Solaris v Health Care Complaints Commission [2024] NSWCATOD 204 (18 December 2024) (Balla ADCJ, Principal Member) involved an application by the Health Care Complaints Commission to prohibit Mr Solaris for continuing to provide health care. It was alleged that Mr Solaris was an unregistered health practitioner and therefore bound by the Code of Conduct for Unregistered Health Practitioners set out in Schedule 3 to the Public Health Regulation 2022 (NSW) (and see Revised Code of Conduct for non-registered health practitioners in NSW (September 23, 2022)). That code says, amongst other things, that ‘A health practitioner must provide health services in a safe and ethical way’ (cl 1(1)). Part of that duty requires a practitioner to ‘ensure appropriate first aid is available to deal with misadventure during a client consultation’ and they ‘… must obtain appropriate emergency assistance, for example, from the Ambulance Service, if there is a serious misadventure during a client consultation’ (cl 1(2)(l) and (m)).
The power to take action against non-registered health practitioners is found in the Health Care Complaints Act 1993 (NSW) ss 41AA to 41E. Under s 41AA the Health Care Complaints Commission can make an interim prohibition order restricting a person’s right to offer health services if the Commission:
(a) … has a reasonable belief that the health practitioner has breached a code of conduct for non-registered health practitioners, and
(b) it is of the opinion that—
(i) the health practitioner poses a serious risk to the health or safety of members of the public, and
(ii) the making of an interim prohibition order is necessary to protect the health or safety of members of the public.
The Commission may make a final prohibition order if, after an investigation, it is satisfied that there has been a breach of the code and the ‘practitioner poses a risk to the health or safety of members of the public’ (s 41A).
In Solaris’ case the Commission had made an interim order and Mr Solaris sough to have that order overturned. The role of the Civil and Administrative Tribunal was not to decide whether or not Mr Solaris had breached the code and was a danger to the public, but whether the interim order is appropriate that is whether there were grounds for a belief (rather than satisfaction) that there had been a breach of the code and that there was a danger to the public (see [5]-[11]).
What happened
The history of the matter is set out in [13]-[19]:
Mr Solaris provided services through the Dreaming Arts Foundation. It held a “music and meditation ceremonies & retreat” in October 2021.
The retreat was a six day event from 12 to 17 October 2021 during which there were sessions in which Kambo, a toxic excretion of the Kambo species of frog, and Ayahusca, a hallucinogenic botanical beverage originally used by indigenous Amazonian tribes, were used by participants.
Mr Antonovich was administered Kambo between 10 and 11 am on 16 October 2021.
At around 1 pm Mr Antonovich was seen with a swollen neck and face. Those and other symptoms including intense pain in the lower back/kidney area, moaning, difficulty breathing, and walking without assistance, continued throughout the afternoon.
Mr Antonovich participated in an Ayahusca ceremony in the evening conducted by Mr Solaris which had been scheduled to commence at 8.30pm. He was assisted to walk into the back of the main hall, which was referred to as the temple, where he sat on the floor. One witness heard Mr Solaris say to Mr Antonovich “I think its a good idea for you to sit in the ceremony tonight, but I think it’s a good idea that you only just have a little cup”. Mr Antonovich asked for the Ayahusca to be brought to him. Mr Solaris passed a cup of Ayahusca to another person who took it to Mr Antonovich at the back of the temple.
While Mr Solaris continued the ceremony, Mr Antonovich’s condition continued to deteriorate and he collapsed at around 11.30 pm. He had died by the time an ambulance arrived.
The autopsy report lists the cause of death as being a perforated oesophagus.
Was Mr Solaris a health practitioner?
A health practitioner is defined as ‘as “a natural person who provides a health service (whether or not the person is registered under the Health Practitioner Regulation National Law)”’ ([31] citing Health Care Complaints Commission Act 1993 (NSW) s 4).
At [35]-[36] Balla ADCJ said:
In his submissions Mr Solaris denies that the administration of Ayahusca is the provision of a “health service”. He says the purpose is “to commune with our Holy Sacrament and the Kingdom of Juramidam, and we pray at the Holy point of the Estrela da Ciranda. The spiritual essence of our work is made clear in the information for the retreat and is based on traditions that were founder (sic) by Master lreneu, in Brasil in 1929, with roots in Amazonian culture of thousands of years.”. He also says he did not administer any substances – the community willingly asks for the Holy Sacrament and choose to drink it.
Mr Solaris acknowledges that he does provide other health services in that he offers “counselling, healing and body work”.
Her Honour noted that there was no NSW precedent on what is a health service but the matter had been considered by the ACT Supreme Court using legislation that was in similar terms to the NSW Act (see [42]-[48]). In Hanna v Commissioner for Community and Health Services Complaints [2002] ACTSC 111 the ACT Court said:
… that the word “health” must refer to the state of being sick or well and noted that the Act was concerned with services for the treatment and care of physical or mental illness or injury. At [26] the Court stated:
… the benefits or ostensible benefits must relate specifically to the treatment and care of physical or mental illness or injury or to services such as carried out in order to prevent illness. Furthermore, they must ultimately be directed, or purportedly directed, toward achieving such health benefits by virtue of the intrinsic therapeutic value of the service itself or of those further services that might be provided as a consequence of the diagnosis made or information ascertained. Hence, the question of whether a procedure constitutes a health service requires a judgment as to whether the dominant purpose or purported purpose is to cause or facilitate some benefit to a person’s health by means of the service itself rather than by the invocation of divine intervention or by means of spiritual development…
Consistently with this authority, I am satisfied that there is evidence that Mr Solaris advertised the retreat as providing health benefits…
She agreed with an earlier decision in this matter ([47] citing Solaris v Health Care Complaints Commission [2024] NSWCATOD 97) where Member Ransome said:
The purpose of the administration of Ayahuasca and Kambo on the retreats organised by Mr Solaris was to have a cleansing effect upon the body, described as detoxification or purging, which was the dominant purpose behind their administration. In the case of Ayahuasca there was also a psychoactive effect. While the purgative and other effects of the substances are said to be an aid to future spiritual development or enlightenment, this does not detract from their immediate health benefits which are said to be physical, mental and emotional. Both substances are described as “medicine” and are said to be administered as part of “healing” processes.
Her Honour accepted (at [48]) that there was
… a proper basis for a reasonable belief that:
- The retreat was a health service prescribed by Mr Solaris to improve mental and emotional health; and
- the administration of Ayahusca was a health service prescribed by Mr Solaris to improve mental and emotional health.
Given Mr Solaris was, or there were reasonable grounds to believe he was acting as a health practitioner
Are there grounds to believe that was a breach of the code and an ongoing risk?
Her Honour was satisfied (at [53]; emphasis added) that:
… the evidence before the Commission was such that it provided a proper basis upon which it could form a reasonable belief that Mr Solaris failed to provide health services in a safe and ethical way and in contravention of the Code, by:
- Facilitating the administration of a prohibited substance;
- Failing to understand the gravity of Mr Antonovich’s health crisis following his consumption of Kambo and Ayahuasca;
- Failing to provide appropriate first aid;
- Not ensuring there was a defibrillator on site;
- Failing to obtain emergency assistance in time to save Mr Antonovich’s life.
Further there was evidence that Mr Solaris continued to provide retreats and therefore ‘posed an ongoing serious risk to the health and safety of members of the public’ ([55]). The application to dismiss the interim order was therefore dismissed.
Discussion
There are two points that I want to discuss.
Delay
First this was an allegedly interim order. As Balla ADCJ said (at [28]) an interim order remains in force for 8 weeks. The original order, made on 21 November 2023. The Commission remade the orders as each expired, the most recent order was made on 3 December 2024. The Health Care Complaints Act provides for interim orders which by definition are meant to apply in the interim, whilst an investigation concludes (see s 41).
In this case Mr Mr Antonovich died in October 2021. A coronial inquest commenced in May 2023 some 18 months later. The first order was made in November 2023 nearly 2 years after the event. It has taken a further year, and the Commission still hasn’t determined to make a final order under s 41A, that is the Commission, presumably has not yet decided that Mr Solaris did breach the code and that he continues to pose ‘a risk to the health or safety of members of the public’ (Health Care Complaints Commission Act 1993 (NSW) s 41A).
I have made comments on other posts about how long these matters take. It is hard to believe that 3 years after the death, when there has been a coronial investigation and the Commission has made multiple ‘interim’ orders (which require a lower threshold to be made) that the Commission has not yet been able to decide to issue a final order which Mr Solaris could then seek to review. I wonder what more evidence the Commission is looking for or what further investigation is required. Or is the Commission defeating the purpose of the legislation by simply remaking ‘interim’ orders rather than proceeding to a final order? Without knowing any details, so based solely on the time line given in this case, the situation does appear unsatisfactory.
Are AEDs compulsory?
The other issue, that will be of interest to readers of this blog, is the finding that ‘Not ensuring there was a defibrillator on site’ was evidence of a breach of the Code. The code does require ‘appropriate first aid is available’ it does not say that it must be a defibrillator. And if the deceased died due to a ‘perforated oesophagus’ it is not made clear what difference a defibrillator would have made.
I have made the point that there is no law (other than in South Australia) that requires defibrillators to be installed (see Public access defibrillation laws in NSW and Victoria (December 20, 2024); Bill for mandatory installation of AEDs passes in South Australia (December 11, 2022); Making defibrillators compulsory in Victoria (January 20, 2020); Liability for failing to install an AED? (April 7, 2016) and Making the installation of AED’s compulsory (September 27, 2015)). My prediction (in 2015) that AEDs would not be made compulsory has to be taken with caution given the South Australian Act and the NSW Bill mentioned in the latest posts. In my post on Making defibrillators compulsory in Victoria I said ‘What will make AEDs compulsory is not legal rules but a situation where AEDs become so common place that they became part of standard first aid equipment’. This decision is not a significant precedent. It is a decision from a tribunal low in the judicial hierarchy and the issue of whether a failure to have an AED is a breach of the Code has not been finally determined. Even so it is an interesting development and perhaps part of the trend that even without legislation, AEDs are becoming ‘so common place’ that it will be considered prima facie negligent, or a breach of the Code of Practice or the Code of Conduct for First Aid in the Workplace not to have access to an AED.
This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
This blog is a general discussion of legal principles only. It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.
Australian Emergency Law 
As someone who is close to this case, it is refreshing to have some professional consideration of what has been presented here by NCAT, as the media hysteria has been radically misleading. There is currently an internal review of this decision that will be heard on the 30th May 2025. There is a strong claim of apprehended bias in both the actions of the HCCC and of NCAT in this matter. The HCCC has recently been forced to liberate the autopsy report and a bundle of concealed evidence that was under and NCAT order of non-disclosure to the applicant. Disturbingly, the autopsy report was denied to the applicant after NSW police took, without warrant, the entirety of his legal documentation and evidence and have refused to give it back, after 1 year. The coroners court, NSW police and the HCCC all obstructed access to the autopsy report until days before the December 2024 hearing in which a Brazilian church sent the applicant a copy. This was what exposed the HCCC misleading NCAT about the privileged status of the report, denying Soulore Solaris applicant fair process. NCAT member Balla is now accused of apprehended bias as she dismissed his concerns regarding this, showing bias towards the HCCC, and during the December hearing indicated that she did not even know that he had submitted the report, and showed ignorance of his claims in his submissions of prejudice regarding its ongoing concealment.This concealment is likely due to the fact that the DMT result that the HCCC is claiming from the autopsy report is not NATA accredited due to the scientific impossibility to get an accurate result. NCAT was shown this fact and the science behhind it. The HCCC and NCAT have done no independent research into this topic, the HCCC shockingly admitted in writing that they have engaged no medical experts at all in the 21 months of their rolling IPOs. The HCCC submitted the evidence and submissions of the respondent to the coronial inquiry in February 2024, prejudicing the inquiry, whilst at the same time taking instruction from the Crown Solicitors office to deny the applicant any interview or chance to respond to the complaint made to the HCCC by the NSW police. Recently revealed emails show that it was also the Crown Solicitors office that instructed the NSW police to get an IPO from the HCCC. The Police / HCCC email thread also shows there was no discussion of health services or the nature of the applicants religious practices, all they were concerned about was whether the HCCC could get away with concealing the fact that it was the NSW police who requested the IPO (on behalf of the Crown Solicitors Office). The Police then seemingly used media reports of the IPOs in approaches to witnesses, many of whom are claiming that the police fed them false claims and mischaracterisations.These emails have revealed the involvement of the Crown Solicitor in the issuing of the IPOs based on a biased and incomplete coronial process. The HCCC have lied in writing saying that there was no involvement with the Crown Solicitor. The rolling IPOs over 21 months now are riddled with false claims, proven by most of them being retracted, with little to no reason given as to how they managed to make so many false claims in their IPOs, yet claiming the source of them was the Coroners Court and the and the NSW Police. All of the 16 + false claims on the IPOs are defamatory towards the applicant and his religious practices, all are attempts to discredit and frame him, and there as serious omissions such as the deceased’s strong refusal for medical care. The author of the autopsy report, Dr Calla, was removed from the witness list in February by the assisting counsel and crown solicitor, seemingly due to the serious errors within it and he nor his report have been questioned or cross examined. Assisting counsel suggested to every witness that the death was due to excessive vomiting caused by ayahuasca, yet all witnesses claimed he never purged, and that was an issue. Clearly the injury occurred after the kambô experience, yet there was still no purging or vomiting. The coroner, HCCC and NCAT showed no interest in this and have attempted to continue to push this false narrative, despite the testimony of medical experts confirming he apparently didn’t purge. Similarly there is no evidence of lethality from ayahuasca toxicity and certainly none from ayahuasca purging anywhere in the world.Research and US Supreme Court findings all show that ayahuasca in ceremonial and religious settings has a good safety profile. The HCCC and NCAT have been given evidence of this and chose to ignore it, instead labelling the Soulore Solaris as a conspiracy theorist. It is assumed that the claim of the no defibrillator is just another one of the claims made by the HCCC, supported by a biased NCAT member, to falsely characterise the applicant and the religious practice. The HCCC admission of not engaging with any medical experts highlights the negligence and misconduct. After 21 months of rolling IPOs, each one different with cherry picked claims and riddled with errors whilst displaying alarming technical incompetence based on a concealed autopsy report, they have still not made any attempt to answer questions being asked by the applicant. Over 12 staff in the HCCC, including legal practitioners have now been involved in this matter, with not one of them having any medical nor health care background or expertise. In February 2025 the HCCC finally allowed the applicant to respond to their accusations, yet seemingly this was just tokenistic as they have done nothing and still keep publishing IPOs riddled with assumptions and false claims.This is just a snapshot of the dysfunction and misconduct of the HCCC and the bias and negligence of NCAT in this matter. The HCCC has a long history of accusations of misconduct and negligence, including reports to the ICAC and their own staff callign for a royal commission. Whilst the NSW govt. has failed so badly at addressing Mental Health issues, with overloaded health services, record presentations, mass resignation of pyschiatrists in Feb 2025, UNSW report of massive spike in alcohol poisoning deaths, they are spending millions on persecuting a holy and ancient, natural religious practice that has world renowned health benefits in mental health and addiction. They are persecutiing the 100,000+ drinkers of ceremonial ayahuasca in Australia based on ignorance, misconduct and negligence.The dangers of setting precedents is also met with the huge amount of harm being caused to the peaceful members of this spiritual community whilst they push an agenda of “dangerous drugs” that in the US supreme court was found to be completely unfounded.This is a very sensitive issues that covers human rights, religious freedom and indigenous rights. Solaris has been labelled by the coroner’s team, police and media as a festival organiser, shaman, cult leader, witch doctor, guru, wellness guru, conspiracy theorist, seemingly at the expense of morality and competence and uncaring or ignorant towards the cultural, racial and religious discrimination they are indulging in.500 pages of evidence of this misconduct has been presented to NCAT. feel free to respond if you would like to know more about this matter