You said what? Appropriate conversations in Chinese medicine

Complaints of wrongdoing against Chinese medicine practitioners and acupuncturists aren’t always about the treatment provided or the clinical outcome. Guild Insurance sees numerous cases annually which related to professional behaviour and conduct. This sort of complaint may initially seem less serious than those relating to poor clinical outcomes, however, having your professional conduct questioned and issues raised about inappropriate behaviour towards patients can be incredibly distressing.

Some of these professional conduct complaints relate to conversations, both during and outside of the consultation. Once investigated, it’s usually found that the practitioner in no way intended to breach any professional boundaries or make the patient feel uncomfortable. However, this is what’s occurred. The information below has been created to help practitioners understand what they should be doing and saying differently to avoid facing complaints similar to the following examples.

Examples of inappropriate conversations

  • A patient complained alleging the practitioner made them feel uncomfortable by asking questions about them moving in with their partner. The practitioner claimed it was only intended to be a friendly chat during treatment, however the patient felt judged when the practitioner made a comment about them living with their partner while not married.
  • A patient complained of feeling uncomfortable as the practitioner lowered the patient’s pants during treatment without consent. Following investigation, it was found the treatment provided and lowering the patient’s pants was, in this instance, clinically justified. However, distracted by a chat they were having about weekend activities, the practitioner forgot to continually talk to the patient about treatment and didn’t seek the patient’s informed consent before moving their clothing.
  • A patient complained about questions the practitioner asked about dating. The practitioner claimed the conversation was just intended as a friendly chat; however, the patient felt the practitioner was trying to initiate an intimate relationship.

Tips about professional conversations

Don’t become too friendly with your patients.

While it’s clinically beneficial to build a rapport with patients, professional boundaries need to be maintained. And this means there are conversations you would have with a friend or family member that you shouldn’t have with a patient. Conversations should be had in a professional manner to avoid becoming too casual, relaxed, or jokey when talking to patients. Often comments made in light humour, or to build rapport, can lead to difficult situations and potentially embarrassing accusations or reputation damaging conditions on your registration. What may be funny to you may not be to someone else. The relationship with a patient should always remain a professional one; keeping in mind the patient is paying for a healthcare consultation, not a social conversation.

Limit non-professional or non-treatment related conversations.

These types of conversations can easily complicate and confuse a professional situation. When a practitioner asks personal questions of their patient, this is most likely intended to just be a friendly chat. However, patients often report being confused and uncomfortable and don’t understand why they’re being asked questions not related to treatment. While some conversations may be fine, such as asking how a person’s weekend was, things can easily change when more questions are asked, such as about the partner they spent the weekend with.

Explain to patients why questions are being asked.

If you need to ask some personal or lifestyle questions to assist with history taking or to better understand an injury or pain, be careful to explain why you’re asking. This is particularly important when asking about partners, sexual activity, or sensitive body parts.

Don’t forget to keep talking about treatment.

When non-treatment related discussions are had, this detracts from time that should be spent discussing treatment. The discussion about treatment shouldn’t just be had at the beginning of the consultation, it’s an ongoing conversation throughout. Not only can chats about something other than treatment make a patient feel uncomfortable, but they may also mean the patient isn’t fully informed about their treatment.

Consider the situation of the patient during a conversation.

During treatment, patients are often sitting or lying in positions which may make them feel vulnerable or exposed, particularly if they aren’t fully clothed. Personal conversations had during this time are likely to compound the uncomfortable feeling. It doesn’t mean to say that when the patient is fully clothed sitting at your desk it will be okay to ask about a personal matter. However, keep in mind that a patient could easily misinterpret the intentions behind your questions or conversation, if they’re already feeling uneasy.

Consider the method of communication.

SMS, email, and other forms of electronic communication encourage brief messages and don’t often adequately convey the full intent or tone of the message. Therefore, if communicating in this way, practitioners need to be mindful that patients may easily misinterpret the message and make assumptions. Also, don’t forget that electronic communication, as with all communication with a patient, needs to form part of the clinical record.

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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.

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    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.

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    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.

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

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    Stay on the right side of Ahpra’s advertising requirements

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    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.

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    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:

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    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

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    • (d) creates an unreasonable expectation of beneficial treatment

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