South Australia Supreme Court Upholds
Disciplinary Action against George M. Belle
Stephen Barrett, M.D.
The Supreme Court of South Australia has upheld a decision by the Chiropractors Board of South Australia that George Michael Belle, who operates the Acacia Chiropractic Centre in Morphett Vale, had engaged in unprofessional conduct in his management of a patient who consulted him for back pain in 2002. The evidence showed that Belle had treated her back pain for three visits but proposed a long-term "corrective care" program of neck care that was inappropriate because it was "insufficiently tailored to her individual circumstances and the number of treatments proposed . . . was excessive." As noted in the decision below, the Court agreed:
The effect of the Board’s finding is that the appellant was not so much concerned with treating Mrs Hill’s low back pain in three to six treatments as with promoting the corrective care plan to cure her postural curvature by a régime of treatments requiring 88 visits at a cost of $2,692. . . . The appellant’s conduct was clearly unprofessional. There is no basis for disturbing this finding of the Board.
The Court also upheld the Board's conclusion that Belle had acted unprofessionally by making disparaging remarks about orthopedists and physical therapists. Shortly before the ruling was issued, Belle failed in an attempt to get elected to the chiropractic board. Chirobase has additional perspective about the case.
Supreme Court of South Australia
(Miscellaneous Appeal: Application for Judicial Review)
BELLE v CHIROPRACTORS BOARD OF SA
 SASC 250
Judgment of The Honourable Justice Debelle
23 August 2006
PROFESSIONS AND TRADES - MEDICAL AND RELATED
PROFESSIONS - OTHER FIELDS OF PRACTICE - CHIROPRACTORS
Appeal from decision of Chiropractors Board of SA - finding of unprofessional conduct - whether corrective care plan prescribed was sufficiently tailored to the patient - whether number of treatments prescribed was excessive - whether the appellant disparaged orthopaedic surgeons and physiotherapists - whether the appellant's conduct amounted to unprofessional conduct - appeal dismissed.
Acts Interpretation Act 1915 (SA) s 16; Chiropractic and Osteopathy Practice Act 2005 (SA); Chiropractors Act 1991 (SA) s 6, s 41, s 42, s 43, s 46; Supreme Court Act s 72; Supreme Court Rules r 97.17, referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; Fenton Nominees Pty Ltd v Valuer-General (1981) 27 SASR 258; Hunter v Walsh  SASR 336; Jones v Dunkel (1959) 101 CLR 298; re R  SASR 58; Wigg v Architects Board of SA (1984) 36 SASR 111, applied.
Barten v Williams (1978) 20 ACTR 10; Cubillo v The Commonwealth (2000) 103 FCR 1; DM & AJ Bell Pty Ltd v Motor Fuel Licencing Appeal Tribunal (1988) 50 SASR 39; Laycock v Companies Auditors Board (1979) 21 SASR 262; Messel v Davern (1981) 9 NTR 21; Paynter v Huffa (1977) 17 SASR 120; Powell v Streatham Manor Nursing Home  AC 243; R v Burdett (1820) 4 B & Ald 95, 106 ER 893; R v Whitehead  1 KB 99; Re Ward  SASR 308; T v Medical Board of SA (1992) 58 SASR 382, considered.
Appellant: GEORGE MICHAEL BELLE
Counsel: MR P. CUTHBERTSON QC - Solicitor: MOODY ROSSI & CO
Respondent: CHIROPRCTORS BOARD OF SOUTH AUSTRALIA
Counsel: MS J G OLSSON - Solicitor: CROWN SOLICITOR
Hearing Date/s: 14/11/2005
BELLE v CHIROPRACTORS BOARD OF SA
 SASC 250
1. DEBELLE J. This is an appeal from a decision of the Chiropractors Board of South Australia (“the Board”) finding the appellant guilty of unprofessional conduct. The appellant is a registered chiropractor. The appeal was instituted before the Board had determined what disciplinary action should be taken. It is undesirable to list an appeal for hearing before the Board decides upon the appropriate disciplinary action. The preferred course is for the disciplinary proceedings to be concluded in every respect.
2. Before turning to the merits of the appeal, it is necessary to note the relevant statutory provisions. In this respect it must be noted that in 2005 the Chiropractic and Osteopathy Practice Act 2005 was enacted. It repealed and replaced the Chiropractors Act 1991. The Act was proclaimed to come into operation on 4 May 2006 but the operation of a number of provisions of the Act was suspended until a day or time fixed by subsequent proclamation. The issues in this appeal must be determined in accordance with the Chiropractors Act 1991 being the Act in force at the time of the complaint: s 16 of the Acts Interpretation Act 1915.
The Board and its Disciplinary Functions
3. The Board was established by s 6 of the Chiropractors Act 1991 (“the Act”). It consists of seven members appointed by the Governor, of whom four must be registered chiropractors, one a legal practitioner, one a medical practitioner and one a person to represent the interests of persons receiving chiropractic services. Four members constitute a quorum: s 10(1). In the case of an equality of votes the person presiding has a casting vote: s 10(4). Four members of the Board heard and determined the complaint against the appellant. Of those four, one was a legal practitioner who acted as chairperson, two were chiropractors and the fourth was the consumers’ representative.
4. The functions of the Board include conducting inquiries into the fitness of a chiropractor to practice chiropractic and to determine whether there is a proper cause for disciplinary action against a registered chiropractor. The relevant provisions for the purpose of this appeal are s 41(1) – (4), which are in these terms:
(1) The Board may, on its own initiative or on receipt of a complaint, conduct an inquiry in order to determine –
(a) whether a registered chiropractor is mentally or physically unfit to practise chiropractic or to exercise an unrestricted right of practice;
(b) whether there is proper cause for disciplinary action against a registered chiropractor.
(2) The Board may decline to inquire into a complaint if it considers the complaint frivolous or vexatious.
(3) If after conducting an inquiry the Board is satisfied that a registered chiropractor is mentally or physically unfit to practise chiropractic or to exercise an unrestricted right of practice, the Board may –
(a) impose conditions restricting the right of practice;
(b) suspend the registration for a period not exceeding three years;
(c) cancel the registration.
(4) If after conducting an inquiry the Board is satisfied that there is proper cause for disciplinary action against a registered chiropractor, the Board may exercise any one or more of the following powers:
(a) it may reprimand the chiropractor;
(b) it may impose a division 5 fine;
(c) it may impose conditions restricting the right of practice;
(d) it may suspend the registration for a period not exceeding three years;
(e) it may cancel the registration.
Section 42 regulates the procedure at inquiries. It provides:
(1) The Board must give to a person in relation to whom an inquiry is to be held, and to any person on whose complaint an inquiry is to be held, not less than 14 days written notice of the time and place at which it intends to conduct the inquiry.
(2) A person to whom notice has been given pursuant to subsection (1) may be represented by counsel at the inquiry and must be allowed a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses and to make submissions to the Board.
(3) If a person to whom a notice has been given under subsection (1) does not attend at the time and place fixed by the notice the Board may hold the inquiry in his or her absence.
(4) The Board is not bound by the rules of evidence and may inform itself upon any matter as it thinks fit.
(5) The Board must act according to equity, good conscience and the substantial merits of the case.
(6) The procedure at an inquiry will be as determined by the Board.
Section 43 invests the Board with powers for the purpose of conducting an inquiry, including the power to summon witnesses, to compel the production of documents and to inspect documents, and the power to require persons to answer questions put by the Board other than questions which would tend to incriminate that person of an offence. The Board also has power to order a party to an inquiry to pay the reasonable costs of the other party: s 43.
5 Section 46 of the Act provides a right of appeal to this Court in these terms:
(1) A right of appeal to the Supreme Court lies against any decision or order of the Board made in the exercise or purported exercise of its powers or functions under this Act.
(2) The appeal must be instituted within one month of the making of the decision or order appealed against.
(3) The Supreme Court may, on the hearing of the appeal, exercise any one or more of the following powers, according to the nature of the case:
(a) affirm, vary or quash the decision or order appealed against, or substitute, or make in addition, any decision or order that should have been made in the first instance;
(b) remit the subject matter of the appeal to the Board for further hearing or consideration or for re-hearing;
(c) make any further or other order as to costs or any other matter that the case requires.
(4) The Board must, if so required by a person affected by a decision or order made by it, state in writing the reasons for its decision or order.
(5) If the reasons of the Board are not given in writing at the time of making a decision or order and the appellant within one month of the making of the decision or order requests the Board to state its reasons in writing, the time for instituting the appeal will run from the time when the appellant receives the written statement of those reasons.
The Nature of the Appeal
6. It is necessary first to consider the nature of the appeal. The parties agreed that the appeal was in the nature of a rehearing. That healthy unanimity is regrettably of little assistance for the word “rehearing” has different meanings: Powell v Streatham Manor Nursing Home  AC 243 at 249 per Lord Sankey LC; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620 per Mason J with whom Barwick CJ and Stephen J agreed, at 625 per Jacobs J and at 630 per Murphy J. It is necessary, therefore, to examine what kind of appeal is intended by s 46 of the Act.
7. The word “appeal” is not a technical term. That word and its cousin “review” are protean in nature: Fenton Nominees Pty Ltd v Valuer-General (1981) 27 SASR 258 per Wells J at 260. The nature of an appeal must be gleaned from the legislative context in which it appears. The various meanings of “appeal” were examined by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (supra) at 621 and later by Cox J in Wigg v Architects Board of SA (1984) 36 SASR 111 at 112 – 116. I respectfully adopt the analysis in each decision and do not repeat it. Three kinds of appeal were identified in those decisions.
- The first is an appeal in the strict sense where the question is whether the order appealed from was correct on the material which the lower court or tribunal had before it. There is no question of introducing fresh evidence before the appellate court.
- The second is an appeal by way of rehearing where the appellate court hears the appeal on the documents but has power to take further evidence and draw inferences of fact. The rehearing involves a rehearing of the cause at the date of the appeal, so that the rights of the parties are determined by reference to the circumstances as they then exist and to the law as it then exists. The appellate court gives judgment, as it were, as the court of first instance.
- The third kind of an appeal is an appeal where the court hears the matter afresh. It is usually called an appeal de novo. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd Mason J gave as an example the appeal from a court of summary jurisdiction to Quarter Sessions under the Justices Act (NSW) as it stood in 1976. In such a case, even if it is the defendant who appeals, the informant or complainant starts again and has to make out his case and call his witnesses. It is frequently called “a rehearing”: per Mason J in Builders Licensing Board at 620.
There are, therefore, at least two forms of rehearing. The word “rehearing” like the word “appeal” is protean in nature and takes its meaning from its statutory content. As Cox J said in Wigg v Architects Board of SA at 113 – 114, it will be a matter of discerning the intention of Parliament as to the kind of appeal intended from an examination of the legislation as a whole: see also DM & AJ Bell Pty Ltd v Motor Fuel Licensing Appeal Tribunal (1988) 50 SASR 39 per King CJ at 43. So in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, although the appeal was described in the relevant legislation as “a rehearing”, it was held to be an appeal de novo.
8. The various decisions concerning the nature of appeals from administrative tribunals and statutory disciplinary bodies illustrate the difficulty in classifying the nature of an appeal. That difficulty is the greater because, as Cox J noted in Wigg at 114, a statutory appeal procedure does not always fit easily into one of those three categories and the legislature is at liberty to create a hybrid that exhibits features of one or more of those three classic categories: see, for example, the discussion on the classification of appeals from courts of summary jurisdiction in Hunter v Walsh (1928) SASR 336, Paynter v Huffa (1977) 17 SASR 120 and Messel v Davern (1981) 9 NTR 21. Another example is an appeal against a valuation by the Valuer-General. The valuation is issued without any form of hearing. It is, therefore, neither an appeal in the strict sense, nor an appeal by way of rehearing on existing material. Instead, it is an appeal de novo with a full hearing inter partes with each party leading evidence, including valuation evidence, testing the opposing evidence and making its submissions.
9. One indicator whether an appeal is an appeal in the strict sense is whether the appellate court has the power to remit the matter to the lower court or tribunal: Laycock v Companies Auditors Board (1979) 21 SASR 262 at 266. However, that fact is not conclusive.
10. On occasion resort is made to r 97.17 of the Supreme Court Rules or its predecessors to determine the nature of the appeal. Rule 97.17 and its predecessors have for some time formed part of the Rules of Court which regulate appeals to a single judge of this Court. The rule has always been to the effect that the appeal will “be by way of rehearing”. A rule of court cannot alter a provision in a statute unless the power to do so is given by statute. Although the Court has by s 72 of the Supreme Court Act 1935 power to regulate the practice and procedure on appeals, there is no provision in that Act or in the Chiropractors Act which gives the Court to power to regulate the nature of an appeal. The terms of r 97.17, therefore, cannot and do not qualify the nature of the appeal provided by s 46 of the Chiropractors Act. It might be added in passing that the terms of r 97.17 leave open the question of the nature of the rehearing.
11. There are a number of factors which point to the conclusion that an appeal under the Chiropractors Act is a rehearing with a capacity to receive further evidence. The Act requires that the Board include a legal practitioner. Section 42(4) of the Act requires that the chiropractor whose conduct is the subject of an inquiry must be given notice of the inquiry and the opportunity to attend and be represented by counsel. In addition, s 42(2) provides a right for the chiropractor to give evidence and to examine or cross-examine witnesses and make submissions to the Board. The Board, therefore, conducts a hearing, albeit that it is not bound by the rules of evidence and may inform itself as it thinks fit: see s 42(4). A further factor is that s 46(4) requires the Board to give reasons if requested to do so. The appellate court will, therefore, have the evidence of the proceedings before the Board and the Board’s written reasons for its decision. Finally, s 46(3) enables the Supreme Court to remit the subject matter of the appeal for further hearing or for a rehearing. The materials available to this Court on appeal are very similar to those which are available on appeal against a conviction in a court of summary jurisdiction. An appeal against a conviction in a court of summary jurisdiction under the Justices Act 1921 was in the nature of a rehearing: Hunter v Walsh. The Court will form its own opinion upon the effect of the evidence and it has power, in a proper case, to take further evidence, including evidence from witnesses already called: Hunter v Walsh at 341-342; Paynter v Huffa at 126. The power to call further evidence should only be exercised where the charge is serious and where there is some good ground for, at least, a very grave suspicion of a serious miscarriage of justice: Hunter v Walsh at 342.
12. For these reasons, the appeal to this Court is a rehearing with a capacity to receive further evidence. The power to call further evidence should only be exercised where there is good ground for at least a very grave suspicion of a miscarriage of justice.
The Standard of Proof
13. It is necessary also to consider the standard of proof. The charge against the respondent is not criminal. The appropriate standard of proof is, therefore, the civil standard of proof, that is to say, proof on the balance of probabilities. As Heydon J notes in Cross on Evidence (7th Australian ed) at , it can hardly be doubted that there are degrees of probability. It might be added, just as there are degrees of persuasion, so there are degrees of probability. The charge against the appellant of unprofessional conduct involves relatively serious allegations. I use the adverb “relatively” because more serious allegations could be readily called to mind. The allegations in this appeal concern conduct which misled a patient. If the charge is established, the consequences may be quite grave. The penalty may range from a reprimand through a fine to cancellation of the appellant’s registration as a chiropractor: see s 41 of the Act.
14. In Re Ward  SASR 308, Napier CJ (with whom Ligertwood J agreed) said (at 313) of the standard of proof on a charge of unprofessional conduct against a physiotherapist:
[I]t is not to be supposed that the board would find against the respondent, unless they were fully convinced of the fact, but I think that it is wrong to say that the charge requires the same strictness of proof … as in the case of a criminal charge.
Abbott J expressed the same view (at 321). The expression “fully convinced” denotes, in my view, the same standard as “proof beyond reasonable doubt”. I therefore respectfully question that approach. In my view, the charge is of sufficient gravity and the consequences sufficiently serious that there must be a standard of proof higher than the mere balance of probabilities. For that reason, the result is not to be reached by what Dixon J called “a mere comparison of probabilities” but, instead, the Board, or on appeal this Court, must “feel an actual persuasion” of the existence of the facts alleged against the appellant: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. Thus, the standard of proof is “on the balance of probabilities” as that expression was qualified by Dixon J in Briginshaw v Briginshaw at 361 – 362 so that a fact is established if there is a reasonable satisfaction of its truth: Barten v Williams (1978) 20 ACTR 10 at 12 per Blackburn J.
15. In T v Medical Board of SA (1992) 58 SASR 382, Matheson J held that a charge of sexual misconduct against a medical practitioner had to be proved beyond reasonable doubt. Olsson J disagreed and held that it was proof on the balance of probabilities, albeit subject to the qualifications in Briginshaw v Briginshaw. I did not express a view on this question. On further reflection I respectfully believe that the view of Matheson J was wrong and that the above approach is to be preferred.
Few Findings of Fact
16. I will now set out the facts leading to this appeal. The reasons of the Board list some agreed facts and then give a summary of the evidence of each witness. Very few findings of fact have been made. Some findings have been made in respect of each of the allegations of unprofessional conduct. The reasons for the findings are not always expressed. The Board does not express any view as to the credibility of or reliability of the evidence of any witness. However, when the findings of fact are viewed as a whole, it is apparent that the Board has accepted in large part the evidence of Mrs Hill who was the patient who had complained of the appellant’s conduct and has rejected much of the appellant’s evidence. It should be added that there is no dispute on the essential facts as to how Mrs Hill came to consult the appellant and the symptoms for which she sought relief.
A Patient’s Complaint
17. In June or July 2002 Mrs Hill slipped to the floor whilst working at her place of employment. In doing so, she hit her shoulder on a stainless steel table and lost consciousness. After the fall, she was taken to the Flinders Medical Centre for observation and discharged later the same day. She experienced tenderness in the lower back near her coccyx. She consulted her general practitioner who referred her for x-rays. The general practitioner described her problem as muscular. She continued to suffer low back pain.
18. In September 2002 Mrs Hill visited a stand at the Royal Adelaide Show which was operated by a group of chiropractors called ChiroPartners Clinics. At the stand Mrs Hill underwent a thermal scan of her neck. It is called a “computerised paraspinal thermal scan”. She was given a printout of the scan as well as the name and contact details of the Acacia Chiropractic Centre at Morphett Vale (“the Centre”). That centre was the ChiroPartners Clinic closest to where Mrs Hill resided. It is a clinic operated by the appellant.
19. In the week following Mrs Hill’s visit to the stall, an employee at the Centre contacted Mrs Hill. Mrs Hill made an appointment to attend the Centre on 19 September 2002. She did so because she was still suffering severe low back pain on her left side near the kidney.
20. On 19 September Mrs Hill went to the Centre. This was the first of three visits. The others were on 20 and 23 September. On 19 September Mrs Hill completed a patient information form. On that form, she stated that her treatment goal was to be “pain free”. Ms Webb, an assistant employed at the Centre, put Mrs Hill through a series of exercises to examine her mobility and posture. Ms Webb is not a chiropractor. She also conducted a computerised paraspinal thermal scan. After these tests Mrs Hill was seen by the appellant, who took x-rays of her back and had a discussion with her. As the Board found, he did not conduct a physical examination of Mrs Hill. The appellant did not give Mrs Hill any treatment for her symptoms.
21. On 20 September Mrs Hill went to the Centre with her husband. They were shown a videotape explaining subluxation degeneration. Mrs Hill then had a discussion with the appellant in the presence of her husband. In that discussion the appellant informed Mrs Hill of the results of the x-rays. He told her that she had serious problems with her back and that she would probably need a lot of treatment. He told her that there was something wrong with her neck which was getting close to “phase two” and showed her a diagram entitled “subluxation degeneration”. That diagram was part of a pamphlet entitled “Can Chiropractic Help?” which had been handed to Mrs Hill. Mrs Hill did not ask what “phase one” or “phase two” of subluxation degeneration meant. The appellant spoke generally about the health of her spine. The emphasis was upon the cervical part of her spine. It did not relate specifically to the severe pain she was experiencing in her lower back. The appellant gave Mrs Hill some treatment described as an adjustment.
22. Mrs Hill’s evidence was that, in the course of the consultation on 20 September, the appellant made remarks about orthopaedic surgeons and physiotherapists which she found to be offensive. Those statements included, “you only waste your money” when referring to orthopaedic surgeons and, when referring to physiotherapists, that “physiotherapists are basically a waste of time”. She also said that he referred to Mutual Community, which was her health fund, and that he said that he “gave them away a long time ago”. She said that she did not understand what he meant by those comments about Mutual Community. The appellant denied making any comments about orthopaedic surgeons, physiotherapists or Mutual Community but said that he may have mentioned them in response to something said by Mrs Hill. The Board found that the appellant had made the disparaging remarks about other medical professionals. However, it did not find that he had made the remarks about Mutual Community, finding that Mrs Hill probably misunderstood the appellant.
23. Mrs Hill again went to the Centre on 23 September. On this occasion the appellant gave her a document called “Your Corrective Care Plan”. The plan had to be signed by the appellant. It stated that Mrs Hill intended to make 88 visits to the Centre over the next 12 months. The corrective care plan stated that Mrs Hill needed to undergo correction of the vertebral subluxation and that spinal rehabilitation is a long-term process. After stating what the recommendations were based on, the corrective care plan recommended treatment over a period of 12 months with 88 visits for intensive care. The frequency of those visits were listed under the heading “Intensive Care Adjustment Schedule”. There was a heading “Corrective/reconstructive Care Adjustment Schedule” which was blank. The significance of that blank will be apparent later. The cost of the treatment recommended by the plan was $2,692, said to be less than the normal charge of $3,728. The appellant asked Mrs Hill to sign the corrective care plan. She did not. Her evidence was that the appellant told her that the health fund would receive an account for all of the visits even if Mrs Hill decided to stop the treatment. She was also given another document entitled “How Long Will it Take?”. The corrective care plan was a printed pro-forma document of three pages with spaces on two pages for completion. On this visit the appellant gave treatment in the form of an adjustment.
24. Before leaving the Centre, Mrs Hill made three further appointments. She later decided not to consult the appellant any further and cancelled the appointments. She did not return to the Centre. Shortly afterwards she consulted a physiotherapist. After three treatments her lower back pain disappeared.
The Appellant is Charged
25. Mrs Hill wrongly believed that some kind of commercial link existed between the appellant and the Mutual Community Health Fund. There is no such association. On 17 October 2002, she visited an office of Mutual Community and made a complaint. The complaint was recorded by an employee of the fund who suggested that Mrs Hill lodge a complaint with the Chiropractors Board.
26. On 17 January 2003 Mrs Hill lodged a written complaint with the Board. On 3 September 2003 the Registrar of the Board issued a complaint against the appellant, charging him with unprofessional conduct in his dealings with Mrs Hill on 19, 20 and 23 September 2002 and the provision to her of the “Corrective Care Plan” which he had invited her to sign. Paragraph 1.5 of the complaint provides particulars of the unprofessional conduct. After a hearing, the Board found that the appellant had been guilty of unprofessional conduct in his dealings with Mrs Hill. However, the Board did not find that the appellant had been guilty of each allegation of unprofessional conduct
27. The Board published reasons for its decision. In its reasons the Board discussed each of the allegations in para 1.5 and made findings. At the end of its reasons the Board made what it called “a determination”. In the determination it set out each of the allegations in para 1.5 of the complaint and in respect of each noted its conclusions. I set out the determination in full as it is a convenient form of noting the allegations against the appellant and the Board’s decision in relation to each.
“The respondent overstated the seriousness of the condition of the patient’s cervical spine.”
This allegation is not proven.
“The respondent did not offer the patient any short term treatment for the relief of her condition.”
This allegation is not proven.
“The written corrective care plan was inappropriate for the patient in that:
184.108.40.206 it was insufficiently tailored to the patient’s individual circumstances
220.127.116.11 the number of treatments proposed was arbitrary
18.104.22.168 the number of treatments proposed in the intensive care adjustment schedule was excessive
22.214.171.124 it did not sufficiently allow for variation to accommodate the patient’s individual response to treatment
126.96.36.199 it lacked clarity about objectives and the circumstances for review and re-evaluation of the patient’s condition.”
This allegation is proven in respect of 188.8.131.52 and 184.108.40.206.
Therefore, the Board finds that Dr Belle is guilty of unprofessional conduct in that his conduct in providing a written corrective care plan that did not accord with paragraphs 4.1 and 4.2 of the Chiropractors Board of South Australia’s Code of Professional Conduct and Practice in the manner found violated or fell short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency. The Board considers that when Dr Belle provides a patient with a treatment plan such as he provided to Mrs Hill, being a plan which would require considerable financial and time commitments by the patient and development of a long-term doctor/patient relationship, he must make careful consideration of the patient’s stated needs, and take great care to explain the objectives of the plan to the patient.
“In presenting and explaining the proposed long term treatment of the patient’s condition, the respondent confused and intimidated the patient in relation to:
220.127.116.11 the possibility of adjusting or terminating the corrective care plan
18.104.22.168 procedures for the respondent claiming for treatments from her health fund
22.214.171.124 her prognosis if the corrective care plan was not followed.”
This allegation is not proven.
“The respondent’s manner of presentation to the patient generally and in relation to the corrective care plan in particular:
126.96.36.199 led to the patient feeling pressured and coerced into agreeing to the corrective care plan
188.8.131.52 portrayed the chiropractic profession in a negative light.”
This allegation is proven in respect of 184.108.40.206.
Therefore, the Board finds that Dr Belle is guilty of unprofessional conduct in that his conduct in making statements about other medical professionals, specifically orthopaedic surgeons and physiotherapists, and in presenting Mrs Hill with a corrective care plan that did not comply with the Code of Conduct, Dr Belle portrayed the chiropractic profession in a negative light and in doing so his conduct violated or fell short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency.
It is important to note that the determination followed findings of fact in respect of each allegation in the complaint. Those findings are not all recapitulated in the determination quoted above. It will be necessary, therefore, to refer the Board’s findings when determining the issues in this appeal.
The Gravamen of the Complaint
28. When considering the Board’s findings, it is important to keep in mind the gravamen of Mrs Hill’s complaint against the appellant. She had gone to the appellant’s clinic seeking treatment for low back pain which was causing her significant discomfort. Mrs Hill said that she was experiencing “shocking pain”. She was presented with a corrective care plan for the cervical area of the spine and treated for that. In other words, she was treated for the upper part of the spine and not the lower part where she was experiencing the pain.
29. On her first visit on 19 September the appellant did not conduct a physical examination of the appellant nor did he give her any remedial treatment. The appellant did not at any time conduct a physical examination of her. The first visit was entirely occupied with other matters, including taking x-rays and the paraspinal thermal scan. At the visits on 20 and 23 September Mrs Hill received some treatment. On 23 September she was presented with the corrective care plan.
Findings in Three Categories
30. The Board’s conclusions may be divided into three categories, those concerned with the diagnosis of Mrs Hill’s cervical spine and the appropriate treatment for it, those concerned with the treatment of Mrs Hill’s low back pain, and those concerned with the Board’s finding that the appellant had made comments disparaging of other medical professionals. It is important to remember that there are these three separate sets of conclusions.
31. The conclusions relating to the diagnosis of Mrs Hill’s cervical spine are
- that it had not been proved that the appellant had overstated the seriousness of the condition of Mrs Hill’s cervical spine: allegation 220.127.116.11;
- that it had not been proved that the corrective care plan was inappropriate for Mrs Hill in that the number of treatments proposed was arbitrary, that it did not sufficiently allow for variation to accommodate Mrs Hill’s individual response to treatment, and that it lacked clarity about the objectives and circumstances for review and re-evaluation of Mrs Hill’s condition: allegations 18.104.22.168, 22.214.171.124 and 126.96.36.199; and
- that it had not been proved that in presenting and explaining the proposed long-term treatment of Mrs Hill’s condition, the appellant had confused and intimidated Mrs Hill in relation to the possibility of adjusting or terminating the corrective care plan, the procedures for the appellant claiming for treatments from Mrs Hill’s health fund, and Mrs Hill’s prognosis if the corrective care plan was not followed.
32. The conclusions relating to the treatment of the low back pain of which Mrs Hill complained are
- that it had not been proved that the appellant did not offer Mrs Hill any short-term treatment for the relief of her condition; and
- that the written corrective care plan was inappropriate for Mrs Hill in that it was insufficiently tailored to her individual circumstances and the number of treatments proposed in the intensive care adjustment schedule was excessive: allegations 188.8.131.52 and 184.108.40.206, and that the appellant was in that respect guilty of unprofessional conduct.
Finally, the Board made the additional finding that the appellant had made disparaging remarks about other medical professionals which portrayed the chiropractic profession in a bad light and concluded that the appellant was guilty of unprofessional conduct in this respect also.
Some Important Findings
33. The Board made several findings of fact to support the conclusion that the corrective care plan was insufficiently tailored to the individual circumstances of Mrs Hill. Those findings are important and of particular significance in this appeal. They show that the Board was concerned that the appellant had not physically examined Mrs Hill and that a corrective care plan was not directly aimed at treating the low back pain of which she had complained. The Board made three critical findings. It said:
- “The corrective care plan given by Dr Belle to Mrs Hill was based on Mrs Hill’s cervical spine changes and did not address Mrs Hill’s symptomatic low back pain presentation or her stated goal of being pain free.”
- “Completion of these steps is reliant on the practitioner conducting the patient examinations. That did not happen in Mrs Hill’s case. The absence of that information suggests that the corrective care plan given to Mrs Hill by Dr Belle was insufficiently tailored to her individual circumstances.”
- “Mrs Hill was therefore presented with a plan which was not based on her own goal of being pain free and which did not clearly explain to her what the objectives of the plan were. The plan was proposed for postural curvature correction and not designed for Mrs Hill’s pain. Mrs Hill’s pain was subsequently resolved by three physiotherapy visits.”
When concluding that the corrective care plan was inappropriate in that the number of treatments in the intensive care adjustment schedule was excessive, the Board found, among other facts, that “symptomatic relief would normally be provided by three to six visits”, that is to say, symptomatic relief for Mrs Hill’s lower back pain would normally be provided in three to six visits. This links in with another finding that Mrs Hill’s pain was subsequently resolved by three physiotherapy visits.
34. When deciding that it had not been proved that the appellant did not offer the patient any short-term treatment for relief of her low back pain, the Board found that the appellant had attempted to provide her with short-term relief by giving low back adjustments.
35. The effect of the Board’s finding on the question of Mrs Hill’s lower back pain is
- that Mrs Hill had sought treatment for that condition;
- that the appellant had not conducted a physical examination of Mrs Hill;
- that the appellant had diagnosed a condition of her cervical spine but had not examined her nor diagnosed the cause of her lower back pain;
- that the appellant had presented Mrs Hill with a corrective care plan prescribing 88 visits, which was excessive for the symptoms of lower back pain of which she had complained; and
- that the appellant had not clearly explained to her what the objectives of the corrective care plan were.
Importantly, the Board found that the plan was intended to correct postural curvature and was not designed to treat Mrs Hill’s lower back pain. The corrective care plan involved 88 visits. In contrast, as the Board found, Dr Smyth, a physiotherapist, had conducted a physical examination of Mrs Hill and had observed that she was quite restricted in her lumbar movements in all directions. As the Board found, her lower back pain was cured after three visits to Dr Smyth.
36. I have read the evidence. One remarkable feature of it is the emphasis that the appellant gave to the corrective care plan and the lack of emphasis to any régime, even a régime of a few visits, to treat the symptoms of which Mrs Hill complained. One reason might lie in the fact that, as the appellant himself said towards the end of his evidence, he does not prepare a corrective care plan where the condition will be resolved in a few treatments.
37. It must be acknowledged that, if a patient seeks treatment for nominated symptoms and, after examination, a chiropractor identifies not only that the patient is suffering from the symptoms of which she complains, but is also suffering from another condition which requires treatment, the chiropractor has a duty to advise the patient of that condition and recommend appropriate treatment for it or, if the condition is outside the chiropractor’s expertise, recommend a suitable person to treat it. In these circumstances, the chiropractor must treat both the condition complained of and the condition the chiropractor has diagnosed. It follows that the chiropractor will explain to the patient that each condition requires treatment and summarise, at least briefly, the treatment for each condition. That duty is common to medical practitioners, physiotherapists and other medical advisers. However, while informing the patient of the other condition and the recommended treatment, the chiropractor must explain that the treatment is for a condition different from that for which the patient has sought treatment. That is necessary if the patient is to make an informed consent for the treatment. The chiropractor will, therefore, treat the symptoms complained of and inform the patient of the other symptoms and the proposed treatment and, after proper explanation, ask the patient if she wishes to undergo that treatment. The appellant did not act in this way. He did not design the corrective care plan for the purposes of treating Mrs Hill’s complaint. It was designed to treat the cervical area of the spine and the vertebral subluxation. It was not specifically designed to treat the symptoms of which she complained. He did not explain to her that the corrective care plan was intended to deal with a condition different from that from which she was suffering. In that respect the corrective care plan was inappropriate and not sufficiently tailored to the symptoms of which Mrs Hill complained.
38. One measure of the extent to which the corrective care plan was inappropriate is that it proposed 88 treatments. That is to be contrasted with the fact that Mrs Hill was cured of her lower back pain after three visits to a physiotherapist. The contrast is remarkable, even if it is assumed that the two treatments provided by the appellant had assisted her recovery.
39. At first sight, the finding that the appellant did not clearly explain to Mrs Hill what the objectives of the corrective care plan were does not seem to be consistent with the finding in relation to allegation 220.127.116.11 that the Board had not proved that the corrective care plan lacked clarity about objectives and the circumstances for a review and re-evaluation. They are, in fact, quite consistent. The finding that the appellant did not clearly explain what the objectives of the corrective care plan were was made in the context of the finding that the plan was not individually tailored for Mrs Hill’s symptoms of low back pain. The effect of the Board’s finding is that the appellant had failed to make it clear to Mrs Hill that the plan was designed to treat her condition of postural curvature and was not designed for the treatment of her low back pain. As is apparent from a finding quoted above, the Board expressly finds that the plan was proposed for postural curvature correction and not designed for Mrs Hill’s pain. The finding that it had not been proved that the corrective care plan lacked clarity about its objectives is made when determining whether the plan prescribed appropriate treatment for the postural curvature. That is apparent from the only finding of fact made in respect of that conclusion:
The corrective care plan provided for comparative examinations, comparative paraspinal thermal imaging and comparative x–rays at specified intervals.
Thus, each of the above findings deals with a different issue and there is no inconsistency between them. This is but one of a number of instances where it is necessary to bear in mind that the findings fall into different categories.
The Grounds of Appeal
40. There are 26 grounds of appeal. As Mr Cuthbertson acknowledged, those grounds fall into three groups. The first group (grounds 1 to 13) attack the finding that the corrective care plan was insufficiently tailored to the individual circumstances of the patient. The second group (grounds 14 to 20) attacked the finding that the number of treatments was excessive. The third group (grounds 21 to 26) attacked the finding that the appellant had disparaged orthopaedic surgeons and physiotherapists. In addition, the appellant contends that even if those findings are upheld, his conduct did not amount to unprofessional conduct.
An Insufficiently Tailored Plan?
41 The challenge to the finding that the corrective care plan was insufficiently tailored to the patient’s individual circumstances misconceives the reasoning of the Board on this allegation which was in these terms:
The Board finds that:
- The corrective care plan given by Dr Belle to Mrs Hill was based on Mrs Hill’s cervical spine changes and did not address Mrs Hill’s symptomatic low back pain presentation or her stated goal of being pain free.
- Steps to adequate case management are described on page 2 of the Code as including:
“(a) The obtaining of appropriate and relevant data.
(b) The formation of appropriate clinical decisions.
(c) The design and implementation of an appropriate plan of management.”
Completion of these steps is reliant on the practitioner conducting the patient examinations. That did not happen in Mrs Hill’s case. The absence of that information suggests that the corrective care plan given to Mrs Hill by Dr Belle was insufficiently tailored to her individual circumstances.
- The corrective care plan did not include a working diagnosis for either cervical or lumbar complaints, as required by the Code.
- The corrective care plan did not include estimated time frames for achieving clinical goals.
- The corrective care plan did not include an explanation of the expected measurable treatment care outcomes specific to Mrs Hill.
- The plan placed all 88 visits in the intensive care stage which did not reflect the corrective care basis of Dr Belle’s recommendations.
- Mrs Hill was therefore presented with a plan which was not based on her own goal of being pain free and which did not clearly explain to her what the objectives of the plan were. The plan was proposed for postural curvature correction and not designed for Mrs Hill’s pain. Mrs Hill’s pain was subsequently resolved by three physiotherapy visits.
- Dr Belle has since changed the format of corrective care plans used in his practice.
- The corrective care plan was insufficiently tailored to Mrs Hill’s individual circumstances.
An important part of the reasoning is in the third last paragraph where the Board finds that the plan was intended to correct postural curvature and was not designed for Mrs Hill’s low back pain which was subsequently resolved by three visits to the physiotherapist. When that paragraph is read with the rest of the reasoning and especially the finding that the appellant had not made an examination of the appellant, it is apparent that the Board’s conclusion that the plan was insufficiently tailored to the circumstances of Mrs Hill is correct. It is clearly implicit in the finding that the Board is critical of the fact that the appellant presented her with a plan which did not directly treat Mrs Hill’s symptoms of low back pain, that the appellant did not explain the purpose of the plan, and that the plan was treating a different condition from that for which Mrs Hill had sought treatment. Whatever may be the correct meaning of the expression “insufficiently tailored”, it was plain that the appellant did not physically examine Mrs Hill for the symptoms for which she had sought treatment nor did he present her with a plan to treat those symptoms but, instead, gave her a plan for another condition.
42. Mr Cuthbertson QC, who appeared for the appellant, sought to gain some comfort from the finding in relation to the allegation 18.104.22.168 that the appellant had treated Mrs Hill by giving her lower back adjustments. The contention fails to acknowledge that the gravamen of the complaint is the fact that the appellant did not directly address her complaints, that the appellant did not make a physical examination and did not directly address the cause of her pain. The plan he proposed only addressed her symptoms indirectly and in a way which required many more treatments than three.
43. Mr Cuthbertson also relied on the fact that the Board found that the complainant had not proved that the number of treatments proposed was arbitrary, had not proved that the plan did not sufficiently allow for variation to accommodate the patient’s response to treatment, and had not proved that the plan lacked clarity as to its objectives. When considering these arguments, it is necessary to note that the Board was considering the corrective care plan as a plan to correct postural curvature. This is another instance of the Board addressing the suitability of the corrective care plan for the treatment of postural curvature. Having found that the complainant had not proved that the appellant had not overstated the seriousness of the condition of Mrs Hill’s cervical spine, the Board on occasions considered the suitability of the corrective care plan to treat the condition postural curvature so that, when considering the question whether a number of treatments was arbitrary, the Board considered that question by reference to the literature on chiropractic treatment for that condition. On that basis the number of treatments was found not to be arbitrary. Similarly, when examining allegation 22.214.171.124, that the plan did not sufficiently allow for variation to accommodate the patient’s individual response, the Board’s reasoning is against the background of treating subluxation degeneration and not the condition for which Mrs Hill was seeking treatment.
44. The finding that 88 treatments was not arbitrary was made in reliance on papers on chiropractic treatment. That finding says nothing as to the suitability of or the need for 88 treatments for the low back pain of which Mrs Hill had complained, a conclusion borne out by the very next finding that 88 treatments was excessive. The finding that the plan did not lack clarity about its objectives and the circumstances for a review and re-evaluation of the patient’s condition was, Mr Cuthbertson contended, inconsistent with the finding that the plan was insufficiently tailored to the patient’s needs. I do not agree. The plan did state objectives but, as the Board had found, those objectives did not directly address Mrs Hill’s low back pain. The finding that the plan did not lack clarity about the circumstances for a review and re-evaluation is, in my view, wrong. An examination of the plan shows that it proposed 88 treatments. Although the plan stated that a re-examination would be made every 12 visits, there is nothing in the plan to indicate that the plan might be varied after that re-examination and the number of treatments reduced. There is, therefore, nothing to allow for the fact that the patient might make a rapid recovery. No provision is made for a reduction in the number of visits. The total plan was for 88 visits at a cost of $2,692. Even if the finding is taken as it stands, it is not inconsistent with the finding that the plan was not sufficiently tailored to Mrs Hill’s needs.
45. Mr Cuthbertson sought to rely on the evidence of the appellant that he had made a clerical error in the preparation of the plan. He said that the plan should have specified 60 treatments for the intensive care phase and 28 for corrective/reconstructive treatment. It is apparent that the Board was not persuaded by the evidence. It found that 60 intensive care treatments was excessive. The evidence supported that finding. The Board also found that three to six treatments would have relieved Mrs Hill’s symptoms. The evidence clearly supported that finding. Mr Cuthbertson’s submissions focussed on the fact that the evidence of the two chiropractors called to prove proper practice allowed for 88 treatments to treat postural curvature. The flaw in the submission is that Mrs Hill sought treatment, not for postural curvature, but for lower back pain and, that is the condition which the appellant failed to address.
46. For all of these reasons, the appeal against the finding that the corrective care plan was insufficiently tailored to the needs of Mrs Hill must fail.
An Excessive Number of Treatments
47. The appellant then attacked the finding that 88 treatments was an excessive number of treatments. Mr Cuthbertson relied on the Board’s finding that the complainant had not proved that the number of treatments was arbitrary. He referred to the evidence of two chiropractors concerning the appropriateness of the corrective care plan and the failure of the Board to find which of those two bodies of evidence should be accepted. Those arguments do not assist the appellant because they concern the propriety of the corrective care plan to treat postural curvature. They do not bear upon the finding that three to six visits were all that were required to treat Mrs Hill’s symptoms of low back pain and that the appellant had failed clearly to explain that the plan was prepared for postural curvature and not for the low back pain. The Board obviously relied on the finding that Mrs Hill’s low back pain had been cured after three visits to a physiotherapist.
The Finding of Disparaging Remarks
48. The Board’s findings upon which it relied when it concluded that the appellant had made disparaging remarks about other medical professionals were as follows:
- Mrs Hill probably misunderstood statements made by Dr Belle about Mutual Community.
- Given that she had the opportunity to record the events of her appointments with Dr Belle very soon after they occurred, it accepts Mrs Hill’s evidence that Dr Belle made statements about orthopaedic surgeons and physiotherapists that Mrs Hill found disrespectful and offensive. The Board noted that Dr Belle has no recollection of these conversations, but that he was insistent in his denial of Mrs Hill’s accusations regarding the conversations. Mrs Hill said that Dr Belle had said “orthopaedic surgeons … they should be treating the back. If you treat the back, well then, yourself and other people won’t have trouble with their knees”. The Board considered that this concept of treating the back for conditions such as knee complaints is a concept that Mrs Hill would not have known about apart from her exposure to chiropractic with Dr Belle. The Board accepts Mrs Hill’s evidence about the statements in preference to Dr Belle’s evidence.
- In making such statements to Mrs Hill and by presenting a corrective care plan that was not in accordance with the Code of Conduct in the manner previously referred to, Dr Belle generally portrayed the chiropractic profession in a negative light.
The appellant appealed against the finding that the appellant had made the disparaging remarks about orthopaedic surgeons and physiotherapists on three grounds.
49. The first was that the Board had failed to direct itself consistently with the principles in Jones v Dunkel (1959) 101 CLR 298 when it commented on the failure to call Mrs Hill’s husband, who was present at the second consultation when the disparaging remarks were said to have been made. Mr Hill was available to give evidence if required. Counsel for the complainant had said that she would call him if she believed it necessary. It is clear that counsel for the complainant did not believe it necessary to call Mr Hill. The rule in Jones v Dunkel only applies where a party is “required to explain or contradict” something: R v Burdett (1820) 4 B & Ald 95, 106 ER 873; Jones v Dunkel at 321. There was nothing which Mr Hill could explain or contradict. A corollary to that last principle is that the rule does not operate to require a party to give merely cumulative evidence: Cubillo v The Commonwealth (2000) 103 FCR 1 at . Counsel for the complainant presumably believed that calling Mr Hill would only be merely cumulative evidence of the disparaging remarks. I do not think it was necessary in the particular circumstances of this case for the Board to apply the rule in Jones v Dunkel.
50. The next ground of appeal is that the Board had failed to give sufficient reasons for preferring the evidence of Mrs Hill to that of the appellant. The Board essentially gave two reasons for preferring the evidence of Mrs Hill. One was that she had the opportunity to record the events of her appointments with the appellant soon after they had occurred. The second is that Mrs Hill had recalled the words used by the appellant, and in particular referred to a concept of treating the back for such conditions as knee complaints, a concept that Mrs Hill would not have known about apart from her dealings with the appellant. I deal with each ground.
51. The Board was not entitled to rely on any record made by Mrs Hill of her appointments with the appellant since it is in effect to rely on a prior consistent statement of Mrs Hill when deciding to accept her evidence. The reference in the reasons of the Board to “the opportunity to record the events of her appointments” with the appellant could only refer to an interview she had with an employee of the Mutual Community on 17 October 2002, when she said that the appellant had made “several insulting remarks about physiotherapists, orthopaedic surgeons and health funds, especially Mutual Community”. These words appear in the employee’s report. It is not a note made by Mrs Hill. It will be noticed that the employee’s note simply summarises the effect of what was said. It does not record the actual words used. In her evidence Mrs Hill quoted the actual words used. The Board was not entitled to rely on the fact that Mrs Hill had made a report to Mutual Community which included a complaint about the disparaging remarks made by the appellant. A witness does not corroborate his story by repetition: R v Whitehead  1 KB 99 at 102.
52. However, the Board was entitled to rely on Mrs Hill’s recollection of the words which were used by the appellant. Mr Cuthbertson criticised the Board’s conclusion on the ground that Mrs Hill had not been asked whether she had gained that knowledge elsewhere. The attack is misplaced for two reasons. The first is that the evidence given by Mrs Hill was in answer to questions by a member of the Board. When those questions had been completed, counsel for the appellant was asked if he wished to ask any further questions. He did not. Secondly, when using these words Mrs Hill was not pretending to any esoteric knowledge. She was doing no more than stating that she had heard those words. The Board was entitled to conclude that Mrs Hill would not have known of the concept of treating the back for knee complaints unless she had heard that from the appellant.
53. Mr Cuthbertson also submitted that the evidence of Mrs Hill had been discredited. He relied on the fact that Mrs Hill had described a videotape given to her by the appellant as a “scare tactic”, a criticism made without even seeing the videotape. The videotape was described by an expert witness as a useful tool for education of chiropractic. Mr Cuthbertson relied also on the fact that Mrs Hill was mistaken in believing that the Mutual Community health fund was associated with the stall at the Royal Show and on the fact that the Board did not accept her evidence that the appellant had told her that, if she stopped treatment, he would continue to send accounts to Mutual Community. These are, I think, inadequate grounds for asserting that Mrs Hill’s evidence was discredited. It was open to the Board to accept so much of her evidence as they found to be worthy of credit and to reject other parts of it. Mr Cuthbertson also asserted that Mrs Hill’s evidence that the offer at the Royal Show included free x-rays, and that evidence was false. I do not agree with that contention. The form handed to Mrs Hill at the Royal Show included the following remarks:
SAVE SAVE SAVE
For a $20 donation to the Australian Spinal Research Foundation (normally $96) you can have a complete evaluation in one of our ChiroPartners Clinics.
The statement is, at least, ambiguous. I do not think that Mrs Hill can be criticised for believing that for a $20 donation she would receive a complete evaluation which might include free x-rays.
54. I have read the evidence on this issue. Mrs Hill has recalled the words which were used. The appellant has no recollection of using these words. That is understandable, given that he sees many patients. It is very likely that Mrs Hill would have recalled the words actually used. I am satisfied that the words were used.
55. The Chiropractors Act does not define the expression “unprofessional conduct”. The Board adopted the definition of “unprofessional conduct” as expressed by the Full Court in re R  SASR 58 at 60 – 61:
In our view “unprofessional conduct” is not necessarily limited to conduct which is “disgraceful or dishonourable”, in the ordinary sense of those terms. It includes, we think, conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standards of professional conduct observed or approved of by members of the profession of good repute and competency.
Although that definition was framed in respect of conduct of legal practitioners, it is equally suitable for other professions and is suitable for chiropractors. Mr Cuthbertson accepted that the definition was appropriate.
56. However, Mr Cuthbertson QC submitted that the Board had erred in finding that the appellant had been guilty of unprofessional conduct in providing a corrective care plan to Mrs Hill which did not accord with paras 4.1 and 4.2 of the Code of Professional Conduct and Practice. Paragraphs 4.1 and 4.2 appear in the Code under the heading “Standards of Professional Practice”. Paragraph 4.1 is headed “Frequency and Duration of Care”. It is an extensive provision occupying some eight A4 pages. The following extracts are relevant for the purposes of this appeal:
The purpose of this section is to provide guidelines that will assist the chiropractor in clinical decision making regarding the frequency and duration of chiropractic care
It is considered to be a breach of professional standards, amounting to unprofessional conduct, to overservice a patient.
Initiation of a treatment program should be based on clinical need, and must consider the outcome of the condition if no treatment was to be provided, i.e., the natural history of the disorder. The frequency and duration of care should be based on the subjective and objective clinical information gleaned from the case history, physical examination, x-ray examination findings (if applicable), and the clinical impression or diagnosis.
It is therefore necessary to record this information progressively in the patient’s file as maintained by the chiropractor (refer Record Keeping). At all times during a patient’s treatment it is the responsibility of the chiropractor to treat the patient only while chiropractic can be shown to be of benefit (clinical justification). If proper records are not maintained then there is a high risk that care cannot be justified. Care that is not justified constitutes overservicing.
4.1.3 Treatment Guidelines
(a) Treatment Plans
An estimated time frame for achieving reduced pain and improved function should be made and discussed with the patient.
Acute uncomplicated cases –
- Significant improvement within 10-14 days.
- Return to pre-episode status 6-8 weeks.
Chronic cases –
- A shift in emphasis from passive care measures to active patient self-care is expected.
- Symptoms have been prolonged beyond 16 weeks.
- Maximum therapeutic benefit must be considered if additional improvement is not forthcoming.
- Supportive care using passive therapy may be necessary if withdrawal from care results in significant deterioration of condition.
Paragraph 4.2 is headed “Management/Corrective Care Plans and Patient Contracts”. It relevantly provides:
(a) Management/Corrective Care Plans must:
- be in writing.
- be signed by the practitioner and patient without intimidation or coercion and a copy given to the patient.
- contain the following –
- working diagnosis;
- short and long range treatment plans;
- expected measurable treatment care outcome;
- estimated time frames for achieving clinical goals;
- full details of financial obligations;
- a statement that a refund will be available if a pre-paid plan is discontinued.
- not be misleading, false or deceptive.
- be accurate and factual with discussion or comments based on theoretical concepts and paradigm belief described as such.
- not contain recommendations of unnecessary or inappropriate services.
- not exaggerate the patient’s condition.
- describe short and long term measures.
(d) Evaluation must occur to ascertain ongoing progress or the need for change/referral in the case of no improvement. It is expected that in acute presentations this occur every 2 weeks then in 6-week blocks if care is ongoing. Clinical justification must be present for care to continue.
(e) Patient subjective and objective ongoing clinical findings and outcomes must be evaluated and recorded in the patient’s file.
(f) It is recommended that plans contain a statement to the effect that the patient has read and understood the terms of the plan.
When read as a whole, the intent of these standards is clear. First, the treatment must be related to the needs of the patient as determined by physical examination and other diagnostic tools. Secondly, treatment plans may be long or short-term with short-term plans being designed for treatment of symptoms. The plan describes the difference between short-term and long-term goals in these terms:
Short-term goals involve symptomatic control which can vary between 2-16 weeks dependent upon the level of complication. Long-term goals include the rehabilitation of aberrant postures and movement patterns.
Thirdly, the chiropractor should explain the proposed treatment to the patient in a way that the patient is able to understand what is intended.
57. The Board’s finding is that the appellant fell short of the Code in that the corrective care plan was not sufficiently tailored to the needs of Mrs Hill and the number of treatments was excessive. Reference has already been made to the grounds on which that finding was made. Shortly stated, it was that the appellant had not physically examined Mrs Hill, that he did not prescribe a plan to relieve her symptoms of low back pain, and that he did not explain clearly that the corrective care plan was proposed to correct her postural curvature and was not designed for her low back pain. The appellant admitted that he did not prescribe a short-term plan to relieve the low back pain.
58. The effect of the Board’s finding is that the appellant was not so much concerned with treating Mrs Hill’s low back pain in three to six treatments as with promoting the corrective care plan to cure her postural curvature by a régime of treatments requiring 88 visits at a cost of $2,692.
59. The appellant’s conduct was clearly unprofessional. There is no basis for disturbing this finding of the Board.
60. Mr Cuthbertson QC also submitted that the Board had erred in concluding that the disparaging remarks made by the appellant about orthopaedic surgeons and physiotherapists constituted unprofessional conduct. In my view, this submission must fail. There can be no doubt that it is unprofessional conduct for a member of one profession providing a form of medical treatment to make disparaging remarks about members of other professions who provide treatment in that same area, be those remarks of a general kind or specifically directed to individuals. There is simply no substance in this ground of appeal.
61. For all of these reasons the attack upon the findings of the Board fails. The appeal must, therefore, be dismissed.
This page was posted on August 30, 2006.