Edited November 2006

Mal's Musings

Dr Malcolm A Traill FRCPA

IN THE PUBLIC INTEREST
                                                                      Updated 18/11/2006

 

THE VCAT EXPERIENCE

 

My comments

 

Bias:

1/ General concepts. Bias by judicial persons or bodies can be relatively easily: by apparent sensory and/or cognitive deficiencies. This is shown by the Panels not hearing, seeing, or comprehending what was provided to them, and selectively referring to material that suited their inclinations. For the prosecutors, there usually needs to be active embellishment to achieve bias. A hallmark of this is the slide. Here, embellishments are provided in stepwise manner in order to sway the observer across a gap in logic which, if initially presented fully, might be too hard to accept. Several good slides can be identified: that by Mr John Smith, when presenting the case of SO to the Subcommittee of the Board in order to obtain their approval to move to the Open Hearing. There is the great slide of Associate Professor GG, in which the measurements of uric acid are moved from an assessment of response, to a tumour marker which may be considered in the context of cancer diagnosis !

Whenever a slide is detected, there is bias.

2/ Pejorative terms. Perhaps the archetypes are “experiment” and “experimental.” Used in scientific contexts and as taught in schools, the “experiment” has clearly defined steps – the problem, the hypothesis, materials and methods, results, discussion and the conclusion. This systematizes thinking. But for Prosecutors and Panels, “experiment” (and hence “experimental”) takes on a pejorative, derogatory meaning. It connotes deliberate but haphazard, illogical, unscientific and uncaring treatments of patients, as done by Dr Josef Mengele and made comical in Tom Lehrer’s “Poisoning Pigeons in the Park” song.   

One of my mentors, the late Dr “Jake” Bolton, formerly a Consultant Physician and specialist in Haematology and Oncology at the Royal Melbourne Hospital and the Repatriation General Hospital Heidelberg Victoria, (who had a particular interest in statistics), told me to regard every patient as an experiment. He, of course, was referring to the scientific approach, where a sore throat may be the problem, a viral infection the hypothesis, spatula, torch, analgesics and watching may be the materials and method, the clinical improvement the result, the confirmation of a viral (or Mycoplasma) infections as opposed to other causes the discussion, and the lesson to be learnt, the conclusion. Without this approach, you are unlikely to have a condition, syndrome or sign named after you; you will miss the “googlies” and cannot learn by your experiences.

In the “Reasons” from the Panels, all mention of “experiment” and “experimental” should alert the observer to bias: these terms are almost always used in the pejorative and unqualified sense, and can be regarded as the first step in a slide.

3/ General Approach. I presented a lengthy analysis of the Board’s Panel of 2005 and Bias in my Affidavit of 15/2/2006. At a general level, the Panel (2 members) of the Victorian Civil and Administrative Tribunal (“VCAT”), in its Reasons (excuses) of 2006, largely seemed to paraphrase or précis the Reasons (excuses) of the Board’s Panel – reflecting the same biases that had been criticized earlier (the Board’s Panel “Reasons” was 70 pages, the VACT “Reasons” a mere 29 pages).  Here, whilst the VCAT Panel was acting as a “Court” of Appeal, it heard the appeal as a de novo Hearing. Under legislation now being implemented, all health care professional Boards will refer Open Hearings to the VCAT to be heard directly. What I have to present to you should give considerable concern to fair-minded observers about the justice process that the VCAT represents. (After applying to the VCAT for a Hearing, I told a friend. He was not impressed, saying that a group of ratepayers in an outer metropolitan municipality became concerned about corruption on the Board of the Council. They applied to the VCAT, which referred the matter back to the councillors who were the subject of concern! However, the story ended happily with the Councillors being voted off.) There is little presented to believe that my submissions (verbal, written and published references) were read and considered (see 1/ above).

The title “Reasons” implies that there are explanations as to why one opinion or option should be favoured over another (if in adversarial process) or why one of a range of opinions or options should be favoured (if the process is inquisitional).

4/ My Submissions. These were :

a)      The Affidavit 15/2/2006 – dealing with Bias

b)      My Tribunal Book – which included Affidavits from Nurse F and David Spall – both witnesses to most of the events

c)      My Submission 7/7/2006, dealing with issues in depth

d)      A Reply 7/8/2006, dealing with issues raised by Counsel for the Board 31/7/2006.

5/ Specific Concerns

a)      The Tribunal’s role on review (Paragraphs 15-17, p 6). The Panel found it appropriate to consider (i) the detailed reasons for decision of the Board (2005), (ii) that the Tribunal is inquisitorial (“the onus of proof does not apply”) and (iii) that it was appropriate to consider all of the documents tendered in support of the allegations involving Ms SO and ST. In dealing with these, the VACT Panel quotes (supposedly) legal precedents, but with no reasons provided. I had argued that the Panel of 2005’s Reasons should not be given weight, because it was flawed in fact, procedurally unsound and was biased (Affidavit 15/2/2006). I protested and argued (7/7/2006) against the claims that the processes (the Board’s and the VCAT’s) were inquisitional (“the onus of proof does not apply”), because that removed the onus of proof from the Board, forcing the Applicant (me) to disprove the Charges and Particulars. In the VCAT Reasons, there is reference to Bausch v TAC (1996, 11 VAR 117 at pp 136, 138). This case seems pivotal and needs closer examination: It was before His Honour Justice Eames J in the Supreme Court of Victoria, in an appeal against a decision of the Administrative Appeals Tribunal [AAT], set up under the Administrative Appeals Tribunal Act 1984 (Vic) (The AAT Act).

The Appellant [Bausch] was injured in a transport accident in 1989 and his claim for benefits under the Transport Accident Act 1986 (Vic) accepted by the Respondent ([the Transport Accident Commission;] TAC). In 1994 the TAC refused a further claim for benefits under the Act by the Appellant. The Appellant sought review by the AAT of the 1994 decision. The critical factual issue before the AAT was whether at the time of the transport accident the Appellant had been traveling north (in the direction of the Appellant’s residence in which event the Appellant could be entitled to benefits under the Accident Compensation Act 1985 (Vic) for injuries received in a “protected journey”) or traveling south (which would indicate that the Appellant had terminated the “protected journey” and be entitled to benefits under the Transport Accident Act) . . .’ ”

So, the purpose of both Appeals (AAT and Supreme court) was to ascertain the true nature and circumstances of the events surrounding the accident, in order that the statutory authorities could make the correct decisions in accordance with the acts under which they operated. Bausch was not on trial, his future employment not threatened and he did not stand to have his driving privileges removed.

Further on, His Honour Justice Eames J quotes :

In R v Ratten (1974) 131 CLR 510 at 516-517, Barwick CJ made the following observations, concerning the conduct of a criminal trial, but having said that the same principles applied to a civil trial:

It is a trial, not an inquisition: a trial, in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call and  what evidence which it or he will call, and what questions, whether in chief or in cross examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own rules to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law . . . It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind the circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as the calling and treatment of evidence at the trial.’ [If we substitute “Professional Conduct” for “Criminal,” “Panel” for “Judge” and “jury,” and “Hearing” for “Trial” and, allowing for difference standards for rules of evidence and admissibility, the Hearings of 2005 and 2006 are in full accord with this exposition.]

Mr Croyle, for the Appellant [Bausch] referred to passages in the judgment of Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 in which his Honour was concerned about a review of a decision of the Veteran’s Review Board conducted by the Commonwealth Administrative Appeals Tribunal [CAAT]. . . . It is empowered to summons persons to give evidence. Those are similar powers to that of the [AAT (Vic)]. . . . Brennan J speaking of the [CAAT] (the principles, in my opinion, being applicable to the State Tribunal) held (at 424-425):’

‘Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision–maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.’”

So, to re-examine the Panel processes:

                                 i.      Appearances: Both Hearings appeared of adversarial type – judicial “tribunals” (the Panel of 2005 had four members, that of 2006, two)

                               ii.      The Panels seemed “judge-like” as in the Barwick CJ quote (above)

                              iii.      I (the Applicant in 2006) was never an administrative decision-maker. I was on trial

                             iv.      I was called upon to defend clearly set-out Charges and/or Particulars

                               v.      Neither Panel requested nor compelled the production of further material

                             vi.      The proceedings were not of an “administrative” nature

                            vii.      The proceedings came within the Occupational and Business Regulations List of the VCAT.

                          viii.      The common law stipulates that a person who claims a right or alleges a wrong must show a prima facie case before the other party is called upon to reply. In the absence of a prima facie case, the opponent is entitled to have the proceedings ended forthwith. If a prima facie case is made out, the initiating party must then meet the appropriate standard of proof. In a non-disciplinary case the onus of proof may not be an important consideration. But in a disciplinary case the onus is on the complainant or on the authority with the carriage of the matter, which may be the tribunal itself. The onus may be wholly or partly reversed by the rules but an unwarranted reversal is a reviewable (albeit non-jurisdictional) error in law. It could be evidence of bias, and in a “livelihood” case it may be an unreasonable restraint of trade. . .“Justice in Tribunals.” Forbes JRS. Federation Press, Sydney. 2002. p154-5. The prima facie case and Open Hearing were combined with the Panel of 2005. The VCAT Panel 2006 ran a de novo Hearing. The MPB was obliged to follow the Rules of Natural Justice. There seemed no rule for removal of the Onus of Proof. 

                             ix.      The AAT Act 1984 was repealed on 1/7/1998, its place taken by the Victorian Civil and Administrative Tribunal Act of 1998, (with the word “Civil” now in the Title). The recent Hearing came under a different Act to that applicable in the Bausch v TAC matter.   

The VCAT Panel in its Reasons gave no reasons as to why a Tribunal process dealing with civil administrative law relating to liability for costs should have any precedence for any Tribunal’s handling with respect to charges of Unprofessional Conduct. The Panel provides no reason why my objections could or should be ignored. I suggest that the VCAT fiat stating that the process was inquisitional and without an onus of proof, is fundamentally flawed, false and is a denial of natural justice: showing extreme bias (rigged); being another Minter Ellison dirty trick, upheld by the VCAT Panel. This sets an extraordinary precedent for future Open Hearings before the VCAT.

I also argued (Affidavit 15/2/2006 and Submission 7/7/2006) that all of Ms SO’s evidence should carry no weight because it was hearsay and obtained under circumstances making it quite flawed, that Associate Professor GG was clearly in collusion and a prosecuting complainant, and that Ms ST made false and misleading statements and should be assessed for perjury. Not only have my claims not been mentioned in the Panel’s Reasons, but there has been no reason given as to why these claims should be ignored and, instead, no reason given as to why all the evidence be given full weight.

Within a few short paragraphs and without reasons or indicating that other arguments have been presented, the groundwork has been laid to make adverse finding irrespective of what I said or wrote, what my witnesses said or wrote, or what was documented or in the recognized medical literature. We seem to have the problems in the Panels of sensory and cognitive losses (see above). These problems are a continuation of those from the Federal judicial system, which also involved the legal firm Minter Ellison – 16 years of administrative and judicial manipulation and interference (See Pathology at bottom of the Home Page.)

Dear reader, surely you must now register disbelief and concern that such fundamental aspects of law and jurisprudence applicable to Open Hearings should be dismissed so abruptly and curtly !

Legal Precedents for future Professional disciplinary Hearings before the VCAT

1.    Hearings shall be of Inquisitional type

2.    The onus of proof shall not apply

3.    All submitted evidence is admissible and all evidence by or for the prosecution shall be

       given full weight

4.    The Reasons need not contain analytical justifications (reasons)

(The above discourse on Inquisitional versus Adversarial procedures has some relevance to the Professional Services Review [PSR] process and the subsequent Federal Court hearing [see Pathology]. The PSR Hearing was clearly Inquisitional. Having inquired, and formulated the Findings, these would be the bases for Charges to be prepared and listed in a Notice for a subsequent Adversarial Hearing before new and impartial judges, and allowing appropriate time for the defendant to prepare a defence. The Adversarial phase did not occur. Subsequent appeal to the Federal Court was based upon finding fault with the Inquisition phase alone; the lawyers I paid for were acting for the other side. They could hardly have been ignorant of the distinctions. Tricky and inappropriate use of the Inquisition process through the ages seem stock-in-trade  for bureaucrats wanting to eliminate a perceived nuisance. For this, Minter Ellison has acquired considerable expertise in organizing [by invitation] such deceptions both Federally and in Victoria and, no doubt, is sought-after for this skill.)

b)      The Hearing (Paragraphs 18-21, p 7) concluded on 22/5/2006, with Counsel for the Board lodging its Submission on 9/6/2006. The Orders and Reason were brought down on 25/8/2006. I suggest that the narrow time-frame was too short to expect a fully and comprehensively researched “Reasons” dealing thoroughly with the legal interpretations, the scientific and medical issues, and procedure. No reason for this short processing and the omission of reference to much that was in dispute was provided. The VCAT (Paragraph 19, p 7) referred to “Associate Professor Roger MacManus” and “Professor Scarlett.” There was no-one by the name of Roger involved, and Dr Scarlett was never presented as a Professor. There was no reason presented as to why many of the witnesses and documents Summoned by the Applicant (me) did not turn up, in particular, the President of the Board (in particular, for cross examination).

      Legal Precedents for future Professional disciplinary Hearings before the VCAT

      5.    A concise analysis of evidence and law is not required

      6.    The VCAT can excuse, without debate and reasons, Summoned witnesses and evidence

c)      The Patients. (Paragraphs 22-28, p 7-8). The history for Ms SO is what the Board wanted – that she “had difficulty coping with the chemotherapy” instead of “she alleged unacceptable side effects” and that she received “one incomplete whole body hyperthermia treatment” instead of “she experienced a trial of hyperthermia at her request inadequate for treatment.” No reasons were given as to why the former versions should be presented as fact. The complainant to the Board for Ms SO was Associate Professor GG, his complaint arriving to the MPB before the complaint to the Health Services Commissioner had been processed. The history for Ms ST is memorable. After the lumpectomy and irradiation in 1997, “She also had further surgery in November 2000 and developed a skin lesion around the site of the surgical scar . . . she was treated by Dr Traill . . . from 22 January to 9 February 2001 . . .” “Ms ST’s cancer recurred in March 2001 and she had further surgery and recommenced chemotherapy treatment.” The VCAT Panel, in its paraphrasing of the Board’s Reasons, which had Ms ST’s history completely screwed-up (as pointed out in the Affidavit 15/2/2006), has fudged the account. She had a biopsy early November 2000, and a “subcutaneous mastectomy” late November 2000 (the glandular breast being reported as having no malignancy; the skin had metastases - recurrence). The table and letter below makes the date sequence clear. Note the suggestion for "adjuvant" therapy.

 

                                    Historical Summaries on Patient Ms ST

According to:

 

  File Documents                          Panel 2005 (p. 18)                       VCAT 2006 (p. 25-6)

1996-7: Diagnosis, Chemo., Lumpectomy, Chemo., DXRT

1996: Diagnosis.

1997: Chemo.,

Lumpectomy, Chemo., DXRT

1996: Diagnosis.

1997: Chemo., Lumpectomy, DXRT

November 2000: Skin biopsy (malignant = recurrence) è “Subcutaneous mastectomy” (breast benign, skin malignant)

November 2000: “recurrence è surgery”

November 2000: “Surgery,” “and developed skin lesion around site of surgical scar.” Chemo. recommended

December 2000: Chemo. DXRT, & “Adjunctive” treatments advised. Consult with Dr Traill

?December 2000: Chemo. advised.

Consult with Dr Traill

 

January-February 2001: Oncocare. Reported skin lesion, “?Secondary”  noted.

January-February 2001: Consult (with Dr Traill?)

Aware of skin lesion

January-February 2001: Oncocare

March 2001: Biopsy (malignant)

March 2001: Biopsy (malignant). Radical mastectomy è Chemo.

March 2001: “Recurred.” “further surgery,” recommended Chemo.”

April 2001: To Germany for Chemo. With WBHT

April 2001: To Germany for Chemo. with WBHT

April 2001: To Germany for Chemo. With WBHT

DXRT= Deep X-ray Therapy; WBHT= Whole body hyperthermia; Oncocare was the name of Dr Traill's Clinic

 

Letter from Surgeon who performed the "Subcutaneous Mastectomy" (Optical character recognition copy)

 

   She declined further chemotherapy and radiotherapy and saw me in December 2000, and came for the UHF/hyperthermia treatments in January 2001. She was diagnosed by me as having a (probable) further metastasis in the skin (advised to “wait and see.”) She developed more lesions (as expected), and one was biopsied under/by her usual therapists in Tasmania early March 2001, with no chemotherapy in Tasmania, but went to Germany for hyperthermia and chemotherapy in April. Note the fudging – The VCAT Panel has not mentioned the mastectomy specifically, referring to “surgery,” leaving interpretations open for November 2000 or March 2001 ! I used the screwed-up account of the history to criticize (15/2/2006) the Board’s Panel of 2005, considering the Panel incapable of make any valid Reasons on this patient.  In order to continue to accept the Board’s Panel of 2005’s Reasons, the VCAT Panel has fudged the history in a way to try to conceal the confusion. This marks the VCAT Panel as biased, and also incapable of making a valid judgment.

The History of the child Master TU is also defective. “Dr Downie recommended palliative chemotherapy and radiotherapy. However, the treatment did not proceed, and he was taken instead to Sydney for surgery. When he returned, a further CT scan arranged by Dr Downie revealed that the surgery had not been successful. Dr Downie planned to review him with a MRI scan of the head and spine in mid-August 2001, and to prepare a palliative treatment plan. However, Master TU’s parents informed Dr Downie that they were considering alternative treatment.” When Master TU was at the Children’s Hospital he was under Associate Professor DD, but was usually seen by Dr Downie. Master TU had an MRI 23/7/2001 and again 15/8/2001. The parent’s consideration of Holt’s treatment in Perth was recorded by the Hospital. Whilst under Associate Professor DD Master TU received a course of Deep X-ray therapy that generally made him worse (ie close to barbaric). It was following this, whilst awaiting a review MRI, he was brought to me – the parents considering that the Hospital was not doing enough that was active. The parents (with an extended family) declined overtures from the hospital’s palliative care team. He left me on 31/10/2001. Only a review MRI was done by the hospital on 13/11/2001 – nothing else planned or organized. Again, there are significant discrepancies in accounts, which have the effect of fudging the significance of events. In particular, the radiotherapy that was administered by the Peter MacCallum Cancer Institute is consistently omitted !

The interested observer would have to be concerned that any Panel could come to correct conclusions when the histories on which judgments are made are all screwed-up and favour adverse interpretations (bias). No reasons have been provided to explain why the histories have been presented incorrectly, nor why the accounts have not been corrected after I pointed out errors, and why the conclusions drawn from them should be accepted contrary to my objections.

      Legal Precedents for future Professional disciplinary Hearings before the VCAT

      7.    Views on disputed accounts of events shall be those presented by or for the prosecution

      8.    When the prosecution evidence contains discrepancies, the accounts shall be modified

             or fudged to favour the prosecution account, that being presented without reasons

      9.    Evidence or objections by or for the defendant shall carry little, if any, weight

 

d)  The Treatments. (Paragraphs 29-38, p 8 – 10). The VCAT Panel glosses over the forms of hyperthermia, noting that “detailed thermometry (through the use of implanted temperature sensors or surface sensors is required to ensure that the required temperature is achieved.” Every time this issue was raised, I noted that it was impossible to perform reliable thermometry on air-interface superficial hyperthermia, quoting van der Zee (a world authority). David Spall also confirmed this. The Panel makes no reference to van der Zee, and gives no reasons for disregarding her opinions. The superficial hyperthermia receives only passing mention (para. 30), noting that it was provided to Ms ST. Then there is a jump “In this case, Dr Traill provided (or attempted to provide) one session of whole body hyperthermia to Ms SO. I argued that the whole body hyperthermia was planned as adjunctive treatment for the planned cytotoxic chemotherapy, but that the cytotoxic chemotherapy was withheld at the last moment on the patient’s insistence (despite protest from me) and that she was allowed to continue warming for a short time until she insisted that she get out. I presented that the temperature reached was not adequate for treatment, that no-one has claimed that it was adequate for treatment, and no bill was raised. Despite this, the Panel hedges as to whether treatment was provided or not (at this point of the Reasons – see Para. 39, p.10, to be dealt-with later). There have been presented no reasons.

In discussing the UHF 434 MHz, the VCAT Panel starts by noting that Holt believed that with the UHF: “Dr Holt hypothesized that the action of UHF cancer therapy was not thermal, but, rather, that there was a specific radio-sensitizing effect of UHF.” The Panel refers to the NH&MRC 2005 report (p. 2). The reference is of an introductory segment presented under the heading “Terms of Reference 1 - - Proposed mechanism of action.” Noting “. . .there are currently no high quality published animal or human data to support this hypothesis.” The possible radiosensitizing effect of the UHF is not relevant here. The Panel has given no reasons why radiosensitization should be considered relevant.

The Panel then notes the NH&MRC Review of 1974-5, which found that the delivery of heat with the Tronado machine was inadequate to be cancericidal (in itself). The Panel does not note the conflict between Holt’s athermal effect and the thermal assessments by the NH&MRC Review of 1974-5. The Panel, likewise, does not note that Dr Holt and (the late) Alan Nelson, and Herr Guertner (German the salesman) all reported a resonance effect, and that this was dismissed by the Review of 1974-5, based on defective scientific advice.

Quoting from the 2005 NH&MRC Review (para. 37, from p. 106 of the Review), the Panel presents the concluding paragraph, which makes no mention of the GBA, being only concerned with the comparison between radiotherapy with or without the UHF 434 MHz.! I dealt with this for the Panel earlier. The paragraph is irrelevant.

The Panel then goes on to quote the Conclusion (p. 7) regarding effectiveness, claiming “. . .no published scientific evidence or clinical data currently available to the review Committee that supports the effectiveness of UHF either alone or in combination with RT or GBA treatment for cancer in humans.” This was a statement of the Committee’s pre-study assessment, not of the post-study conclusion. There follows specific conclusions :

i.         “. . no high-quality published scientific evidence which shows benefit . .” (The literature review, which missed Herbert Fröhlich’s work ) Inadequate

ii.       UHF in combination with RT. . .Irrelevant

iii.      . . .RT alone or RT+UHF. . .Irrelevant

iv.     UHF+GBA was inferior to RT. . .Irrelevant – the current application was for patients with incurable diseases where Radiotherapy is not an option to be undertaken lightly, is contraindicated, declined by patient’s choice, or carries significant risks (eg retreatment).

v.       There is insufficient information. . . UHF in combination with GBA. . .” That is because the Committee failed to include a control negative group ! The study was fundamentally flawed. There was no attempt to assess the control negative figures from literature or other sources (refer to Professor Fox’s “guestimates.” For a “benchmark.”)

vi.     RT alone versus UHF+RT (irrelevant) or UHF+GBA for symptom control rates with bladder cancer. The UHF+GBA, in current context, was, as for d) above, intended for those for whom RT is not a favoured option.

vii.    UHF+GBA had a lower rate of toxicity. Relevant, but of little importance without knowledge of the effects upon growth of tumours.

The Committee’s Review specifies little that is relevant and useful.

Despite me having written copiously on the subject, the VCAT Panel has  provided no reasons for disregarding the situations of the patients treated by me – incurable cancer patients where other forms of treatments (cytotoxic chemotherapy &/or Radiotherapy) are either declined, or carry significant risks and/or morbidity. The VCAT Panel has skirted the issues without reasons

e)   Dr Traill’s case (Para 39, p. 10) (“Case” instead of “Defence” in order to maintain the inquisitorial charade.)

The VCAT Panel noted that I had “allowed an experience in heating as a trial,” without noting that the reason was to “stay on side” with the hope that I would be able to persuade her to have cytotoxic chemotherapy +/- hyperthermia at a later date. No reason has been presented for omitting this. The hope of obtaining her future cooperation was dashed when she could not tolerate the heat (in the context of a fraud, she did not need to tolerate it, merely to have the session started !).

The hypothesis that I developed to explain the resonance effects reported by Holt grew from about the end of 2000. It was not a sudden brainwave in 2004. To develop the hypothesis required a lot of reading, and this took a lot of time, and quite an expense. (See the references.) The photographs (pleural) of the resonance effect that have been produced by Holt, together with his and David Spall’s reports provided the initial interest in, and justification for the treatment. As related in my Submission to the Microwave Inquiry under the NH&MRC in 2004, the “gold standard” for proof – the double blind controlled trial (the impossible dream) had been made quite impossible for everyone following on from the NH&MRC Review in 1974-5. To attempt such a daunting task in the private sector without substantial funding was, in my view, virtually impossible and would, even in the event of funding, take years*. Given these circumstances, I set out to find surrogate evidence that the UHF 434 MHz had effects, probably favourable, given Dr Holt and Nelson’s experience. All of this has been omitted by the VCAT Panel. There is little evidence that the Panel read my Submission to the Review. Evidence that the UHF 434 MHZ has some affect can be itemized :

a)      Careful analysis of the photographs. These form the fundamental basis – to ignore or disparage these is to miss the point

b)      Conclusions drawn from analysis of the Hornbeck study (limited)

c)      The changes shown by tumour markers

d)      The malignant hypercalcaemia which seemed to be precipitated

e)      The changes in serum and urine uric acid

f)        The changes in the urine calcium

One must wonder how these studies could be ignored by the VCAT Panel. No reason has been provided for this omission.

*The AIDS epidemic, as with other epidemics such as Polio, forced changes to the level of “proof” required for acceptance in clinical practice. This issue was not argued before the VCAT Panel, because the evidence seemed adequate anyway – wrong ! Recent renewed interest in the potential usefulness of Vitamin C treatments has questioned the strict application of the double blind controlled trial. (Padayatty SJ et al. CMAJ 2006; 174(7):937-941, Assouline S & Miller WH 2006, CMAJ, 2006; 174(7):956-957, Hoffer LJ. CMAJ 2003; 168:180-2.) “Many treatments are still used if there is moderately good, albeit inconclusive evidence of efficacy (“clinical plausibility”), especially when treatment rationale agrees with biologic facts (conferring “biological plausibility”). Without the scientific theoretical basis provided by Fröhlich, the “plausibility factor was weak. With this basis, the spectral patterns of Holt make sense and justify the conclusion that fundamental events happen to cancer cells when under powerful UHF 434 MHz, and these are unlikely to improve tumour growth.

Caution must be applied in “proving” any treatment (or hypothesis). The VCAT Panel, instead of seeking an onus of proof from the Board, looked for “proven” treatment results which, in the adverse and defence setting, could not be put forward. The NH&MRC Review of 1974-5 was clearly flawed, but these defects seemed not to be appreciated by the Panel. I had explained why the flawed NH&MRC Review of 1974-5 had killed further clinical or laboratory studies, yet this reason has not been mentioned. The VCAT Panel then observes “. . . the 2005 NHMRC Report unequivocally concluded that there is no evidence that the treatment, either alone or in combination with GBA, has significant activity against human cancer.” (MAT’s emphasis.) This is a false claim. The UHF alone was never assessed, and the UHF+GBA lacked a control negative group. As presented within the Review, the findings and the conclusions there-from are next to meaningless (but can have meaning if external information is provided). Since the NH&MRC Committee must have omitted the control negative group at the planning stage, hardly by oversight or forgetfulness, there are likely to be two simple motives – to please the Government in order to save on Medicare payments, but also to deny me the evidence to support the treatment – to rig the Hearings. This Review then, is a form of scientific fraud, for which the NH&MRC should be ashamed. In the circumstances, the NH&MRC had not unequivocally concluded that there was no evidence to support the treatment – there had been an egregious failure to look. (The Committee then presents some footnotes quoting some of Holt’s beliefs regarding the likelihood of “benefit” when there is a) “active” disease, b) when there had been prior platin therapy, and c) for tumours >2 cm in diameter. The full source of these “philosophies” has not been presented, (and I have dealt with some of these in an earlier Submission) but in a patient information sheet by Holt [undated] there is a heading “Specific Contraindications to Treatment” which presents his views that cytotoxic chemotherapies are “. . . non-specific cell poisons.”  The only relevant specific comment is “They may make normal cells more conductive to electricity so that there is little electrical difference between cancer cells and normal cells, and then UHF no longer only acts on cancer cells.” The NH&MRC states that Holt views are ‘advised,’ and that ‘Previous chemotherapy is not necessarily a contra-indication, however there is a perception in some patients (“a philosophy”) that previous adverse experience with chemotherapy may also be experienced with radiowave therapy.’ (Hardly definite.) Holt seems to have believed that the UHF treatment could result in ‘cures’ and, accordingly, his strictures would seem to apply to the potential for a ‘cure.’ His evidence regarding the prior use of cytotoxic chemotherapy is supplied in the attached letter extract (Personal communication, irrelevant portions excluded) :

 

Letter from Dr Holt 21/2/2001 (Optical character recognition scanning)

9. I can't see how a block on mitosis does stop tumour growth. What are you trying to stop? The only way of stopping cancer growing is to get rid of its energy system so that it never starts. What I am doing is the equivalent of putting sugar in the petrol of your vehicle so that there is no energy entering or coming out of your engine. Merely to block mitosis is like putting a potato in the exhaust pipe. The evidence of tumour destruction merely lies in the survival of the patients with disappearance of their malignancies. There are no additional factors to consider apart from the alteration in the insulation of the normal cell compared with the destruction of the insulation that most of the cytotoxic chemotherapeutic agents create. I have given up treating patients who have had too much cytotoxic chemotherapy and also less inclined to treat patients who have tumours bigger than 4 or 5 cm in diameter. However some of these respond and some don't and I am prepared to treat anybody who wants a trial. I am enclosing a copy of Medical Hypotheses publication in January 1979. This shows in Figure 17 the proof that within a closed bony cavity 434 MHz microwave therapy as an isolated method will selectively coagulate at certain dosages the extranuclear cell constituents of breast and prostate cancer cells without coagulating the nucleus. This indicates the site of action of microwaves on cancer which is the electrically conductive ENCC area which contains the electrical system of exponential energy generation. The nucleus is not electrically conductive. After the use of cytotoxic chemotherapy I only treated two people with a similar method to that picture in the Medical Hypotheses 1979 article and in neither case was there any difference between the nuclear material and the cell. This is the basis of my conclusion that cytotoxic chemotherapy designed against the genetic material alters its electrical conductivity from insulator to electrically sensitive.

If you have an excellent clinical response it is usually accompanied with an acute reaction which with tumours in bone may be extraordinarily painful for four or five days and has all the classic clinical criteria of acute inflammation. This settles down and this reaction usually forecasts a good result clinically.

My attitude to cancer of course is biased by my post-surgical experience of six years training in radiotherapy. The response of cancer to radiation therapy can only be judged when the exponential kill is appreciated. Since cancer grows exponential and x-ray therapy uniquely kills exponentially the target in the cancer cell is that of radiotherapy.

In other words unique exponential growth is targeted by unique exponential x-ray kill. Therefore the ERex system MUST BE the target system of ionising radiation. Since ERex is a dynamo it must be in an insulated box. X-rays "ionise" the insulation to make the box conductive. The simile is that whilst your car engine is charging your battery you don't squirt the hose pipe flow through the dynamo to short circuit it!

This is why one can treat cancer with a machine delivering x-rays using a constant daily dose and obtain a result. You are in a city where the world's greatest radiobiologist, Henri van den Brenk did a lot of his preliminary biochemistry and radiochemistry. He was removed from the Peter MacCallum Clinic because of his liberal views on medicine, similar to mine, and as far as I am able to ascertain there are no radiotherapists available today who understand that radiotherapy and microwave therapy, because both hit the same target, are quite unique. You cannot treat patients in the same way with either agent just as you can titrate the dose of insulin required to keep diabetes under control.

Best wishes. Yours sincerely

(Signed) John

JAGH.NH

21/2/2001

            Holt seems to have been describing infarction of tumour within the medullary cavity of bones.

 

The reported and alleged contraindication for prior cytotoxic chemotherapy would seem a flimsy reason for excluding the use of the treatment in the palliative care setting, when ‘cure’ is not an issue. He does not claim that the UHF+GBA has no beneficial effect in those who have had prior cytotoxic chemotherapy, or who have ‘active disease’ [undefined] or are larger than 2 cm diameter. Since ‘active disease’ would seem to cover ‘progressive disease’ from which the bulk of the patients suffered, this stricture, if believable, would seem to exclude most patients ! More likely, it was an explanation for patients to provide for the distinct possibility that a ‘cure’ has not been obtained. 

This is all ‘armchair’ criticism, removed from the real situation where changes were observed consistent with beneficial effect: like arguing that the earth is the centre of the heavens because the sun rises and sets each day around the earth.

The VCAT Panel’s claim that “He agreed that he did not tell any of the three patients that his treatment differed from that delivered by Dr Holt nor that there was no scientific literature to support the use of the treatment” is presented without specific references (transcript or otherwise), and is denied.

Reference is then to the NH&MRC Table 44 (p.100), “. . . that there was some benefit. . .” This was stated without elaboration.

Regarding the treatment of Ms ST, “. . . Dr Holt had not treated patients of this kind. . .” is a claim of doubtful standing and news to me.

Regarding the GBA administration, in the context of being regarded as a primer for the cytotoxic effects of the UHF, it could be regarded as cytotoxic chemotherapy. Historically, this view was probably part of the trade-off in the 1980s, when a procedural item number for the UHF treatment was deleted – partial cover for the cost of the GBA (which is not minor) could be reclaimed under the cytotoxic chemotherapy infusion item. I was led to believe from Holt (personal, verbal) that his use of the number topped the Western Australian figures: his use of it since ~1991 to 2005 would hardly have passed unnoticed by the bureaucrats. The precedence had been well established. The rigging of the NH&MRC Review for political and other nefarious means may then be appreciated.

Moving to the use of Lithium (Para. 48), the VCAT Panel claimed that I had “. .  relied on two scientific articles. . .”  There were more listed, but those referred-to seemed adequate for this mind-blowing pursuit of trivia. (We now know that the Lithium issue was pursued in order to exteriorize the legally protected [but falsified] Proceedings [Minutes] of an Informal Hearing by the Board. These Proceedings were admitted by and influenced the MPB Panel of 2005, but were allowed to be withdrawn from the VCAT Panel after sustained protest by me.)  The Panel then presents its own “scientific” view without reference “. . . concerning clinical trials for patients with small cell lung cancer not having conventional chemotherapy which showed a survival advantage for patients taking Lithium.” (MAT’s emphasis.) This derogatory view fails to point out that the patients received (initially at least) the CAV protocol, which was the “gold standard” (conventional) at the time and, since the study and control groups received the same treatments with CAV, statistically, the study was valid to test the hypothesis that Lithium may be of benefit (for whatever reason). The VCAT Panel has not provided valid reasons for deriding the published results.

In addressing the advice given to patients (Para. 49), the VCAT Panel swept all logic to the wind “He (MAT) said that Ms SO and Associate Professor McManus were liars and their evidence in relation to this allegation should be given no weight by the Tribunal (the VCAT Panel).” The term(s) “liar, liars, lies” were, to my knowledge, never used by me – I made a particular point of using the more objective term “false and/or misleading statement,” which does not impute character. The Panel has here introduced bias and, by naming, may have breached Section 58(a) of the Medical Practice Act 1994 (as amended in early 2002, probably to be relevant for this specific matter !).

Legal Precedents for future Professional disciplinary Hearings before the VCAT

10. The Board's Panel and the VCAT Panel can flout the Medical Practice Act of 1994.

The Panel has given no reasons as to why the statements and evidence arising from the collusion between Ms SO and Associate Professor GG should be given full weight. The Panel has given no reasons as to why the evidence from others, providing support for the contention that there were false and misleading statements form the partnership, should be disregarded :

 

  Witness                Type                                                       Degree of Weight*

MAT

Affidavit (Sworn), written & oral under Oath, Cross examined

High

Nurse F

Affidavit (Affirmation) and oral under Oath, Cross examined

High

Generally in accord

David Spall

Affidavit (Sworn) no oral Testimony because in China

High

Generally in accord

Ms SO

Written statements (un-sworn) under suspicious circumstances (collusion)

Low

A litigant. Inconsistencies

GG

Written statement and Affidavit (Sworn) re.:

a)      Hearsay from SO (collusion)

b)      ‘Phone conversation with MAT (conflict)

Low

A prosecuting complainant

Inconsistencies

Ms ST

Affidavit (Sworn), oral Testimony and Cross examined (many inconsistencies)

Low

Inconsistencies

Should be assessed for perjury

*The level of Weight that should be given based upon the consistency and reliability of hearsay evidence gathered in the circumstances concerned.

 

There seems plenty of scope for reasons – but none is provided.

There is a reference to an unspecified X-ray with a comment which is meaningless in context.

Again (Para. 50), having noted that I claimed that Ms ST’s accounts were “. . . false and misleading throughout,” there is no elaboration and no reason given as to why her evidence should be given greater weight than the clinic personnel, nor why her evidence should carry any weight.

Like a shag on a rock (Para. 52) the VCAT Panel quotes a conclusion from my written Submission (p. 75) without comment and, naturally, no reasons.

The VCAT Panel goes on (Para. 53) to refer to my claims that the “experts” were not (generally) relevant experts and of bias etc. These a bald statements, presented in an abstract and unreasoned form. There has been no reason presented as to why these comments were made, nor why they should be disregarded or given no weight.

Finally (Para. 54), the Panel recognized that I had observed that there had been no proof provided by the Board. This is presented without comment, as is the argument that the penalties imposed by the (de facto Panel of the) Board was excessive. There are no reasons.

6/   Findings and reasons  (p. 14, Para. 55)

      Are the treatments proven treatments for the conditions of the patients ?

            The VCAT Panel, for the most part, put full weight upon the evidence provided those it chose to call “experts.” The reader may note that the VCAT Panel does not examine the status of the “experts,” despite my claims that none was a relevant expert with respect to the specific treatments. Whole body hyperthermia treatment was not administered to any of the patients and is irrelevant, but was lumped together with the UHF 434 MHz for sweeping generalization. As far as I am aware, Whole Body Hyperthermia (monotherapy), if administered at or very near 41.8oC is a “proven treatment,” but rarely done (except in China) because of the technical and manpower difficulties. I never attempted to apply such temperatures because I did not have the technical support. Whole Body Hyperthermia monotherapy could not be done by me and I never promoted it.

            The UHF 434 MHz is not “proven treatment” in the strict and currently applied sense of having had a double blind controlled trial. It had (according to Dr Holt) a history of 10,000 patients over 10 years, meaning that safety aspects were well tried and tested. Based upon the double blind controlled trial, efficacy would be in question, but the “biological plausibility” (see earlier) was achieved when the spectral pattern and the likely mode of action were considered.

            Neither I nor any of the “experts” considered that the heating monotherapy session for Ms SO was therapy. Ms SO was to have the planned cytotoxic chemotherapy augmented by whole body hyperthermia. She refused the cytotoxic chemotherapy and requested and insisted that the heating to continue. There was no “. . . time of the treatment.” because there was no (specific) treatment. Her insistence on continuing the heating was interpreted by the VCAT Panel, following on from the Board’s Panel, as my giving “. . . an implied recommendation.” – but for what ? I lacked the technical support to reach therapeutic temperature levels. I allowed it in order that her confidence in me may be maintained and that a repeat attempt for cytotoxic chemotherapy plus hyperthermia may be attempted in the future; to “keep the peace.” That is not a recommendation, implied or otherwise. It was a “trial run.” (We now know that it was the initial key engagement sought by the patient in the set-up for fraud – see The Dark Side. That both Panels pursued the similar paths in agreeing with the allegations of Ms SO & GG would seem to indicate an underlying plan.). I did not deny that “. . . this constituted whole body hyperthermia.” It was hyperthermia (warming) to a degree that could not have any direct, specific therapeutic value for the cancer. The VCAT Panel now makes its own discovery: “. . . the fact that there was no thermometry to measure the temperature reached, we accept the conclusion of Professor Peters that the treatment was ineffectual and of no benefit to Ms SO.” (MAT’s emphasis.) Thermometry was performed; she had a rectal thermometer for “core” temperature readings, confirming the inadequate temperature of 38.3oC, and the graph was in the documentation (RB. 13, TRA.001.0034.) (see below).

           

           Printout of the rectal (core) temperature of patient Ms SO

          

           As can be seen, the temperature rose to 38.3+oC only, insufficient to have any therapeutic action. She demanded that the heating be stopped and the session ceased, so that there was no holding of the temperature attained. The "Max. temperature" seems to have rounded the reading to the higher 0.1oC.

So, why should ineffective heating (with respect to specific cancer effects), be regarded as “treatment” when no-one (including me), apart from the Panels, considered it to have had any role as a cancer treatment, and no bill was raised ? The Panels made false findings and were biased.

Professor Peters is presented as an eminent expert. (Para. 57) (See my discourse on Professor Peters).  Whilst he may hold an eminent position as an expert in radiotherapy (particularly of the head and neck), he could not be regarded as an “expert” in the fields of  UHF 434 MHz and hyperthermia. His specific comments are never quoted.

Scientific proof,” in the strict sense, is impossible. There are two major issues :

a)      Safety. The UHF 434 MHz +/- GBA had been used in clinical practice in Australia since 1974. Its safety profile has been well established by Holt and Nelson (and others). The use of further clinical trials on this issue would not seem imperative. This safety aspect would, one would imagine, be the major concern for Medical Boards

b)      b)  Efficacy. The “gold standard” of a double blind clinical trail has, with the exception of Hornback’s study (UHF 434 MHz + RT), not been done, because of the lasting effects of the negative and flawed findings of the NH&MRC Review in 1974-5. As has been reported in my Submission to the Microwave Inquiry, surrogate evidence must be sought to build up the “clinical plausibility” in lieu of the double blind controlled trial. To a considerable degree, clinical plausibility has been achieved, but ignored. Professor peters was unable to comment in a learned way about Holt’s spectral patterns, which form the foundation of the scientific assessment, just as the photographic plate fogging formed the foundation for Röntgen and Becquerel. (The latter two discoveries differed from Holt’s in that they occurred in the laboratory, allowing the laboratory developments to move into the clinic after time. In Holt’s case, the discovery was in the clinic, in actual practice !)

By removing the onus of proof, the Panels have been free to demand definitive proofs in “my defence”, which are simply not possible (see above): this is rigging.

The Review data by the NH&MRC 2005 (Para. 59) was likewise dismissed as “. . . meaningless because they had not been obtained as part of randomized clinical trial*,” (*Probably a double blind controlled trial.) No specific quotes are provided, the conclusion being of a “sweeping negative” type. Once again, the Panel expects “the impossible dream,” and is not prepared to consider “clinical plausibility.” My early use of the UHF 434 MHz was based upon the clinical plausibility” as I saw it then, and strengthened over time. The NH&MRC report, whilst not definitive for the critical sceptics, is, nevertheless “meaningful” given the right background information (for instance, the probability of obtaining complete and partial remissions in incurable cancer patients). The results merely strengthen the “clinical plausibility,” and should have been regarded as relevant information by the Panels. The Panel has provided no detailed reasons, and no specific quotations.

Turning to my views (Para. 60) the VCAT Panel states “We note that Dr Traill produced no coherent or scientifically rational explanation as to how the treatment in fact works, beyond his expression of an untested hypothesis and production of photographs said to demonstratethe resonance phenomenon.” This would seem to exemplify the comment I made in 1/ General concepts (above) when I wrote of bias in judicial bodies being easy, by apparent cognitive or sensory loss ! Again, this paragraph is of a “sweeping negative” type, lean on specifics. Perhaps, dear reader, you may wish to read my Submission to the NH&MRC Microwave Review 2005 (with Addenda) and consider for yourselves if there is “. . . no scientifically rational explanation.”  What is a “. . . compelling scientific hypothesis. . .” ? What would be needed for an hypothesis “. . . to be tested and validated according to the usual scientific principles before the treatment expounded therein could be administered to patients in a routine setting.” Isn’t the course of events reversed ? – the treatment, in one form or another, has already been in clinical use for some 30 years. Is it not time to present a scientific and rational hypothesis to provide an explanation for it ? Radiotherapy had been in use for over about 100 years, yet there is still not complete understanding of how it works ! Isn’t an hypothesis a “scientifically rational explanation” ? Clearly, the Panel did not want to hear, read or understand the hypothesis, a scientific explanation ! The Panel has given no specific reasons to find fault in the hypothesis and why it should not be relevant. See also Hyperthermia, Lithium and 434 MHz UHF.

All of the Board’s “expert” witnesses were biased, and Professor Fox was clearly not conversant in the UHF 434 MHz treatment (other than having heard of it). There have been presented no reasons or specific quotations as to why the “expert evidence” should carry “weight” and the treatment “. . . is of no proven benefit.” Nothing “. . . can take the matter any further.” Both “Professor Peters and Associate professor MacManus” were from the Peter MacCallum Cancer Institute, and clearly biased. None was an expert in biophysics, such as to be able to comment as relevant experts upon my hypothesis (I am not aware of any specific comment upon my hypothesis and the surrounding documentation). MacManus had twice applied inappropriate radiotherapy, Professor Peters was his senior, and the Peter MacCallum Cancer Institute had been involved in the (near barbaric) radiation treatment of Master TU.

The weight of the expert evidence . . .” (Para. 62) decreed that the 434 MHz treatment was, by armchair appraisal, either inappropriate &/or of no benefit. No specific quotation or reasons are provided. The Panel then diverts to a footnote (20). Before the Board’s Panel 2005, Ms SO was presented as having a 20% chance of a ‘cure’ by Associate Professor MacManus (who was later directly involved in her management - biased), at the time I saw her in late September - early October 2000. This was based retrospectively upon the imaging in September. This issue/claim was then dropped from the Particulars for the VCAT hearing, meaning that she was, in fact, accepted as incurable at the time ! Here the ‘cure’ has returned ! This needs to be contrasted with the opinions of Professor Fox that, a) based again upon the CT imaging, she had  a 15% chance of a ‘cure’ and b) on her disappointing response to the first course of cytotoxic chemotherapy (as assessed by X-ray studies), she had a small chance of a ‘cure.’ Whilst her response to the cytotoxic chemotherapy was less than impressive, she, nevertheless could, if she had chosen to continue the course, obtain a “total remission.” The Panel seems to presume that a total remission is the same as a ‘cure.’ Sadly, it is not. Many patients with seemingly gratifying complete/total remissions subsequently develop further metastases. Accordingly, Professor Fox’s agreement that further cycles of “. . . chemotherapy might have put her in the category of patients with a good prospect of total remission” did not mean she could expect a ‘cure.’ She was still incurable, and no sound reason has been provided to conclude otherwise.

After the VCAT Panel disregarded my Submission to the NH&MRC Review with my examination of surrogate testing, without specific reasons, it naturally disregarded the evidence obtained from the patients (when possible) involved in the Hearing, again without specific reasons.  One would hardly be able to prove any form of treatment on three patients.

Dr Roslyn Drummond (Para. 64) was an expert in radiotherapy, not in hyperthermia nor biophysics. There are centres which do use hyperthermia apparently routinely for breast cancer. Some of the publications were quoted by me. In that protocols and equipment change, the definitive protocols are not set firmly. The use of the words “experimental only,” with a pejorative connotation, has been dealt-with earlier in 2/ Pejorative terms (see earlier). Her address related to nodular cancer recurrences treated with combined radiotherapy and hyperthermia – irrelevant. She did not deal with superficial hyperthermia. Again the issue of thermometry was raised, but no details were provided as to how to do this with air interface superficial hyperthermia. Accordingly, her evidence on these aspects was largely irrelevant. Her comments that “. . . failure to treat the deeper tumour would lead to further local recurrences. ." showed that she had the history of Ms ST as badly screwed-up as the Panels ! No reasons were provided as to why her evidence on this issue should be considered relevant.

Professor Peters continued the monitoring argument, again being unable to state a) how thermometry could be applied to air interface superficial hyperthermia, b) what was unacceptable with the review and protocol provided by van der Zee and c) why superficial hyperthermia should be regarded as being definitely ineffective in the absence of thermometry. He could not comment upon the histopathological changes, before and after and could not provide specifics as to why the photomicrographs should be considered “. . . meaningless as an indicator of clinical benefit.” He simply did not want them to be meaningful !

 

                                       Photomicrographs - before and after treatment

 

Ms ST:  Biopsies: Top 00-289994 (Nov. 2000): Bottom 01-294967 (Mar. 2001) Both photomicrographs were taken at the same high power magnification. The differences in staining are probably not relevant. The top, pre-treatment picture shows no clear differentiation, large nuclei with prominent nucleoli and an occasional degenerating nucleus (upper, mid). The lower, post treatment picture shows possibly a mild degree of differentiation, smaller nuclei (to about 65% of earlier length), more nuclear crowding and an increase in degenerating apoptotic nuclei (vertical arrows). Logic dictates that, with smaller nuclei that are more packed, indicate a smaller, less "active" tumour. (The significance of the differentiation is unclear; the combination of hyperthermia and UHF may have effects different from UHF alone in the longer term.)

           

           

 

The footnote (22) lists the requirements considered necessary by the Position Paper for Radiotherapists, which only fleetingly mentions superficial hyperthermia at the introduction. The Paper was intended for Radiotherapists using combined RT + HT for nodular tumours (not superficial). Accordingly, it is irrelevant, and was produced well after the events under scrutiny. The VCAT Panel has given no reason for listing and being influenced by it.

Without specific reasons, the VCAT Panel (Para. 68) “. . . prefer the evidence of Professor Peters and Dr Drummond to that of Dr Traill . . . that superficial local hyperthermia alone . . . was not a proven treatment in the treatment of Ms ST’s condition, and could not have been of benefit . . .” (MAT’s emphasis.) Note the shift of the onus of proof and the armchair, theoretical criticism. There should be some authorities around the world who disagree with this conclusion. (Actually, the hyperthermia was not alone; it was associated with the UHF 434 MHz.)

Did Ms SO and Ms ST give informed consent to the treatments ?  (p. 17; Para. 69) (The two documents – the Deed of Acknowledgement, Informed Consent and Indemnity, and the Addendum to the Informed Consent, Understanding and Indemnity shall be referred-to as “Consent Forms,” and they may be examined  under the heading "Consent Forms.

      The allegations were :

a)      (Ms SO) “You failed to provide your patient with adequate information to obtain her informed consent to the treatment, including your failure to advise her that her withdrawal from the planned chemotherapy cycles would adversely affect her health and prognosis and that the most efficacious treatment for her was cytotoxic chemotherapy and thoracic irradiation.”

b)      (Ms ST) “You failed to provide the patient with adequate information to obtain her informed consent to the treatment.”

The VCAT Panel starts (Para. 70) “Dr Traill relied on the terms of two documents executed by . . . .” The Panel is vague about the way in which I “. . relied . .” on these documents. (These documents can be examined in my website under “Consent Forms.”) The Paragraph 1.2 simply lists, in order to make aware to patients, that there are other standard forms of treatment available (informative). Paragraph 1.3 points out that the treatments offered at the clinic (generally) are “. . . NOT held out as cure(s) and that mainstream medicine, particularly oncologists in Australia,  . .” hold these therapies as “. . . . regarded as being of little or even no value in the treatment of my cancer.”  Much of Ms SO’s (alleged) evidence came via the complaint lodged by Associate Professor GG (in collusion with Ms SO). The account was hearsay and garbled. I insisted that she “should” (cf “could”) seek Dr Scarlett’s consent to my involvement if she chose to be seeing both of us over the same time frame. She elected to cease seeing Dr Scarlett altogether.

As presented (in Para. 72) there is some “. . . expert material. . . ” before the VCAT Panel, which is not referenced or quoted, and we are all at a loss to know what it is. This would form the first stage in a slide (see 1/ General Concepts.). The next stage in the slide follows : “. . . once Dr Traill knew Ms SO was no longer seeing Dr Scarlett or another medical practitioner for advice about conventional treatments, including chemotherapy and radiotherapy, he could not rely on the terms of the Addendum in relation to obtaining informed consent.” This implies that no advice was given in the consultations. The next stage in the slide follows : “We also consider that it was necessary for Dr Traill to ensure that Ms SO understood the consequences which could flow from the decision to cease chemotherapy.” The Panel’s self justification (Para.73) was that I “. . . accepted her refusal with alacrity and did not try to persuade her to reconsider chemotherapy.” (MAT’s emphasis) – the source of this account is not given. This, of course, is quite false and not in accord with the witness statements from any one who was there (other than Ms SO) – it is make believe. The reader needs to remember the sequence of events : she attended on the 28/9/2000 at which there was a long consultation (witnessed) trying to persuade her to resume cytotoxic chemotherapy. There was the scene (witnessed) when she refused to sign the consent forms. There was another attendance on 4/10/2000, when the chemotherapy session was planned and she agreed to it. Then there was another scene over the consent forms (witnessed) before the session on 5/10/2000 at which the planned chemotherapy was vigorously refused (under suspicious circumstances), despite my exhortations for her to continue it (two witnesses). At this stage she had an IV infusion underway in preparation for the cytotoxic chemotherapy. She had received the appropriate advice and information well before her final refusal, and at the time of her final refusal. She was not obliged to sign the Consent forms on her initial arrival at the clinic, in order to absolve me from telling her anything, as seems to be implied. She received the right advice (including the consequences of ceasing cytotoxic chemotherapy), with exhortation and plenty of time to consider the advice. Associate Professor GG, who was not present at any stage maintained emphatically that I gave the wrong advice !

She signed the Consent to confirm that she believed that she had received enough information in order to make an informed decision at the time.

            Associate Professor GG (a prosecuting complainant) relied on his stated “. . . impression that Dr Traill did not realize Ms SO’s disease was potentially curable . . .” Apart from him being biased (as a prosecutor) and being in collusion with Ms SO, his “impression” (if true) may have arisen because, as far as I was concerned, unless she were to change her mind and accept cytotoxic chemotherapy, she certainly would be incurable. But remember that his accounts made a point of distorting almost anything I said or did – such as the final sentence, where the Panel interprets his hearsay account that “. . . her understanding that the treatments proposed by Dr Traill were mainstream and not completely unproven.” as having received misleading advice. The major treatment proposed by me, cytotoxic chemotherapy would, I believe, have been considered “mainstream and not completely unproven” without or with whole body hyperthermia !

Legal Precedents for future Professional disciplinary Hearings before the VCAT

            11. The appearance of practitioners who may be perceived to be competitors, acting not merely as notifiers, but as prosecuting complainants, should cause concern amongst those interested in legal process. The situation is not far removed from such people taking justice into their own hands, for whatever reason. In Hearings with:

                a) Inquisitional format and,

                b) No onus on proof,

                c) The identity of the prosecuting complainant potentially withheld,

                d) The privilege of the Courts, allowing defamation under privilege,

                e) The ability of that person to be regarded as an expert witness and full weight given,

            there seems little to differentiate such Hearings from those of the Spanish Inquisition. Imagine if a

            jealous and manipulative neighbour brought me to the Inquisition exhorting that I had been engaging in

            witchcraft (UHF), magic potions (Lithium) and worshipping the occult (scientific hypotheses) ! Any

            jealous doctor could bring and pursue an opponent through the Board's and the VCAT's Hearings.

Ms SO’s unsworn evidence (Para. 74), obtained following the SO/GG collusion should never have been given any weight. It is generally unsupported by my evidence and the evidence of all the other two witnesses. Even her own evidence is conflicting at times : eg

a)      20/2/2001 (in MO’s letter to the Health Services Commissioner, apparently in collusion with Associate Professor GG) “. . . I was not told that withdrawal from chemotherapy would damage me.”

b)      15/11/2001 (Statement of Claim: Maurice Blackman Cashman, lawyers) “. . . that the chemotherapy treatment which the defendants (MAT & David Spall) would recommend for the plaintiff (Ms SO) in such circumstances would be different to that which the plaintiff had previously undergone, milder in form and would be less likely to be associated with causing any serious side effects to her.”

            The claim that I “. . .did not tell her about chemotherapy offering a chance of a long term remission.”  ignores the whole point of advising her, in the strongest terms, to have cytotoxic chemotherapy (witnessed). Why would anyone believe that I had some other reason for advising cytotoxic chemotherapy, and then trying to administer it ? The Panel has created a “make believe” version. The “. . . ease her into chemotherapy. . .” was the point of combining the cytotoxic chemotherapy (reduced, less toxic) with the hyperthermia, not following the latter sequence. The session was allowed to proceed without the cytotoxic chemotherapy in the hope that another attempt with cytotoxic chemotherapy may be done another day. Make believe continues.

            Once the cytotoxic chemotherapy (+/- whole body hyperthermia) was clearly unacceptable and refused (despite all attempts), there seemed to be no other treatment that anyone could offer which may be of benefit for her apart from the UHF. (Para. 75) There was relatively little to talk about – the UHF was safe and may help prolong life but it would not cure, and she was told this.

            The VCAT Panel registered my concerns over the credibility of Ms SO and Associate Professor GG (Para. 76), dismissing the concerns without clear reason other than claiming that I had “. . . produced no evidence to substantiate.” Once more, we have the problem of the onus of proof having shifted to me. As documented in “The Dark Side” there is a substantial body of circumstantial evidence to support the contention that Ms SO and Associate Professor GG were in collusion and executing a fraud (at least). As with the Glendon Fraud, no-one (apart from me) has sought investigation of these serious allegations, and I do have documentary evidence ! There can be only one reason – that the bureaucrats involved have instructions not to investigate.

      Legal Precedents for future Professional disciplinary Hearings before the VCAT

            12. Panels, even if Inquisitional, have no obligation to seek investigations into claims of perjury and criminal activity.

            The VCAT account of Ms ST is garbled (Para. 77). The term “experimental” without clear meaning is introduced (see 2/ Pejorative terms). She was advised cytotoxic chemotherapy (as had her oncologist in Tasmania), but did not want it (remember that she was clinically disease-free at that stage). It was discussed, but the possibility of multiple drug resistance having developed merely reinforced her decision. The treatments were never presented as “. . . alternative to radiation and chemotherapy. . . ,” rather that they could be applied adjunctively in the hope that they may prevent or slow further metastases: she was expected to return to her oncologists in Tasmania. Her statement that “. . . she would have liked to have received more information about the effectiveness of the treatment.” seemed important for the Board’s Panel of 2005 and is restated without comment. No reasons are presented.

            Dr Drummond (Para. 78), like all the others, has the history screwed up. She seemed to be unaware that Ms ST had a “lumpectomy” in 1997 and that the metastasis in November 2000 was confined to the lymphatics of the skin and not in the underlying glandular breast tissue. Accordingly, her views that with hyperthermia there would be “. . . failure to treat the deeper tumour would lead to further local recurrences.” were irrelevant. Once again, Professor Peter’s views on thermometry were impractical for air interface superficial hyperthermia. His view that hyperthermia could not be effective because there was no thermometry is assumed, but not valid. He was unable to explain how reliable thermometry could be performed, but the onus of proof was not with him.

            The VCAT Panel then concludes that, whilst Ms ST consented, “. . . she was not given adequate information about the proposed administration to enable her to give informed consent." We now have some details, “reasons”:

a.       She was not informed that the treatment would not prevent recurrence of tumour.” She signed the Consent Forms stating that no cure was offered and that some considered the treatment to be of little or no value.

b.      “. . . as opposed to further skin ulceration.” There had not been skin ulceration

c.       “. . . no thermometry would be in place . . .” There is no known practical and reliable method of doing this for air interface superficial hyperthermia.

d.      “. . . the equipment being used could not be demonstrated to be directed to the appropriate area. . . “ This is unnecessary in the context of treating a wide area of chest wall. The “. . .appropriate area. . .” was, in the absence of clear metastases, unknown.

e.       “. . . there was no scientific rationale underpinning the administration of the treatment.” (“treatment” undefined.) If the Panel was still referring to superficial hyperthermia, even Professor Peters felt that there was “scientific rationale,” quite apart from the literature (although it is usually in conjunction with radiotherapy).

The concluding paragraph (Para. 80) falls back onto the need by the defendant to prove effectiveness (onus of proof) and the need to impart that proof to the specific patients for their particular condition. This is often impossible even with conventional treatments.

Here we have a mishmash of points that do not generally seem relevant to the issue of “informed consent:” – what it is and what is expected. What seems the usual view for consent forms is that they confirm that the patient has had an explanation which the patient believes to have been adequate at the time of signing. The usual complaint seems to be that a rare complication of the therapy was not mentioned, the patient's treatment went ahead, and there followed adverse complications with harm. With regard to Ms SO and ST, and Master TU there were no complications arising from the treatments – the treatments were safe.  In order to cover and anticipate special risks which may be of concern (eg safety and the risk of complications), these are usually listed and dealt-with. My Consent Forms advised all patients that there was no promise of a cure and, that in the eyes of some, the treatments may have very little or no effect. One could hardly claim that the patients were not adequately informed, but the VCAT and Board Panels have done so ! Dealing with the scientific rationale would normally be part of the consultations prior to signing - if patients wanted to know more, they only have to ask and not sign until they are told !

The VCAT Panel has not examined, in a legal way, the intention, place and role of Consent Forms, and has given inadequate or no real reasons as to why the signed Consent Forms could not indicate that adequate informed consent had been provided by the patients. A patient merely stating, subsequent to a procedure, “I would have liked to have known more” should not render Consent Forms null and void, as has occurred in Ms ST's .

Legal Precedents for future Professional disciplinary Hearings before the VCAT

            13. Consent forms signed by patients shall carry little or no weight in disciplinary Hearings.

            (For interest and comparison:  Holt's policy, as stated [NH&MRC Review 2005, p187] was "Patients were not asked to sign consent forms. Dr Holt does not canvas patients. The patients come to his offices through their own volition, and consequently consent is implied." All patients, Ms SO & ST and Master TU, came to me with general practitioner referrals. Ms ST and Master TU had researched Dr Holt, but came to me because I was in Victoria. Ms SO claimed two versions for finding out about me, both improbable given the alacrity with which she acted.)

Is GBA cytotoxic chemotherapy ?

 

 More to follow – in preparation.

 

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