Chiropractor Accused of Professional Misconduct due to Anti-vaccination Practice
A registered chiropractor participated in a radio interview and a screening of a film which contains material and representations that are contrary to the Chiropractic Board of Australia’s codes and statements. The Board alleges that such actions constitute professional misconduct worthy of suspension. The Court, in determining the appropriate sanction, assessed the risk of repetition.
Facts:
On November 2016, Dr Simon Floreani, a registered chiropractor, participated in a YouTube video called ‘Nazi vaccine regime in Australia’ with Mr Billy DeMoss. In December 2016 he hosted a screening of the film ‘Vaxxed: From Cover-Up to Catastrophe’ at his clinic in Middle Park. The film contains material and representations that are contrary to the Chiropractic Board of Australia’s codes and statements. Dr Floreani said that ‘the evidence is not there to suggest that people are safe and our kids are safe’ from vaccinations.
As reported by Mr Burrell, a registered chiropractor with 21 years' experience in private chiropractic practice, during the times of the two incidents there were significant limitations in force that prohibited registered chiropractors in Australia from making public comments discouraging vaccination.
Dr Koehler, a qualified medical practitioner, also provided an expert report stating that if a child is not vaccinated, that child will be susceptible to all of the diseases which might have been prevented by the vaccines available. She also noted that courses offered in Australia do not contain ‘adequate physiology, immunology, or infectious diseases content for a chiropractor to be competent to provide advice in the very complex field of vaccination.’ In July 2017, the Board convened an Immediate Action Committee (IAC) which, on 27 September 2017, decided to suspend Dr Floreani’s registration.
The IAC asserts that Dr Floreani posed a serious risk to persons and it was necessary for it to take immediate action to protect public health and safety. Dr Floreani’s 2017 suspension lasted only around six weeks. On 27 March 2018, the Tribunal made further orders by consent setting aside the suspension decision and imposing conditions on Dr Floreani’s registration.
Issues:
I. Whether or not Dr Floreani exhibited unsatisfactory professional performance, unprofessional conduct or professional misconduct.
II. Whether or not the suspension was appropriate.
Applicable law:
Briginshaw v Briginshaw [1938] HCA 34 - provides the Board was required to prove its case on the balance of probabilities in accordance with the test that is, the Tribunal was required to reach a comfortable level of satisfaction in finding the relevant matters proved on the balance of probabilities, consistent with the seriousness of the allegations and reflecting the serious consequences of any finding.
Medical Board of Australia v Arulanandarajah [2021] VCAT 85 - held that when characterising proven conduct, it is appropriate to consider the relevant definitions as at the time the conduct was engaged in, rather than looking to later in time evidence about expressions of regret or insight or rehabilitation.
Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193 - provides that it would not be proper for the Tribunal to make findings based on the personal and undisclosed opinions of the Tribunal Members.
Medical Board of Australia v Davis [2018] QCAT 215 - where it was held that although there is a significant overlap between the meanings of all three terms, the concept of unsatisfactory professional performance is directed towards the actual delivery of health services and focusses on the knowledge, skill and judgement of the relevant health practitioner or the care exercised while providing a health service.
Pharmacy Board of Australia v Lee [2017] VCAT 87 - where determinations may involve a degree of punishment for the purpose of general deterrence (to warn others in the profession against such misconduct) and specific deterrence (to deter the individual in question from repeating the misconduct).
Medical Board of Australia and Pharmacy Board of Australia v Lee [2019] VCAT - provided that determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public.
Pharmacy Board of Australia v Hopkinson [2018] VCAT 982 - where it was observed that the Tribunal will not lightly depart from an agreed sanction where the negotiated settlement and proposed penalty are, broadly speaking, within the permissible range, having regard to all the circumstances.
Medical Board of Australia v Smith [2016] VCAT 243 - where Dr Floreani recounted in the Tribunal Book an affidavit to the background to this matter.
Analysis:
Dr Floreani’s counsel contended that the subject conduct could not amount to unprofessional conduct or professional misconduct because it was not engaged in during the course of Dr Floreani’s professional practice. At the most, the counsel asserts that the conduct could be characterised as unsatisfactory professional performance. However, pursuant to the Board’s Code of Conduct for Chiropractors (Code) and the Board’s Statement on Advertising dated 7 March 2016 (Statement), and after considering expert reports as to professional standards and the efficacy of vaccinations for children and others, chiropractors have a responsibility to promote vaccination as an important public health measure.
The statements Dr Floreani and others have made about the safety and efficacy of vaccinations for children and adults are not based in science or known facts. Such conduct is contrary to the professional exchange that chiropractors make with the public and the trust placed in them as members of the profession. The Board contended that a suspension was appropriate because the conduct involved might well detract from the public confidence in the profession were it not dealt with firmly and called for an emphatic indication of the Tribunal’s disapproval, and of the profession’s disapproval. Dr Floreani asserts that reprimand subject to the Board's conditions is the appropriate order.
Since 2017, he has not and will not engage in the maintenance of an anti-vaccination stance. He is apologetic and has recanted. He regrets as a matter of understanding the errors he also committed in the general setting of the health profession. Furthermore, he asserts that the risk of repetition is non-existent.
Conclusion:
The Court found that the respondent engaged in conduct which constituted professional misconduct under paragraph (a) of the definition of that term in the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law). The tribunal orders that under section 196(2)(a) of the National Law, the respondent is reprimanded. With effect from 18 October 2021, under section 196(2)(d) of the National Law, the respondent’s registration is suspended for a period of six months. On the resumption of his practice, and as imposed on the respondent's registration, he should not display, promote or provide materials, information or advice that is anti-vaccination in nature to patients. The respondent should not make public comment discouraging vaccination.
If the respondent is asked by a patient or prospective patient for information about vaccination, he should refer that person to an appropriately qualified health professional, such as a medical practitioner. The respondent must display in all patient waiting areas at all places of practice a clearly visible sign stating: "Please be advised Dr Simon Floreani does not provide any patient with advice regarding vaccination."
