As the case of a health blogger who fraudulently profited from a fabricated account of beating cancer concludes, there is hope that new legislation in Victoria will put an end to dodgy cancer cure claims.
The Belle Gibson case
Last month, a Federal Court judge fined Belle Gibson $410,000 for engaging in misleading or deceptive conduct, after Gibson made representations in a cookbook and related mobile app about beating cancer through healthy eating; and engaging in misleading or deceptive conduct and unconscionable conduct by claiming that proceeds from the book and app were being donated to charities and good causes.
Gibson shot to fame in 2013 when she released an app and book, ‘The Whole Pantry’, which contained recipes, health and lifestyle advice, and, relevantly, statements about her purported cancer diagnosis, treatment with natural remedies, and donating proceeds from the sale of the app and book to charities or people in need.
In 2015, Consumer Affairs Victoria launched an investigation into Gibson’s fundraising activities following allegations that promised funds had never been paid. Over the course of the investigation and in a series of media interviews, Gibson revealed her cancer diagnosis was a lie.
The Director of Consumer Affairs Victoria brought legal action against Gibson, and in March this year, Federal Court Justice Debra Mortimer ruled that Gibson had contravened Australian Consumer Law by claiming that:
- she had been diagnosed with brain cancer in 2009;
- had been given four months to live; and
- she had taken and rejected conventional cancer treatments in favour of natural therapies.
Gibson was also found to have breached Australian Consumer Law by claiming that revenue derived from sales of her cookbook ‘The Whole Pantry’ and related app would be donated to charities or good causes.
On its surface, the case is about consumer protection law and Ms Gibson’s conduct, which was found to be misleading or deceptive and unconscionable. But at its heart, the case is about abuse of trust: the trust of vulnerable and desperate people hoping to find a cure for cancer; and the trust and generosity of the Australian community donating to charities. The twin impact of Gibson’s deceit is illustrated in case of the Schwarz family—a family with a young boy (Joshua) who had an inoperable and terminal brain tumour—to whom Gibson had pledged a week’s worth of sales from her app. In public statements, Gibson drew direct comparisons between her ‘cancer experience’ and that of Joshua’s, claiming to have the same brain tumour (which was false), using Joshua’s terminal illness to encourage people to purchase her products, and in circumstances where she did not donate the profits as promised. Justice Mortimer highlighted the unpaid donation to the Schwarz family as particularly egregious, '[i]f ever there is conduct deserving of the label unconscionable, it is Ms Gibson’s conduct in respect of Joshua'.
Regulating unregistered health providers
The use of complementary and alternative therapies is common in Australia, and common in people with cancer. As the name suggests, complementary therapies are generally used in conjunction with conventional medicine, while alternative therapies are used in place of conventional medicine. An estimated two thirds of Australian cancer patients use at least one form of complementary or alternative medicine, with around half of these patients using complementary therapies alongside conventional therapy. However, the popularity and widespread use of complementary or alternative therapies—suggesting a high level of belief and trust in the effectiveness of these therapies—belies the fact that the evidence supporting their safety and effectiveness is mixed. For some complementary therapies, there is evidence to suggest a benefit, particularly for symptom management, but for many there is not; as for alternative therapies, these are usually unproven and ineffective. And a particular risk with alternative therapies is the possibility of a patient eschewing evidence-based cancer treatment in favour of an alternative therapy with little evidence for safety or efficacy. Yet when peddled by charismatic and convincing advocates, families and patients can, understandably, be swayed by the chance for a miracle cure.
There are a small number of unscrupulous people who, under the guise of providing ‘health’ or ‘therapeutic’ advice, take advantage of people and their families, usually for significant financial reward. Sadly, this is not the first time a court in Victoria has heard a case on misleading, deceptive and unconscionable claims about curing cancer. In a similar action in 2012, the Victorian Court of Appeal ruled that an unregistered dentist offering questionable services such as ozone therapy and high dose intravenous vitamin C therapy to cure or stop the progress of cancer, had engaged in misleading or deceptive conduct.
The health workforce in Australia comprises registered and unregistered practitioners. Practitioners registered by the Australian Health Practitioner Regulation Agency under the National Registration and Accreditation Scheme (NRAS) are subject to regulation by National Boards, who develop professional practice standards, codes and guidelines. (Professions currently registered under the NRAS are Aboriginal and Torres Strait Islander health practice; Chinese medicine; chiropractic; dental practice; medicine; medicinal radiation practice; nursing and midwifery; occupational therapy; optometry; osteopathy; pharmacy; physiotherapy; podiatry; and psychology).
Unregistered practitioners have generally operated outside of formal regulation, although some have a system of voluntary self-regulation. However, in response to concerns about unregistered and unqualified practitioners providing health care services, Australian Health Ministers agreed in April 2015 to a National Code of Conduct for health care workers.
Victoria’s new Health Complaints Act 2016 adopts this in its 'Code of Conduct for general health services'. Amongst other things, the Code prohibits a general health service provider from:
- Making claims about curing cancer;
- Making unsubstantiated claims about being able to treat or alleviate the symptoms of cancer or other terminal illnesses; or
- Financially exploiting clients, including by asking clients to give, lend or bequeath money or gifts.
Although Gibson’s case was brought under Australian Consumer Law, and before the Victorian Health Complaints Act commenced, it is likely that her case (and others involving cancer quacks) would also be captured by the new law and code.
Other provisions in the Health Complaints Act strengthen the powers of the new Health Complaints Commissioner in relation to unregistered and unqualified practitioners, including the ability to initiate their own investigations, and prohibit or restrict the practice of health service providers, where there is a risk to the public.
But, given the significant impact of cancer in our community—one in three men and one in four women will have been diagnosed with cancer by age 75—it is the explicit prohibition of cancer cure claims which promises much in the way of protecting desperate and vulnerable patients and families from people offering false hope.