Why has my osteopath touched me there?

Guild Insurance sees numerous allegations against osteopaths each year where the patient claims the osteopath has touched them in an inappropriate sexual way during treatment. Receiving and dealing with these types of allegations can cause a great deal of stress and anxiety. It’s therefore vital that practitioners understand what they should be doing during every consultation to avoid this type of complaint.

Case example one

An osteopath provided a range of assessments and treatments to a patient’s spine and pelvis. The patient alleged the osteopath didn’t provide adequate privacy to undress and dress, and that the towel used to provide cover was too small. Overall, the patient felt very vulnerable and uncomfortable throughout the consultation.

Case example two

During the consultation, the osteopath treated, amongst other areas, the patient’s adductor muscles. The patient complained they felt violated and didn’t understand why they needed to be touched ‘down there’ to help treat back pain. It was found that the osteopath did gain consent to treat the adductor muscles, however it wasn’t informed consent as the osteopath didn’t explain where the adductor muscles are located.

How can these allegations be avoided?

Be mindful when asking patients to undress

It’s generally accepted that removal of some clothing supports osteopathic assessment and treatment. However, it doesn’t mean your patients will understand the reasons, feel comfortable with it, or give their consent.

  • Consider making patients aware prior to their appointment that they may be asked to remove or adjust clothing, if they’re comfortable doing so. This allows them to consider what clothing might be most suitable and practical to wear.
  • Don’t ask a patient to remove more clothing than is absolutely necessary. Also consider when it might be possible to just move or adjust clothes, rather than remove them.
  • 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.
  • Be sure you explain to patients why you would like them to remove their clothing, keeping in mind it might not be obvious to them.
  • Give patients 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. Simply turning your back is not acceptable.
  • Provide the patient with clean towels and/or gowns. These must be actively offered to all patients; simply having them available in the treatment room isn’t enough. And they must be of a sufficient size and quality to protect the patient’s modesty.
  • If moving or adjusting the patient’s clothing during treatment, such as unclipping a bra, seek the patient’s consent first, and ensure you offer to re-clip/re-position the clothing afterwards.
  • Remember that patients can decline to consent to adjusting or removing clothes; don’t assume they’re ok with it.

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 the patient’s or your gender, there’s always a possibility for the patient to feel uncomfortable. The way you explain treatment to patients and seek their informed consent should not differ based on the patient’s gender.

How soon is too soon?

There are varying degrees of touching patients with some treatment techniques being closer to sensitive and private areas. Consideration must be given to how soon some treatments should be provided to new patients. Osteopaths should use their professional judgement when determining appropriate technique choices for their new patients, even if the patient gives consent. A possible approach to introducing new techniques is to discuss the treatment in one consultation yet provide the treatment at a later consultation after the patient has had time to consider it.

Informed consent to treatment

Osteopaths would be aware of their professional obligation to ensure a patient has given their informed consent prior to assessment and treatment. For a patient to be able to give informed consent, they need to have had the assessment and treatment explained in a manner they understand. This means avoiding clinical language which may be confusing while providing the risks and benefits to what you’re proposing and allowing time for the patient to ask questions. As osteopathy is very hands on, it’s important to clearly explain to patients where you’re proposing to touch them, 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, so the treatment area may not be obvious to them. And keep in mind that even after treatment has commenced, patients can withdraw consent at any time, if they don’t feel comfortable.

Signed consent forms should be considered, especially for treatment to particularly sensitive or private areas. However, asking a patient to sign a consent form MUST NOT replace discussing the treatment process with them.

Record keeping

Record keeping is a professional requirement which serves several 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’ve been touched inappropriately, the osteopath’s clinical record will be examined for evidence of treatment provided and the clinical justification for this. The clinical record should also contain evidence of the patient consenting to the treatment. Without this information in the clinical record, it becomes very difficult for an osteopath to defend their actions.

Don’t make assumptions

As with any professional, osteopaths can become overly familiar with what they know and do every day. However, they must remember that patients won’t have that same level of familiarity when it comes to osteopathy. Regardless of how many times an osteopath has treated a patient, they should never make assumptions about what the patient will understand, 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

While it isn’t expected that an osteopath can be sure of what a patient is thinking and feeling just by their body language, we can sometimes 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 to ensure it’s better understood. You may need to reposition clothing or towels, 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’s 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 while treating

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

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    Considerations for internal treatment

    Those familiar with the broad range of osteopathy treatment will understand that internal treatments (anal and vaginal) may be recognised aspects of osteopathy, when clinically indicated. However, this isn’t necessarily well known to the general population who make up your patients.

    Unfortunately, Guild Insurance has seen claims regarding internal treatment; these claims often feature allegations of treatment being inappropriate or unnecessary as well as allegations the patient has been sexually assaulted. These claims can have a devastating impact on both the patient and the osteopath.

    While the potential for a complaint may be less likely for practitioners or clinics with a particular focus on women’s health issues, it does exist for all osteopaths. Due to this risk, Osteopathy Australia and Guild Insurance believe that special consideration should be given to patient communication and clinical processes for prior assessment and treatment. Therefore, the following information has been created to provide you with an opportunity for reflection. If you respond to any of the statements with a no, this is an opportunity to consider changes to the way you practice.

    It’s important to note that the following statements aren’t regulatory requirements. Rather, they’re recommendations for consideration, based on complaints against osteopaths.

    Assessment/treatment consideration/planning

    Yes

    No

    I've undertaken what I consider to be appropriate training for internal treatment to ensure I'm skilled, competent and that it's within my scope of practice.

     

     

    Before proposing or providing internal assessment or treatment, I ensure it's clinically justified and appropriate for the patient, their condition and individual circumstances.

     

     

    I document my decision making and the clinical reasoning for proposed assessment and treatment options in the clinical record.

     

     

    I understand trauma-informed practice and apply this clinical reasoning when considering if an internal assessment or treatment is appropriate or not.

     

     

    I am aware of my own personal biases and limitations which could retraumatise a patient.

     

     

    Discussion with patient

    Yes

    No

    When proposing internal assessment and treatment to a patient, I'm mindful that patients may not be aware this is a recognised treatment within osteopathy, so I explain it accordingly.

     

     

    I have very detailed conversations about internal treatment due to the sensitive and uncommon nature of the treatment.

     

     

    I explain to patients the evidence-informed clinical reasoning for internal treatment, so they understand why it's being proposed.

     

     

    I don't use clinical language when discussing internal assessment and treatment with a patient to better help them understand.

     

     

    I utilise anatomical models and diagrams, that use plain English, to assist the patient to understand their anatomy and therefore the assessment and treatment being proposed.

     

     

    I explain the assessment and treatment in detail to allow the patient to give their informed consent - this conversation covers what both the assessment and treatment will entail, as well as the benefits and risks.

     

     

    I am fully aware of what informed consent entails.

     

     

    I inform patients that they can withdraw their consent at any time, including once assessment or treatment has commenced.

     

     

    I discuss with the patient the assessment and treatment options for them to consider so they know internal treatment isn't their first or only option. This includes providing an option of doing nothing (education only, no hands on at all) and the option to change their mind at any time.

     

     

    I understand that consenting once does not mean assumed consent for future internal assessments and treatment and future consultations will follow the same presentation of options and decision making for the patient.

     

     

    I ensure the patient is provided ample time to ask questions; both before and after assessment or treatment.

     

     

    I have written information available for patients to take away and read to support them to better consider and understand the assessment and treatment, and I record in the clinical record when this information is provided.

     

     

    I inform patients that they can choose to undergo this assessment and treatment with another osteopath, if they would prefer.

     

     

    All discussions regarding the proposed assessment and treatment, treatment options, the clinical reasoning for the treatment and the patient's questions are documented in the clinical record as evidence of what's been explained.

     

     

    Providing assessment/treatment

    Yes

    No

    An appropriate internal assessment is conducted prior to any internal treatment, with diagnosis and treatment plans clearly explained to the patient.

     

     

    If patients are unsure about the proposed assessment or treatment, they're given information to take away and consider, and are advised to book in later should they wish to proceed. I acknowledge that it won't always be appropriate to provide internal assessment or treatment at an initial appointment.

     

     

    I encourage patients to have a support person with them, should they choose. This may be someone they bring with them or someone from the clinic.

     

     

    I ensure the clinical record contains detailed information about the assessment performed and the treatment provided (if any), the patient's response to assessment and treatment and what education and management recommendations were provided.

     

     

    I maintain appropriate and professional conversation during treatment.

     

     

    I pay close attention to non-verbal cues like tension or discomfort and adjust the approach accordingly.

     

     

    I pay close attention to signs of patient dissociation or disconnection, cease assessment or treatment immediately if signs are noticed and follow this with appropriate discussion with patient.

     

     

    I have knowledge of, and apply infection control practices, including considerations in the patient history which could raise concerns for potential infection.

     

     

    I have knowledge of and apply appropriate hand hygiene practices.

     

     

    Patient positioning options are discussed for selection of a position they're most comfortable in for assessment and treatment.

     

     

    The patient is asked to remove or adjust only those clothes which is necessary for that assessment or treatment.

     

     

    I always provide the patient with a towel, sheet or gown for draping, so they're suitable covered.

     

     

    I only assist in the removal or adjustment of clothes if requested.

     

     

    I always leave the room while patients are undressing and redressing.

     

     

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    clinical-records
  •

    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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