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Assault and the Physical Therapy Professions
- Apr 29, 2021
- Latest Journal
by Tim Edbrooke BEd(Hons), GradDipPhys, Chartered Physiotherapist'
A small number of cases of assault by members of the physical therapy professions (Physiotherapy; Chiropractic; Osteopathy; Sports Massage etc) reach the courts or professional tribunals each year. Most commonly tribunal appearances revolve around issues regarding the removal of clothing for the purposes of examination and treatment, and of inappropriate or unnecessary touching. On rare occasions a therapist is accused in court of sexual assault by touching or by penetration.
It might be generally assumed that the public would have a clear idea of how they expect to be treated when attending a physical therapist of any sort. However this is not the case, and many victim statements centre around the victim’s confusion around the actions of the therapist, not knowing whether what was happening was to be expected. In any clinical scenario the clinician is in a position of power, and patients are generally willing to accept that power dynamic, and not to question the actions and comments of the clinician, making themselves vulnerable. It is not uncommon for complaints to be raised a considerable time after the index event, often after discussion with other people or further research.
The removal of some clothing for the purposes of examination or treatment is necessary for all of the physical therapy professions. In order to carry out a meaningful examination sufficient clothing must be removed to visualise the relevant anatomical markers, and to allow unrestricted movement during the examination. However, it is never necessary for a patient to remove undergarments or to expose themselves in any way, and the need to remove any clothing must be explained. Good practice dictates that the patient’s modesty must be preserved by the provision of an extra covering such as a towel should it be necessary. Unfortunately, again due a lack of understanding, or to the power dynamic in the clinical setting, patients may remove more clothing than is necessary of their own volition, or fail to question the need to remove items of clothing unnecessarily. Allowing a patient to remain exposed unnecessarily is usually viewed by tribunals as being action below the accepted standard.
Consent must always be appropriate to the treatment or investigation being carried out. This means that the consent that has been given is right and proper and meets three tests:
• The patient must have the capacity to give their consent.
• The consent must be given voluntarily.
• The patient must have been given all the information they ask for in order to make their decision.
If any one of these three requirements is not met, then the consent may not be legally valid,
and the intervention may be unlawful and/or negligent. The subject’s consent is essential for any assessment and/or intervention that involves touching, however if it became necessary to touch an intimate part of the body the subject’s explicit consent would need to be reaffirmed and recorded. An example of such a necessity would be when cauda equina compression is suspected and it is necessary to assess perianal sensation and anal sphincter tone.
On occasion consent is recorded but the patient denies having been informed and asked for their consent. It might be assumed that a patient seeking treatment understands the need for touch and is therefore consenting to any necessary examination or treatment. However, before proceeding, therapists must always seek to obtain some explicit indication that the patient understands the need for an examination or treatment, and agrees to it being carried out. Alternative approaches, including that of ‘no treatment’ must be offered in a manner that places no pressure on the patient.
Social norms as well as professional standards dictate that there are areas of the body (male and female genitalia; female breast tissue) that it is clearly inappropriate to touch for any reason and in any manner during treatment. More nebulous are areas such as the upper chest, inner thigh and buttocks where muscle groups integral to posture and movement quality are located, groups that are often affected by faulty movement patterns or injury. Muscle attachments are located in the crease of the groin, along the edge of the perineum, and under the buttock, as well as centrally on the chest and laterally in the axilla, and a number of manual therapy and massage techniques rely upon contact in these areas:
Trigger points, are described as hyperirritable spots in the skeletal muscle often close to the attachment. They are a topic of ongoing controversy as there is limited data to inform a scientific understanding of the phenomenon. The trigger point model states that unexplained pain frequently radiates from these points of local tenderness to broader areas, sometimes distant from the trigger point itself. The need to ‘treat’ trigger points is often cited by defendants to explain the need to touch patients close to intimate areas.
Effleurage is the long stroking technique used when massaging to move tissue fluid along known lines of drainage. Strokes may be directed towards the groin in the lower limb, and towards the axilla in the trunk and upper limb. On occasion contact with the edges of a patient’s genitals or intimate areas occurs when insufficient attention is paid to technique, but such contact is, at most, transitory. Persistent or intentional contact with the genitals or intimate areas would be viewed as unacceptable by a reasonable body of practitioners.
Touch is a powerful communication tool which can be used for connection; for emphasis when explaining the anatomy of an injury; to cue or guide a movement, or to reinforce an instruction. Touch is also an integral part of many physical therapy assessment and treatment techniques. The majority of cases turn upon the issue of patient understanding, consent, and upon the clinical necessity for the touch to have occurred. There is often contradictory evidence from the patient and the therapist regarding the degree to which a treatment has been explained and it is my experience that, more often than not, patients do not fully understand the proposed nature of the treatment or what they should expect, and that patients forget between 40 – 80% of the information they are given dependent upon factors such as the clinician’s communication style, their own expectations, and their levels of education and mental faculty. Reports in such cases would usually compare the two versions and comment on each without making a judgment as to which was the more likely to have occurred.
It is not unusual for the therapist in cases of alleged assault to provide explanation and justification of their actions using anatomical and technical terminology. Such terminology can be confusing, even for experienced investigators, and it is often the role of the expert witness to provide the police, the court, or the tribunal with an explanation of the context and legitimacy of the claims being made.
Cursory research will show that assault by physical therapists of all professions occurs on a regular rather than a frequent basis. Being assaulted in a healthcare setting is particularly alarming because the environment places the victim in a position of vulnerability: their focus is on their health and receiving treatment for their pain, and are thus unprepared to respond to inappropriate behaviour. It is common for victims to express confusion as to whether they have actually been assaulted, whether they acted in a way that invited the assault, and whether they failed to prevent the assault taking place. The expert has a key role to play in interpreting everything that has occurred, and in advising the court or tribunal accordingly.