Subluxation is No Defence in the Eyes of the Law

A Melbourne Chiropractor, (The Applicant), appealed a 4 month suspension of registration for engaging in “unprofessional conduct of a serious nature” pursuant to s46(1)(a) of the Chiropractors Registration Act 1996 by the Victorian Chiropractors and Osteopaths Association (the Respondent) on the 5^th July 2005. It was heard before the Victorian Civil and Administrative Tribunal and presided over by Robert Davis (Senior Member). The hearing spanned some 14 days in late February to early March 2006.

Background
A mother of a 4 week old infant (first born), took her child to see the Applicant at his practice “to have posture etc... checked over after a forceps delivery, for her peace of mind” (points 3-5; the full decision is presented in point format and is referenced as such). After an initial examination and thermography evaluation she was presented with a plan and payment schedule for a 12 month Corrective Care program involving some 60 visits (for full details and penalty payments for early discontinuation see points 5 to 9 of the decision).

The mother signed the form and then expressed concern at a later date about the amount involved. She then sought a second opinion and treatment from another chiropractor who also expressed concern over the previous recommendations. The child was treated, by the second chiropractor, some 14 times over the subsequent 12-month period achieving all developmental milestones during that year.

The VCAT Review
Two Chiropractors with post graduate paediatric qualifications and the paediatric text of Neil Davies “Chiropractic Pediatrics” were drawn upon to establish appropriate recommended levels of care for this situation. They concluded the history was consistent with diagnosis of right atlas subluxation. The literature suggests head symmetry and subluxation in an infant will be fully corrected after 3.72 corrections – therefore the recommendation of 60 consultations over a year was unwarranted and excessive and contrary to undergraduate training (points 17 and 18).

The Senior Member, in defence of the Applicant, was told that he maintained a subluxation/wellness chiropractic practice (point 24). This, in effect, means that his intent was to assess patients for subluxations and then correct the same and continue seeing the patient to ensure that the correction of the subluxation remains (stabilising those) and that no further subluxation occurs (wellness phase). This may incur regular and frequent visits by the patient to the applicant (point 24) and as such justified his treatment plan.

The Senior Member, in his summary, describes three types of views of Chiropractic practice presented to him (points 31 to 37). First, those who are of the view that subluxation can be detected by the means used by the applicant: that there should be adjustment, stabilisation and a continuation of that treatment with frequent visits either weekly or fortnightly. These chiropractors subscribe to the views held in the ICA (International Chiropractic Association) and the CCP Guidelines.

Secondly, there are those that follow similar principles, but do not believe in the frequency of visits for well children as that practised by the applicant.

The third type of chiropractic was practised on a symptomatic basis. The chiropractic witnesses called on behalf of the Victorian Chiropractors and Osteopaths Registration Board, were by and large exponents of this type of chiropractic treatment. They denied that subluxations could be detected by palpation. They also denied the use of thermal imaging in the assistance of detection of subluxations. Their view was basically that there is no proof that subluxations exist. They said that the proper practice of chiropractic was for musculo skeletal disorders and vertebral subluxation as a “theoretical construct” for which there is no evidence “beyond anecdote and intuition”. Further, they state that the view held by the applicant and his witnesses was largely driven by their desire to build their practices and increase patient visits by propagating conditions for which there is no apparent scientific evidence of its existence.

The Senior Member (Mr Davis) in his review of the credibility of the Applicant (points 50 to 78) concluded that “It is apparent from the evidence of mother, that the applicant made her believe that there was something seriously wrong with her daughter……. it is clear that she thought that the 60 visits were because there was something seriously wrong with her child. On questioning from me, she gained the impression that if her daughter did not have the treatment suggested by the applicant, her health and spine might be damaged for the rest of her life. For a professional person, such as the applicant, to give the impression that he gave to the mother about her daughter’s health, in my view, is inexcusable.”(point 75).

Further “it is not apparent from the evidence the Applicant gave, that he informed the mother of any of the difficulties that may result from the treatment or of the contrary views held by many of his chiropractic colleagues as to the treatment that was given. …..This is particularly concerning because he admitted that the mother was particularly stressed at the time that the plan was submitted to her, and yet he did not tell her that some members of his profession would not think there was any need for treatment of her child at all” (point 51).

Mr Davis expressed concern over a similar prior complaint where the Respondent questioned the Applicant over similar allegations and that he had failed to prepare and make treatment/patient records which were adequate, accurate and comprehensive (point 52).

The Applicant gave evidence that he was able to remember the visits of the child…. it should be noted that the applicant sees more than 400 patients a day, including many infants, and he agreed that he had no particular reason to recall the mother or child (point 70).

Mr Davis found “that the applicant rather than explaining the care plan in a proper manner setting out the pros and cons of the same, did in fact give the mother a “sales pitch” relating to the same, and frightened her by referring to things like fusion of the child’s spine (point 122).

The Decision (points 1 to 7)
That the Applicant should undergo further education at his expense with a body to be approved by the Chiropractors Registration Board. Such education is to include patient management, case history taking, patient examinations, diagnosis and management plan and professional ethics with particular reference to children under the age of 12 years.

The Applicant is to undergo a mentoring component to this educational process. This should include regular reporting mechanisms, the exact nature and contents to be forwarded by the Board and will be implemented at the discretion and direction of the Board. These will include, but not be limited to practising procedures in relation to communication, protocol of self and staff, documentation with patients referring to diagnosis, treatment plans, payment plans, his relationship with patients, his practice and professional ethics. These will be regularly audited. The expense of this process and each of the elements within the process is to be borne by the Applicant. The compliance of the Applicant with the determinations of this Panel in respect to the questions of education and mentoring will be a condition of the ongoing registration of him. Finally that his registration be suspended for a period of ten months.

It would appear from this decision that the notion that a Chiropractor has a sole responsibility to find and correct subluxations is inadequate in the eyes of the law. This decision states clearly that the Chiropractor’s obligations as a primary care practitioner extend beyond this conceptual framework.

The full decision can be downloaded from www.austlii.edu.au/au/cases/vic/VCAT/2006/436.html