Health Ombudsman v Raynor - [2021] QCAT 25

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Raynor [2021] QCAT 25

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

BRANDON RAYNOR

(respondent)

APPLICATION NO/S:

OCR091-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

12 February 2021

HEARING DATE:

3 December 2020

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1. Pursuant to the Act s 113(1), the Tribunal decides that, because of his conduct and performance, the respondent poses a serious risk to persons.

2. Pursuant to the Act s 73(2)(a)(ii) the Tribunal sets aside the interim prohibition order made by the respondent on 26 October 2017, as confirmed with amendments by the Tribunal on 4 June 2019.

3. Pursuant to the Act s 113(4)(a) the Tribunal prohibits the respondent from:

(a)    Providing any health service involving the manipulation of the cervical spine of any person, whether paid or unpaid.

(b)   Teaching, demonstrating or promoting the provision of any health service involving the manipulation of the cervical spine of any person, whether paid or unpaid.

(c)    Providing to any person training, instruction or education in the provision of any health service involving the manipulation of the cervical spine of any person, whether paid or unpaid.

4. Pursuant to the Act s 113(4)(b) the provision of any health service by the respondent is subject to the compliance by the respondent with the restrictions set out in Annexure A of these Reasons.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – application for a prohibition order against the respondent – where the respondent is a health service provider under s 8 of the Health Ombudsman Act 2013 (Qld) – whether the respondent’s technique of manipulation of the cervical spine causes a serious risk – where the likelihood of risk is rare but potential consequences are very serious

Health Ombudsman Act 2013 (Qld) ss 4, 4A, 8, 68, 113.
Health Practitioner Regulation National Law (Queensland) s 123.

Health Ombudsman v MacBean [2019] QCAT 300.
Health Ombudsman v Wallace [2020] QCAT 286.
Raynor v Health Ombudsman [2019] QCAT 139.

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

This is an application for a prohibition order against the respondent under the Health Ombudsman Act 2013 (Qld) (“the Act”) s 113(4). That provision has now been repealed, but under the transitional provisions remains in force for the purposes of this application: the Act, s 320G(2). The respondent provides massage services, and, formerly at least, some therapy involving manipulation of the neck. He is not registered as a health practitioner, and as a result the Tribunal is not required to sit with assessors. He was not at a material time a student in a relevant approved programme of study or clinical training. He is a health service provider within the terms of the Act s 8.
On 26 October 2017 the applicant made an interim prohibition order against the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 25
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was asked to decide whether the respondent, Brandon Raynor, should be prohibited from providing certain health services. The Health Ombudsman had already made an interim prohibition order against Mr Raynor, which QCAT had confirmed with some changes. The Tribunal was asked to consider whether Mr Raynor's conduct and performance posed a serious risk to persons, and if so, what prohibition order should be made. Mr Raynor is not a registered health practitioner, but provides massage services and has taught spinal manipulation techniques. The Health Ombudsman was concerned about the safety of Mr Raynor's technique, particularly its potential to cause serious injury to patients. The Tribunal found that Mr Raynor's technique did pose a serious risk to persons, because of the potential for catastrophic injury, even though such injury was rare. The Tribunal concluded that the risk was serious because of the very serious consequences if the risk eventuated. The Tribunal also found that the technique was not safe, and there was no evidence to suggest it provided any benefit to patients. It was appropriate to make a prohibition order to protect the public. The Tribunal set aside the earlier prohibition order and made a new prohibition order, prohibiting Mr Raynor from providing any health service involving manipulation of the cervical spine, teaching others to do so, and providing training in it. The order also contained conditions relating to notification of employers, inspection of records, and changes of address.

Orders