successful. The placebo effect is a very powerful therapeutic tool, which requires an aura of confidence in the therapy, which is being promoted, to be exuded by the practitioner who seeks to add 'the placebo effect' into the therapeutic mix.

Adding 'the placebo effect' to a therapy such as spinal manipulation, which has scientific merit in its own right, is an advantageous 'double whammy' in healing the patient, such that it should not be neglected.

The criticism of such sentiments is that a practitioner might persist with the invocation of the placebo effect for too long, leading to denial of the patient to more effective therapy from other therapeutic modalities as outlined above.

For such a criticism to be justly applied in my case, the Health Care Complaints Commission must specify that such damage to patients had occurred - it is not enough to insinuate that it might occur.

This is a particularly obligatory, legal factor in considering my case, given my level of general medical education based on a lifelong connection with medical practice, my personality in terms of apprehension of error and medical misadventure, and my post graduate training."

1. The Respondent contends that he is an extraordinary whistleblower. He submitted:

" In this Tribunal hearing, the Respondent has brought to the fore allegations of medical corruption in Australia, which have injured countless millions of persons worldwide.

The main focus of the corruption was the decision of the then executive of the Royal Australian and New Zealand College of Ophthalmologists to 'bury' the recovery of vision, which occurs when the spine was manipulated in appropriate patients. 'Appropriate patients', are patients who have a correctable form of vision loss.

Unfortunately for Australia's reputation as a first world country of impeccable dedication to human rights and democracy, this fraud has continued to the present day, coming to a focus when I 'whistleblew' the malevolent process worldwide in my book : 'The Great Australian Medical Scientific Fraud'... With the publication of this book, the fraud is out in the open - in full view of other nations. Australia must now make corrective measures to right the wrong to patients and to regain its reputation for integrity after more than three decades of pursuit of the Respondent in the medical regulatory system, which, in part, had been frustrated by the wisdom of Judge Bell in the Medical Tribunal in 1989; and by the NSW Supreme Court of Appeal in later decisions.

What must Australia do to regain its reputation?

Further turning of a 'blind eye' to the whistleblowing as foreshadowed in this Tribunal by a completely incredible, judicial refusal to acknowledge that the Respondent was a whistleblower on legal grounds, certainly will not lift Australia's reputation - it did not augur that the Tribunal would take seriously its responsibilities to citizens of Australia and to those of other countries worldwide.

It was completely immaterial whether the said whistleblowing reflected the reality, or, alternatively, was misapprehension on my part... Australia must search out the truth of the matter: namely, does vision improve in appropriate patients when the spine is manipulated by the technique of Dr Eric Milne?

Further turning of a 'blind eye' to the whistleblowing as foreshadowed in this Tribunal by a completely incredible, judicial refusal to acknowledge that the respondent was a whistleblower on legal grounds, certainly will not lift Australia's reputation - it did not augur that the Tribunal would take seriously its responsibilities to citizens of Australia and to those of other countries worldwide.

It was completely immaterial whether the said whistleblowing reflected the reality, or, alternatively, was misapprehension on my part - in fairness to those entities, which have possibly been detrimentally affected, and might be affected in the future, not only in Australia but worldwide, Australia must search out the truth of the matter: namely, does vision improve in appropriate patients when the spine is manipulated by the technique of Dr Eric Milne?

Australia has to go back to the categorical demonstration of the phenomenon in the 'Dangerous Twist', 60 Minutes television segment which 'went to air' on the 22 nd of June 1986...

This process must start in this Medical Tribunal; otherwise it is unlikely to start at all - to the progressive worsening of Australia's reputation for fair play as the years pass...

Such a course will require courage and pragmatism by the Tribunal Panel, because it will be intensely resented by the NSW Medical Council and the Health Care Complaints Commission, which, for some unexplainable reason, have joined as a disreputable duo, to put the agenda of orthodox medicine far ahead of their duty to the community."

1. The Respondent placed significant reliance upon the asserted cost effectiveness of his treatment. He called as a witness Mr Jim Sullivan to give evidence concerning "the totally unsustainable cost of ambient health care". Mr Sullivan is the Chairman of the Rural Branch of the Liberal Country Party in the Northern Territory and a member of the Board of Katherine Hospital: see Exhibit 8.

1. The Respondent summarised the important features of Mr Sullivan's evidence upon which he relies as follows:

" Mr Sullivan provided a graph from the Congressional Budget Office of the United States Government which depicted that overall health care expenditure in that country would reach 99% of that country's gross national product by 2082, if the cost of health care kept rising at the present rate of rise.

Mr Sullivan provided a solution in his 'Innovations Clinic', which he aspired to trial at the Katherine Hospital, where he is a Member of the Board. Mr Sullivan testified that the theme of the 'Innovations Clinic' was to be the medical philosophy as espoused by Dr Gorman but not limited to that style of treatment. He advocated wider choice for patients: access to other forms of health care, such as, for instance, acupuncture and naturopathy, if only to apply the 'placebo effect', which is known to be very effective.

Mr Sullivan described the dire situation of patients waiting for specialist consultation at Katherine Hospital and lamented that many would never consult the specialist whose care had been projected. He intimated that benefit could be obtained by approaching their problems by an alternative route: by giving patients access to alternative health care philosophies."

1. Accordingly, submitted the Respondent:

" Mr Sullivan's testimony makes the point that serious ramifications for patients, who attend the Katherine Hospital, will follow if the HCCC's recommendations in regards to Dr Gorman are adopted."

1. The Respondent also relied upon evidence from Mr Sullivan in connection with the issue of informed consent, and to suggest that the Commission seeks to ask the Tribunal to apply a double standard in respect of the requirements for informed consent:

" Mr Sullivan gave evidence concerning informed consent based on his experiences as a parent of five children and his own personal experience. In the latter experience, he described how he nearly bled to death after taking anti-inflammatory medications prescribed by a medical practitioner who did not warn him of potential, life-threatening, gastro-intestinal haemorrhage. As a result, when be became weak and sick within a day or so after commencing the medication, he lay in bed all day not knowing what was wrong with him. Thus, his medical management was delayed; this precarious situation could have been avoided had he been warned of possible haemorrhagic complications, when the tablets were ordered.

From his experience in taking his children to the doctor, Mr Sullivan expressed the opinion that medical practitioners generally did not seek to gain informed consent to the prescription of medications by describing the dangers inherent to their use. Mr Sullivan suggested that a double standard of informed consent was applied in Dr Gorman's case."

1. Accordingly, submitted the Respondent:

" In terms of informed consent, much more is expected of Dr Gorman compared with that expected of other medical practitioners - a double standard is being applied, which is inappropriate; it reflects badly on the District Court of New South Wales."

1. Finally, the Respondent submitted that the Tribunal should accept his evidence, and his medical philosophy, which has been suppressed, and reject the medical opinion of his peers of good repute as fundamentally unsound:

" The HCCC's submissions arrogantly presume that the bias of the Medical Tribunal will favour so-called 'Orthodox Medical Practice'...

... the removal and burial of the significant evidence that vision improves in appropriate patients when the spine is manipulated, has converted the world of health care into 'Fantasy Land'.

The 'Fantasy Land' of health care is a place where the solid buttresses of reality have been removed: a place of virtual reality where there are no penalties for error...

... competence to be judged by the opinion of peers of good repute, is only reasonable if the said 'opinion' is fundamentally sound.

Obviously, it is the last of these incongruous perceptions which is pertinent to this case - the opinion of my peers of good repute is fundamentally unsound because, for more than thirty years, they have been denied cogitation of critical scientific information by medical academics in Australia, in particular those of the Royal Australian and New Zealand College of Ophthalmologists."

Findings in relation to conduct

1. For all the reasons set out above, the Tribunal makes the following findings in respect of the complaints brought against the Respondent in the first Notice of Complaint and the second Notice of Complaint arising out of his treatment of the patients concerned, in accordance with the findings made in respect of each and all of the patients.

1. In respect of Complaint 1.1, the Tribunal is satisfied that the Commission has proved to the requisite standard of proof that the Respondent has engaged in:

(a) unsatisfactory professional conduct within the meaning of section 36 of the Medical Practice Act 1992 ; and

(b) professional misconduct within the meaning of section 37 of the Medical Practice Act 1992 .

in that he has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and he contravened the relevant Medical Practice Regulation .

1. In respect of Complaint 2.1, the Tribunal is satisfied that the Commission has proved to the requisite standard of proof that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that he has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and he contravened the relevant Medical Practice Regulation .

1. In respect of Complaint 2.2, the Tribunal is satisfied that the Commission has proved to the requisite standard of proof that the Respondent has been guilty of professional misconduct within the meaning of section 139E of the National Law in that he has:

(a) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and

(b) has engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration.

Findings in relation to competence

1. The Commission is satisfied that the Respondent has rigid and firmly-held views in relation to medical practice arising from his medical philosophy, as discussed. These views relate to and include his theory that there is a ubiquitous illness affecting all of mankind that can be treated by the very simple and safe treatment of spinal manipulation, for which illness he has used other interchangeable names including whiplash, spinal arthritis, the cervical syndrome, spine-induced neurological syndrome and interictal migraine. This ubiquitous illness manifests itself in multiple different conditions as already discussed. His views include the proposition that spinal manipulation should be used as a firstline treatment for a wide range of conditions that present in general practice. Virtually all pathologies can be challenged by spinal manipulation before recourse is had to orthodox treatment, such that the majority of patients who walk in the door of a general practice is likely to respond beneficially to spinal manipulation, due to the fact that the ubiquitous illness that affects all of mankind.

1. Thus, the Respondent has rigid and firmly-held held views that nearly every illness, whatever it is will be better after spinal manipulation, such that it is virtually always appropriate. He holds the accepted principles and framework of general practice in disdain, and considers that general practitioners practising in accordance with accepted general practice are the lowest common denominator, conducting inferior practices.

1. The Tribunal is further satisfied that the Respondent would be unlikely to talk to patients about treatments other than spinal manipulation because he does not see any point in advising patients to have inferior treatments; and, that on being instructed in the philosophy of spine-induced neurological syndromes by the Respondent, most patients would proceed to have spinal manipulation performed by him. He is inflexible. His spinal manipulation technique has not been adapted in 30 years, and he rejects out of hand any modification to it, or any supervision.

1. These concerns are amply demonstrated in the findings set out above in respect of the patients.

1. In particular, the Tribunal is satisfied that in the examples discussed, the Respondent not only did not obtain informed consent, rather he obtained what Dr Beaumont described as "misinformed consent".

1. The Tribunal is also concerned by the numerous examples of a lack of insight displayed by the Respondent and the attitude aptly described by the Commission as "grandiosity". Of particular concern is his disdain for conventional medical practice, his peers, the rules, and indeed, the law. These elements were displayed in the case of Patient CR, and the episode in which he involved his neighbour, who he improperly taught his manipulation technique, knowing he was not legally permitted to perform cervical spine manipulations. His care plans, in which he described the chronic illness as "arthritis", but rarely expressly articulated the treatment as spinal manipulation, also involved a factitious element.

1. His rigidity also inhibits the Respondent's ability to take on new information. His fixed belief that others are responsible for the failure of the promulgation of his medical philosophy is an example of his firmly-held views. Dr Beaumont repeatedly pointed out to the Respondent in his evidence what was required for the validation and acceptance of his medical philosophy by the wider profession, but he stubbornly refused to accept the reality of the situation, choosing instead to assert it was for others to disprove his theory.

1. A further concern for the Tribunal is the Respondent's dismissive attitude to the risks associated with his technique of spinal manipulation. Contrary to the Respondent's asserted position that the therapy is safe, which he seems to base on the historical basis of an absence of problems to date, for the reasons already discussed, the Tribunal is satisfied that the technique of spinal manipulation employed is inherently and unpredictably risky, to a substantial degree, in the ways described in detail above by the experts, particularly his spurning of the contra-indicators employed by conventional manipulative therapists.

1. The Tribunal finds that the risk associated with the Respondent's method of spinal manipulation is not supported by currently accepted standards, particularly in the case of vulnerable patients, such that express, careful and precise information would be required to be given to patients in the manner and with the content described by the experts, as set out above.

1. For these reasons, the Tribunal is, therefore, satisfied that the Commission has proved to the requisite standard of proof that as a result of the Respondent's rigid and firmly-held views there is a real risk that he:

[1] will fail to correctly diagnose a patient's medical condition, and

[2] is unlikely to give impartial advice to patients to enable them to give informed consent.

1. Having regard to its findings in respect of the patients, individually and collectively, and the risks associated with and arising out of Respondent's rigid and firmly-held views, as discussed, the Tribunal finds that the Commission has clearly made out its allegations in Complaint 2.3.

1. In respect of Complaint 2.3, therefore, the Tribunal is satisfied that the Commission has proved to the requisite standard of proof that the Respondent is not competent to practise medicine within the meaning of section 139 of the National Law in that he does not have sufficient physical capacity, mental capacity, knowledge and/or skill to practise medicine.

Disposition

1. The Commission seeks a de-registration order and a prohibition order. It also seeks orders that the Respondent be prevented from making an application for review of the Tribunal's orders until after a period of 3 to 5 years.

1. The Tribunal has determined that the Respondent's conduct amounted to unsatisfactory professional conduct and professional misconduct, and that he does not have sufficient physical capacity, mental capacity, knowledge and/or skill to practise medicine.

1. The Tribunal exercises its jurisdiction for the protection of the public and of the medical profession. Deregistration may be required in serious cases of misconduct in order to adequately achieve those objectives by minimising the risk of recurrence, by deterring other practitioners from engaging in such conduct, and by maintaining public confidence in the profession.

1. This jurisdiction is protective rather than punitive. The discretion of the Tribunal is at large and depends upon the circumstances of the individual case: HCCC v Karalasingham [2007] NSWCA 267 at [67].

1. Having regard to the totality of the Respondent's conduct, and its cumulative effect, in particular his rigid and deeply-held views and his disdain for conventional general practice, the Tribunal is deeply concerned as to the serious nature of Respondent's misconduct, and as to the risk of recurrent misconduct, including the improper administration of drugs of addiction. As the Commission submitted, the Respondent has effectively "checked out of general practice." The Tribunal therefore considers that the only appropriate order is for the deregistration of the Respondent with a significant period restricting his ability to make an application for restoration of his name to the Register.

1. The Respondent's name should be removed from Register. The Tribunal considers that a period of 3 years restricting him from applying for restoration of his name to the Register is appropriate.

Prohibition order

1. In addition to deregistration and cancellation of registration, the Commission seeks a Prohibition Order under s 64(2A) of the Medical Practice Act 1992 and/or s 149(C)(5) of the National Law . The terms of the order sought are as follows:

"That the Respondent is prohibited from providing the following health services:

(a)   performing spinal manipulation;

(b)   educating (including instructing or supervising) other persons in the performing of spinal manipulation,

until at least such time as the Respondent is re-registered as a medical practitioner by the Medical Tribunal.

1. Not unexpectedly, the Respondent rigorously opposes the making of any such order.

1. The pre-conditions to the making of such an order are that there have been findings of professional misconduct and incompetence for practice. The Tribunal must also be satisfied that there is a "substantial" risk to the health of the members of the public. The Tribunal has already made sufficient findings to satisfy these pre-conditions. The issue for determination is whether it should make such an order.

1. The Commission submitted that a probation order should be made, principally due to the risk that the Respondent:

(a) will offer spinal manipulation services in an allied health or other context; and

(b) will teach others how to carry out his spinal manipulation technique.

1. It points to the evidence that the Respondent has previously indicated a wish to do manipulations as a naturopath (if he were prevented from doing so by suspension) (T 704.37); and that he has already instructed his neighbour in his spinal manipulation technique and thus encouraged his neighbour to break the law. It also points to the fact that the method the Respondent adopts in carrying out spinal manipulations falls well below the standard adopted by practitioners who do use spinal manipulation as a treatment for particular conditions; namely, the standards of chiropractors, musculoskeletal physicians and physiotherapists.

1. The Tribunal is concerned about the width of the orders proposed.

1. Firstly, it does not see the justification for preventing the Respondent from continuing to advocate his theory.

1. Second, in the light of his deregistration, it does not see a necessity for a blanket prohibition against the Respondent from performing spinal manipulation.

1. Contrary to the Commission's submission, the Tribunal considers that the prohibition under s 123 of the National Law provides sufficient protection of the public. The section provides that a person must not perform manipulation of the cervical spine unless the person is registered in an appropriate health profession. That means a medical practitioner, a chiropractor, an osteopath or a physiotherapist.

1. Accordingly, the Respondent will be precluded, by law, from performing cervical manipulations. Otherwise, as a deregistered practitioner, the risk associated with the Respondent performing other forms of manipulation is minimal. The Tribunal is concerned not to place the Respondent in a worse position than any other citizen, or to prohibit the Respondent from advocating his theory in a controlled environment, such as Mr Sullivan's vision for an 'Innovations Clinic' at the Katherine Hospital. Obviously, in such a situation, the Respondent, as a de-registered practitioner, would undoubtedly be required to operate under controlled and supervised circumstances, including strict requirements for the full and genuine provision of information sufficient to satisfy the requirements for true informed consent to be provided.

1. For these reasons, the Tribunal is not persuaded that it should exercise its discretion to make a prohibition order.

Costs

1. The usual order in respect of Medical Tribunal proceedings is that costs follow the event: Ohn v Walton (1995) 36 NSWLR 77 at 79; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]. The Commission has succeeded on the substantive complaints and in the interlocutory applications. The power to award costs is, however, discretionary. But there is nothing in the present matter that militates against the making of the usual order.

Orders

1. The Tribunal orders that:

(1) The Respondent is to be deregistered under s 64(1) of the Medical Practice Act 1992 .

(2) The Respondent's registration is to be cancelled under 149C(1) of the National Law .

(3) The Respondent is prevented from making an application for review of the Tribunal's orders for a period of three years from the date of the orders.

(4) The Respondent is to pay the costs of the Commission in respect of the proceedings arising as a result of the two Notices of Complaint, including the interlocutory applications.

(5) The Medical Board of Australia is to effect the necessary administrative action to implement these orders.

1. Tribunal also made non-publication orders in respect of the names of the patients referred to in these proceedings.

Decision last updated: 22 August 2011