As a physiotherapist, you are required to touch, apply pressure to and manipulate patients, which involves close physical contact.

It is therefore crucial that you understand and work within the parameters of safe, clinical and appropriate touching.

In 2021, Ahpra received a total of 568 notifications alleging a possible failure to maintain appropriate professional boundaries.

A boundary transgression covers a wide scope of conduct, but one of the most serious can be an allegation of inappropriate touching.

What is inappropriate touching?

Put simply, inappropriate touching is any physical touching that is not clinically indicated or is otherwise unwanted.

A physical examination is an important part of a physiotherapist’s toolbox.

Performed correctly, a physical examination will provide valuable information to assist in the assessment, treatment and review of patients.

However, a physical examination that is unclear, unexplained, performed badly or (even worse) not indicated is inappropriate and may form the basis for an allegation of sexual assault.

Clinical scenario one

Hannah attended Jordan for a consultation about lower back pain, including transferred pain to the buttocks.

After an initial assessment, Jordan advised that he would apply some strapping to Hannah’s lower back.

Hannah lay prone on the treatment table and Jordan placed strapping from her mid lower back down to the top of her left buttock.

To do so, Jordan placed one of his hands under Hannah’s tights and pulled them down further to apply the tape.

Jordan did not say anything to Hannah before pulling her tights down.

Hannah was startled and pulled her tights back up.

After the consultation, Hannah cancelled the next appointment and made a notification to Ahpra of inappropriate touching.

Jordan’s scenario represents a commonly seen circumstance where poor communication may lead to an allegation of inappropriate touching.

Before placing the strapping, Jordan should have:

• explained to Hannah why the strapping was necessary and what it involved and provided an opportunity for her to ask questions (or to refuse)
• been aware of any verbal or non-verbal sign that Hannah was uncomfortable, did not understand or had withdrawn consent
• demonstrated to Hannah in advance where the strapping was required and where he would put his hands before placing her on the treatment table and sought permission to lower the top of her tights.

Clinical scenario two

Julianne had never attended a physiotherapist before and consulted with Tony in relation to some lower back pain.

After taking a history, Tony asked Julianne to remove her top.

Julianne was uncomfortable and asked why.

Tony said that he needed to assess Julianne’s spine.

Tony then asked Julianne to perform a series of movements and exercises to inform the assessment.

As Julianne was performing a manoeuvre, Tony stepped closer and placed his hands around Julianne’s waist.

He said it was to assess stability.

Julianne’s top half was still uncovered.

Tony had not properly obtained Julianne’s consent before touching her or explained what he was doing in advance.

Learnings and safeguards

A good therapeutic relationship means working with patients and developing a relationship based on respect, trust and effective communication.

Physiotherapists should maintain effective and professional relationships with their patients and provide explanations that enable patients to understand and participate in their care.

Clear communication will often avoid any uncertainty and may help to resolve any inadvertent or accidental touching.

We know that the following may appear somewhat obvious but allegations often arise in circumstances where there is a disconnect between physiotherapist and patient, which can often be explained by a comprehension or communication error.

It can be helpful to remind yourself of some of the key concepts and remain up to date.

Here are a few simple measures that will help you avoid any uncertainty when making physical contact with a client:

• always ensure that informed consent is obtained in advance of any physical contact
• be mindful of any verbal or non-verbal sign that the patient has withdrawn consent
• do not continue with an examination when consent is uncertain
• provide suitable covering during an examination so that the patient can be covered as much as possible
• if there is no privacy screen or gown available, offer to leave the room while the patient undresses or (if available) provide a chaperone
• do not allow the patient to remain undressed for any longer than is needed for the examination
• use simple language and demonstrations (avoid complicated medical terms or jargon)
• never assume a patient knows what you mean or that they agree with your actions; seek verbal indications and if uncertain ask the patient to clarify their understanding
• consider a patient’s health literacy when determining the content of communications with them
• perhaps most importantly, make clear, legible records of your consultations, your thought process and your discussion about consent. If a complaint is made, your records will be invaluable.

In clinical scenario one, the physiotherapist had identified the problem and knew the solution, but in rushing to complete treatment he failed to fully explain the process.

It is a good example of how in practice good treatment can go astray, which reinforces the importance of some of the key concepts of your role as physiotherapists.

The relationship between physiotherapist and patient is one of confidence and trust.

It involves the sharing of sensitive information and physical contact.

It is therefore crucial that both the patient and the physiotherapist are clear in understanding where the boundaries are for any physical touching.

It is incumbent on you as a physiotherapist to define those boundaries.

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.

BMS Risk Solutions Pty Ltd (BMS) AFSL 461594 ABN 45 161 187 980 is the official and exclusive insurance broker for the APA member insurance program. BMS is part of the wider BMS group, which is dedicated to providing coverage and value-added services to associations and their members.