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IN September 2015, I reported that a colleague and I had submitted 10 representative complaints to the Australian Health Practitioner Regulation Agency (AHPRA) about chiropractic clinic websites that made claims likely to harm consumers. These included treating non-musculoskeletal diseases such as asthma, otitis media and pneumonia with spinal manipulation; promoting regular chiropractic care for pregnant women (claimed to shorten labour and prevent caesarean section); and using non-evidence-based modalities such as hair tissue mineral analysis, homoeopathy and biomesotherapy.
The complaints involved 38 chiropractors and 69 advertising claims that were selected from more than 200 chiropractic websites that appeared to be in breach of s. 133 of the Health Practitioner Regulation National Law Act 2009 and also the Chiropractic Board of Australia’s Guidelines for advertising regulated health services. These provisions prohibit advertising that is false, misleading or deceptive, creates an unreasonable expectation of beneficial treatment, or can encourage the indiscriminate or unnecessary use of health services.
Our covering letter argued that the time for “education” had passed and chiropractors must now be held to account for breaches of the National Law.
AHPRA notified us that these complaints had been received, but subsequently we heard no more.
We have now reviewed all the websites we complained about 4 months ago. Of the 10 clinics involved, only one removed all the claims alleged to breach the National Law. Another took down the website we complained about, but the chiropractor concerned then made similar claims on another website. Of the 69 claims alleged non-compliant with the National Law, 43 (62%) currently remain non-compliant. We also found a number of new claims on these 10 websites that we judged non-compliant. Furthermore, many other chiropractic websites (apart from the ones we complained about) continue to make the same claims that we allege breach the National Law.
Five years have passed since the Chiropractic Board of Australia first asked practitioners to ensure that their websites met legal advertising requirements. Over this time, the Board’s sole approach to this problem has been educative. They have published communiques and newsletters, conducted seminars, written letters to practitioners subject to complaint, and produced a Fact sheet on evidence-based practice and a non-specific Position statement on paediatric care. They have also noted that the use of certain words in advertising, such as “cure”, “safe” and “effective”, can increase the risk of misleading or deceiving the public.
However, unlike similar bodies such as Medicines Australia and the Therapeutic Goods Advertising Complaints Resolution Panel, the Board has never published any determinations about the hundreds of complaints received. This failure to provide specific information about which claims have breached the National Law has clearly contributed to the ongoing problem. Furthermore, unlike similar bodies, the Board has never named offenders and has never required the correction of serious misleading information by ordering a retraction.
A breach of advertising requirements of the National Law is a criminal offence and a court may impose a penalty of up to $5000 for an individual and $10 000 for a body corporate. In addition, a current or previously registered health professional can be subject to disciplinary action for unprofessional conduct in relation to advertising. Despite chiropractors consistently having the highest rate of advertising complaints of all practitioners (38 per 1000 chiropractors in 2013–14), no penalties or disciplinary action appear to have been applied for advertising offences.
AHPRA, which supports the National Boards, has a Statutory Offences Unit to manage breaches of the advertising guidelines and the advertising requirements of the National Law. AHPRA has stated that most advertising offences (98%) are resolved when the individual or organisation complies with AHPRA’s demand to amend or remove the advertising, and require no further action. This is not our experience.
We conclude that the Chiropractic Board’s (and AHPRA’s) handling of complaints by educative measures alone is ineffective. It has largely failed to correct the websites which we have complained about.
It has failed to deter other practitioners from continuing to make claims that have been the subject of numerous complaints. It has made submitting complaints a totally unrewarding procedure. While a complainant is usually notified that their complaint has been received, subsequently they usually hear no more.
In short, despite hundreds of complaints about unethical advertising over many years and calls to act on practitioners who promote anti-vaccination beliefs, the Chiropractic Board has consistently failed to protect the public from misleading and deceptive conduct by practitioners. It has also failed to implement the Commonwealth Ombudsman’s 2009 Better practice guide to complaint handling.
Given that track record, it’s not surprising that there are now calls for the Chiropractic Board of Australia to be sacked.
PostScript. Dr Harvey met with Martin Fletcher (CEO, AHPRA), Wayne Minter (Chair, Chiropractic Board) and several members of AHPRA’s South Australian-based Statutory Offences Unit (via video link) on 13 January, to discuss a draft version of this article. Dr Harvey was told that AHPRA are committed to improving their complaint-handling procedures, especially to provide better feedback to complainants. A new statutory offences complaint form was highlighted as evidence of ongoing improvement. However, AHPRA believed that the legislation underpinning their activities precluded them from making specific complaint determinations similar to those published by other bodies. They were also concerned about defamation litigation. In response, I noted that legislation can be changed and, to my knowledge, no organisation that publishes complaint determinations has ever been sued for defamation; only complainants.
Dr Ken Harvey is an Adjunct Associate Professor in the Department of Epidemiology and Preventive Medicine, Monash University. Malcolm Vickers is a research associate of Dr Harvey. Two Monash University Summer Research Scholarship Students, Amy Yan and Ned Latham, assisted with the analysis of the websites mentioned.
AHPRA epitomize the bureaucratic monolith where alacrity, flexibility, accountability and intelligence appear to be replaced by loitering, rigidity, disingenuousness and myopia.
honestly, is anyone really surprised?
I have a couple of comments which are made from the perspective of a participant observer: 34 years as a chiropractor and 34 years as an observer of the chiropractic profession. I have also been involved as an expert witness in several cases involving claims made by chiropractors – the very same claims that Dr Harvey highlights. I can assure readers that there is not a skerrick of evidence to support such claims – they are false, misleading and deceptive. Such claims create an unreasonable expectation of beneficial treatment and could directly or indirectly encourage the indiscriminate or
unnecessary use of chiropractic services, not to mention cause harm by delaying appropriate treatment. It is high time that the Chiropractic Board became proactive and put a stop to this nonsense. Manual therapy for musculoskeletal complaints is a fascinating and gratifying area. Chiropractic care for non-musculosketal complaints belongs where chiropractic originated – in the 19th century.
In response to Jan Donovan: Yes these matters were debated on ABC RN PM report last night, see: http://www.abc.net.au/pm/content/2015/s4390394.htm.
MARTIN FLETCHER (CEO, AHPRA): I don’t think there is any need for the Chiropractic Board of Australia to be sacked. Australia’s health regulators are dealing very effectively with the vast majority of complaints about advertising. We recognised that there’s a small number of chiropractors with hard-line views, we’ve referred three of these matters to the ACCC, who have different powers under Australian consumer law, and where our powers are enough, we are using them to initiate disciplinary action.
ANGELA LAVOIPIERRE: He denies that illegal advertising is common in the industry.
MARTIN FLETCHER: I don’t believe there is a widespread problem, and as I say, our experience has been that in the vast majority of cases, when we draw the attention of the chiropractor to something that may be in breach of the advertising requirements, they take the steps to amend that advertising.
My response: Fletcher also needs to be sacked for denying that a serious problem exits!
An update and I am pleased to report that the ABC News website has taken up the cause. Roger you may yet have your hopes realised!
I would like to agree with my old friend Roger Burgess about pushing for media investigation. Then and only then will our pollirtical msters take notice. But I would not be holding my breath – the chiropractors have a lot influence, not least from their patients.
I would prefer to see an attack from the evidence-based professions on the inaction from AHPRA. John Dwyer where are you when we need you?
AHPRA appear to regard themselves as being above the law, stonewalling anyone with crticism.
Surely it’s time to inform the MEDIA (e.g. Four Corners, Sixty Minutes etc) of this absolutely parlous situation.
Let the people decide who are the villains and who need a rocket.
The real problem is AHPRA. It protects those it wishes to, is largely unaccountable and has clearly failed. The legislation needs to be reviewed.
My grateful thanks to Ken Harvey – once again. He is a wonderful and powerful voice for sanity in the Health Professions. And thank you Dr David de Leacy for your comments. I agree wholeheartedly. AHPRA has been a huge disappointment and needs urgent and widespread reform.
Surely it is time for this pathetic and duplicitous game to end. The Chiropractor Board should not be sacked, they should be moved lock stock and barrel to an entirely different Commonwealth regulatory body along with homeopaths, osteopaths, colour therapists etc and also pharmacists who pedal nonsense ”complementary” formulations and then forced to pay high regulatory fees and high insurance so the lawyers can chase them and sort them out. Only scientically based practitioners from reputable tertiary institutions should be registered under the auspices of AHPRA, Stop validating their nonsense by association and stop thowing taxpayer money at them via Medicare and Private Health rebates. A question: how many of these people does Oz Aid, Medicin San Frontiers or the UN ever employ to assist developing countries? Answer none.
Two issues:
the first is the misleading advertising. This appears to be an offence regardless of the prosecutor. The question here is why haven’t there been any actions initiated. It would be reasonable for the Board to bring this matter to the attention of the relavnt statutary authorities eg DPPs (State or federal).
the second issue is the apparent failure of the Board to fulfil its role to determine and maintain professional standards. Standards in direct violation of law as well as expected professional appear to be continuing to be tolerated on the basis that further education is required. A priore, this appears to accept that the current situation is below standard. Ultimately any interventions in healthcare must result in improved outcomes (if not, there should be action taken (eg the MBS review)). The Chiropractic Board’s expectation of professional standards appears to be significantly less than other Boards within AHPRA. The question then arises as to what has/is AHPRA doing about this?
The Statutory Offences units handles advertising complaints for all 14 professions so this inadequate process applies equally to all 600 000 health practitioners, including medical practitioners, and is AHPRA responsibility. I am sure this process saves them a lot of time and money, shame it does little to protect the public.
As a lawyer representing health practitioners in AHPRA matters I find this completely outrageous. The reasons given for this complete abdication of AHPRA’s statutory obligations are spurious. The public is put at significant risk by such dishonesty. The risk is as serious as the performance conduct and health notifications AHPRA deals with, often with a ‘rigour’ that is quite unfair. I cannot see AHPRA dealing with any other contraventions or notifiable conduct in this kids gloves manner. My experience is that it does not. Why the double standard? Clearly it is the Board.
The Act allows directions from the Ministerial council. The Board should be dismissed and the appropriate directions given to end this shambles.
“An new statutory offences complaint form…’ Here’s the public service leaping into action, Sir Humphrey Appleby would be pleased. It sure beats doing anything about the egregious behaviour exposed by Reasonable Hank over several years, such as sneaking into hospitals (actually trespassing) to ‘adjust’ newborn babies.
Note that it’s not hard to have legislation changed. Over the last 3 years, pro-vaccine lobbyists have brought about changes to the NSW Incorporated Associations Regulation, the NSW Health Care Complaints Act, No Jab – No Play Acts in NSW, Qld, and Vic, and now the No Jab – No Pay Commonwealth Act. In fact it’s the duty of departmental secretaries to inform their Minister of the need for change, and Ministers are willing to propose new legislation as they want to appear to be energetic achievers.
So this charade has gone on long enough: sack the Chiropractic Board and bring in some people willing to protect the public.