Thursday, 21 January 2016

SPHPM's Ken Harvey: Chiropractic board in firing line

This article by Associate Professor Ken Harvey originally appeared in MJA InSight 18 January 2016. 

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.

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