Marin v Chiropractic Board of Australia - [2020] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MARIN v CHIROPRACTIC BOARD OF AUSTRALIA
[2020] SASCFC 74
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
5 August 2020
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - CHIROPRACTORS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS
Appeal against the decision of a Judge of the Administrative and Disciplinary Division of the District Court disqualifying the appellant from reapplying for registration as a chiropractor for 10 years.
That order was made on an appeal brought by the appellant against the decision of the Health Practitioners Tribunal (the Tribunal). The Judge held that the Tribunal was not empowered to impose a disqualification for an indefinite period, set aside the Tribunal’s order and imposed the fixed term the subject of the appeal. The appellant’s misconduct included the indiscriminate use of x-rays, the use of alarmist language to explain the results of x-rays, taking money in advance for prolonged courses of treatment, over-servicing and prescribing weight loss medication without adequately informing his patients of its contents and possible effect on thyroid function.
The appellant appeals on the ground that the period of disqualification is manifestly excessive.
Held per Kourakis CJ (Peek and Nicholson JJ agreeing), dismissing the appeal:
1. The period of disqualification is no more than is necessary to protect those members of the public who, but for the period of disqualification, would have become the appellant’s patients, and to maintain public confidence in the standard of health care provided by chiropractors.
Health Practitioner Regulation National Law (South Australia) Act 2020 (SA) sch 2; Health Practitioner Regulation National Law ss 5, 31, 37, 38, 39, 40, 41, 43, 46, 47, 48, 49, 50, 52, 53, 55, 57, 58, 78, 79, 80, 113, 121, 122, 123, 123A, 133, 156, 196, 291; Radiation Protection and Control Act 1982 (SA), referred to.
Marin v The Chiropractic Board of Australia [2019] SADC 31, discussed.
Marin v The Chiropractic Board of Australia [2019] SADC 17; Chiropractic Board of Australia v Marin [2017] SAHPT 7; Chiropractic Board of Australia v Marin [2017] SAHPT 15; Newcombe v Medical Board of Australia [2013] SAHPT 2; Craig v Medical Board of South Australia (2001) 79 SASR 545; Mustac v Medical Board of Western Australia [2004] WASCA 156; Singh v Medical Board of Australia [2019] WASCA 51; Medical Board of Australia v Sze-Tho [2019] VCAT 244; Health Care Complaints Commission v Limboro [2018] NSWCATOD 117; Lee v Health Care Complaints Commission [2012] NSWCA 80; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, considered.

MARIN v CHIROPRACTIC BOARD OF AUSTRALIA
[2020] SASCFC 74
Full Court: Kourakis CJ, Peek and Nicholson JJ

KOURAKIS CJ: Chiropractors, like other health professionals, are registered under, and regulated by, the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the Act) which by Schedule 2 adopts the Health Practitioner Regulation National Law (the National Law). The National Law came into effect on 1 July 2010. This is an appeal against the decision of a Judge of the Administrative and Disciplinary Division (the ADD) of the District Court of South Australia (the Judge) disqualifying Mr Marin from reapplying for registration as a chiropractor for 10 years. The order was made on an appeal brought by Mr Marin against the decision of the Health Practitioners Tribunal of South Australia (the Tribunal). The Judge held that the Tribunal was not empowered to impose a disqualification for an indefinite period.[1] The Judge set aside the Tribunal’s order and imposed the fixed term which is the subject of Mr Marin’s appeal.
[1] Marin v The Chiropractic Board of Australia [2019] SADC 17 at [72].
Mr Marin’s sole ground of appeal to this Court is that the period of disqualification is manifestly excessive. That ground must be approached having regard not only to the consequences of the sanction on Mr Marin, but also the protection of the public. Indeed, the National Law provides that the latter is the paramount consideration in proceedings before the Tribunal.
I would dismiss Mr Marin’s appeal. Mr Marin’s misconduct included the indiscriminate use of x-rays, the use of alarmist language to explain the results of x-rays, taking money in advance for prolonged courses of treatment, over‑servicing and prescribing weight loss medication without adequately informing his patients of its contents and possible effect on thyroid function. The misconduct manifested a crass commercialism which is the antithesis of the professional duty of a health practitioner. Moreover, Mr Marin commenced to engage in that misconduct only shortly after he had been disciplined for similar earlier misconduct.
I would hold that the period of disqualification does not exceed the bounds of what is reasonably necessary in order to protect the public and maintain confidence in the chiropractic profession. I elaborate on my reasons below.
National Law – autonomous regulation of the health professions?
It is convenient to summarise the framework for the regulation of health practitioners under the National Law.
The framework is essentially one of self-regulation. The Macquarie Dictionary defines ‘self-regulation’ as the agreed regulation of commercial practices in an industry or profession by its constituent members through a relevant trade or professional association.[2] It gives as an example of its use the following sentence: Self-regulation of the industry had gone too far.
[2] Macquarie Dictionary (Online, 2020).
The National Law defines a ‘health practitioner’ as an individual who practises a ‘health profession’.[3] The National Law recognises 16 health professions in a wide range of disciplines including Chinese medicine, dentistry, nursing, medical practice and chiropracty.[4] Section 5 defines ‘health services’ to include the services provided by a health practitioner and certain other services, including dietary, massage and naturopathy services. At least one reason for defining health services beyond those health services more commonly provided by each of the 16 recognised health professions is to strengthen disqualification orders by prohibiting a disqualified health professional from providing any of those other services.[5]
[3]    National Law s 5.
[4]    National Law s 5.
[5]    National Law s 196(4)(b)(i).
The National Law requires regulations to be made to establish a National Board for each health profession.[6] Each National Board must consist of members appointed by a Ministerial Council,[7] as practitioner or community members. The Chiropractic Board of Australia (the Chiropractic Board) currently consists of nine members, of which six are practitioner members.[8]
[6]    National Law s 31.
[7]    State and Commonwealth Health Ministers – National Law s 5.
[8]    >
National Boards are required to develop five core registration standards about the following matters:[9]
·requirement for professional insurance;
·the criminal history of applicants;
·continuing professional development;
·English language skills; and
·the nature, extent and recency of any previous practice.
[9]    National Law s 38.
The National Boards may, but are not bound to, develop additional registration standards concerning:[10]
·the physical and mental health of health practitioners;
·the scope of practice of the health practitioners it regulates; and
·any other issue relevant to the eligibility or suitability of applicants to practise competently and safely.
[10] National Law s 38(2).
National Boards may delegate their functions to committees or to the Australian Health Practitioner Regulation Agency (AHPRA).[11] A National Board may also develop codes and guidelines governing, for example, advertising.[12] Standards are recommended by National Boards to the Ministerial Council, which may approve them.[13] Each Board has established registration standards, codes of conduct and guidelines.
[11] National Law s 37.
[12] National Law s 39.
[13] National Law s 40.
Section 41 of the National Law provides that an approved registration standard, or a code or guideline, is admissible in disciplinary proceedings.
Part 6 of the National Law governs the accreditation of health professionals. Section 43 of the National Law allows National Boards to either devolve the accreditation function to a sub-committee or to use an external accreditation entity (together referred to hereafter as an accreditation authority). In the development of accreditation standards, an accreditation authority must undertake wide-ranging consultation about its content.[14] The accreditation standard must be approved by the National Board but need not be approved by the Ministerial Council.[15] An accreditation authority may, subject to the National Board’s approval, accredit a program of study if it is satisfied that it meets an approved accreditation standard for the profession.[16] Accreditation authorities must continue to monitor an approved program of study.[17]
[14] National Law s 46(2).
[15] National Law s 47.
[16] National Law ss 48, 49.
[17] National Law s 50.
Section 52 governs the eligibility of an individual for general registration. It provides that the individual must have qualified for registration and must have successfully completed any prescribed examination or assessment or a period of supervised practice. The individual must also be a suitable person to hold registration, and not be subject to a disqualification.
Section 53 of the National Law governs qualifications for general registration. It requires the individual to hold an approved qualification or a qualification which is substantially equivalent.
Section 55 provides:
55Unsuitability to hold general registration
(1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if—
(a)in the Board’s opinion, the individual has an impairment that would detrimentally affect the individual’s capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or
(b)having regard to the individual’s criminal history to the extent that is relevant to the individual’s practice of the profession, the individual is not, in the Board’s opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or
(c)the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against the individual but not finalised; or
(d)in the Board’s opinion, the individual’s competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or
(e)the individual’s registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner’s registration in Australia; or
(f)the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or
(g)the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or
(h)in the Board’s opinion, the individual is for any other reason—
(i)not a fit and proper person for general registration in the profession; or
(ii)unable to practise the profession competently and safely.
…
Sections 57 and 58 provides that the National Board of each health profession may provide for the accreditation and registration of a health practitioner as a specialist practitioner within that profession.
Significantly, save for several specific, limited forms of treatment, including cervical manipulation,[18] the National Law does not define the scope of practice of health practitioners. Such limits as there might be on their practice must be divined from standards, codes of conduct and accreditation requirements approved by National Boards. The Dental Board is one of the few National Boards to have developed a scope of practice standard. It delineates the practice of dentistry and establishes divisions within the profession and dental hygienists.[19]
[18] Section 121 makes it an offence for a person to carry out a restricted dental act unless that person is registered in the dental profession. A restricted dental act is performing any irreversible procedure on the human teeth or jaw, or correcting malpositions of the human teeth or jaw and similar work. Section 122 prohibits a person who is not an optometrist or medical practitioner from prescribing an optical appliance. Section 123A restricts the carrying out of birthing practice to medical practitioners and midwives.
[19] Dental Board Scope of Practice Registration Standard (30 June 2014) and Dental Board – Revised Scope of Practice Registration Standard (1 July 2020).
In the absence of an obligation to do so, it is not surprising that most National Boards, constituted primarily of members of the profession they regulate, have not moved to define, and therefore limit, the scope of practice of the health professionals they regulate. Even though it may be possible for a registered practitioner of another health profession to be appointed to a National Board, there is no statutory obligation to that effect. It is difficult to see how any accreditation standards can be efficacious without a clear definition of the scope of practice of the health practitioners who are accredited in accordance with those standards.
It follows that the regulation of health professionals in Australia is truly autocephalic, in that their respective National Boards have authority to leave undefined the scope of their profession and to determine the accreditation standard for joining the profession. There is no independent arbiter to monitor and, if necessary, keep in check extravagant claims by health professionals to the scope of their entitlement to practice.
Section 123 provides that a person must not perform a manipulation of the cervical spine unless the person is registered in an appropriate health profession: chiropractic, osteopathy, medical and physiotherapy. It follows that cervical spine manipulation is necessarily within a chiropractor’s scope of practice. However, the code of conduct developed by the Chiropractic Board does not provide an umbrella definition of chiropracty, and does not delineate a chiropractor’s scope of practice. It does require that a chiropractor only operate within his or her scope of practice but such an obligation must, in the absence of an objective definition of that scope of practice, degenerate into largely subjective questions which render the obligation ineffective.
The Code of Conduct provides that good practice involves ‘working within the limits of the chiropractor’s competence and scope and area of practice, which may change over time’.[20] Appendices 2 and 3 of the 2014 Chiropractic Board Code of Conduct provide guidelines on the use of radiology and appropriate frequency of treatment. However, those guidelines assume, and do not expressly determine, that it is properly within a chiropractor’s scope of practice to decide whether or not to take radiological film of their patients at all.
[20] Chiropractic Board Code of Conduct (March 2014) at 8.
The misconduct of Mr Marin with respect to the taking of x-rays illustrates how inherently problematic it is to regulate a profession without a clear statement of its scope of practice. Mr Marin was licensed by the Environmental Protection Authority of South Australia (EPA) to use an x-ray machine which he operated on his premises. Mr Marin obtained his licence to use an x-ray from the EPA on the strength of his registration as a chiropractor. It was a condition of that licence that the x-ray machine only be operated ‘in the course of diagnostic radiography on persons receiving chiropractic treatment’. It can immediately be seen that in the absence of any clear definition of the scope of practice of a chiropractor, the important licensing arrangements of the use of x-ray machines, under the Radiation Protection and Control Act 1982 (SA) is rendered radically uncertain. As we shall see, Mr Marin took comfort from that very uncertainty in one of his answers in cross‑examination before the Tribunal.
It appeared from the evidence of the chiropractor Dr Crawford, who gave evidence for the Board before the Tribunal, that the purpose for the taking of plain x-rays by a chiropractor is to ensure that spinal manipulation can be undertaken safely. He explained that a plain x-ray will rarely disclose a cause of lower back pain. However, Dr Crawford pointed out that it is recommended that there be no x-ray or imaging for six weeks after presentation if the diagnosis is acute mechanical back pain or even back pain with sciatic involvement. If the diagnosis is of more serious nerve root compromise, a MRI scan would be required in any event. Dr Crawford accepted that plain x-rays are an effective form of radiology for the detection of scoliosis of the back.
Dr Crawford testified that he received a solid and extensive training in radiography by an eminent chiropractic radiologist at the Royal Melbourne Institute of Technology. In his opinion, chiropractors who received training similar to his are well placed to read and interpret the x-rays themselves, but he observed that requesting a report from a specialist radiologist as well provides a higher level of certainty.
As we shall see, the evidence before the Tribunal established that there was no rational medical reason to take x-rays in connection with a weight loss program. However, when pressed about his use of x-rays on patients attending for weight loss treatment, Mr Marin defended his conduct by saying:
I haven’t really made the distinction that – of a weight loss patient being any different a patient than – a patient in pain is a patient in pain.
I believe the Code of Conduct allows that we are – that I’m here to assess the person. I understand that my x-rays – my x-ray licence is as a chiropractor; so I can only answer that my concern is for the wellbeing of the patient, and the x-rays are one of the tools that I use to determine the type of recommendations that I have, irrespective of – well apparently I cannot not be a chiropractor. So at any time, irrespective of the patient, it appears that I’m a chiropractor. So in taking the x-rays, I was reading them as a chiropractor to determine whether there were any health issues that needed to be recommended to the patient for advice.
That answer shows how expansive Mr Marin’s view of the scope of practice as a chiropractor was. Mr Marin expressly extended it to weight loss patients and his reference to ‘any health issues’ implicitly extends it to the diagnosis and treatment of conditions which Mr Marin believed were disclosed by the x‑rays, whatever that condition might be.

Mr Marin testified that, at least in respect of one patient, he did not obtain a report from an independent radiologist because of some doubt about whether the particular firm he used was still operating. Overall, however, it is not clear how often, or rarely, Mr Marin obtained the opinion of a radiologist on x-rays which he took. Be that as it may, as we shall see, the evidence clearly showed, and the Tribunal found, that even accepting a broad view of the scope of practice of a chiropractor, the use of, and taking of, x-rays by Mr Marin, both for patients with back pain and for patients who attended for weight loss treatment, breached the Chiropractic Board’s Code of Conduct.
A large part of Mr Marin’s unprofessional conduct was the taking of x-rays when it was inappropriate to do so. The evidence that the x-rays should not have been taken was largely given by other chiropractors. Plainly then, the Chiropractic Board accepts that it falls within the scope of a chiropractor’s practice to either take and interpret x-rays or refer their patients to a radiologist for x-rays to be taken. So too does Medicare because it paid Mr Marin fees for the taking of the objectively unnecessary x-rays which were the subject of complaint in this case. It may be that the accreditation standards for chiropractors require an understanding of, and training in, the use of radiology. If so, Mr Marin either never received or understood, or had forgotten, that training, or had decided to take x‑rays when he knew that there was no rational reason to do so.
Section 113 of the National Law does protect the use of titles. The title of Doctor is not one of them. Section 113 prohibits a person who is not registered in a profession, listed in the first column of a table which it incorporates, from describing themselves as a practitioner in that profession. For example, only a registered practitioner in the chiropractic profession may use the title ‘chiropractor’. There are some exceptions. For example, even though only a registered practitioner in Chinese Medicine may use the title ‘acupuncturist’, any registered health practitioner may have his or her registration endorsed as being qualified to practise as an acupuncturist and may then use that title.[21] Limits on the use of a title is a necessarily imperfect mechanism for defining the scope of the health services a registered health practitioner may give.
[21] Section 115 regulates the use of the word specialist so that only a person registered under the National Law as a specialist may use that description. Section 116 prohibits a person who is not a registered health practitioner knowingly or recklessly using the title of ‘registered health practitioner’. Similarly, s 117 prohibits a registered health practitioner knowingly or recklessly claiming to be registered in a particular health profession or division of a health profession. Section 118 similarly prohibits a claim to be a ‘specialist health practitioner’ unless so registered.
Finally, relevantly to Mr Marin’s misconduct, s 133 of the National Law prohibits false or misleading or deceptive conduct and the use of testimonials, or purported testimonials, about the service or business offered by the health professional. The maximum penalty in the case of an individual is $5,000.
Prior misconduct
Mr Marin is now 61 years of age. He has practised as a registered chiropractor since 4 November 1982, primarily from his clinic in suburban Adelaide.
In 2008, the former Chiropractic and Osteopathy Board of South Australia (the former Board) found that Mr Marin had breached provisions of their Code of Professional Conduct and Practice and that he had acted in a manner likely to bring his profession into disrepute by:
·making inappropriate financial arrangements with five patients by which each patient paid in advance for chiropractic ‘care plans’; and
·failing to adequately explain that his practice was not directed specifically to the relief of pain.
Mr Marin also admitted that his advertisements inappropriately used testimonials and included misleading information. Mr Marin was suspended from practice for one month, and gave undertakings including:
…
2. That I will not under any circumstance accept payment more than one month in advance for treatment or other services.
…
4. That all patients … will be promptly and fully informed of their right, regardless of any previous arrangement:
(a)     to pay for treatment at the time of each consultation rather than in advance;
(b)     to discontinue treatment at any time by so advising the practice;
(c)     to receive full refunds for prepaid services not utilized at the time of termination.
…
6. That all care plans will be limited to a maximum period of three months
7. That I will conduct and record the result of a comprehensive physical examination, including an appropriate neurological and orthopaedic component,
(a)     On each new patient, prior to commencing or recommending any treatment; and
(b)     On all patients (whether existing patients at the date of this undertaking or not), whenever clinically indicated and at least every three months or twelve treatments, whichever is the earlier.
…
10. That I will not advertise or permit my practice to be advertised without such advertisement first being approved in writing by the Board or the Registrar.
11. That I will not advertise in such a manner as may involve any hidden cost or obligation for the client.
By operation of s 291 of the National Law, those undertakings given to the former Board were taken to have been given to the Chiropractic Board constituted under the National Law.
The investigation and determinations
The Chiropractic Board investigated five notifications concerning the appellant between July 2010 and January 2012, and a further seven notifications between August 2013 and May 2015.
On 9 April 2014, the Immediate Action Committee, a subcommittee of the Chiropractic Board, imposed conditions on Mr Marin’s registration including obligations to:
·properly inform patients of the nature of weight loss supplements provided by him;
·refrain from taking x-rays of weight loss patients; and
·submit to an audit of his clinical records for weight loss patients.
On 19 June 2015, AHPRA notified Mr Marin of a decision made by the Immediate Action Committee to suspend his registration with effect from 22 June 2015 under s 156 of the National Law, consequent upon an alleged breach of one of those conditions.
Subsequently, the Chiropractic Board referred Mr Marin to the Tribunal on the grounds that it reasonably believed that he had behaved in a way that constituted professional misconduct and/or unprofessional conduct within the meaning of s 5 of the National Law.
‘Unprofessional conduct’, in relation to a registered health practitioner, is defined by s 5 of the National Law as professional conduct of a lesser standard than that which might reasonably be expected by the public or the practitioner’s professional peers. ‘Professional misconduct’ includes unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience, or multiple instances of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner.
On 23 June 2017, the Tribunal found, pursuant to s 196(1) of the National Law, that the complaint of professional misconduct made by the Chiropractic Board had been proved.[22] Mr Marin appealed against those findings to the ADD of the District Court, but his appeal was dismissed.
[22] 196 – Decision by responsible tribunal about registered health practitioner
(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide—
(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b) one or more of the following—
(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii) the practitioner has behaved in a way that constitutes professional misconduct;
(iv) the practitioner has an impairment; …
On 23 June 2017, the Tribunal imposed sanctions:
1Reprimanding the appellant in the strongest possible terms.
2Fining the appellant $20,000.
3Cancelling the appellant’s registration as a chiropractor.
4Permanently disqualifying Mr Marin from reapplying for registration.
5Prohibiting Mr Marin from providing any health services that utilise his skills and knowledge gained as a chiropractor.
6Ordering Mr Marin to pay the Board’s costs of the proceedings.
Mr Marin appealed against those orders to the ADD. On 19 February 2019, the Judge dismissed the appeal,[23] save that he held that the order permanently disqualifying Mr Marin from reapplying for registration was not authorised by s 196(4)(a).[24] The Judge ordered instead that he be disqualified for a period of 10 years.[25]
[23] Marin v The Chiropractic Board of Australia [2019] SADC 17.
[24] Sections 196(2), (3) and (4) of the National Law:
(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following—
(a) caution or reprimand the practitioner;
(b) impose a condition on the practitioner’s registration, including, for example—
(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
(iv) a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d) suspend the practitioner’s registration for a specified period;
(e) cancel the practitioner’s registration.
(3) If the responsible tribunal decides to impose a condition on the practitioner’s registration, the tribunal must also decide a review period for the condition.
(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to—
(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b) prohibit the person, either permanently or for a stated period, from—
(i) providing any health service or a specified health service; or
(ii) using any title or a specified title.
[25] Marin v The Chiropractic Board of Australia [2019] SADC 31 at [44].
Order 5 was authorised by s 196(4)(b) of the National Law. Its purpose is to make more effective the cancellation and disqualification orders. As I earlier observed, the definition of ‘health services’ is wider than those services provided by registered health practitioners. If order 5 were not made, Mr Marin may have been free to provide, for example, massage or naturopath health services, despite the cancellation of his registration as a chiropractor, because under the National Law a practitioner need not be registered to provide those services. The description of the proscribed health services by reference to the use of Mr Marin’s chiropractic skills is problematic but necessary in the absence of any delineation of the scope of practice of a health practitioner.
The misconduct
The Chiropractic Board’s complaint was laid on 16 December 2015. It referred to the Tribunal for hearing and determination ‘a matter about the Respondent, namely that the Chiropractic Board reasonably believes that the Respondent has behaved in a way that constitutes ‘professional misconduct’ and/or ‘unprofessional conduct’ …’. It alleged 17 grounds on which findings of professional misconduct could be made. Mr Marin by his defence:
·denied the allegations;
·alleged that he was not given adequate notice of the referral to the Tribunal;
·contended that the Act was ‘ultra vires the Australian Constitution and/or the Constitution Act (SA) 1934’.
Mr Marin’s defence also involved an argument that he should be treated as an ‘employee’ of AHPRA and that AHPRA had, in some unspecified way, failed in its duty as his ‘employer’.
Those grounds of defence, in themselves, manifest Mr Marin’s recalcitrance and resistance to any oversight of his chiropractic practice.
Grounds 1 to 7 of the Chiropractic Board’s complaint concerned Mr Marin’s treatment of seven patients who presented with back problems between 2008 and 2012. Much, but not all, of the misconduct was common to each of those patients. The misconduct included:
·Over servicing by providing treatment on more occasions and more frequently than was reasonably necessary.
·The indiscriminate use of plain x-rays, sometimes on more than one occasion, despite the Chiropractic Board’s Code of Conduct warning that x-rays should not be performed ‘routinely’.
·Exaggerating the degree of degeneration of the patient’s back, in terms which were physiologically unsound and alarmist (he described spinal discs as being rotten).
·Causing or urging patients to prepay several thousand dollars for care plans which would extend for more than three months. (The first such arrangement was made in 2008, the same year in which Mr Marin gave an undertaking not to do so).
·Failing to provide a ‘care plan’ when accepting prepayment.
·Failing to conduct and record a comprehensive physical examination in breach of his 2008 undertaking.
·Failing to make and/or record an adequate diagnosis.
·Recording as clinical indicators for the taking of x-rays symptoms with which the patient had not presented. (X-rays were taken of parts of the spine about which there was no complaint of pain).
·Failing to conduct a further assessment before repeating x-rays.
·Promoting x-rays to reluctant patients by saying that the x-ray was free, when in fact Mr Marin received a Medicare payment for taking them.
·Urging patients who attended with vouchers for a fixed number of treatments to enter into a more extensive treatment program.
·Failing to keep adequate treatment notes.
·Requesting patients to undress in preparation for the x-ray in a room which was under video camera surveillance (Mr Marin’s purpose was not prurient; it was to obtain ‘intelligence’ to guide the way in which he promoted and performed his services).
Mr Marin defended not providing a care plan by relying on an untenable construction of the Code of Conduct and on a protocol for practitioners engaging in a particular school of chiropracty known as Chiropractic Biophysics (CBP). The latter protocol was shown not to be generally accepted by chiropractors. It was ultimately disavowed by Mr Marin, who agreed that he did not practice CBP but was only influenced by its principles.
Mr Marin claimed that his diagnoses were given orally.
In answer to the allegation of over‑servicing and the indiscriminate taking of x-rays, he again relied on CBP. So too for the allegation that his notes were inadequate.
Ground 8 of the Chiropractic Board’s complaint alleged unprofessional conduct in taking radiographs of children. The 2010 Chiropractors Code and the expert evidence accepted by the Tribunal stated that x-rays of children must only be taken where there are clinical indications for the procedure. Strong clinical indicators include idiopathic scoliosis, suspected development of congenital defects, marked locomotor disturbances of the spine and pelvis or significant trauma. I note here that Mr Marin’s description of rotting discs and his claim that rotting discs were a manifestation of ‘disease in the body’ were described as ‘nonsense’ by a chiropractor called by the Chiropractic Board.
Dr Keil, who has a long history of paediatric chiropractic practice, examined the medical records of 14 of Mr Marin’s child patients. The children were identified from Medicare’s records of 45 children who were x-rayed by Mr Marin. That list was narrowed to 12[26] children who were under 12 years of age. Dr Keil concluded that the taking of x-rays of those children was not warranted. In some cases there were no details of any physical examination in Mr Marin’s records. In others, clinical indications for an x-ray examination stated on the radiology request form were not consistent with any of the issues noted in the clinical records.
[26] In Chiropractic Board of Australia v Marin [2017] SAHPT 7 at [341], the Tribunal records that 12 children were identified but in [344] refers to 14 children.
In cross-examination, Mr Marin suggested to Dr Keil that the x-rays may have been warranted by the CBP protocol when correcting abnormal curvature of a child’s spine. Dr Keil denied that there was any literature defining ‘normal’ curvature for children. Mr Marin did not produce any such literature. Mr Marin gave evidence that he explained his reasons for taking x-rays to the children’s parents or guardian. The Tribunal rejected Mr Marin’s explanation as a recent reconstruction because his practice notes did not support his assertion. The Tribunal found that Mr Marin x-rayed the children as a matter of routine and induced their parents to agree by describing the x-rays, which were paid for by Medicare, as free.
Grounds 10 to 16 of the Chiropractic Board’s complaint concerned Mr Marin’s weight loss treatment of seven patients. The Tribunal found professional misconduct proved with respect to those patients. Mr Marin advertised his weight loss program as ‘Dr Robert’s Energy Gain and Weight Loss Programs’. Six of the seven patients responded to a newspaper advertisement. One responded to an unsolicited letter sent to her residential address. Mr Marin’s promotional material included testimonials, contrary to s 133 of the National Law.
Mr Marin x-rayed his patients for the purposes of the weight loss program. Professor Wittert, an expert physician and endocrinologist, gave evidence that a claim in Mr Marin’s advertising material that the patient could ‘lose .5 to 1.0 kilo of fat per day, guaranteed’ was ‘inconceivable and indeed physiologically impossible’. He was unaware of any guideline which suggested that plain x-rays of the hip and spine should form part of an obesity management plan. Professor Wittert opined that ‘there is no rational reason to obtain these x-rays for patients who are embarking on a weight loss program’.
Mr Marin advised one of his weight loss patients to drink two litres a day even though she had informed him that she had undergone a bladder repair and could only drink one litre of fluid a day.
Mr Marin prescribed his weight loss patients a product which was unlabelled. He continued to do so in contravention of one of the conditions imposed on his practice in April 2014 by the Immediate Action Committee.

Importantly, one of Mr Marin’s patients, PT, was, to Mr Marin’s knowledge, taking thyroid medications when the conditions of 9 April 2014 were imposed. Mr Marin thereafter breached the condition that required him to refer patients taking thyroid medication to a general practitioner for advice on his ‘high potency’ formula before prescribing it.
All but one of the weight loss patients were placed on a prepaid program. The ‘discounted’ fee was between $2,300 and $2,500 if paid in advance.
Despite his eponymous description of the weight loss program, Mr Marin claimed that he had provided the weight loss program as an agent of his brother. The Tribunal described that claim as a fiction.
Ground 17 alleged the filming of patients by Mr Marin whilst preparing for the taking of x-rays. Even though Mr Marin’s purpose was commercial and not sexual exploitation, it was a gross breach of his patients’ privacy. His systematic disregard of his patients’ privacy was calculated to seriously undermine confidence in the chiropractic profession.
Mr Marin’s professional misconduct was compounded by the way in which he attempted to excuse or justify his conduct in the course of the hearing. The Tribunal found that Mr Marin produced to it documents which were of questionable authenticity and that he had tampered with, and on occasion concocted, medical records.[27] Significantly, Mr Marin’s disingenuous defence of the prepayment allegations was that he kept the money in an ‘escrow account’.[28] The evidence of the accountant, Mr Peter Holmes, contradicted that assertion factually and, importantly, the account was never a disclosed, controlled and audited trust account.
[27] Chiropractic Board of Australia v Marin [2017] SAHPT 7 at [520].
[28] Chiropractic Board of Australia v Marin [2017] SAHPT 7 at [508].
Before imposing its sanctions, the Tribunal summarised its assessment of Mr Marin’s unfitness as follows:[29]
[9] The findings of the Tribunal are such that the respondent is unfit to practice and remain so indefinitely. The following few examples underpin this position namely:
•      The respondent has shown disregard for clinical assessment of his patients who come in for chiropractic treatment.
•      The respondent by his use of x-rays has exposed people to x-rays with no clinical justification. This is particularly reprehensible in regard to children under 12 and indefensible in regard to weight loss clients.
•      The respondent has used x-rays as a platform to deliberately exaggerate his diagnosis to his chiropractic patients for his own commercial benefit. He has also engaged in that behaviour with two massage clients. He also uses the heart rate variability test in a similar way. Persons become alarmed about their condition and agree to enter into onerous contracts for significant lump sum payments.
•      The respondent by his actions has demonstrated an ongoing lack of clinical care on his part as regards his chiropractic patients. Similarly as regards the weight loss clients this lack of care is demonstrated by a very cursory assessment of the weight loss clients who are in turn provided with questionable products which had little if any therapeutic benefit those products coming at a high cost. There was no follow-up or proper ongoing care as regards the weight loss clients particularly with respect to any health risks. The behaviour on the part of the respondent is deliberate and intentional preying upon vulnerable people to elicit significant lump sum payments.
•      The presence of the CCTV in the respondent's rooms exposed persons changing in the x-ray room and there was the evidence of the respondent listening in on the conversations of potential patients, both aspects being a gross breach of privacy.
•      The respondent breached his undertakings provided by him in 2008 and further breached conditions imposed upon him as regards weight loss patients.
[29] Chiropractic Board of Australia v Marin [2017] SAHPT 15 at [9].
Mr Marin’s submissions on appeal
Mr Marin submits that the period of disqualification was excessive having regard to the circumstances that, by reason of the cancellation of Mr Marin’s registration, he will have to reapply for registration. The argument continued that the period of disqualification need not have been long because the Tribunal could rely on the Chiropractic Board refusing registration if any risk to the public remained after that lesser period.
Mr Marin’s counsel developed those submissions as follows:
...
26. However, it is submitted that the power should be understood as a constituent element in a scheme an important feature of which is that, if and when the practitioner does apply for re-registration, they will only be eligible to become registered if they are a ‘suitable person’ (s 52), and where, in considering that criterion, the relevant Board will have to consider whether the person is a ‘fit and proper person’ who is able to practise ‘competently and safely’.
27. Almost by definition, if and when the occasion arises on the application for re-registration of a person whose registration has been cancelled, a Board making that assessment, will be better placed to consider the question whether the person is fit and proper to practise and can demonstrate that they are able to practise competently and safely than an earlier disciplinary tribunal will have been. And as has been observed, the task for a de-registered practitioner in demonstrating to an admitting Board that he or she is a fit and proper person to be registered is ‘no formality’.
28. It is submitted, therefore, that what may fairly be described as an exceptional power to disqualify a person from even making an application ought not be construed as existing so as to require (and then reflect the outcome of) a prediction by the Tribunal as to the length of time during which the person will likely be not fit and proper or unable to practise competently and safely.
29. To construe the power as being designed for such a purpose would:
(1) suggest a regime which accords priority to a necessarily uncertain prediction about a person’s character or competence in the future based on past conduct over an assessment in the future which would likely be made with the benefit of subsequent events or evidence which would obviously have the capacity to cast light on that very issue;
(2) often if not always involve an unnecessary inquiry given that: (a) the practitioner may not make any application for re-registration; and (b) if they do, an assessment of their fitness for practice and competence will be required in any event.
30. To approach the power of disqualification on the footing that it should reflect the a [sic] tribunal’s prediction of the likely period of unfitness for practice into the future might also tend to undermine the guiding principle in s 3(3)(c), to which reference was earlier made. And as Kirby P once observed in a slightly different context:
There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have an affirmative reproved reform, are afforded a second chance.
(Footnotes omitted)
Mr Marin’s submissions conflate the quite distinct and different fields of operation of ss 52 and 196 of the National Law. Section 52 applies generally to all applicants for registration, whether or not they had ever been disqualified from practice.
National Boards have the power to verify an applicant’s identification documents and to obtain a criminal history check.[30] National Boards may request further information from other entities.[31] National Boards have the power to require the applicant to attend before it to answer questions and undergo an examination or assessment to assess an applicant’s ability to practise in the profession, or to submit to a health assessment.[32]
[30] National Law ss 78, 79.
[31] National Law s 80.
[32] National Law s 80.
A National Board may decide that an individual is not a suitable person to hold registration in the health profession.[33] For individuals seeking registration after a prior registration has been cancelled, the National Board will consider an individual’s response to past disciplinary action in assessing whether they are a fit and proper person.[34]
[33] National Law s 55.
[34] Newcombe v Medical Board of Australia [2013] SAHPT 2 at [28], [44]-[50].
However, there are specific considerations to which a Tribunal must have regard in fixing a period of disqualification, which are informed by the material received in the disciplinary proceedings which may not be revealed on an application for readmission to a health profession. An order of disqualification must ‘bring home to the practitioner the seriousness of the practitioner’s departure from professional standards’.[35] A Tribunal which finds professional misconduct and must fix the period of disqualification is best placed to make the assessment of the period necessary to achieve that purpose.
[35] Craig v Medical Board of South Australia (2001) 79 SASR 545 at [47].
I accept that there is an overlap between the length of disqualification to be imposed for the purposes of enforcing professional standards and an evaluation of the suitability of the practitioner at a future time, but in assessing the suitability of an applicant it would duplicate the function of the Tribunal, and twice vex the disqualified practitioner, if a National Board were to ask itself whether an applicant, whose period of disqualification has ended, has been unregistered for a sufficient period of time to have learnt his or her lesson, and thereby to have become a suitable person for registration.
The Tribunal is responsible for professional discipline; its orders should be effectively final and not interim measures. A National Board should not have the function of second guessing the sanctions it imposes.
In any event, the Tribunal must also impose a period of disqualification which emphasises to other members of the profession that unprofessional conduct will be visited with significant sanctions.[36] Even though that consideration has some analogy with general deterrence,[37] its purpose is to maintain public confidence in the system of regulation of registered practitioners. If those wider considerations were absent, and if the Tribunal were to confine itself to a subjective assessment of when the particular practitioner is likely to have changed his or her ways, relatively shorter periods of disqualification might be imposed.
[36] Craig v Medical Board of South Australia (2001) 79 SASR 545 at [47].
[37] Mustac v Medical Board of Western Australia [2004] WASCA 156 at [126].
After a period of disqualification fixed by the Tribunal has expired, the function of a National Board, when considering an application for registration, is not to revisit the wider considerations evaluated by the Tribunal, but to assess how the applicant has responded to the sanctions and the steps he or she has taken to address and correct the root causes of his or her misconduct.
Mr Marin also advanced his submission that the period of disqualification was manifestly excessive by reference to what were said to be comparable cases.
In Singh v Medical Board of Australia, the Court of Appeal of Western Australia did not set aside a disqualification of 10 years imposed on a medical practitioner for prescribing anabolic steroids, but described it as ‘undeniably’ long.[38] Dr Singh inappropriately prescribed drugs (including anabolic steroids) and other treatments, principally to bodybuilders, between 2001 and 2015. Circumstances relevant to his misconduct included:
·The conduct exposed patients to the risks of adverse side effects.
·Some 740 patients were involved.
·Dr Singh failed to take adequate notes.
·There was a need to deter other practitioners from engaging in similar conduct, given the ready market for anabolic steroids and the powerful financial incentive for a practitioner to engage in such misconduct.
·Dr Singh failed to show any remorse or insight.
[38] [2019] WASCA 51 at [4].
A 10-year disqualification was also imposed in Medical Board of Australia v Sze-Tho.[39] Dr Sze-Tho was another extreme case. He was convicted of offences relating to the provision of anabolic steroids and convicted of raping multiple of his patients, including a girl aged 14 years old. In relation to the first category of misconduct, a disqualification period of 5 years was imposed, and in relation to the latter, a period of 10 years was found to be appropriate.
[39] [2019] VCAT 244.
In Health Care Complaints Commission v Limboro,[40] a two-year disqualification was imposed on a chiropractor who was found to have used false and misleading testimonials suggesting chiropractics was an effective form of cancer treatment and/or prevention. The Tribunal fixed the period of disqualification by identifying what period would signal to the profession and the public the ‘extreme gravity’ with which it regarded offences involving registered health practitioners misleading and deceiving the public about serious diseases such as cancer.[41]
[40] [2018] NSWCATOD 117.
[41] Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [67].
It is well accepted that in sentencing for criminal offences the assistance provided by comparative sentences is limited. That is all the more the case in periods of disqualification imposed to maintain professional standards. In Lee v Health Care Complaints Commission, the Court of Appeal of New South Wales observed:[42]
(a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;
(b)such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is ‘correct’;
(c)the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;
(d)the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;
(e)since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection …
[42] [2012] NSWCA 80 at [34].
In Health Care Complaints Commission v Litchfield, it was held:[43]
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards.
[43] (1997) 41 NSWLR 630 at 638.
Conclusion
Mr Marin used his registration as a health practitioner to financially exploit many patients over a long period of time. The similarities in the misconduct from patient to patient shows that the exploitation was planned and systemic. The breaches of the 2008 undertaking and the 2014 conditions demonstrate a worrying and defiant recalcitrance. Mr Marin’s references to rotting discs and his attempt to call in aid the CBP therapy reveal either that he does not have the skills to engage in scientific and evidence based health practice, or that he chooses to cynically use alarmist language to frighten patients into paying him for unnecessary treatments.
For more than a decade (having regard to the conduct which led to the 2008 sanctions), and with respect to many patients, Mr Marin has demonstrated conduct which is the antithesis of his professional obligation to put the health of his patients first.
Mr Marin chose crass commercialism over his professional responsibility. The monopoly granted to those medical practitioners entitled to manipulate the spine is burdened by a professional responsibility to place the health and welfare of patients over their private gain. Mr Marin conducted his practice in flagrant disregard of that responsibility. The period of disqualification is no more than is necessary to protect those members of the public who, but for the period of disqualification, would have become Mr Marin’s patients, and to maintain public confidence in the standard of health care provided by chiropractors.
I would dismiss the appeal.
PEEK J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
NICHOLSON J: I agree with the Chief Justice.