Why has my chiropractor touched me there?

Guild Insurance has seen a gradual increase in the number of allegations against chiropractors where the patient claims the chiropractor has touched them in an inappropriate sexual way during treatment. 

These claims may involve allegations regarding the way the chiropractor has touched them, or they may relate to what the chiropractor has said during the consultation. These are incredibly serious allegations that cause a great deal of stress for both the chiropractor and the patient.

Case example 1

The patient alleged that during treatment the chiropractor moved and undid items of the patient’s clothing without the patient’s consent, leaving the patient feeling exposed and uncomfortable.

Case example 2

The patient complained about what she perceived to be excessive and unnecessary physical contact during treatment which left her feeling uncomfortable. The patient stated she had been receiving chiropractic treatment for more than a decade and had never been treated in this manner.

How can these allegations be avoided?

Be mindful of patient clothing

If a patient’s clothing needs to be moved or adjusted to allow better access to body parts needing to be treated, this needs to be done with the utmost consideration.  Adjusting clothing can leave patients feeling exposed and vulnerable during treatment.

Tips regarding patients and their clothing:

  • Consider making patients aware prior to their appointment that they may need to wear a gown.  This allows the patient to consider what clothing might be most suitable and comfortable to wear.
  • Be sure you explain to patients why you would like them to move or adjust their clothing, keeping in mind it may not be obvious to them.
  • Provide the patient with clean towels and/or gowns to keep covered the parts of their body not being treated.  Please note, these must be of a sufficient size to protect the patient’s modesty.
  • If moving or adjusting the patient’s clothing during treatment, seek the patient’s consent before this is done, and ensure you offer to re-position the clothing afterwards.
  • If clothing needs to be removed, be very clear about what you want them to remove and what they should leave on.  Simply asking them to undress is likely to cause confusion and apprehension.
  • If undressing, give them privacy when undressing and dressing by either having a screen for them to go behind, or by leaving the room, even if they aren’t removing much. 

Gender is irrelevant

It’s easy to think that allegations of inappropriate touching are predominately issues when treating patients of the opposite gender.  However, this isn’t the case.  Regardless of your and the patient’s gender, there is always a possibility for the patient to feel uncomfortable during treatment.  The way you explain treatment to patients and seek their informed consent should not differ based on the patient’s gender.

Informed consent

All chiropractors would be aware of their professional obligation to ensure a patient has given their informed consent prior to assessment and treatment beginning.  For a patient to be able to give informed consent, they need to have had the assessment and treatment explained to them in a manner they understand.  This means avoiding clinical language which may be confusing whilst providing the risks and benefits to what you are proposing and allowing time for the patient to ask questions. 

As chiropractic is very hands-on, it’s important to clearly explain to patients where they’re going to be touched, and why.  It may even require you to demonstrate on yourself exactly where you’re referring to.  Remember that in some cases you won’t directly touch the patient where they feel pain or discomfort, so the treatment area may not be obvious to them.  Keep in mind that even after treatment has commenced, patients can withdraw consent at any time if they don’t feel comfortable.

Record keeping

Record keeping is a professional requirement which serves a number of purposes.  Detailed and accurate clinical notes allow for continuity of patient care.  They also provide evidence of what took place during a consultation, and why. 

If a patient alleges they have been touched inappropriately, the chiropractor’s clinical record will be examined for evidence of what treatment was provided and the clinical justification for this.  The clinical record should contain evidence of the patient consenting to the treatment.  Without this information in the clinical record, it becomes very difficult for the chiropractor to defend their actions.

Don’t make assumptions

As with any professional, chiropractors can become overly familiar with what they know and do every day.  However, they must remember that patients won’t have that level of familiarity when it comes to chiropractic.  Regardless of how many times a chiropractor has treated a patient, they should never make assumptions about what the patient will understand about treatment, be comfortable with and be willing to consent to.  Treatment always needs to be explained to patients, even if they’ve received that treatment before. 

Consider the patient’s demeanour

Whilst it isn’t expected that a chiropractor can be sure of what a patient is thinking and feeling just by their body language, we all have some ability to gauge when a person is feeling uncomfortable with a situation.  If you have a patient who appears to not be comfortable with the treatment being suggested or carried out, stop what you’re doing and assess the situation.  You may need to further explain the treatment so it’s better understood.  You may need to reposition clothing or gowns so the patient is more adequately covered.  Or you may need to remind the patient that they don’t have to consent to treatment being proposed and discuss other treatment options.  It is also worth informing patients that they can bring a support person, such as a friend or relative, into the treatment room with them if that would make them feel more comfortable.

Talking whilst treating

Chiropractors are recognised as being very personable and friendly health professionals.  Whilst this can be very beneficial in terms of building relationships with patients, it can also have its downside.  Whilst having non-treatment related chats with a patient during treatment is acceptable, there will be occasions when the chatting should cease so further information about treatment can be discussed.  It is far too easy to forget what has and hasn’t been explained, and consented to, when continually chatting whilst treating.

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    Guild Insurance Limited ABN 55 004 538 863, AFS Licence No. 233 791.  This article contains information of a general nature only, and is not intended to constitute the provision of legal advice. Guild Insurance supports your Association through the payment of referral fees for certain products or services you take out with them    .

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    Learning from chiropractic claims

    Guild Insurance spends a significant amount of time analysing the chiropractic claims reported to us. This analysis helps us to understand what patients complain about, factors which might make some patients more likely to complain and what actions from practitioners make it challenging to defend these complaints. Following this analysis, Guild, in conjunction with the Australian Chiropractors Association, creates risk messages and learnings to share with and educate chiropractors, with the aim of reducing complaints. The following details Guild’s key learnings for the chiropractic profession based on this claims analysis.

    Record keeping

    All chiropractors would be aware of their requirement to keep detailed clinical records. Yet, unfortunately, Guild’s claims experience tells us that too many chiropractors aren’t keeping these records to the detailed level required. 

    To better understand the level of detail required, it helps to consider the reasons, beyond the regulatory requirement, for detailed records. One commonly understood reason for keeping detailed records is the defence of a complaint. When there’s been an allegation of harm or wrongdoing, the clinical records serve as evidence of what took place and why. Unfortunately, Guild’s ability to defend against these allegations becomes quite challenging when there are vital details missing from the clinical record. And a repercussion from this is that the cost of managing and settling claims can increase. 

    The other key reason for keeping detailed records, which seems to be overlooked at times, is the role they play in providing quality treatment. Without the detailed history of the patient’s presentation, assessment outcomes, treatment provided and the response to treatment, the chiropractor is relying on their memory as they provide further treatment at each consultation. Yet we know no one’s memory is perfect and these gaps in the clinical record can lead to poor clinical decision making and inappropriate treatment.

    All chiropractors should make themselves familiar with the record keeping resources available on the Ahpra website which can be found at www.ahpra.gov.au/resources/managing-health-records.

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    From a claims management perspective, informed consent is a bit like record keeping. Chiropractors know they need to do it, yet it’s too often not done well enough to meet what’s required.

    To understand what’s required for a patient to give their informed consent, practitioners should focus on the key word – informed. If a patient isn’t informed, they can only give their consent, and this is not enough.

    For a patient to be informed, there needs to be a conversation with the treating chiropractor. During this conversation the patient needs to be informed about their condition, treatment options, expected outcomes from treatment and the association risks. It is only with this information the patient can then give their informed consent to treatment.

    It’s not enough to have a patient sign an informed consent form. This form, if used, is there to support the conversation, it can’t replace it.

    Communication

    Breakdowns in communication feature in almost all complaints from patients. Sometimes the patient will complain about how they were communicated with, while other times communication may not be mentioned in the complaint yet when the matter is investigated, it’s found to have been a factor. Therefore, the importance of appropriate and professional communication can’t be overlooked.

    When communicating with patients, it’s important to use language they’ll likely understand, so avoid overly clinical terms and acronyms. And don’t rely on just verbal communication, tools such as diagrams and models can assist greatly.

    When communicating with patients, be sure to keep the conversation professional and appropriate. While it’s important to form a good working relationship with your patients, there also needs to be a professional boundary. Chiropractors must ensure that topics discussed, and language used, don’t blur this boundary.

    Professional conduct

    Guild Insurance has seen an increasing trend in complaints from patients that focus less on the clinical outcome and more on how the patient viewed the professional behaviour of the practitioner. It’s becoming very clear that patients have high expectations regarding how health professionals conduct themselves and are willing to complain about this conduct.

    A new shared Code of Conduct (shared between 12 health professions) was released in 2022. Chiropractors need to be sure they’re familiar with this Code of Conduct as it details what Ahpra, and the Chiropractic Board of Australia expect regarding professional behaviour. This can be found at www.ahpra.gov.au/resources/code-of-conduct/shared-code-of-conduct.

    As mentioned earlier, maintaining professional boundaries is incredibly important. Chiropractors need to be sure their behaviour, as well as communication, maintains these boundaries. They shouldn’t become too familiar or casual with their patients or take advantage of the power imbalance between a health professional and patient.

    Clinical decision making

    Chiropractors need to be sure their decisions regarding when and how to treat are always in the best interests of their patients.

    No health professional can be the answer to every patient’s needs. It’s therefore vital to be sure you’re only treating when it’s appropriate to do so. When chiropractors see patients who should be treated by a different health professional, they need to refer that patient to someone more suitable, explaining the reasons for this to the patient. Chiropractors should also be sure they don’t allow themselves to be convinced by the patient to treat when it’s not appropriate.

    Chiropractors need to ensure that any treatment or clinical advice they provide is within their scope of practice and something they’ve been suitably trained for. While all chiropractors will develop their skills over time, this development needs to happen while keeping in line with the chiropractic scope of practice.

    Download the pdf here.
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