Newbury v Dental Board of Victoria
[2000] VSC 54
•29 February 2000
| SUPREME COURT OF VICTORIA | Do not Send for Reporting |
| CAUSES JURISDICTION | Not Restricted |
No. 5794 of 1999
| RENTON DAWSON NEWBURY | Plaintiff |
| v. | |
| DENTAL BOARD OF VICTORIA | Defendant |
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JUDGE: | HARPER, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9, 10, 13, 14, 15, 16 DECEMBER 1999 | |
DATE OF JUDGMENT: | 29 FEBRUARY 2000 | |
CASE MAY BE CITED AS: | NEWBURY v. DENTAL BOARD OF VICTORIA | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 54 | |
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CATCHWORDS: Appeal – Appeal from decision of the Dental Board of Victoria – Professional misconduct – Whether registration of practitioner should be suspended or cancelled – Adoption by practitioner of a theory (the "DOFOS theory") without scientific merit – Registration cancelled.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. R. Gillies Q.C. with Ms. M. Hartley | Phillips Fox |
| For the Defendant | Mr. J. Elliott | Ebsworth & Ebsworth |
HIS HONOUR:
Renton Dawson Newbury is a dentist registered as such pursuant to the Dentists Act 1972 ("the Act").He is a man of much professional experience, having commenced practice in 1967. He was awarded the degree of Bachelor of Dental Science, with honours, by the University of Melbourne, in 1966. His Masters degree was conferred upon him by the same university in 1978. In 1980, he was elected a Fellow of the Royal Australasian College of Dental Surgeons. Since 1972, his registration under the Act has been that of an oral surgeon. He has, or has had, appointments as an oral and maxillofacial surgeon to the Dandenong and District Hospital, the Moorabbin Hospital, the South-Eastern Private Hospital and the Knox Private Hospital.
Dr. Newbury is also, according to his own assessment, a world leader in a particular application of dental science. He claims to have discovered, in about 1976, a condition to which, he says, many - if not the vast majority - of the population are subject. He has given this condition a name: DOFOS, which is an acronym for Disturbance of Functional Occlusion Syndrome. In a document headed "What is DOFOS", Dr. Newbury explained to patients, both actual and potential, that "DOFOS is an insidious bodily disorder due to prolonged muscle damage and cramp which starts in the head and then spreads to involve the rest of the body; causing damage, pain and disability."
Having discovered DOFOS, and having named it, Dr. Newbury did not rest on his laurels. He embarked on what became, in the words he used in an article published in 1996, "a 15-year saga of research": "What’s DOFOS About?" in The Dentist November 1996. This "research" lead (so Dr. Newbury insists) to the discovery of a cure. According to him, DOFOS sufferers may rid themselves of their malady, and all its multiplicity of symptoms, if only they wear a mouthplate, designed by Dr. Newbury for their specific and personal requirements and adjusted by him as occasion requires over such period as is necessary for the cure to be effected.
The Dental Board of Victoria ("the Board") does not share Dr. Newbury’s belief in the existence of DOFOS. The Board does not, therefore, share his enthusiasm for what he claims to be its cure. On the contrary, the Board has a number of serious concerns about the way in which Dr. Newbury has conducted his practice. By a notice of inquiry dated 27 April 1999, the Board informed Dr. Newbury that it intended to examine the following allegations, as formulated by the Board:
"That you, being a dentist bound by the Dentists Act 1972 have been guilty of professional misconduct in that:
(i)you have made exaggerated and inaccurate claims in regard to the effectiveness of your Disturbance of Functional Occlusion Syndrome (DOFOS) treatment which have not been medically or scientifically substantiated;
(ii)you have trained and/or allowed your nurses/employees to practise dentistry;
(iii)you have recommended and/or prescribed oestrogen for your patients in circumstances falling outside the practice of dentistry; and
(iv)you have expressed expert opinions and espoused expert views in circumstances where you do not have the appropriate qualifications or expertise."
The inquiry foreshadowed by this notice was conducted on Wednesday 9 June 1999 and the following day, Thursday 10 June. The Board was then exercising the powers given to it by s.25 of the Act. That provision is too wide to be entirely relevant to the issues presently under examination. It is therefore too wide to warrant its reproduction, in full, in this judgment. For presently relevant purposes, it is sufficient to note that it empowers the Board to reprimand a dentist, or impose conditions, limitations or restrictions on his or her practice, or cancel or suspend (for a period not exceeding one year) his or her registration, if the Board is satisfied that the dentist has been guilty of professional misconduct.
The Board heard the oral evidence of two experts (Dr. John Heywood, neurologist, and Dr. Nicholas Freezer, paediatric respiratory physician), two former patients of Dr. Newbury’s (Ms. Francine Galloway and Mr. Paul Carruthers), and Dr. Newbury himself. It also had available the documents which were subsequently incorporated into volume 2 of the present court book. This volume is now Exhibit 2 of the material tendered in the present appeal. It includes certain (unsolicited) admissions made, in writing, by Dr. Newbury. These were placed before the Board by his counsel at the commencement of the inquiry. According to counsel, they amounted "to an effective admission of liability in relation to the substance of the charges against Dr. Newbury". Appended to the document containing the admissions was a set of undertakings which Dr. Newbury was prepared to give in relation to the conduct of his practice.
It will be necessary, later, to refer in more or less detail to a number of the reports which, at the request of the Board, were prepared by persons upon whose expertise the Board wished to call. It might be helpful to identify each of these now. All are included in Exhibit 2. They are:
(a)two reports, dated respectively 11 May 1999 and 24 May 1999, by Dr. John Heywood, a neurologist attached to the Migraine Research Unit of the Royal Melbourne, St. Vincent’s and Austin Hospitals;
(b)a report dated 13 May 1999 by Dr. Jack Gerschman, Associate Professor, School of Dental Science, Faculty of Medicine, Dentistry and Health Sciences, The University of Melbourne;
(c)a report dated 19 May 1999 by Dr. Nicholas Freezer, the Director of Respiratory Medicine at the Monash Medical Centre;
(d)a report dated 25 May 1999 by Professor Roger Pepperell, Professor of Obstetrics and Gynaecology at The University of Melbourne;
(e)a report dated 28 May 1999 by Mr. Bruce Waxman a consultant colorestal surgeon.
In the opinion of the Board, which was published on 15 June, each of the allegations against Dr. Newbury had, on this evidence and on Dr. Newbury’s admissions, been made out. The Board determined, accordingly, that Dr. Newbury was guilty of professional misconduct. No challenge is made to these conclusions. But, in addition to "strongly" reprimanding Dr. Newbury, the Board suspended his registration for nine months and imposed a number of conditions on his right to resume practise at the conclusion of the period of suspension. Dr. Newbury submits that this suspension, and the imposition of one of the conditions (that he will not use or refer to DOFOS in connection with the practice of dentistry) is unjustified. Hence his appeal to this Court.
The grounds of appeal are set out in a notice of appeal dated 21 June 1999. They are, in effect:
(a) that there is no basis in law or fact for the suspension;
(b) that the penalty of suspension is manifestly excessive;
(c) that giving Dr. Newbury less than 24 hours’ notice of the start of his suspension was unduly harsh; and
(d) that it is unreasonable to require him to refrain, in connection with his practice, from any reference to DOFOS.
The appeal comes before me pursuant to s. 26 of the Act. That section provides, in effect, (in so far as it is relevant to the appeal) that a dentist who is aggrieved by the imposition by the Board of any condition, limitation or restriction on the dentist’s practice, or by the Board’s imposition of a penalty under s. 25, may appeal to the Supreme Court. Every appeal shall be in the nature of a re-hearing; and, as the relevant legislation in this State presently stands, that re-hearing shall be a re-hearing de novo: Georgoussis v. The Medical Board of Victoria[1]; Hobart v. Medical Board of Victoria[2]; Basser v. Medical Board of Victoria[3]. No further appeal is permitted.
[1] (1957) VR 671
[2] (1966) VR 292
[3] (1981) VR 953
The issues raised in this appeal are troubling. This is so even though many relevant facts are not in dispute. Dr. Newbury, a highly qualified and very experienced dentist, accepts that he has, in the course of his practice, made exaggerated and inaccurate claims about DOFOS. He also accepts that he has similarly expressed opinions and espoused views which were not within the area of his expertise. Nor are the remaining charges contested. In particular, Dr. Newbury accepts that there is no scientific basis for claims once made by him that he could cure disorders not only of the face, head and neck, but also of other parts of the body. He submits, nevertheless, that he ought to be allowed to continue to treat members of the public for DOFOS-related maladies of the former kind. His patients continue to rely on him for treatment in these (as he now accepts, limited) fields. They would be considerably disadvantaged were they deprived of his care, just as he would be considerably disadvantaged were he deprived of his livelihood. The interests of the patients, Dr. Newbury submits, can be best secured by his continuing to treat them; but subject to such measures as might be necessary to ensure in the future (a) that he will not claim for DOFOS more than can properly be justified; (b) that his patients will be fully informed about the scientifically recognised limits of their treatment; and (c) that, in providing such treatment, he will remain strictly within the scope of his expertise. Dr. Newbury is prepared to give undertakings which, he submits, will secure those ends. Thus, he argues, the established facts do not constitute a sustainable basis for the Board’s decision to suspend his registration for nine months – or any other period.
The Board was not concerned actively to dispute that, within the strict limits of the expertise of an oral and maxillofacial surgeon, Dr. Newbury is fully qualified to practise as such. It must also, on the evidence, be concluded that Dr. Newbury’s work, to the extent that it was strictly so limited, has been without blemish. That, however (according to the Board) is by no means the end of the matter. The essential question is whether, by his past conduct and – of equal importance – by his present continuing insistence that DOFOS is a recognisable medical condition, Dr. Newbury has not deprived himself of the possibility of limiting his practice to the extent necessary to ensure the protection of the public. The Board submits that Dr. Newbury’s claims for DOFOS, albeit that they were modified by the time the matter came before the Board, were until then so grossly unreasonable as to eliminate any confidence in his professional judgment. Moreover, by continuing to insist on the existence of DOFOS and in the efficacy of his treatment as a cure for certain DOFOS-related symptoms, Dr. Newbury puts himself at risk of extending his practice beyond its appropriate bounds. This in turn puts his patients at risk; a risk which, the Board now asserts, can only be avoided if Dr. Newbury's registration is cancelled. In other words, the Board now takes the view that its decision to suspend Dr. Newbury, being based on what it knew then rather than on what, as a result of these proceedings, it knows now, was wrong.
Having heard the assertions made by Dr. Newbury during the course of the appeal, the Board has come to the view that suspension is not enough. And it is not enough because, at the end of the period of suspension, an insufficiently reconstructed Dr. Newbury will once again practise beyond the boundaries of his competence. According to the Board, it is now apparent, as it was not at the time of the hearing before the Board, that Dr. Newbury continues, despite overwhelming scientific evidence to the contrary, to believe his theories about DOFOS. Indeed, he has become so infatuated with them that he is no longer capable of eliminating from his practice those DOFOS-related ideas and methods which on any view have no adequate foundation: and, in the Board's opinion, there is no foundation for any of them. He might be sincere in his protestations that all restrictions which the Court might think fit to impose would be strictly observed. Even so, the Board argues, in the end he will prove to be incapable of remaining within those boundaries. He has lost whatever capacity he may once have had objectively to diagnose and treat his patients.
At the very least, the Board submits, there is an unacceptable risk that this is or will be the case. More than that, there is also an unacceptable risk that the formulation of any meaningful limitations to Dr. Newbury's conduct of his practice will prove impossible. For him, symptoms mean malocclusion, malocclusion means DOFOS, and DOFOS means a specially designed mouthplate which requires delicate adjustment from time to time (perhaps with frequency and over a long period) and which must be worn constantly until (as Dr. Newbury would say, but as informed opinion would generally doubt) a cure is eventually effected. There is a particular danger (to which I allude in more detail later in this judgment) that any malocclusion in a child, even a malocclusion without symptoms, would inspire Dr. Newbury to the same course of treatment. DOFOS, rather than orthodox diagnosis and treatment, would – as the Board submits – always occupy the foreground.
In support of this last proposition, the Board points to certain evidence given orally before the Board during its inquiry. The witness was Dr. John Heywood. He gave evidence about an examination which he conducted of Mr. Paul Carruthers, the former patient of Dr. Newbury to whom I referred in paragraph 6 above. The Board had already heard that Mr. Carruthers had earlier seen a television program in which Dr. Newbury's treatment of migraine was mentioned. The segment interested Mr. Carruthers because (as he said in a letter to the Board dated 17 February 1999) he had "had migraine headaches for many years". He therefore arranged to attend Dr. Newbury's clinic. It seems that dental problems as such were not an issue. In particular (as far as Mr. Carruthers was concerned) malocclusion was not a consideration, save for whatever connection the patient made, following the television program, between malocclusion and migraine. Dr. Heywood was asked whether he could comment on the utility of Dr. Newbury's DOFOS treatment for a patient like Mr. Carruthers. He answered:
"It's not possible for me to be dogmatic about this because obviously I didn't see Mr. Carruthers before he was treated by Dr. Newbury. Nevertheless, it was my impression that he had a reasonably typical story of migraine. There did not appear to be any specific jaw problems that I could isolate on the history, or on the examination, and I would not have used Dr. Newbury's appliance [that is, the mouthplate] early, or as the first line of treatment for this man. I would have more concentrated on optimising his medical treatment, that is his drug therapy, and also probably looking and seeing if there was any physical treatment such as physiotherapy that could be used to improve his neck if that was acting as a triggering factor for the frequency of his headaches."
According to Dr. Newbury, the foundation for the Board’s current position is his own honesty. He has been candid enough to put before the Court, in all its variations of light and shade, his reaction to the criticisms of the DOFOS theory. He accepts that many of his claims for DOFOS have not been subjected to that verification without which it is improper to propound them, still less act upon them, as he did in the past; that is, as the basis for the cure of a raft of recognised medical conditions formerly included by him in his litany of symptoms susceptible of alleviation by means of his mouthplate. He accepts, in other words, that his faith in DOFOS is not yet founded on scientifically verified fact. He nevertheless continues to hold the theory good. He continues to believe that, in time, DOFOS will demonstrably fill the very large place in medical science which he - but no other identified person, whether a dentist or anybody else - has assigned to it. Meanwhile, he insists that DOFOS gives rise to above-the-neck disorders such as headache, facial pain, jaw pain and neck pain. Medical and dental science, he claims, recognises a link between malocclusion and each of these conditions. Each can be cured by his DOFOS treatment. Each of these conditions will disappear with the wearing of a properly made and appropriately adjusted mouthplate. Dr. Newbury wishes to continue to practise without interruption so that his patients may benefit from this treatment; treatment which only he is capable of providing. He also wishes to incorporate into his practice treatment in accordance with what may be called the truncated DOFOS theory: truncated in the sense that it will be taken as applying to certain "above-the-neck" disorders, and no others. Given his expertise as an oral and maxillofacial surgeon, there is, he submits, no proper basis for denying him this relief. On the contrary, there is every reason for permitting him to continue to care not only for the patients already in his charge, but also for those who might in the future seek to benefit from that expertise. He has approximately 450 current patients. Each would have difficulty in finding a satisfactory replacement dental practitioner. It is therefore, the submission continues, in their best interests that Dr. Newbury continue to treat them.
Any evaluation of these contending arguments must begin with an examination of the materials published by Dr. Newbury in support or explanation of his DOFOS concept. They demonstrate on his part either dishonesty or an inexcusable (or at least, in professional terms, totally inexplicable) propensity to believe what he wanted to believe. Nothing save over-enthusiasm, and an honest faith in the results of his "research", has been put forward by way of either excuse or explanation. I will return to this point later in this judgment. It is sufficient for the present to record that professional misconduct of a most serious kind has undoubtedly been established.
Dr. Newbury wanted (and still wants) to believe that he has discovered "a common (single) cause" for "many signs and symptoms". He also wanted (and still wants) to believe that those "signs and symptoms" may be cured by the use of a mouthplate with special properties – properties which he has discovered and which by his design of the mouthplate he has incorporated in it . Thus, in a brochure entitled "DOFOS: Disturbance Of Functional Occlusion Syndrome – Understanding Your Treatment” in which he explains the origin of the acronym DOFOS, he defines the word "syndrome" as "many signs and symptoms due to a common (single) cause"; and in another of his brochures, this one entitled "DOFOS: Disturbance of Functional Occlusion Syndrome – The Upper BDA", he asserts not only that it is easy to wear his specially - designed mouthplate (to which he has given the name "Upper BioDOFOS Appliance", or "UBDA") but also that "if you wear it constantly and have it adjusted regularly it will cure your DOFOS". He returns to the same theme in the brochure "What you should know about DOFOS – Questions & Answers". Under the heading "What does treatment involve?" Dr. Newbury says:
"Wearing a special type of dental plate called BioDOFOS Appliance (BDA). The BDA is the result of 14 years' clinical research and is specifically designed for each patient. It corrects the malocclusion and indirectly treats the entire body, resolving the symptoms of DOFOS."
As will be noted later (paragraph 59) it seems that the mouthplate was once fitted to the lower teeth, whereas now it is fitted only to the upper teeth.
The "Understanding Your Treatment" brochure also contains Dr. Newbury’s definition of DOFOS itself. It is "a disruption of a regular procedure", that "procedure" being "contact between the occlusal (biting) surfaces of the teeth". Such "disruption", according to the same brochure, is the source of many disorders. In its own words:
"DOFOS … starts on your head when a bad bite or dental malocclusion injures your jaw muscles, and then spreads until all the muscles in your body have some degree of cramp. Your posture changes, many of your joints become damaged and work incorrectly, and your muscles become more easily injured. These drastic changes to your muscles force your nervous system to do more work to move your body around and keep it upright against the effects of gravity. This makes your nervous system malfunction and it stops controlling many of its lesser functions. Consequently you develop bizarre and widespread symptoms that appear to have no relationship to the original cause of your muscle damage – your dental malocclusion."
The brochure contains a heading which reads "How DOFOS Starts". Under that heading, the following appears (with the sentence in bold type so appearing in the original):
"1. Your teeth make your jaw move incorrectly
DOFOS starts when you have poorly positioned teeth that form a malocclusion or bad bite. When you have this bad bite, your upper and lower teeth lock together when you clench your teeth. Then your lower can't slide from side to side past your upper teeth when you chew food. Your lower jaw also can't move from side to side, so when you try to chew food your lower jaw can only move up and down.
2. Your jaw muscles get injured
Your temporalis muscles normally make your jaw move from side to side. So when your jaw only moves up and down, these muscles get forcibly stretched and shortened and become injured. The more your jaw moves, the more injured these muscles become, and they soon fatigue and cramp. Then you feel an aching pain on your head, known as a headache.
3. Your blood vessels get injured
Sometimes the cramp in your temporalis muscle becomes so bad that it squeezes shut some of the blood vessels that enter the muscle. As blood keeps being pumped into these vessels, they expand like a balloon on a tap. When they can't expand any more without bursting, the next pulse wave of blood that enters them stretches the already stretched nerves on their walls to breaking point. This causes a throb of pain, that repeats with every pulse wave of blood. This extreme pain that throbs in time with your pulse is characteristic of migraine.
4. An analogy that explains this process
A simple analogy may help you understand this process. Suppose I put a bar in front of your legs and stopped you from walking forwards, but you could still walk backwards. How would your leg muscles feel after you had walked backwards for some months or years? Sore, just like your head muscles that must work incorrectly year after year. Imagine the damage that this causes your head muscles and their blood vessels. Is it any wonder that your headaches become more severe as the years pass. If you now ran backwards as fast as possible, your leg muscles would quickly become stiff and extremely painful. This is exactly what happens to your jaw muscles when your lower jaw has to move excessively to chew hard food, chew or talk repetitively, or hold your mouth wide open. This is why your headaches become more frequent and severe as the damage continues over your lifetime.
5. When you get a headache, you have DOFOS
The presence of headaches always confirms the presence of DOFOS. Headaches always indicate the severity of your DOFOS; for the worse the headache, the more severe your DOFOS. Males are the exception to this rule. While both sexes get DOFOS, males have fewer and milder headaches than females because their bigger and stronger temporalis muscles suffer less damage than a female's temporalis muscles.
6. How other muscles become damaged
Once your head muscles have become injured they hurt other muscles that they work with, and your neck muscles become injured. These in turn injure the muscles in your shoulders and back, and with time all the muscles in your body become damaged. Your posture alters, the weight of your body shifts to one side, and your muscles become more easily damaged. To cope with this damage your nervous system has to spend more time looking after your damaged muscles, injured joints, and your poor posture. To do this it stops looking after less essential jobs and symptoms of nervous system malfunction become apparent. Then your DOFOS has become fully established."
Dr. Newbury here postulates an injury to the muscles in the head (its precise point of origin being the temporalis muscles, which are used to close the jaw) which then works its way down through the body. He does not disclose whether an injury which occurs first to the muscles in (say) the shoulder or back has a like effect, working its way up to the head.
The theory of the inter-relationship of muscle damage to the jaw and muscle damage which radiates from that point upwards to the remainder of the head (causing headaches, neck pain and facial pain) and downwards through the lower body is central to Dr. Newbury's thesis: his "many signs and symptoms due to a common (single) cause."
There is a second central pillar of the DOFOS theory. It concerns the cure. According to the article "What’s DOFOS about?" in The Dentist of November 1996, there is an Upper BioDOFOS Appliance for each type of malocclusion. Each "helps the teeth meet in a better way". This enables the muscles to "move the lower jaw the right way". The muscles then begin to heal, and as they do "the symptoms stop, [and] other muscles in the body also work the right way and begin to heal." The article continues:
"At the same time the UBDA lets the posterior teeth grow to their full height which helps to get rid of the malocclusion. I do this for people from three to 60 years. The teeth all grow but it takes longer in the older age groups.
When the symptoms start to resolve, I use the same UBDA to move the teeth to their normal positions. That makes the teeth straight and they meet correctly … My aim is to make the teeth straight so they can stop wearing the UBDA. When the teeth meet correctly, they have no malocclusion. It won't come back, because I cured what caused it in the first place."
In his oral evidence given before me, Dr. Newbury enlarged upon what he sees as the means by which the mouthplate effects its cure. He said:
"One of the reasons the plates work so well is the adjustments are unique, they're different and they're extremely fine. It takes a long time to learn how to make the adjustments so that only six lower teeth can touch the plate at identically the same instant in time with exactly the same pressure; and you leave a fine mark with carbon paper that is the size of a point of a pin per tooth. Now, those fine adjustments are the things that make the plate work on the muscles because that's what I found first affected … all the headaches that I treat."
Dr. Newbury returned to this point later in this evidence. He then said:
"It comes back to the contact surface where six lower teeth must meet that contact surface in a preferred way. They must meet it all identically with the same pressure, and all identically at the same time and then they must be able to slide from left to right, and right to left, without creating any bumps with the minimal amount of friction."
Neither the domino theory of muscle damage nor the claim that the BioDOFOS Appliance incorporates unique healing properties is, on the evidence before me, sufficiently credible to form the basis of medical or dental treatment. I have already noted that Dr. Newbury himself accepts that, in our present state of knowledge, the theory can only be sustained to the extent that it is restricted to dental complaints, or to certain medical complaints associated only with the head. He nevertheless submits that I have credible evidence, which I should accept, (a) that DOFOS exists, and that it is the source of headaches, neck pain, facial pain and jaw pain, and (b) that each of those conditions can be cured by use of the BioDOFOS Appliance.
I disagree. It is true that there is some evidence to which Dr. Newbury can point in support of his position. On the whole, however, the evidence is that the DOFOS theory – in any form, whether truncated or otherwise - is a very long way from scientific credibility. I would go further. At a number of important points the DOFOS theory, even in its truncated form, runs directly to the contrary of accepted scientific fact. I will examine each element of the theory in turn.
In his report of 11 May 1999, Dr. John Heywood refers to published research which "indicates that treatment of bite may be effective in treatment of headache." He is nevertheless of the opinion that the particular treatment for headache espoused by Dr. Newbury has not been appropriately tested, and that the "link" emphasised by Dr. Newbury "between DOFOS (as a mechanism) and headache (as the result) is not supported by published clinical research." Dr. Heywood adds that the "purported link should not in my opinion be used to support or validate the treatment recommended by Dr. Newbury."
The "link" postulated by Dr. Newbury is, as he put it in the "Understanding Your Treatment" brochure, that between muscle damage caused by malocclusion, resultant damage to blood vessels, and consequent pain - which we know as "headache". Both Dr. Newbury and Dr. Heywood distinguish between headache caused by known pathology (such as headache caused by a brain tumour) and other headaches. The former are not associated with DOFOS, and are not susceptible to treatment using the BioDOFOS Appliance. Dr. Newbury has always stressed this point himself. The latter are, in general, classified clinically as either tension headache or migraine. While, according to Dr. Heywood, "the underlying mechanism of tension headache is not understood, the published research does not indicate that muscle activity or disease correlates with the presence or severity of headache." Indeed, if Dr. Heywood is correct, published research points in the contrary direction. He adds that studies "using surface or needle EMG electrodes to measure muscle activity during headache periods … suggest that muscle activity is not an essential component of tension headache and a reasonable alternative hypothesis is that muscle contraction is a secondary phenomenon to some other (unknown) process that generates tension headache."
Dr. Heywood also disavows any scientifically-verified connection between muscle damage and migraine. According to him, "there is evidence from both clinical observation and brain scanning using PET (Position Emission Tomography) that the headache is the result of neural processes occurring within the brain." Dr. Heywood does not know "of any independent studies that have shown how … [the] … symptoms of a migraine attack could be generated by or depend on the presence of abnormal muscle tissue in the head or neck."
In the "Questions & Answers" brochure, Dr. Newbury states that tired and cramping muscles cause "chronic facial or sinus pain." These are, of course, above-the-neck conditions, and should therefore (if Dr. Newbury is right) fall within the scope of the truncated DOFOS theory which, he insists, remains scientifically viable. But if Dr. Heywood’s report is accepted, Dr. Newbury is wrong. Dr. Heywood is not aware of any research that justifies Dr. Newbury’s statement about the cause of chronic facial and sinus pain. Quite the opposite. There is, according to Dr. Heywood, "a wealth of clinical evidence that sinus pain is induced by change in air pressure within a sinus or from the presence of infection (i.e. sinusitis)."
Dr. Newbury tendered, and said he relied upon, a report dated 6 August 1999 prepared by Professor John Norman. Professor Norman is a Clinical Professor at the University of Sydney and a registered medical and dental practitioner and maxillofacial surgeon. His report is long (18 pages) and at times difficult to understand. It is a document from which, taken as a whole, Dr. Newbury receives very little support. In its penultimate paragraph, however, there appears a sentence upon which Dr. Newbury placed much emphasis. Professor Norman there says that it was "only when he [Dr. Newbury] extended his remit to include areas in which he had no training, knowledge, experience or expertise that one would take exception to the advice that he gave and the claims that he made outwith (sic) disorders of the teeth, jaws and masticatory apparatus." But even the truncated DOFOS theory goes well beyond the limits of Dr. Newbury’s expertise as an oral and maxillofacial surgeon: it goes well beyond "disorders of the teeth, jaws and masticatory apparatus". It encompasses, in addition, headaches, neck pain and facial pain. It follows that Professor Norman’s sentence as quoted above does not amount to any endorsement at all of the extended DOFOS theory, and provides little if any endorsement of the theory in any form.
One could not successfully argue that Professor Norman includes headache in his reference to those disorders, being "of the teeth, jaws and masticatory apparatus", which fall within the area of Dr. Newbury's expertise and about which he can therefore act and speak with authority. For it is clear that Professor Norman agrees with Dr. Heywood, and disagrees with Dr. Newbury, about this absolutely crucial element of the truncated DOFOS theory. Dr. Newbury insists that his theory identifies the cause of all, or very nearly all, headaches which do not have a known pathology. I have already noted that Dr. Heywood takes exception to this. Professor Norman, in commenting on Dr. Heywood’s report, says of Dr. Heywood:
"This experienced consultant neurologist makes reference to Dr. Renton Newbury's claim that virtually all headaches except those caused by known pathology – brain tumours, etc. – are caused by DOFOS. Dr. John Heywood and the writer [that is, Professor Norman] appreciate that this is incorrect."
In his second report (dated 24 May 1999), Dr. Heywood further examined the literature prepared by Dr. Newbury in support of the DOFOS theory. He looked first at the "Do you have DOFOS" brochure. It refers to eye problems. If Dr. Newbury is correct, the Board’s criticism of him fails to encompass such health-related issues because they are above the neck. At the very least, Dr. Newbury submits, any such criticism is, to the extent that it relates to conditions of the head, without adequate foundation. Dr. Heywood, however, takes a different position. He said, in the report of 24 May:
"Eye problems. Glare and blurred vision are both associated with migraine headache, and are associated with altered function within the visual pathways within the brain. I am not aware of any evidence linking these symptoms to abnormalities in the eye muscles."
Dr. Heywood, doubtless with the same paucity (or absence) of evidence in mind, notes Dr. Newbury’s statements, in the same brochure, that children with DOFOS "commonly suffer from the effects of long-term muscle cramps" and (as, it would seem from the context in which the statements were made, Dr. Newbury would doubtless argue) for that reason "generally have poor close-up vision". This, according to the brochure, often results in other problems such as poor performance at school. Dr. Heywood sees danger in statements such as these. The problems, he suggests, "would conventionally be treated with skilled intervention by teachers, psychologists, and at times investigation by a paediatrician." A parent reading and believing the brochure might think that such intervention was unnecessary or even inappropriate; and so the child might be denied the most, or even the only, efficacious treatment.
The like danger arises with another assertion to be found in the "Do you have DOFOS" document: that some DOFOS sufferers experience (among other complaints) epileptic type convulsions which Dr. Newbury is able to "significantly help". In the opinion of Dr. Heywood, "help" of the kind described by Dr. Newbury "would not be considered acceptable medical practice, and is potentially dangerous if the patient takes part in activities that put them at risk if they have an epileptic seizure (e.g. driving)." Professor Norman agrees with Dr. Heywood (I quote the former exactly as his words appear in his report of 6 August 1999):
"Clearly, the writer and Dr. John Heywood would be discomfited (in the 17th century meaning of that word) by suggestion that DOFOS would assist in the management of any forms of epilepsy and to suggest that ictal attacks would be so controlled is a potentially dangerous claim."
I take it that epilepsy is, at least in part, an "above-the-neck" condition. If so, there is here encountered another instance of such a condition in respect of which, on all the evidence before me, Dr. Newbury’s DOFOS-related treatment lacks any credible scientific basis, and receives no support from Professor Norman. It is of course true (at least as I understand the position) that treatment of epilepsy would not be encompassed by the truncated DOFOS theory. Nevertheless, Dr. Newbury has frequently stressed his wish to "help" his patients. He also presented in the witness box as a person whose capacity for sound judgment was limited, if it exists at all. I am not confident that his desire to "help" would not overwhelm all else once he discovered that a patient of his had epilepsy.
Another concern is Dr. Newbury's belief that young children with malocclusion should be subjected to DOFOS treatment, which is necessarily invasive, as a preventive measure. In the "Questions & Answers" brochure, under the heading "A special note" the following appears:
"Remember your children inherit their teeth and jaws from you. If you have DOFOS they too are likely to have DOFOS … [C]hildren can be cured for life. Do you want your children to go through life following in your painful footsteps? Prevention is far better than cure." (underlining as in the original)
The subject is also dealt with in the "Understanding Your Treatment" brochure. Dr. Newbury there says:
"To 'treat' the crowded irregular teeth [of a child] an orthodontist may wait many years until the problem becomes quite obvious. It is then expensive to correct, and your child has suffered unnecessarily from DOFOS while waiting for treatment. How much better it would have been if treatment had taken place early in the child's life, before too much damage had occurred. This is the aim of DOFOS treatment."
As is plain from his literature and his evidence, Dr. Newbury believes that the treatment of DOFOS in children is indicated whenever the child has what he would characterise as a malocclusion. This, according to the "Do you have DOFOS" brochure, is easy to diagnose. You can "confirm" that your child suffers from DOFOS if he or she fails the test for locked bite. Every child who, when the mouth is closed and the teeth are held firmly in contact, cannot "grind [his or her] teeth from side to side by moving [the] lower jaw around in sideways movements" has "the locked bite which causes DOFOS".
The results, according to Dr. Newbury, can be serious. A little later in the brochure, under the heading "Children", the following appears:
"Children with DOFOS commonly suffer from the effects of long term muscle cramps with acute crises of short term severe symptoms, intensifying in relation to the growth of the teeth, and during puberty.
Children with DOFOS generally have poor close up vision (blurring) and often perform poorly at school because of these eye problems. They are unable to implant what they see into their mind, because they cannot see the information properly in the first place. Lack of memory recall and problems with writing, spelling and mathematical ability is often called dyslexia, to which DOFOS contributes significantly.
Muscle co-ordination problems cause trouble with sporting ability, especially those involving ball catching, or high degrees of muscle co-ordination (football, cricket, etc.)
Children frequently develop behavioural problems at school and at home due to frustration caused by the above problems.
Other Childhood Problems:
The closeness of the jaw hinge to the ear can cause pain to spread to the ear and ongoing problems of chronic earaches, with no apparent cause. Muscle spasm causing unequal muscle pull on joints may well be the cause of many childhood and adult joint and back complaints."
Parents, however, should not despair. The brochure concludes with words of hope, coupled with words of caution:
"Treatment is relatively simple involving no drugs or surgery, and is often very effective in significantly relieving DOFOS. Early treatment for children should ensure that they lead a full and productive life, free from DOFOS.
To ensure adequate treatment and to exclude the possibility of other diseases being present, we advise a thorough medical and dental examination prior to treatment for DOFOS."
There is, as far as I am aware, no scientific basis for the claim that a bad bite contributes significantly to dyslexia, muscle co-ordination or earache. Certainly, nothing in the evidence before me supports any such propositions. Moreover, as I have already recorded (paragraph 34 above), Dr. Heywood does not know of any evidence linking blurred vision to abnormalities in the eye muscles. But if there is no such evidence, there can be no possible basis for the "early treatment" to which Dr. Newbury refers.
Set against the context of Dr. Newbury's continued belief in the efficacy of the DOFOS theory, this point has particular significance. According to the evidence which he gave before me, Dr. Newbury continues to believe that his DOFOS treatment is able to cure (among other things) asthma, bed wetting, thumb sucking, dyslexia, irritability and attention deficit disorder in children. Moreover, as he said in his evidence:
"I don't wait for years for the problem to become obvious. At the moment dentists looking in children's mouths as young as two and three cannot identify the lateral malocclusion in the way that I can because I've had 22 years' experience identifying it so I don't wait until a child becomes 16 or 17 to have orthodontics to correct their malocclusion. I see the malocclusion forming in a two year old in their deciduous dentition and I take steps to prevent it from becoming an ongoing problem."
Dr. Newbury was then asked whether he accepted that requiring a two and a half year old child to use a mouthplate might be invasive. He answered: "not at all". He added that he could "prove" that his DOFOS treatment would stop the progress of DOFOS in a child who was two and a half years old. He did not attempt to reconcile two seemingly contradictory statements: on the one hand, the unqualified assertion that DOFOS in a child is easily confirmed (and, once confirmed, should be treated "early") and, on the other hand, the allegation that dentists looking into the mouth of a child as young as two and a half cannot identify the lateral malocclusion in the way which he can.
If permitted to do so, Dr. Newbury will continue to diagnose and treat young children for DOFOS-related symptoms occurring above the neck – such as jaw pain (and therefore, because such pain can spread to the ear, earache). If permitted, he would doubtless continue to diagnose and treat dyslexia and like problems, such as difficulties with the memory. In doing so, he would continue to refer to DOFOS as the key to both diagnosis and treatment, despite his recognition that that theory has no scientific base in the treatment of medical conditions occurring below the neck.
In this context, it is significant that Dr. Newbury continues to believe that children will, or at least may, lose their memory if they remove their DOFOS mouthplate. He was asked, when being cross-examined by counsel for the Board in the proceeding before me, whether he seriously put it that a child can lose memory in this way. He replied: "I seriously do". This is consistent with his claim that the removal of the mouthplate from any patient is generally quickly followed by a return of their symptoms, often in their fullest severity. Patients whose plates must be sent to Adelaide for adjustment frequently, he told the Court, "elect to fly to Adelaide, sit in the laboratory for one day and fly back because they're scared that if their plate is out of their mouth for longer than that they'll have a problem". This also explains why "[m]any patients ring up and say 'can you get the plate back because my son or daughter is so ill because the plate is out, I want it back straight away'."
All this coincides exactly with what Dr. Newbury says is his own experience with the mouthplate he has designed for himself. As an experiment, he incorporated corrugations into that plate. Within 10 minutes of putting the modified plate into his mouth he was "extremely ill", to the extent that "my staff … went to order an ambulance." Hospitalisation was avoided only because Dr. Newbury removed the corrugations, replaced the mouthplate "and straight away those symptoms stopped."
Believing this, Dr. Newbury also believes that his treatment would benefit, and perhaps save the lives of, the 900 children who every year die in Australia from asthma.
On the evidence to which I have referred, it would be very difficult for Dr. Newbury to confine his treatment of children to only those malocclusions which would be recognised as such by his colleagues of good repute and of average, or better, competence. It would be similarly difficult for Dr. Newbury to adjust his practice so as to treat only conditions which such colleagues would accept are caused by malocclusions properly so described. Not only would he instinctively wish to do more, but it would be very difficult to specify with clarity the proper limits of his practice. Both he and his counsel spoke variously of "symptoms of the face, head and neck"; of "headache, facial pain, jaw pain and neck pain", and of "occlusel disorders" the treatment of which "may relieve oral and facial pain and painful symptoms in the head and neck". But it is by no means clear that words such as these adequately mark the boundary between treatment which has a proper scientific basis and those parts of the DOFOS theory which have no basis at all save the hopelessly inadequate anecdotal evidence which Dr. Newbury has garnered from his patients (a subject to which I shall return). For example, while (as I have already noted) Dr. Heywood accepts that treatment of bite may be effective in the treatment of headache, he points to the lack of any clinical research showing a link between DOFOS as a mechanism and headache as a result. Again, in the "Understanding your treatment" brochure, it is said that cramp in the facial muscles often "squeezes shut the fine drain tubes in your lower eyelids, and puffy dark bags appear under your eyes". Here, it would seem, is a symptom of the face or head. Yet so far from being scientifically acceptable, this passage in the brochure elicited the following response from Dr. Heywood:
"I interpret this statement as the lymphatic drainage of the lower eyelids, which run in the subcutaneous tissue and do not run through muscle. I can think of no part of the body where sustained muscle contraction leads to swelling and oedema, and this statement makes no anatomical sense."
Professor Norman is not so succinct. He nevertheless agrees with Dr. Heywood. He notes the latter's reference to what:
"… the writer and others would interpret to be lymphoedema or 'water logging' of the tissues. The writer is not familiar with any evidence that suggests that … the patient with normally functional mimetic musculature (i.e. no facial paralysis) is prone to develop either primary or secondary facial lymphoedema. It might be helpful to appreciate that the lymphatic vessels are lined by smooth muscle (cf. smooth muscle of the gut) and that no lymphatic vessels are to be found in muscle, bone or the deep compartments of the lower limb but they are present in the intermuscular facial planes. As a general rule, superficial and deep lymphatic drainage areas are separated by deep fascia until the point where they converge at the root of a limb. We are in this instance directing our attention to the face and not to the limbs."
I read this as a refutation of Dr. Newbury's link between cramp in the facial muscles and the appearance of "puffy dark bags" under the eye. Dr. Newbury, a dentist, would nevertheless assert that the puffy dark bags are a symptom of DOFOS. If a patient were to present with a malocclusion, an occasional headache and puffy dark bags under the eyes, Dr. Newbury would doubtless prescribe a mouthplate for that patient. There would follow, as I understand his evidence, months or years of treatment. This would involve many fine adjustments to the mouthplate. The patient would be told that removal of the plate for even a short time might result in a further headache – or even, should the experience of the patient match that of Dr. Newbury when he altered his own mouthplate, an acute illness warranting the calling of an ambulance followed by hospitalisation.
Even while acknowledging the unscientific nature of his "research" into DOFOS, Dr. Newbury, through his counsel, submits that he should be allowed to treat symptoms of the face, head and neck. It is, he would doubtless argue, likewise appropriate that a patient should not be refused the "treatment" which I have described although that patient is suffering nothing more unpleasant than an occasional headache and puffy dark bags under the eyes. Certainly this is so if the patient also has a dental malocclusion, as Dr. Newbury defines that condition. Thus in a segment of the "Today" program screened on Channel 9 on 21 August 1998 Dr. Newbury made it plain that the interviewer – who was clearly not troubled by puffy dark bags under her eyes – had DOFOS, and was a candidate for his DOFOS treatment. Yet she only experienced an occasional headache, and her "malocclusion" was indicated by nothing more than the fact that when she closed her mouth she could not move her lower jaw laterally, and her lower teeth were positioned inside her upper teeth.
At several points in his evidence, Dr. Newbury described his surprise at the results which, 22 years ago, his patients began to report following their use of a mouthplate. At first, these did not incorporate the refinements which Dr. Newbury says are now a feature of his plates and a product of his years of research. Compared with the highly sophisticated mouthplate which Dr. Newbury is even now continuing to improve, they must, of necessity, have been crude instruments for the cure of DOFOS. Their introduction for what I take to have been entirely orthodox dental treatment was nevertheless followed by accounts from patients of startling improvements in their general health. There is no evidence to suggest that Dr. Newbury paused to consider the differences (if any) between his mouthplate and those used by other dentists whose patients were not reporting miraculous ancillary benefits. Rather he allowed himself to believe not only the accounts themselves, but also that the mouthplate was the instrument by means of which the improvements were generated. He called this uncritical receipt of anecdotal evidence "research". Using this research as his justification, he made very large claims. He told the audience at Channel 9's "A Current Affair" on 1 April 1999 that he had "made a finding that was going to change humanity". He apparently acquiesced as the announcer recited the conditions which the use of his mouthplate could cure: asthma, migraine, schizophrenia, arthritis, miscarriage and early epilepsy. The list, she said, "goes on and on".
In the "Questions & Answers" brochure, Dr. Newbury referred to a "six year retrospective independent medical study" which "showed that 80% of patients ceased using or markedly reduced their use of analgesics following treatment." This was an exercise the independence of which may be questioned, since Dr. Newbury is named as co-author. It is entitled "Headaches – A Common Aetiology. Results of a Six Year Retrospective Controlled Study on the Resolution of Chronic Benign Headaches by Occlusal Treatment." The other author is said to be Terry F. Miller MB.BS, B.Sc.
In his evidence, Dr. Newbury not only denied authorship of the study; he asserted that he had never read it – or, at least, that although he had tried to read it he could not because he could not understand it. He also swore that he "had no input other than providing the patients."
This evidence is at odds with that which appears in the report itself. Under the heading "Data Collection" the following appears:
"The authors interviewed the subjects by telephone using a standardised questionnaire which recorded headache characteristics, other specific chronic disorders affected by the headache treatment, and the patients' continuing need for analgesics and alternative therapies. Demographic and presenting complaints were abstracted from the patients' records.
The reference to "the authors" must, in the context, include Dr. Newbury. The startling discrepancy between this statement and the proposition that Dr. Newbury's only input was providing the patients has never been explained (although it must be said that the subject was not taken up with Dr. Newbury).
The study contains a synopsis. It is, I think, sufficiently relevant to warrant being quoted in full:
"To determine the success of a new treatment for chronic benign headaches, a controlled retrospective study was conducted on 200 severe headache sufferers over a six year period. All the subjects suffered from Disturbance of Functional Occlusion Syndrome (DOFOS) whose symptoms include chronic benign headaches. The subjects had previously undergone extensive medical and paramedical therapies which failed to provide relief.
One hundred and fifty five subjects were treated by occlusal techniques used to resolve the symptoms of DOFOS. Forty five subjects were untreated and were used as a control.
74.2 per cent (112 subjects) of the treated subjects had significant resolution of their headaches. 45 per cent (70 subjects) had no headaches following treatment.
These results confirm that chronic benign headaches are caused by extra cerebral pathological events and can be effectively resolved by the use of specific occlusal treatments."
There are a number of points to be made about the study, in addition to those to which I have already referred. One is that it was retrospective, and therefore less reliable than contemporaneous studies. Another is that the treatment accorded to those subjects of the study who were treated involved a mouthplate which was fitted over the lower teeth. This contrasts with treatment using the Upper BioDOFOS Appliance described in the article in The Dentist of November 1996 and in the brochure headed "DOFOS: The Upper BDA". It appears from these documents, and indeed from Dr. Newbury's evidence during the hearing before me, that the latter appliance is now used as the form of treatment.
A final point about the Newbury/Miller research document is that it includes data on the success of Dr. Newbury's treatment of eye conditions. As I understand it, such treatment formed an important part of his practice. Of the patients treated for such conditions, only 45% reported any improvement. 50.5% reported that their eye conditions remained static, while 4.5% reported that such conditions became worse.
The Newbury/Miller paper has never been published. Accordingly, it has not passed the test of being reported in a reputable peer review journal; and for this reason, Professor Norman expressly declined to comment on it. In my opinion, it is not a document from which Dr. Newbury can find much support.
Dr. Newbury directs much of his attention to the treatment of women. He claims that women are especially vulnerable to DOFOS, and that his treatment is especially effective in overcoming that vulnerability. "A female", he said in the "Understanding Your Treatment" brochure, "has finer muscles and bones, and a more intricate and finely tuned nervous system, than a male. This makes a female more likely to develop bad DOFOS."
Dr. Heywood had a short response. "A female", he said in his report of 24 May 1999, "does not have a more intricate and finely tuned nervous system, and in fact neuroscientists have found it very difficult to demonstrate differences between the nervous system in men and women." Dr. Heywood continued, referring to another passage in the "Understanding Your Treatment" brochure:
"The author has linked DOFOS with hysterical neurosis and conversion hysteria. These syndromes have been the subject of intense investigation and debate within the medical profession since the time of Sigmund Freud, and it would be a revelation to generations of psychiatrists that these syndromes are due to DOFOS."
Professor Pepperell was no more impressed by Dr. Newbury's claims in relation to women. "I have read the brochures", he wrote in his report of 28 May 1999, "and believe there are a considerable number of misleading statements within them which would clearly mislead any person who was reading them." He went on:
"Many of the statements are plainly incorrect, and indicate a lack of understanding of normal physiological principles. These in particular, apply to the area where I have expertise, that is the area of reproductive endocrinology, infertility, and problems associated with obstetrics and gynaecology."
Professor Pepperell examined, among other brochures, that entitled "DOFOS: Women Hormones & DOFOS". The introduction to that brochure is typical of Dr. Newbury's style as displayed in his publications, in the two television segments to which I have referred, and his evidence in court. The introduction reads:
"For over 20 years I have treated women who have had DOFOS. It's a terrible disorder that hurts them a lot more so than men. I have written this booklet in an attempt to show them that I care about their own specific problems. The views expressed are my views based on observations I have made as I treated these women. Without this feedback from them I would never have found the full nature of DOFOS. I want to thank all of them for their help. I hope I have done justice to them, and the millions of women who suffer and don’t know why. This booklet may help some of them have a better life."
Following the introduction, Dr. Newbury sets out to explain the menstrual cycle, and the onset of pregnancy. After a fertilised egg has entered the uterus, he tells his audience, the body makes more progesterone and oestrogen. This, according to Dr. Newbury, "stops more eggs from maturing, and keeps the lining of the uterus in place." He continues:
"Meanwhile the placenta has started to grow in your uterus. It makes some progesterone, but not very much."
According to Professor Pepperell, this last statement "is an absolute distortion of the truth as the progesterone production by the placenta is in large amount, and it is this large amount of progesterone which does make the uterine muscle less active and generally prevents the onset of labour."
Later, the brochure contains the following passage:
"If you have very little oestrogen, you won't have enough to start your cycle. Then you won't ovulate, and won't get that surge of oestrogen to start your next cycle. Your lining won't shed, and you won't have a period for some months, or even years. So you won't be able to conceive a child. You'll be told that you are infertile."
This is a condition which, at least when the brochure was published, Dr. Newbury was confident he could cure. He says in the brochure:
"I have treated a number of women for infertility. Doctors had told them that they would never have a baby. Some had tried the IVF and other types of fertility treatment. All attempts had failed. When I treated their DOFOS they all became pregnant. One had had five miscarriages; she now has two children. Remember, doctors don't know about DOFOS. They have no idea that you have a complex muscle/hormone problem. When you have it cured you should become pregnant. You have little to lose when all other forms of treatment have failed."
Whatever the truth of these propositions, they are not (according to Professor Pepperell) based upon sound scientific learning. Commenting on Dr. Newbury's assertion that lack of oestrogen will adversely affect the menstrual cycle, Professor Pepperell says:
"His whole argument on the effect of low oestrogen … is back to front. The cycle isn't started with oestrogen, it is started with the gonadotrophin releasing hormone, and then the pituitary gonadotrophin. Oestrogen is produced as a hormone from the ovary when this has been stimulated by the FSH from the pituitary."
I could go on; but enough has been said, I think, to throw real doubt upon Dr. Newbury's capacity for professional judgment. It is impossible to know how he would react to a female patient aged in her mid-twenties who told him that she was infertile, but did not wish to have children. His mouthplate, he believes, cures infertility. Suppose the patient has a malocclusion which to Dr. Newbury constitutes proof that she also has DOFOS. Suppose, in addition, that she presents with jaw pain, facial pain, neck pain and migraine. She is anxious that he treat her for these. Does he refuse that treatment, on the basis that it might result in her becoming pregnant? Or does he advise that, during treatment, she either practise sexual abstinence or take contraceptive measures?
My doubts about Dr. Newbury's professional judgment are increased on review of the evidence which he gave on his appeal. His was a performance which leads me to conclude that reliance cannot be placed upon his word. He may not have been deliberately mendacious. He may simply lack the insight to detect inconsistencies, leaps of logic or fictional embellishments on thin substrata of fact.
Several examples seem, to me, to make the point. Dr. Newbury was wearing a mouthplate as he gave his evidence. He had been doing so, he said, for five years. The following exchange then occurred:
"Q: And it hasn't cured you?
A:Oh yes, totally. I don't have any of the symptoms I had. I no longer have migraine, I no longer have chronic backache, I don't go to hospital for my complaints.
Q: Then why don't you stop wearing the plate?
A:Because I do all the trials on my plate to find out what the patients have to go through. I don't believe it's reasonable to apply this to them unless I know exactly what's going on.
Q:But presumably you are not still making adjustments to your plate are you?
A:I am … I try all sorts of various things to see if I can improve it, but I no longer do that on the patients as I did when I first commenced the treatment 20 years ago.
Q:If you have got no symptoms, how do you know whether the plate is being improved or not?
A:Because I can have my symptoms back within 20 minutes if I do something wrong to my plate."
Dr. Newbury then went on to explain that changes to his plate might cause symptoms to reappear, and that on one occasion such changes resulted in his condition deteriorating to such an extent that his staff thought an ambulance should be called. Some time later in his evidence, another relevant exchange occurred:
"Q:I understood you yesterday to say to his Honour that you were already cured?
A:But as long as I wear it I remain so, because I do things to my plate which is different to other patients.
Q: I see?
A: And I have not finished treating my malocclusion.
Q:So you would have us understand that you must wear that plate now indefinitely?
A: No …"
Later that day I returned to the subject:
"Q:Dr. Newbury, going back to the plate that you are presently wearing. I asked you yesterday how long you had been wearing it, and you said for five years?
A: That's approximately right your Honour …
Q:It doesn't matter. My next question was: 'And it has not cured you?'. Your answer was: 'Oh yes, totally'?
A: It has totally.
Q:But you say that if you take your plate out even … while you are here, within a few minutes your physical or mental condition, or both, will deteriorate?
A: True.
Q: That does not seem to me to be a total cure?
A:If you are given a pacemaker, for a heart condition, you live; but if it's taken out for even a few minutes, you die; but it is classed as a cure because it has given you back the quality of life that we consider to be reasonable.
Q:I then asked you: 'Then why don't you stop wearing a plate?' and your answer was not 'Because I'm cured only while I wear the plate', your answer was 'Because I do all the trials on my plate to find out what the patients have to go through?'
A: I do, that is correct."
In a press release dated 12 January 1999, Dr. Newbury said that "after a short time the patient can stop wearing the plates." He had then been using his own plate for some four years. By December 1999, he had still not cured himself – if, that is, by "cure" one means eliminating the original problem, the malocclusion from which all else has its source. When questioned about the press release, Dr. Newbury explained that "it was sent to Channel 9, so it was not (sic) intended for public consumption."
There are inconsistencies here which evoked no satisfactory response from Dr. Newbury, if they evoked any attempt at any explanation at all. A like situation occurred when I tried to explore with Dr. Newbury what seemed to me to be a point which logically arose from his assertion that DOFOS has its source in a malocclusion, that this causes muscle fatigue, and that (as is said in the brochure "How DOFOS Starts") "you [then] feel an aching pain on your head, known as a headache." I asked Dr. Newbury to assume that the patient's malocclusion had been cured, yet the patient continued to complain of a headache. He said, in response, that as far as he could recall only one such instance had occurred in the last 10 years. That patient had a particularly unusual configuration of his teeth, and in the end Dr. Newbury realised that a cure was in these circumstances impossible. Dr. Newbury concluded his response to me by saying that "He's the only one that I can honestly remember that's had that problem." The exchange set out below followed immediately thereafter:
"Q:So you say that every one of your patients, when cured of the dental malocclusion for which they first presented, is also cured of headaches?
A:In the main, your Honour, the majority. Over 90%, I would agree."
It is not clear who Dr. Newbury includes among his patients. He on a number of occasions when giving evidence alluded to patients of his who lived abroad. In his press release, he claimed that he regularly lectured "all over the world to dentists and associated practitioners." He was asked about this in cross-examination:
"Q: When you do those trips overseas, do you treat patients?
A: No, I'm not entitled to.
Q: When did you cease treating patients overseas, Dr. Newbury?
A:I don't treat patients overseas. I teach dentists how to treat patients and then the patients' treatment comes under the umbrella of my experience and the dentists confer with me as to how they should maintain that treatment so I class those patients as my patients because without me the patients couldn't continue their treatment.
Q:Haven't you said on a number of occasions that you treat patients overseas in relation to DOFOS?
A:Yes, that's exactly what I've explained. Those patients are under my care and without me their treatment would cease because the dentists wouldn't have enough knowledge to continue it."
Dr. Newbury spent some time in his evidence speaking of his contacts with dentists both within Australia and overseas. But the more he said, the more confusing the picture became. On one view, his professional colleagues in Sweden, South Africa, New Zealand, Thailand and Hong Kong are fired with enthusiasm for his ideas, while in Australia the "Australian School of DOFOS Studies", the Director of which is Dr. Newbury, is spreading the word on home soil. In a document advertising the School's DOFOS therapy courses, Dr. Newbury refers to "the many dentists currently treating DOFOS" almost all of whom are general practitioners. On another view, more in keeping with the evidence from which I quote in this and the preceding paragraph, he is the prophet crying in the wilderness. Little if any DOFOS work, whether theoretical or practical, has been done over the last four years by anyone other than Dr. Newbury. There has been no cross-fertilisation of ideas between colleagues anywhere during that time. Dentists overseas have ceased to correspond with Dr. Newbury and (as he said in his evidence):
"… the last four years I have spent doing research and I am now far in advance of where this [Australian School of DOFOS Studies] brochure was, which is why I haven't run any more courses and which is why I haven't sent these brochures out, because they were to be trashed and I was to rewrite the whole concept, because I am now so far advanced after four years more research that it would be very hard for anybody, almost impossible, to cover what I'm doing now in that fundamental course … It is a fact that there is no one at the moment anywhere that I can think of that I have trained who could pick up my work today and continue on with it and gain a satisfactory result."
I have little doubt that no dentist in the world now has a practice relevantly comparable to that which Dr. Newbury conducted before the intervention of the Dental Board.
I also have little doubt that Dr. Newbury is, in his present mode of practice, a danger to the public. If he is to continue to practise, it could only be on terms which either eliminate that danger or, at the least, reduce it to negligible proportions. This means that he would have to eliminate from his communications with his patients all reference to DOFOS, save that appearing in any warning which he would be required to give to them. It also means going further than restricting him to the treatment of "symptoms in the face, head and neck"; it means, in other words, going beyond the requirement that he desist from the treatment of "any other symptoms in any other part of the body".
These phrases appear in a document which Dr. Newbury put forward as Exhibit E. He did so on the basis that any reasonable fears about the safety of those who resort to him as patients will be assuaged were he required – as a condition of his right to practise – to hand that document to each of those persons (or to those who are empowered to make decisions about their welfare) before treatment begins – and, I would add, at appropriate intervals thereafter. The document is in the following terms:
"Warning
Prior to June 1999, I published many brochures and appeared in the press and on television making claims as to a range of medical conditions, other than symptoms of the face, head and neck, that I claimed could be cured by DOFOS treatment. Those statements were exaggerated, misleading and had no scientific basis. I was found guilty of professional misconduct for making those statements.
It is now a condition on my right to practice, imposed by the Dental Board of Victoria, that I provide this warning to all patients being treated by me. I am obliged by law to inform you that:
·I am an oral and maxillofacial surgeon. I only treat symptoms in the face, head and neck. I do not treat any other symptoms in any other part of the body.
·There are many possible causes of pain in the face, head and neck. A bad occlusion is only one of those causes. You should not substitute my treatment for regular consultations with your doctor.
·The Dental Board recommends that you obtain a second opinion from another member of the dental profession before undertaking my treatment.
[Signed]
Dr. Renton Newbury."
The difficulty with this document is that, at least if its use were not tied to undertakings which met the problem, it would allow Dr. Newbury to treat symptoms such as puffy dark bags under the eyes, earache, and blurred vision. It would allow him to treat headache, something which he insists the scientific evidence demonstrates is a product of DOFOS and therefore susceptible to cure by use of his mouthplate. It would allow him to continue to treat children for a malocclusion which only he can detect "in the way [he] can"; and perhaps also for some or all of those conditions which according to him flow from a child's blurred vision – for example, dyslexia, irritability and attention deficit disorder. It would, I think (and I am sure that, given the opportunity, Dr. Newbury would agree) allow him to treat thumb sucking; and, if thumb sucking, why not bed wetting? If these are symptoms which Dr. Newbury is permitted to treat, why should he not be allowed also to treat a child's malocclusion (as that expression is defined by him) as a preventative measure before symptoms have become manifest?
In my opinion, the Dental Board is correct in its view that suspension is not an appropriate response to the circumstances which now obtain. Suspension would, I think, be nothing more than a form of punishment. Protection of the public is the central consideration. That protection demands, in my view, that Dr. Newbury cease to practise altogether. Only by that means can the Court ensure that present and potential patients of Dr. Newbury's are treated (by another dentist) in accordance with proper professional care – rather than on the basis of a theory which for 20 years has been engaged in a fruitless search for adequate scientific verification. I would like to think that Dr. Newbury has the capacity to appreciate how inadequate his own research has been, and how inappropriate it is that patients should be subjected to treatment based upon that work. He does, after all, wish to practise in a science-based profession. He should therefore be astute to reject treatment of those who, through their trust in him, have placed themselves under his care, where that treatment lacks any scientific merit. To the contrary, however, Dr. Newbury has thus far continued to assert his unwavering belief in DOFOS and his theories about it, the realisation of which he still contends is his lifetime's goal. Against all good professional sense, he is prepared to make no more than a grudging concession about conditions below the neck.
In these circumstances I must order in accordance with s.25 of the Act that Dr. Newbury's registration be cancelled.
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