One Small Word
by Michael McKibbin DC.

Try writing down what your legal obligations are regarding what diagnosis and services you are legally permitted to provide or prohibited from providing. The law determines the real legal identity of a profession. Osteopaths and chiropractors may be about to have an ‘identity’ change.

Jan 19, 2006 saw the release of the Health Workforce Research Report. One of its many recommendations is that state and territorial registration Boards be replaced by a single national Board for each profession.

Currently, our various registration Acts and legal precedents very vaguely define our scopes of practice, what the law requires that we do and what laws prohibit us from doing. National uniformity may clarify some of that.

Australia’s health practitioner legislation is, or has been, under review in accordance with national competition legislation. In WA the osteopaths Bill is the template Bill for other Bills. 7 health practitioner Bills (including the Chiropractors Bill 2005) have been passed by both Houses of Parliament and given royal assent by the Governor. However, the Chiropractors Act 2005 is not yet in force as it won’t become operational until proclaimed because the new regulations are yet to be put in place. The Act will therefore become operational on a day fixed by Proclamation.

The chiropractor’s Bill exemplified the enormous ramifications of one word.

The definition of chiropractic in the legislation does not legally oblige a chiropractor to perform any aspect of what is described in the definition. Rather it prohibits a person from practicing what is described in the definition unless that person is appropriately registered as a chiropractor (or exempt from the operation of the Act). Therefore the purpose and effect of the Chiropractors Act 2005 is not to constrain chiropractors in the range of services they can lawfully provide but to define those activities which may be undertaken only by persons registered as chiropractors under the Act.

“Diagnose” could mean that registrants are legally obliged to perform a full diagnostic work up, to define the conditions that they will or will not treat, that they can give a legally accepted opinion, that their diagnosis will have valid weight for insurers, that their patients no longer need diagnosis by a medical gatekeeper.

Parliamentary secretary to the WA Minister for Health, the Hon Sue Ellery MLC answered questions in the House about replacing the term ‘determining’ with the term ‘diagnose’. In summary her reply was as follows:

The scope of the definition of “chiropractic” in the Chiropractors Bill 2005 (the Bill) has not been changed as a result of replacing the word “determining” in the Act with the word “diagnosing” in the Bill. “Determine” and “diagnose” both denote observation, examination and conclusion. The word “diagnosing” is limited by the surrounding phrases in the definition in two ways: firstly, a chiropractor may only “diagnose” interference to nerve transmission and normal joint function. Secondly, a chiropractor may only base the diagnosis on his or her examination and adjusting of the human spinal column and associated structures.

For all of this rhetoric, the right/obligation of WA’s chiro/osteo population remains in the legal minefield of being allowed to provide products or services as long as that does not cause offence under any other Acts. For example, WA’s all inclusive legislation and precedents relating to the medical Act may make it an offence for WA’s chiro/osteo population to perform general diagnosis. Hence, we need to tread warily!

Our indemnity insurers, our representative bodies and in particular our education institutions share a responsibility to clarify the legal prohibitions and obligations that apply to the chiro/osteo population in Australia’s various jurisdictions.