Appeal by Chinese medicine practitioner against sentence successful

28 Mar 2019

A New South Wales Chinese medicine practitioner has successfully appealed against the severity of his sentence for unlawful advertising of a regulated health service.

Registered Chinese medicine practitioner Qi Xin Chen was convicted on 31 October 2018 and fined a total of $45,000 by the Court, and was also ordered to pay $5,000 towards the Australian Health Practitioner Regulation Agency’s (AHPRA) legal costs.

On 20 November 2018, Mr Chen filed a Notice of Appeal against the sentence on the ground that the ‘penalty was too severe’ (known as a ‘severity appeal’). Mr Chen was not appealing the finding of guilt.

Yesterday, Judge Flannery of the District Court of New South Wales allowed the appeal and reduced the total effective sentence to $7,200 in fines. Her Honour allowed the appeal and among her reasons, indicated that the unlawful use of testimonials was at the lower end of the scale and other unlawful advertising was mid-range or below.

Mr Chen owns and operates a business, the Australian Natural Medicine Centre in Gladesville, New South Wales, which provides Chinese medicine services. Mr Chen was convicted of false, misleading or deceptive advertising through the publication on his websites of several articles about the treatment of cancer.

Mr Chen was also convicted of using testimonials in his advertising as this is prohibited under the National Law¹ and would have created for consumers an unreasonable expectation of beneficial treatment, and which contained claims that a patient had been successfully treated for cancer entirely using Chinese medicine.

Background

In April 2017, AHPRA published the Advertising compliance and enforcement strategy. It explains how AHPRA’s risk-based approach is applied to advertising compliance and enforcement, how it encourages voluntary compliance and deals with non-compliant advertising. It also explains that certain high-risk matters, such as this case, will be identified as suitable for prosecution under the National Law.

Responsible and lawful advertising of regulated health services is a professional and legal obligation.

AHPRA and the National Boards that regulate Australia’s registered health practitioners have published Guidelines on advertising regulated health services to help health practitioners and service providers understand their obligations under the National Law, along with additional resources to help understand the do’s and don’ts of advertising.

Anyone with concerns about the advertising of regulated health services should contact AHPRA on 1300 419 495 or visit our website www.ahpra.gov.au.

For further information

• Lodge an online enquiry form.
• For registration enquiries: 1300 419 495 (within Australia) +61 3 9275 9009 (overseas callers).
• For media enquiries: (03) 8708 9200.

¹ The Health Practitioner Regulation National Law, as in force in each state and territory (the National Law).