The shared Code of conduct published by the Australian Health Practitioner Regulation Agency (Ahpra) and the National Boards, including the Physiotherapy Board of Australia, sets out a physiotherapist’s professional obligations and prescribes how a physiotherapist should conduct themselves.

Common areas where complaints and claims may be made against physiotherapists include miscommunication, the management of slips and falls, the provision of dry needling and boundary violations.

Miscommunication

Physiotherapists have an obligation to maintain effective communication with patients and other treating practitioners.

Promoting good communication between a physiotherapist and a patient ensures that the patient receives effective care, while breaches of professional obligations regarding communication have the potential to lead to adverse results such as distrust and a breakdown in the treating relationship between a physiotherapist and their patient.

The statistics

According to Ahpra’s Annual Report for 2020/2021, 7.9 per cent of complaints made about physiotherapists were about the physiotherapist’s communication.

Communication complaints were the fourth most common area of complaints against physiotherapists.

In 2021/2022, 20 per cent of claims made against APA insured members related to miscommunication or poor communication.

Safeguards to avoid miscommunication

• employ clear and straightforward language when speaking with patients
• request that a patient confirm what a physiotherapist has said
• provide written exercise plans to document any exercises prescribed during a session
• be aware of a patient’s health literacy and adapt communication accordingly
• spend time reflecting on a practitioner’s own communication style and undertake communication mentoring with a senior colleague.

Slips and falls

The health, safety and care of the patient are the primary concern for health professionals in clinical practice.

This means that as a physiotherapist it is your responsibility to practise safely and to minimise any risks to a patient’s safety—specifically, to prevent, manage and mitigate risks of harm once they have been identified.

This is also the physiotherapist’s legal obligation under legislation—physiotherapists are required to take reasonable precautions to avoid a risk of harm to patients for whom they are responsible.

If a physiotherapist fails to take appropriate precautions, they may be liable for any injury suffered by a patient at their clinic.

The statistics

According to recent BMS claims data for the APA insurance program, 23 per cent of claims are civil matters, 15 per cent of which relate to slips and falls from equipment, in waiting rooms or in car parks.

Safeguards to avoid slips and falls

• make sure that there is a safe environment when providing treatment to the patient and follow proper safety procedures as outlined by the clinic and in accordance with your training
• make sure that any supportive equipment is stabilised and in proper working order
• do not leave your patient unsupervised during the course of treatment
• always be aware of your patient’s medical history
• if your patient does fall, follow appropriate procedures for rendering aid.

To limit your risk of being found to be fully responsible for any injury suffered if a patient falls, we suggest that you:

• assess the patient and, if appropriate, offer ice or treatment to help the patient in the short term
• refer the patient for examination by a GP or call an ambulance depending on the seriousness of the patient’s fall or injury
• ask the patient to update you on their progress
• make sure you record the incident
• notify your insurer in case the patient decides to make a claim or complaint.

Dry needling

Dry needling is increasingly being used in physical therapy settings to alleviate pain and increase motion for patients.

Dry needling is safe if practised appropriately; however, there have been documented fatalities as well as other serious adverse effects such as pneumothorax or local or systemic infections.

It is incumbent on the practitioner to ensure that the training they have received meets appropriate standards and that the use of dry needling to treat patients is appropriate.

The statistics

Ahpra’s Annual Report for 2020/2021 states that 27.1 per cent of complaints made about physiotherapists were in relation to clinical care provided by the physiotherapist, some of which are likely to involve complaints about dry needling.

Clinical care complaints were the second most common area of complaints against physiotherapists.

A claim against a BMS-insured massage therapist has compensation claimed in excess of $1 million and has been the subject of court proceedings for approximately three years.

This highlights just how costly a claim can be.

Safeguards to practise dry needling safely

Ensure that fully informed consent is obtained and documented and that your clinical notes contain details of those communications.

Remember that consent is an ongoing process.

In subsequent dry needling treatments, it is necessary to remind patients about the risks and, where appropriate, educate patients on self-management of adverse events should they occur.

Only act within the scope of your practice.

If you need to refer, please refer.

If a patient is refusing to accept your advice, consider whether to recommend that they consult another practitioner.

Continue to refresh and update your education on dry needling.

Boundary violations

The Code describes professional boundaries as a clear separation existing between professional conduct aimed at meeting the health needs of patients and a practitioner’s own personal views, feelings and relationships, which are not relevant to the therapeutic relationship.

The aim of professional boundaries is to promote good care for patients and to protect both parties.

Professional boundary violations have the potential to lead to significant adverse results for patients and the Physiotherapy Board of Australia treats violations seriously.

The statistics

According to Ahpra’s Annual Report for 2020/2021, 14.3 per cent of complaints made about physiotherapists were regarding a physiotherapist’s alleged breach of professional boundaries.

Complaints about alleged boundary violations were the third most common area of complaints against physiotherapists.

According to BMS claims data, on average there are 20–30 allegations of boundary violations each year.

Safeguards to help maintain professional boundaries

Be vigilant to ensure that professional boundaries are maintained.

If any signs of a possible transgression are identified, take a step back to reflect and reaffirm the boundary and seek support from senior colleagues, management or your professional association.

Ensure that your clinic has a clear policy on maintaining professional boundaries.

Hold regular meetings between staff to discuss boundaries and any ‘near misses’.

Attend or hold mandatory annual training and include training as part of an induction for new staff.

What to do if a claim is made against you

If you experience a miscommunication or are unsure about how best to discuss a particular health concern with a patient, you should seek assistance, including from a senior colleague.

Contact your insurer immediately if a claim is made against you or you suspect a claim may be brought against you.

Click here to learn about the APA insurance program and how BMS can help protect you.

This article is part of the risk management series facilitated by APA’s insurance partner BMS and written by leading health law firm Barry Nilsson.

Disclaimer: Barry Nilsson communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.

You must be a current APA member to be eligible for the APA member insurance program. You must be part of the APA member insurance program in order to access additional cover. If your membership ceases you will not be offered renewal when your policy expires. In arranging this insurance for our members, APA is acting as a distributor of BMS Risk Solutions Pty Ltd (BMS) AFSL 461594, ABN 45161187980. This insurance is issued by BMS under a binder with Certain Underwriters at Lloyd’s. When acting under a binder BMS is acting as agent for the insurer and not as your agent. This is general advice only and BMS has not considered whether it is suitable for your particular objectives, needs or financial situation. Please read the Policy Wording and the BMS Terms of Engagement, which contains the Financial Services Guide, before making a decision about purchasing this policy. APA may receive a percentage of the commission paid to BMS by the insurer and/or a fee per policy.