AUSTRAliAN PHYSIOTHERAPY

Clare Delany

In 1992 the High Court of Australia decided that

health professionals owed a duty of care to
warn patients of the risks tathe particular
patient af the proposed treatment before
commencing that treatment. The Court ruled
that it is not enough for any health care
practitioner to do what everyone else does and
therefore not warn the patient first. It
emphasised that the information the law
requires to be provided will vary from patientto
patient, according to the individual patient's
characteristics andneeds. The decision in Rogers
vWhitaker( 1992) means that heaIth professions
must change theirattitude and approach to the
provision of information and warnings to
patients.
[Delany C: Should I warn the patient first?
Australian Journal of Physiotherapy 42:
249-255]

Key words: Communication;

Ethics; Informed Consent

CDelany BAppSc is asenior tutor at the School

of Physiotherapy, The University of Melbourne.
Correspondence: Ms C. Delany, School of
Physiotherapy, The University of Melbourne,
Parkville Victoria 3052

PROFESSIONAL ISSUES

Should I warn
the patient first?

n. 1992 the .Hi

..' gh.. C.o.urt of Australia,
in the case of Rogers v Whitaker
(1992) 175CLR 479, made a
definitive statement of the duty of
disclosure owed by health
professionals:
"Except in the case of an emergency
or where disclosure would prove
damaging to the patient, a medical
practitioner has a duty to warn the
patient of a material risk inherent in
proposed treatment" (Rogers v
Whitaker 175CLR 479).
The law has not always been so. In
1767, the law considered the basis
upon which the medical practitioner
ought to give advice and information
prior to a medical procedurewas as
follows:
"It is reasonable that a patient
should be told what is about to be
done to him, that he may take
courage and put himself in such a
situation to enable him to undergo
the operation" (Slater v Baker and
Stapleton (1767) 2 VVILS KB 860,
862).
As recently as 1954 and indeed right
up to 1992, this outdated approach to
the provision of information continued
to prevail. In .that year, Lord Denning
of the English Court of Appeal
considered a "disaster which (had)
befallen
two unfortunate men".
Lord Denning vividly described what
occurred:
"No...,onecan be unmoved by the
disaster which has befallen these
two unfortunate men
Each
of them was operated on in the
Hospital for a minor trouble. Each
of them was given a special spinal
anaesthetic by a visiting

Anaesthetist. Each of them has in

consequence been paralysed from
the waist down" (Roe v Minister of
Health and Anor [1954] 2QB 81).
\Vhilst sympathetic to the patients,
Lord Denning felt bound to protect
the interests of those treating them,
ignoring the fact that if these two
"unfortunate men" had been warned of
the risks that might befall them they
may never have agreed to the
procedure in the first place. Denning
had one final word:
"These two men have suffered
such terrible consequences that
there is a natural feeling that they
should be compensated. But we
should be doing a disservice to the
community at large if we were to
impose liability on hospitals and
doctors for everything that
happens togo wrong. Doctors
would be led to think more of
their own safety than of the good
of their patients. Initiative would
be stifled and confidence shaken. A
proper sense ofproportion
requires us to have regard to the
conditions in which hospitals have
to work. We must insist on due
care for the patient at every point,
but we not must condemn as
negligence th~t which is only a
mis-adventure" (Roe v Minister for
Health 2QB 81, 86).
In 1992 the law in Australia moved
from the acceptance of mistakes as part
of the risks inherent in medical
treatment which the patient must
accept to a position where the failure
to provide the information and
warnings to patients in relation to risks

Page
is no longer "mis-adventure" but
negligence, that is, negligence for
which the health care practitioner who
fails to appropriately warn of the risks
may be successfully sued.

Clinical practice
In 1988 the Australian Physiotherapy
Association (APA) formalised a
protocol or clinical standard for pre..
manipulative testing of the cervical
spine. The stated intention of the
protocol is to "ensure that
physiotherapists use responsibly the
effective manipulative techniques at
their disposal" (APA 1988, p. 97).
The protocol provides information
for pre-manipulative testing of the
cervical spine under five headings.
They include:
1. Subjective Examination.
2. Physical Examination.
3. Choice of Technique and Method
of Application.
4. Informed Consent.
5. Recording.
Underheading.(4) the protocol
states:
"At law, it is essential that the
patient understands the
manipulative procedure that you
wish to undertake andits
associated dangers" (APA 1988,
p. 100).
The protocol provides examples of
wording to use prior to manipulation:
"I wish to manipulate your joint
using a quick movement in the
position in which I am holding
your neck. Youmayhear a click
and this is normaL"
and
"Neck manipulation can be
dangerous but this is extremely
uncommon. I have carried out the
necessary precautionary tests and
in my opinion there is little risk in
your case. Are you agreeable for
me to go ahead?" (APA 1988,
p.100).
In 1988 the language ofthe protocol
was consistent with the then current
law. The emphasis in law since 1992

PROFESSIONAl ISSUES

AUSTRAliAN PHYSIOTHERAPY

has moved from an analysis based on

consent or lack of it to the existence of
a duty of care to provide information
and warnings, and whether there has
been a breach of that duty.
In a 1991 review oftheAPA protocol,
Grant and Trott posed several
questions in relation to compliance
with and acceptance of the protocol.
Grant and Trott found a high level of
compliance with .the protocol as far as
screening procedures undertaken were
concerned. Less compliance was found
in the area of obtaining informed
consent, specifically the use of the
suggested wording.
Most patients receivingtherapyin
hospital settings and rehabilitation
centres demonstrate,by their actions,
acceptance and compliance in terms of
the physiotherapy treatment. As Coy
(1989) stated, they are the classic good
patient:
"The patient who complies with
every request of the health
professional, asks for very little,
never complains and is thankful
for all that is done to him or her"
(Coy 1989, p. 826).
Because consent is so readily given to
physiotherapy procedures, the
obligation to explain and warn of the
risks recognised in Australia since 1992
is often overlooked. Further, many
physiotherapists subscribe to the view
that itis the primary duty of the
physiotherapist to benefit patients and
protect them from harm- including
harm from the patient's own choices.
This philosophy is used to justify
acting in a paternalistic manner
towards patients when issues of real
consent to treatment arise and in cases
where, if fully informed of the risks of
the procedure, the patient might
decide to live with the pain rather than
risk the prospect of disability inherent
in the risk of the treatment.
If a health care practitioner performs
a procedure ona patientthatwas not
specifically consented toby the patient,
then the patient may bring an action
against the practitioner in trespass.
One example is where a patient attends
physiotherapy for massage and receives
cervical manipulation. The law has
gone one step further than the

boundary provided by consent versus

lack of consent. It now emphasises a
more general.dutyof care owed by the
practitioner to exercise reasonable care
and skill in the provision of sufficient
information to enable the patient to
make a rational decision whether to
accept the offered treatment, no matter
what its nature. Failure to closo is a
breach of the legal duty of care owed
to the patient.and is negligence.
In 1995, a straw poll of practising
physiotherapists disclosed behaviours
and attitudes consistent with the survey
results ofGrant and Trott (1991). It
provides examples of how some
physiotherapists rely on their own
clinical judgment when deciding the
amount and type of information and
warnings to convey (or not to convey)
prior to cervical manipulation:
(a) I don't bother (warning them of
risks) because the risk is too small.
(b) Sometimes I do, butmosdyit
interrupts the flow of treatment.
(c) Sometimes I get consent (written)
before and sometimes after.
(d) I tell them they could die.
(e) I don't bother telling them because
they wouldn't consent.
(t) If the patient seems a fairly
nervous person, I don't use
manipulation at all or I don't tell
them I am going to use it because
they wouldn't consent.
(g) Some patients ask you to crack
their neck so I don't bother telling
them much because they have
asked for it.
The 1991 Grant and Trott
questionnaire included the following
proposition:
"The requirement of informed
consent on the part of the patient
prior to undergoing cervical
manipulation will mean that fewer
patients will agree to manipulation
asa form of treatment and as a
consequence a valuable method of
treatment will be used less
frequently" .(Grant and Trott
1991, p. 43).
Responses obtained by Grant and
Trott revealed that in the group who
used manipulation in treatment "a

AUSTRAliAN PHYSIOTHERAPY

PR 0 FE551 0 NA1 I 55UES

greater percentage were of the opinion

that the requirement of informed
consent on the part of the patient
would lead to a valuable method of
treattnent (manipulation) being used
less frequently" (Grant and Trott
1991, p.44).
The 1995 straw poll responses (b), (e)
and (f) while consistent with the 1991
Grant.~nd Trott survey, disclosed an
approach to patient information which
is not acceptable in law. In the event of
injury to the patient, or unsucces.sful
treattnent,the failure to appropr1ately
inform may lead. to a succe~sful
negligence claim by the patIent
concerned.

not it was actively sought.

The High Court observed:
"In legal terms, the patient's
consent to the treatment may be
valid once hear she isinformed in
broad terms of the nature of the
procedure which is intended" But
the choice is, in reality ,
meaningless unless i~ is made .on
the basis of relevant 1nformatlon
and advice" (Rogers v Whitaker 175
CLR 479, 489).
The judgment did not refle:t a
paternalistic approach to the Interests
of the patient. "The generall.egal.
principle which underpins this find1ng
is one which asserts that the
paramount consideration is th~~ a
person is entitled to ~akedec1s10ns
about his or her own hfe, and the duty
to disclose the information takes its
precise content from the needs,
concerns and circumstances of the
patient" (Retasand Forrester 1995, p.
317).
In addition to recognising a positive
duty to inform the patient of the risks
of the proposed procedure, the ,
majority judgment in Rogers v Whttaker
made two other important statements
of the law governing the duty of care
owed by the health professionaL First,
the High .Court rejected ~~
.
proposition that the practttl,oner Will
not breach the duty to prOVide
information to the patient if the level
ofdisclosure is the same standard as
others in the profession. It is r:~t
enough to say "all other practltloners
do it". In Rogers v Whitaker, the Court
stated:
"In Australia, it has been accepted
that the standard of care to be
observedbya person with s?me
special skill or competence 1S that
ofthe ordinary skilled person
exercising and professing to have
that special skill. But, that standard
is not determined solely or even
primarily by reference to the
practice followed or sUPI?o~te~by
a responsible body OfOp1n10n In
the relevant profession or trade.
Further and more importantly,
particularly in the field of non~ .
disclosure of risk and the prOViS1on

Rogers v Whitaker
The facts of Rogers v Whitaker provide
a stark example of the need t~ pro;ide
sufficient information recogn1sed 1n
the judgment.
The plaintiff, Mrs Whitaker,
underwent surgery to improve the
appearance and possibly the sight of
one eye. She had been almost tota~ly
blind in that eye since the age of rune.
Despite "incessant" questioning by her
asto adverse consequences associated
with the surgery, the surgeon ~idnot
warn her of the risk of developIng
sympathetic ophthalmia (an occurrence
rate of 1:1400) in her good eye
following surgery. The surgery was
performed without negligence.
However, sight was not restored to the
injured eye and the co~ditionof
sympatheticophthalnua led to
blindness in the sighted eye.
The basis upon which the trial judge
found the surgeon liable was that he
had failed to warn the plaintiff that, as
a result of surgery to her right eye, sh.e
might develop sympathe~c ophthalrma
in her left eye. It was dec1ded that the
duty owed had been breached because,
on the facts, the plaintiff had sought
and not been provided with relevant
information concerning the risks. The
majority in the High Court went a step
further than the trial judge. In essence,
theyheld the surgeon liable .
irrespective of ~hether t:h~patlent
sought informatlon, dec1d1ng that the
surgeon owed a positive duty to
provide the information, whether or

of advice and information, the

Courts have adopted the principle
that while evidence of accepted
medical practice is a useful guide
for theCourts, it is for the Courts
to adjudicate on what is the
appropriate standard of care after
giving weight to the param~unt
consideration that a person 1S
entitled to make his own decisions
about his life" (Rogers v Whitaker
175CLR 479, 487).
The second additional principle laid
down by the High Court inR~gers v
Whitaker is that, given a duty 1S owed
to explain the risks, what will b~
sufficient in any given case to dIscharge
that duty willvarydependi~g upon
what is material to that pattent:
"The law should recognise that a
doctor has a duty to warn a patient
of the material risk inherent in the
proposed treatmen~;a risk is
material if, in the c1rcumstancesof
the particular case, a,reaso~~ble ,
person in the patient s POS1tlO~, 1f
warned of the risk, would be hkely
to attach significanceto it or if the
medical practitioner is or should
reasonably be aware that the
particularpatie~t,if warned of the
risk, would be hkely to attach
significance to it" (Rogers v
Whittaker 175CLR 479,490).

Gaining informed consent

what does this mea.n?

0-

To use the languageofMaso~in

Rogers v Whitaker, ~e expressI<~n
"informed consent 1sapt to lTIlslead.
In the section bearing the heading
Informed Consent the APA protocol
states:
"The .client must be aware of the
risks ofmanipulation and agree to
the procedure as explained by the
physiotherapist" (APA protocol
1988, p. 100).
Underpinning the issue of patient
awareness is the need forgood
communication between therapist and
patient. What the law requires from
this communication is nota one way
process where theJ?hysiotherapist
simply tells the patlent about the

PROFESSIONAL ISSUES

from Page 251

manipulation but rather, that the
physiotherapist has an obligation to be
sure that the patient has understood
the information.
Rogers v Whitaker addressed the issue
of communication in the following
terms:
"The skill is in communicating the
relevant information to the patient
in terms which are reasonably
adequate for thatpurpose.having
regard to the patient's
apprehended capacity to
understand that information"
(Rogers v Whitaker 17 5CLR 479
490).'
In a study of doctor-patient
relationships, .specifically, the .doctor's
communication of information about
illness to a patient, Waitzkin and
Stoeckle (1976) found that during .an
average interaction of about 20
minut~s, the doctor's average time
spent In communicating information
about illness to the patient was less
than a minute. "When asked in a later
interview, doctors thought they were
~pendin~ 10-15 minutes per patient on
Informatton transmittal.Waitzkin and
Sto.eckle also found doctors using a
varIety of mechanisms to avoid
answering patients' direct questions
about their conditions.
In giving a personal example, Judge
Keon-Cohen, ina recent address toa
medico-legal seminar, stated, after
taping and replaying a consultation he
had been personally involved in with a
doctor:
"I would say that 20 to 30 per cent
of what was said had 'gone
through to the keeper'. I had
totally failed to recollect ...such
matters being said". (Keon-Cohen
J 1995, p.3).
On the basis of his personal and
professional experience, Keon.. . Cohen
recommended:
1. Haying a prepared proforma in
which the appropriate information
is c0!1tained and obtaining a signed
receIpt from the patient regarding
the receiving of a copy of that
document. Alternatively;

2.

Taping the interview, handing a

copy to the patient and keeping
your own copy.
T~e importance of gaining real
patt.ent understanding is not the same
as sImply obtaining informed consent
but rather, it is a means by which the
physiotherapist can meet their
professional and legal obligations to
provide information to the patient
enabling the patient to accept or reject
manipulation or other proposed
treatment.
The High Court, in Rogers v
Whitaker, observed:
"Because the choice to be made
calls for a decision by the patient
on information known to the
medical practitioner but not to the
patient, it would be illogical to
hold that the amount of
information to be provided by the
medical practitioner can be
determined hythe perspective of
the practitioner alone or, for that
matter, of the medical profession."
(Rogers v Whitaker 175 CLR479
489~
,
The court again emphasised the right
of the patient to have access to relevant
info~mation that is particularly
applicable to the individual patient. It
also sounds as a warning bell to the
exclusive use or reliance upon
professional standards or protocols
such as the pre-manipulative protocol.
Ra~e~ than simply following the
~dehnes! the physiotherapist must
taI.lor the l1~formation appropriately to
SUIt the patient.

The protocol
Given these observations hy the High
Court, it is desirable that the protocol
be revised to include an expanded and
~odified section dealing with
Informed <consent. The therapist's
obligation tomeetthe needs of the
particular patient, enabling that patient
to make an informed choice as to
whether to accept manipulation as one
treatment method should be
emphasised. Currently the informed
conse~t s~ction of the protocol implies
an oblIgation to ensure patient
understanding as an insurance against

AUSTRAliAN PHYSIOTHERAPY

an action alleging lack of consent to

manipulation. More important since
Rogers v WjJitaker is the duty owed by
the therapIst to. give information
appropriate to the particular patient.
The protocol suggests that the
warning and explanation contain the
following elements:
1. Intention to manipulate and
rationale -warning of possible
risk.
2. Results of pre-manipulative testsexplanation of what will be
experienced.
3. Request for consent.
These elements are heavily weighted
towards the physiotherapist's view of
the risks and the natureof the
procedure as explained by the
therapist. The protocol should be
altered to stress the need to provide
full and appropriate information before
commencing the treatment itself and
indeed before commencing diagnostic
tests preliminary to the treatment.
InFvR(1983) 33SASR192-193
King listed a number offactors in '
accordance with which the information
to be provided will vary:
The nature. of the matter to be
disclosed.
The nature of the treatment.
The desire of the patient for
information.
The temperament and health of
the patient.
~hegeneral surrounding
CIrcumstances.
."Whilst. this list of factors is a general
hs~, relytngon ~ephysiotherapist's
skill and profeSSIonal judgment to
provide content, it stresses the need to
tailor the advice to the particular
needs, personality and circumstances of
the patient.
The pr~tocol would be improved,
andthe.rlsks of the therapist being
succe~sfullysued reduced, by directing
attentton to the need to provide
patients with enough information to
choose, including by reference to the
factors listed.

AUSTRAliAN PHYSIOTHERAPY

Is it enough to follow
the protocol?
The answer to this question is no. In
putting forward the protocol as a
standard for physiotherapists to use on
all patients prior to cervical
manipulation, the implication is that if
the protocol is followed,
physiotherapists will be acting more
responsibly and legally.
If physiotherapists followed the
protocol in terms of
1. pre-manipulative testing
procedure and
2. informed consent procedure,
they might be tempted to believe their
obligations to show due care and skill
in relation toone aspect of treatment
and the provision ofinformation has
been discharged. Conversely
physiotherapists, because of the
existence of the protocol as a clinical
standard, may be uncertain as to their
true position in relation to potential
actions alleging negligence, if they
choose not to follow the protocol.
Since Rogers v Whitaker, the test is
whetherthephysiotherapist's conduct
conforms to the standard of reasonable
care as demanded by the law. It is not
simply whether the physiotherapist's
conduct accords with practices or
protocols put forward by the APA.

\I\/hat is a material risk?

Grant (1988) estimates:
"....that one in a million cervical
manipulations will result in serious
vertebrobasilar complications".
She goes on to say that"....injury
to the vertebral artery during
manipulative procedures is likely
to be far more common than the
literature reflects and while
complications are unusual they are
probably far from rare" (Grant
1988, p. 111).
Based on the results of studies by the
Swiss Medical Association of Manual
Medicine, Dvorak et al (1991 ,p.117)
found that serious unpredictable
neurological complication occurred in
1 in 400,000 manipulations (high
velocity thrust technique) of the
cervical spine. Dvorak suggests that

PROF E5 51 0 N A1 ISS UES

this complication rate could be even

lower if proper diagnosis and
recognition of other suspicious clinical
signs are noted by an experienced
therapist or clinician.
It is reasonable to assume that the
real risk of pre-testing for
vertebrobasilar insufficiency (VET),
which involves sustaining the patient's
neckin positions of rotation and upper
cervical extension without the high
velocity thrust of a manipulation,
would be less than the manipulation
itself. However, further studies are
required for its clinical validation and
risk evaluation.
The High Court, in Rogers v
Whitaker~ gave direction as to what
constitutes a real or material risk for a
particular patient in legal terms. The
Court has emphasised the objective
test, namely, what a reasonable person
in the patient's position would consider
a significant risk. The Court added the
more subjective requirement of the
practitioner being reasonably aware of
the likelihood of the patient attaching
significance to a risk.
The factors that most commonly
determine those risks a physiotherapist
considers to be material are.:
1. VVhen a risk is extremely serious,
that is, it has life threatening or
seriously disabling consequences.
2. VVhen a risk.occurs frequently
. enough to warrant mentioning it.
3. VVhen the treatment offered is a
matter ofchoice for the patient.
Physiotherapists are accustomed to
using these objective standards as
guidelines for the warnings offered to
patients. They often add their own
subjective test of personal skill and
judgment as to the patient's best
interests in deciding on the content of
the warning. The objective component
required by law in deciding the content
of the warning (in terms of which risks
are material).is illustrated by the
application of the "reasonable person
in the patient's position" test.
The subjective element of the test is
based upon the needs of the particular
patient as well as the therapist's ability
to recognise these needs as stated by
the High Court in Rogers v Whitaker.

Case examples of material risk

and explanation required.
In Karpati v Spira and Ors,NSW
SupremeC9urt, (unreported, June 6,
1995, Spender A]), the plaintiff made a
number ofcomplaints about
inadequate explanation of risks, based
on the neurosurgeon's.use of words
such as "small risk", "slight risk" or
"rare risk". On this point Spender
observed:
"Often this kind of advice is all
that can reasonably be expected,
and it would be perfectly right for
a doctor to express risks in such
terms. But where there isa
percentage which. is known by
reason of medical history, studies
and the like, even if there is some
variability in that percentage, it
seems to me that an explanation of
serious risks involves telling the
patient that there.is a percentage
riskin the order of a known figure,
orin the order of a band or range
of figures" (Karpati v Spira at
114).
In Riebl v Hughes [1980] 114 DLR
(3d), the Supreme Court of Canada
found a doctor negligent in failing to
tell a patient .that his heart surgery
could be deferred until after the
patient's pension entitlement accrued.
The Court found that this information
regarding the patient's finances was
relevant for the particular patient and
that the doctor should have asked the
patient about it.
These cases illustrate to the
physiotherapist that the law looks at
materiality of a risk
1. from the perspective of the
particular patient; and
2. in terms of comparative numbers.
It is not always easy to predict
whether the courts will decide whether
a particular set of facts will amount to
negligence or not. That is so even
though the legal principles as stated by
the High Court are certain. This point
is well illustrated by the. case of Woods v
Lawns, [1995] 36 NSWLR 344,
Badgery-Parker J reversed on appeal
(Lawns and Anor v Woods [1996] Aust.
Torts R81-376).

PROF ESSJON AL ISSUE S AU STRAllAN PH YSlOTH ERAPY

From Page
In this case, the trial judge found that
the neurologist treating the plaintiff, a
boy aged 11 with a history of epileptic
seizures, had been negligent in failing
to .advise the boy's parents on the use
of rectal diazepam (Valium). Two of
the three judges sitting on the New
South Wales Court of Appeal
overturned this finding after reviewing
all the expert evidence in the doctor's
favour and weighing it against the
conflicting evidence. The third appeal
judge agreed with the trial judge but
was in the minority in the Court of
Appeal. The neurologist was therefore
found to be not negligent in the advice
(or lack of advice) given to the boy's
parents because in this case, important
use was made of evidence of normal
medical practice.

Are health care practitioners

being victimised?

The decision in Rogers v Whitaker has

produced responses ranging from
panic and outrage to acceptance and
recognition of consistency in the law.
In terms reminiscent of Lord Denning
(Roe v Minister ofHealth 2 QB81)
Gerber (1995) stated:
"....doctors will be well advised to
abandon malpractice cover (which
will become prohibitively
expensive) and distribute their
assets among their family andlor
insist on consent forms which
include the kitchen sink as well as
every other known, unknown or
suspected risk" (Gerber 1995, p.
262).
At the other end oEthis spectrum
Judge Keon-Cohen (1995) observed:
"The medical profession ought not
to feel hard done by as a result of
the demise of the Bolam
authorities (and the rise of Rogers v
Whitaker). The fact that the
medical profession in Australia
now, in conduct of their affairs and
in the operation of their
professional duties, are governed
by the general rules of negligence
as interpreted by the High Court
is a development consistent with
the Court's approach in other
fields" (Keon-Cohen 1995, p.3).

Proposals for change

in practice
For the protocol to be used as a clinical
standard ensuring physiotherapists
responsibly use the effective
manipulative techniques at their
disposal and comply with the law since
1992, there. is a need.to clarify and
update. the following issues:
1. The real risk of manipulation.
2. The r~al risk of pre--testing for
VBI prior to manipulation.
3. The clinical validity of the pretests.
4. The duty the physiotherapist owes
to inform patients of points 1-3.
5. The protocol is not legally binding
or a magic formula to follow in
order to discharge legal
obligations.
A protocol that takes into account the
current state of the law in regard to
medico/legal issues would have as its
basis the words ofJudge Cardozo:
"Every human being of adult years
and sound.mindhas a right to
determine what shall be done with
his own body" (Schloendorff v
Society ofNew York Hospital (1914)
105 NE 92-93).
To be of any assistance, the protocol
should highlight the need for the
physiotherapist to warn the patient of
material risks inherent in both the pre-manipulative testing procedure and the
manipulation itself. To enhance
patient understanding, it might suggest
some illustrations (not a total panacea
but a guide) for use in explanations to
the patient showing the relationship of
the vertebral artery to the cervical
spine and how the pre-manipulative
tests help to differentiate between
patients at risk from VBI as opposed to
those patients who appear not to have
any sign ofVBI. The protocol should
include results or findings of recent
andeurrent studies that give clinical
validity to the pre-manipulative tests.
It needs to be regularly updated .as new
studies and information, including new
statistical evidence of risks in the
proposed procedures, come to light.
Such information could he passed on
to the patient in the form of a

pamphlet dealing with current

advances in physiotherapy.
The protocol ought to remind
physiotherapists of the duty to keep
abreast of advances in knowledge and
clinical techniques to enable them to
practise with the care and skill required
of an ordinary skilled and competent
physiotherapist. AsOpie (1995) states,
the law makes no allowance for the
absence of skill or the inexperience of
the novice. The protocol might
usefully include the following
discussion topics as relevant to
providing the patient with enough
information to make an informed
choice:
1. Other treatment options,their
material risks and potential
benefits.
2. Patients'own expectations of their
treatment outcomes.
3. Therapists' views of treatment
outcomes.
4. Therapists'willingness to answer
questions.
In the area of documentation, the
protocol could suggest a consent form
that, as stated by Skene (1990),also
explains the proposed procedure and
any alternatives, together with major
risks and benefits. Any such form
should be written in clear language and
be available in languages other than
English. The aim of the consent form
is to record evidence of comprehensive
communication between the patient
and the therapist taking place before
treatment, such that the patient
understands the major risks and
benefits of the procedure. It is too
late to have the form signed after the 1
in 400,000 event. To be of use, any
consent form must be explained and
signed before the proposed procedure
commences. If verbal consent is
obtained, a record should be made of
the conversation, including the timing
ofthe explanation by the therapist and
the verbal consent by the patient.
Documentation of explanation by the
therapist and either verbal or written
consent from the patient is most
important. The forms should then be
kept. Opie (1995) believes that
inadequate records are indicative of

AUSTRAlIAN PHYSIOTHERAPY

poor care and that this fact should be

sufficient incentive to maintain good
ones.

Conclusion
There are some areas of physiotherapy
practice where there is recognition of
the duty ofcare to advise and
adequately inform patients of the risks
of proposed treatment.
Many rehabilitation and hospital
departments, especially in the area of
elective surgery, demonstrate an
awareness and recognition of the duty.
However, in one of the more
potentially hazardous treatment areas,
that of manipulative therapy, the
guidelines should be improved and the
protocol updated and revised. There is
an urgent need for the practitioners in
this area to be better informed of, and
to discharge, the duty of care to inform
imposed on them by law. It is too late
to look back from the witness box after
things go wrong.
As Dr Paul. Nissellestates:
"The days of medical paternalism
are dead.. Patients are entided to
full and detailed information in a
form that is clearly understandable
and accessible. The patient who
clearly understands how you come
to the diagnosis, clearly
understands the various modes of
therapy available, clearly
understands why you have advised
one particular form of therapy,
clearly understands the advantages
and disadvantages of that form of
therapy, and then was actively
involved in the decision to proceed
with the recommended treatment,
will often benefit more from that
.treatment" (Nisselle 1993, p. 268).

PRO FE S51 0 NA1 ISS UE5

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