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Health Ombudsman v Raynor [2021] QCAT 25

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Date: 12 February 2021
Tribunal: Queensland Civil and Administrative Tribunal 
Tribunal Member: D J McGill SC
Human Rights Act 2019 (Qld) Sections: ss 21, 35 
Rights Considered: Right to freedom of expression; Right to protection against retrospective criminal laws 
Other Legislation: Health Ombudsman Act 2013 (Qld) ss 4, 4A, 8, 68, 113; Health Practitioner Regulation National Law (Queensland) s 123
Keywords: Political Freedoms    

The Tribunal was tasked with considering an application for a prohibition order against a self-represented respondent who provided massage and therapy services despite not being a registered health practitioner. The respondent made human rights submissions including the right to freedom of expression (section 21 Human Rights Act 2019 (Qld)) and right to protection against retrospective criminal laws (section 35 Human Rights Act 2019 (Qld)), and the Tribunal noted the balance of these rights with other legislation. 

This case concerned an application for a prohibition order against the respondent under section 320G(2) of the  Health Ombudsman Act 2013 (Qld). The self-represented respondent provided massage services and, formerly, therapy services involving manipulation of the neck but was not registered as a health practitioner: at [1]. 

The applicant, the Health Ombudsman, made an interim prohibition order against the respondent under section 68(1) of the Health Ombudsman Act 2013 (Qld). This order prohibited the respondent from providing health services, training, or publishing documents on the manipulation of the cervical spine: at [2]. The respondent had previously applied to the Tribunal for a review of the Ombudsman's decision which the Tribunal confirmed: at [3].  

The respondent had made a series of videos which were available to the public on his website demonstrating his technique and the applicant relied on these as evidence, in addition to expert evidence that noted the rare but ‘catastrophic’ risks associated with the manipulation of the cervical spine: at [5]-[7]. The respondent called no expert evidence, but relied on statements from former employees, and clients whose necks had been manipulated in this way and ‘spoke positively’ of the treatment: at [11]. 

The respondent submitted that the prohibition order would violate his right to freedom of expression (section 21 Human Rights Act 2019 (Qld)). He also sought to rely on his right to protection against retrospective criminal laws (section 35 Human Rights Act 2019 (Qld)), but in a footnote the Tribunal stated that this did not apply as these proceedings were not criminal proceedings.

While the Tribunal accepted that the order prevented the respondent ‘from teaching and advocating for his technique,’ it also noted that human rights are ‘subject to the operation of other valid laws,’ including the Health Ombudsman Act 2013 (Qld): at [14]. 

Pursuant to section 113 of the Health Ombudsman Act 2013 (Qld), the Tribunal was tasked with considering the risks associated with the respondent’s conduct. The Trubunal held that it was ‘appropriate’ to make the prohibition order due to the ‘possible serious consequences’ of the respondent’s conduct and the fact that he had not been complying with the interim order currently in place: at [23], [25]. 

Visit the reported judgement: https://archive.sclqld.org.au/qjudgment/2021/QCAT21-025.pdf