Learnings from physiotherapy claims

Guild Insurance regularly analyses claims and/or complaints relating to treatment provided by physiotherapists. This involves complaints made directly to the practitioner or practice, as well as complaints to a regulatory body, such as Ahpra. This analysis helps Guild better understand several key details such as:

  • what the complaint or allegation is about
  • the factors that may not be mentioned in the complaint, yet have contributed to the incident, and therefore the complaint occurring
  • what could have been done differently to possibly avoid the complaint from occurring

This information is then used to develop risk messages for the profession, which include tips and strategies to reduce the likelihood of receiving complaints. It’s important to understand that risk management can’t guarantee that a poor outcome or complaint won’t ever occur. However, by adhering to the following messages, physiotherapists are taking positive steps to reduce the likelihood.

Key risk messages

1. Ensure you make communication a key feature of your work

Guild’s claims analysis suggests that poor communication is a feature in almost all treatment-related complaints. Patients don’t often complain specifically about poor communication. However, when an incident is investigated, poor communication is quite often a factor. Practitioners must continually focus on their communication with patients, patient’s families where relevant, colleagues and other health professionals. Good clinical skills alone aren’t enough to make someone a safe and effective practitioner.

2. Ensure there’s been an adequate assessment prior to treatment

Assessment before treatment seems like an obvious step. However, it’s not uncommon to see claims where the assessment hasn’t been thorough enough, leading to treatment that’s inappropriate or ineffective. The assessment shouldn’t be rushed, and details of the assessment and findings are to be recorded in the clinical record. Practitioners must be sure not to make assumptions or fall into routine. Remember, poor assessment usually leads to poorly-selected treatment.

3. Manage patient expectations

It’s important that patients have realistic expectations regarding their likely treatment outcomes. Unrealistic expectations are rarely met. Unmet expectations will often lead to patients being dissatisfied with treatment and more likely to complain. It’s the responsibility of the practitioner to be sure a patient’s expectations are realistic before treatment begins. Practitioners must remember that in most cases, patients won’t have the clinical knowledge and understanding that they have. They should never assume a patient understands their treatment or what’s likely to happen post-treatment; there must be a conversation to ensure this understanding.

4. Be sure patients have given their informed consent to treatment

Patients must be given the opportunity to provide their informed consent to treatment before being treated. Informed consent requires a conversation between the treating practitioner and patient about recommended and alternate treatment options, as well as the benefits and risks for each of those options. Informed consent should include financial consent, which involves discussing the expected costs of treatment. Details about the consent discussion need to be recorded in the clinical record. Signing a generic form at reception prior to seeing the practitioner is not informed consent.

5. Be mindful of treatment around sensitive areas

Guild Insurance sees numerous claims each year where a patient has accused a practitioner of touching them inappropriately during treatment. In most of these cases, the treatment has been appropriate and clinically indicated. However, the practitioner’s communication about the treatment has been lacking, leaving the patient confused about where and how they’ve been treated and why. Never assume a patient’s understanding or comfort level. Be sure they understand the treatment and the reason for it before you proceed, particularly when treating around sensitive areas. It’s a practitioner’s responsibility to explain the treatment in simple, non-clinical language, so the patient understands. And be sure to always use appropriate coverings, such as towels, to ensure patient modesty is protected.

6. Maintain adequate clinical records

Clinical records are a practitioner’s history and evidence of what took place, and they serve numerous purposes. They assist with ongoing clinical care, as no practitioner can remember how they’ve treated every patient in every consultation. They also assist as evidence if a practitioner’s treatment is questioned by a patient, regulator, or private health insurer. And finally, they’re necessary for meeting the expectations of the Physiotherapy Board of Australia.

7. Refer to another practitioner when required

Physiotherapists play a key role in the Australian healthcare system; however, it’s important to remember that other health professionals do too. There’ll be occasions when a patient presents for treatment, but physiotherapy won’t be the most suitable treatment. Practitioners must recognise those occasions and be sure they refer those patients to the appropriate professional. Sometimes, the most appropriate treatment provided is no treatment at all.

8. Don’t allow yourself to be coerced into doing things against your better judgment

There’ll be occasions when a practitioner is asked to do something they don’t believe is in the patient’s best interests. This may be when a patient is asking for a particular type of treatment that isn’t clinically indicated. Or when a practitioner has decided against treating a patient, yet the patient insists on some form of treatment. Practitioners need to be sure they aren’t convinced to do something they don’t believe is appropriate. They must remember that they’re responsible for, and need to be able to justify, their clinical decisions and actions.

9. Know and adhere to all Ahpra requirements

As a health professional registered with Ahpra, it’s a physiotherapist’s responsibility to make themself aware of what’s required. This means making the time to seek out and read the numerous codes and guidelines found on the Ahpra website (ahpra.gov.au). Some of these documents detail what’s considered best practice while some information refers to the law. Not knowing this information is no excuse for not adhering to it.

10. Adhere to advertising requirements

Ahpra’s expectations regarding advertising are explained in the Guidelines for Advertising Regulated Health Services document which can be found at ahpra.gov.au/Resources/Advertising-hub. There are numerous complaints continually being lodged with Ahpra alleging health professionals are breaching these guidelines. Practitioners need to be aware these guidelines specify what’s required under the National Law and non-compliance is a criminal offence for which hefty fines can be imposed.

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    Are you sure your professional indemnity insurance is current?

    While making your way through emails one evening, you come across one from Ahpra (Australian Health Practitioner Regulation Agency). It informs you that they’ve received a notification about you from one of your patients, alleging your treatment has caused harm. You’re shocked and confused; this has never happened to you before. You immediately notify Guild Insurance, knowing they’re there to support you during moments like this. However, the situation becomes more concerning when Guild informs you that your policy lapsed five months earlier.

    Could this happen to you? It’s easy to think not. However, Guild Insurance has noticed a worrying trend of practitioners failing to maintain instalment payments during the policy period, or to renew their policy.

    Ahpra’s registration standards

    Being covered by a professional indemnity insurance (PII) policy is a registration standard for all health professionals registered with Ahpra. This means that every practitioner must be covered by either their own PII policy or a third party arrangement. Section 129 of the Health Practitioner Regulation National Law states that:

    “A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner’s practice of the profession.”

    Section 130 of the National law details relevant events where, if they occur, a practitioner is required to notify their relevant Board within seven days after becoming aware of the event. PII arrangements no longer being in place is one of these events.

    It’s recommended that all practitioners review their Board’s Professional Indemnity Insurance Registration Standard which can be found on the Ahpra website: www.ahpra.gov.au.

    Implications of having no PII

    No cover for an investigation or complaint

    Most PII policies provide cover on a claims-made basis. This means that, regardless of when the alleged event occurs, if the practitioner doesn’t have a policy at the time they become aware of the complaint, they won’t be covered for that claim. Without a PII policy, the practitioner won’t have the support of a claims manager or lawyer, instead having to respond to the claim or complaint themselves, or pay a lawyer to do this for them. By not having a PII policy, this would also mean the practitioner has to self-fund any compensation payable to the patient, which can be quite costly.

    Breach of professional requirements

    As already mentioned, not being covered by a PII policy is a breach of Ahpra’s registration standards. Further to this, it can lead to practitioners making a false declaration at the time of registration renewal. At renewal, practitioners are asked to declare that they won’t practice without PII. If they continue practicing when there’s no longer a PII policy in place, this may mean they’ve made a false declaration. There are possible registration consequences for practicing without PII. This can include conditions placed on the registration, refusal of an application for registration renewal or suspension of registration.

    What can be done to prevent this?

    The team at Guild do all they can to make customers aware when their policy is due for renewal, or if the policy is going to be lapsed or cancelled due to non-payment of the premium. However, ultimately, the responsibility for maintaining PII cover sits with each individual practitioner.

    PolicyHub – Guild Insurance has an online self-service platform called PolicyHub where customers can access their insurance information. If you aren’t sure when you last paid your insurance premiums and you want to check when it’s due, logging onto PolicyHub is an easy way to keep yourself informed. This can be accessed via Guild’s website – guildinsurance.com.au/policyhub.

    Reliance on a third party – if a practitioner doesn’t hold their own PII policy and is instead covered by a third party’s policy (e.g. your employer’s), this doesn’t mean the practitioner isn’t responsible for ensuring they’re appropriately covered. Practitioners should discuss the policy with the third party to ensure, first and foremost, that they have a policy, but also that the level of cover is appropriate for the practitioner’s requirements.

    Set reminders – a common explanation for not maintaining insurance is that the practitioner has a poorly-managed inbox and doesn’t stay up-to-date with reading emails, meaning some are missed. If this might happen to you, think about how else you can be sure you won’t miss that renewal date. Setting a reminder in a calendar is one simple way to do this.

    Setting a reminder in your calendar is one simple way to help not miss your insurance renewal.

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    Don’t go it alone
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    Clinical Records Checklist

    Maintaining appropriate and detailed clinical records is a core requirement for all health professionals. Unfortunately, when managing claims against health professionals, Guild Insurance sees too many cases where the records haven’t been kept to the standard expected. It’s the responsibility of all health professionals to make themselves familiar with their regulator’s codes and guidelines regarding record keeping as well as other areas of professional behaviour and conduct.

    Responding to the statements on this checklist will help you evaluate your record keeping practice. ‘No’ answers are opportunities for reflection on and improvement of your processes.

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    Stay on the right side of Ahpra’s advertising requirements

    While there are laws for advertising any business in Australia, The Australian Health Practitioner Regulation Agency (Ahpra) has specific requirements for anyone advertising a regulated health service. And these requirements apply equally to all types of health professionals regulated by Ahpra.

    These advertising requirements are set under Section 133 of the Health Practitioner Regulation National Law. Therefore, breaching an advertising requirement is a criminal offence for which prosecution and financial penalties can apply. For an individual, there may be a penalty of up to $60,000 per offence and $120,000 for a body corporate.

    Where to get the facts

    It’s incredibly important that all health practitioners and health practices who advertise a regulated health service make themselves fully aware of these requirements and what they need to do to comply.

    The information in this article summarises the key requirements, yet it’s important to refer to the information provided by Ahpra to be fully informed, which can be found at ahpra.gov.au/Resources/Advertising-hub.

    Within the hub, you’ll find the document titled Guidelines for advertising a regulated health service, published December 2020, which provides a wealth of information and guidance.

    What’s advertising?

    Ahpra defines advertising as ‘all forms of verbal, printed or electronic public communication that promotes a regulated health service provider to attract a person to the provider (practitioner or business).’

    This includes all forms of advertising such as websites, social media, flyers, billboards, signage and business cards.

    What’s not allowed?

    There are five advertising requirements regarding what’s not allowed in advertising according to the National Law (listed below as (a) through to (e)).

    Section 133 of the National Law states that a person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that:

    • (a) is false, misleading or deceptive or is likely to be misleading or deceptive

    This requires advertising to be honest and factual, with consideration for the audience and their level of understanding. The information should be detailed as partial information has the potential to be misleading. The information also needs to be based on “acceptable evidence”; an explanation of this can be found in the Guidelines document.

    • (b) offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer

    The terms and conditions need to be clear, not misleading and in language that can be understood by the intended audience. Details of price, and the services to be provided, must be easily understood.

    • (c) uses testimonials or purported testimonials about the service or business

    A testimonial, in this instance, refers to a positive statement about the clinical aspects of a regulated health service. Testimonials aren’t allowed as they’re often biased, subjective and misleading and won’t apply to all patients and their unique clinical situations.

    • (d) creates an unreasonable expectation of beneficial treatment

    Patients need to have realistic expectations regarding treatment outcomes. This means not making unsubstantiated scientific claims or overstating the potential benefit of treatment. It’s also important to not minimise the risk of harm by declaring treatment to be safe or risk-free, as all healthcare treatment carries some level of risk.

    • (e) directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services

    Advertising shouldn’t encourage the public to buy or use a regulated health service they don’t need or is of no benefit. It’s important to not create a sense of urgency or encourage regular appointments when not clinically indicated.

    Use of titles

    Accuracy and detail in titles when advertising is important to be sure the public understand the qualifications and registration type of a health professional. And this information doesn’t have to be false to be misleading.

    All registered health professions regulated by Ahpra are protected titles under the National Law. Therefore, those titles can only be used in advertising by professionals qualified and registered under that profession.

    The use of protected titles extends to specialist registration. It’s considered that if a practitioner doesn’t hold specialist registration, using words such as ‘specialist’, ‘specialises in’, ‘specialty’ or ‘specialised’ may be misleading or deceptive and therefore in breach of the guidelines.

    “Doctor” (or “Dr”) isn’t a protected title and can be used by various types of health professionals. However, as the public have historically used this term to refer to medical practitioners, it could be misleading in advertising. Therefore, if the use of “Dr” doesn’t refer to a medical practitioner, it must be made clear the type of health professional it’s referring to.

    What you’re responsible for

    Health practitioners are responsible for compliance with advertising requirements when they have control over that advertising. This means that, for example, if a testimonial is posted on a practitioner’s social media page, they’re able to remove it and must do so; to leave it would be in breach.

    However, if that testimonial is posted on a public review site, the practitioner isn’t expected to remove it or try to have it removed. Yet they are expected not to promote, through ‘likes’ or ‘shares’, those testimonials they can’t remove.

    Anyone who advertises a regulated health service is considered an advertiser and is responsible for ensuring their advertising complies. Therefore, advertising created by others, such as a marketing or advertising professional, needs to be checked by the responsible advertiser to be sure it isn’t in breach.

    Guild Insurance encourages health practitioners regulated by Ahpra to review all of their advertising and make any necessary changes immediately to be sure they’re not in breach. Remember, these advertising requirements are the law!

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