Allaxys Communications --- Transponder V --- Allaxys Forum 1
Aktuell im WWW => *** PRESSEMELDUNGEN *** => Topic started by: Krik on December 01, 2020, 01:15:51 AM
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[*quote*]
Consumer Health Digest #20-47
November 29, 2020
Consumer Health Digest is a free weekly e-mail newsletter edited by William M. London, Ed.D., M.P.H
http://www.calstatela.edu/faculty/william-m-london
., with help from Stephen Barrett, M.D
http://www.quackwatch.org/10Bio/bio.html
. It summarizes scientific reports; legislative developments; enforcement actions; news reports; Web site evaluations; recommended and nonrecommended books; and other information relevant to consumer protection and consumer decision-making. Its primary focus is on health, but occasionally it includes non-health scams and practical tips.
###
YouTube suspends news network promoting COVID-19 "cure”
YouTube has barred One America News Network (OANN) from posting new videos or livestreams for one week after the network uploaded a video promoting a phony COVID-19 cure. YouTube treats the video uploaded as OANN's first "strike" in violating its COVID-19 misinformation policy after having previously received warnings about misinformation uploads. YouTube's policy is to terminate an account after a third strike. OANN will have to reapply to the YouTube Partner Program to be able to monetize its currently posted videos again.
[Gold A. YouTube temporarily suspends, demonetizes OANN
https://www.axios.com/youtube-temporarily-suspends-demonetizes-oann-420e8ea9-66c1-4eab-9754-6e3b708483c9.html
. Axios, Nov 24, 2020]
YouTube has also removed videos in which Kelley Victory, M.D., violated its community guidelines about COVID-19 by asserting that (a) COVID-19 is less serious than generally believed, (b) social distancing is not necessary, (c) wearing a mask does more harm than good, and (d) Americans should feel "secure and confident to fully return to their lives, businesses, schools, and places of worship "without fear and without limitations."
[Barrett S. A skeptical look at Kelley Victory, M.D.
https://quackwatch.org/11ind/a-skeptical-look-at-kelly-victory-m-d/
Quackwatch, Aug 23, 2020]
###
Informed consent to subluxation-based chiropractic deemed impossible
Two Australian university faculty members in chiropractic have written a commentary that makes the following arguments:
*** The International Chiropractic Association's promotion of chiropractic treatment to remove vertebral subluxations
https://quackwatch.org/chiropractic/general/chirosub/
and facilitate "optimal life expression, health and human potential" is deceptive and unprofessional.
Considering that subluxation-based chiropractic is deceptive, patients cannot give informed consent to receive it.
*** Chiropractors who learn new techniques in treatment from single weekend seminars have a duty to disclose their limited training.
*** Chiropractors who sell products or services in their clinics have a conflict of interest and a duty to disclose their relevant training and the availability of reasonable alternatives.
*** Chiropractic boards, professional associations, program accreditors, and individual practitioners need to better address informed-consent issues.
[Simpson JK, Innes S. Informed consent, duty of disclosure and chiropractic: Where are we?
https://www.biomedcentral.com/epdf/10.1186/s12998-020-00342-5
Chiropractic & Manual Therapies, 28:60, 2020]
###
Popular wellness satirist profiled
JP Sears has become famous for his satirical "Awaken with JP" videos poking fun at wellness fads such as gluten-free diets and essential-oil use. However, Jonathan Jarry of McGill University's Office of Science and Society reports that Sears also promotes:
*** magnesium supplements to combat stress, a claim unsupported in a recent evidence-based review
*** blue-light-blocking glasses, which have not been shown to work to help people sleep well
*** COVID-19 conspiracy nonsense and misinformation
*** conspirituality, a twisted philosophy of "extreme self-responsibility" and, thus, a victim-blaming mentality
[Jarry J. The clown prince of wellness
https://www.mcgill.ca/oss/article/covid-19-critical-thinking-pseudoscience/clown-prince-wellness
. Office for Science and Society, Nov 19, 2020]
###
Video exposes how "psychics” defraud
A video recording
https://www.youtube.com/watch?v=i5w5RIpJ4YA
is now available of the webinar "Combating Fortunetelling Fraud (Psychic Fraud) with Bob Nygaard" in the Center for Inquiry's Skeptical Inquirer Presents series
https://www.youtube.com/playlist?list=PLFo5kdUdZWj7T2iIVwPKtYP-IW9h3BcS4
Nygaard
https://abc7news.com/news/private-investigator-recovered-over-$2m-for-psychic-fraud-victims/29673/ (https://abc7news.com/news/private-investigator-recovered-over-$2m-for-psychic-fraud-victims/29673/)
, a private investigator, helps people who have been defrauded by "psychics" to recover their losses. The video explains how victims are tricked, how criminal cases can be built, and the impediments to getting the perpetrators prosecuted. Nygaard's efforts are not directed at disproving psychic abilities, which would be difficult to accomplish in court. Instead, successful cases are built with evidence of "theft by deception" that leads vulnerable people to part with their money.
###
Deceptive marketing of SeraRelief CBD products exposed
TruthInAdvertising.org has warned against signing up for a free trial of CBD (cannabidiol) products by providing credit card information to pay a small shipping fee, as required by Sera Labs, maker of SeraRelief CBD products. Additional costs can be applied during the ordering process, customers can be automatically enrolled in a program to be billed for more products until they opt out, and an undisclosed restocking fee means that not all money will be returned with the company's 30-day money-back guarantee. Moreover, Sera Labs has advertised unsubstantiated therapeutic claims for its CBD products.
[SeraRelief CBD products
https://www.truthinadvertising.org/serarelief-cbd-products/
. truthinadvertising.org, Aug 4, 2020]
.===========================
Stephen Barrett, M.D.
Consumer Advocate
287 Fearrington Post
Pittsboro, NC 27312
Telephone: (919) 533-6009
http://www.quackwatch.org (health fraud and quackery)
[*/quote*]
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As this paper is extremely important TO ALL medical "treatments", I archive it here. Because the original PDF is spoiled crap, a number of text portions had to be moved while converting from PDF to plain text.
https://www.biomedcentral.com/epdf/10.1186/s12998-020-00342-5
[*quote*]
Simpson and Innes Chiropractic & Manual Therapies
https://doi.org/10.1186/s12998-020-00342-5
(2020) 28:60
DEBATE
Open Access
Informed consent, duty of disclosure and chiropractic: where are we?
J. Keith Simpson *
and Stanley Innes
Abstract
Background:
The COVID-19 pandemic has seen the emergence of unsubstantiated claims by vertebral subluxation-based chiropractors that spinal manipulative therapy has a role to play in prevention by enhancing the body’s immune function. We contend that these claims are unprofessional and demonstrate a disturbing lack of insight into the doctrine of informed consent. As such it is timely to review how informed consent has evolved and continues to do so and also to discuss the attendant implications for contemporary health practitioner practice.
We review the origins of informed consent and trace the duty of disclosure and materiality through landmark medical
consent cases in four common law (case law) jurisdictions.
The duty of disclosure has evolved from a patriarchal exercise to one in which patient autonomy in clinical decision making is paramount. Passing time has seen the duty of disclosure evolve to include non-medical aspects that may influence the delivery of care.
We argue that a patient cannot provide valid informed consent for the removal of vertebral subluxation.
Further, vertebral subluxation care cannot meet code of conduct standards because it lacks an evidence base and is practitioner-centered.
The uptake of the expanded duty of disclosure has been slow and incomplete by practitioners and regulators.
The expanded duty of disclosure has implications, both educative and punitive for regulators, chiropractic educators and professional associations.
We discuss how practitioners and regulators can be informed by other sources such as consumer law. For regulators, reviewing and updating informed consent requirements is required. For practitioners it may necessitate disclosure of health status, conflict of interest when recommending “inhouse” products, recency of training after attending continuing professional development, practice patterns, personal interests and disciplinary findings.
Conclusion:
Ultimately such matters are informed by the deliberations of the courts. It is our opinion that the duty of a mature profession to critically self-evaluate and respond in the best interests of the patient before these matters arrive in court.
Keywords: Chiropractic, Informed consent, Duty of disclosure, Negligence
Background
The COVID-19 pandemic highlights, amongst other things, all that is professional and unprofessional within the chiropractic profession. First, we discuss the unprofessional. By unprofessional be mean behaviour below or contrary to the standards expected in a particular profession [1].
Faced with the pandemic, the International Chiropractors Association (ICA) produced 2 reports on chiropractic and the immune
system [2, 3]. While the initial report states members
should “not advertise in any form the suggestion that chiro-
practic can cure, treat, prevent, or mitigate COVID-19”
[2]p.3 and the Updated Report states “no claims may be
asserted that chiropractic is a prophylactic or cure for
COVID-19” [emphasis in the original] [3]p.2 they do state
there is a growing body of evidence that there is a relation-
ship between the nervous system and the immune system.
Although several mechanisms by which the nervous and
immune systems might interact have now been recognized,
absent from the report is acknowledgement no credible
* Correspondence: k.simpson@murdoch.edu.au
Discipline of Psychology, Exercise Science, Counselling and Chiropractic
(PESCC), College of Science, Health, Engineering and Education (SHEE),
Murdoch University, Murdoch, Australia
© The Author(s). 2020 Open Access This article is licensed under a Creative Commons Attribution 4.0 International License,
which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give
appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if
changes were made. The images or other third party material in this article are included in the article's Creative Commons
licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons
licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain
permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/.
The Creative Commons Public Domain Dedication waiver (http://creativecommons.org/publicdomain/zero/1.0/) applies to the
data made available in this article, unless otherwise stated in a credit line to the data.
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60 Page 2 of 12
scientific evidence demonstrate a link between vertebral
subluxation and immune function.
The updated report states that spinal subluxation and
spinal manipulation impacts neurologic function and
endocrine, and immune systems are interdependent [3].
The ICA’s website informs that subluxation detection and
removal facilitates optimal life expression, health and hu-
man potential [4]. The Reports’ inference is obvious: sub-
luxation removal can help combat the COVID-19
pandemic by boosting the immune system. The reports
conclude “research to validate the role of doctors of chiro-
practic in promoting health and vitality by stimulating a
healthy immune response is required” [2] p.13, [3] p.19.
Due to the ICA COVID-19 reports, chiropractic asso-
ciations and chiropractors around the world who either
belong to the ICA or align with this ideology, claimed
that patients should undergo spinal manipulation to help
combat the COVID-19 virus [5–7]. Such irresponsible
action places both themselves and the public at risk.
The ICA reports epitomise the prototypical chiropractic
defence against charges of practising medicine without a
licence:
*** Chiropractic is a vitalistic non-therapeutic, non-
allopathic, drugless, non-surgical health science [non-
therapeutic meaning chiropractors treat no disease];
*** Chiropractic is a health care discipline which
emphasizes the inherent recuperative power of the
body to heal itself without drugs or surgery;
*** Subluxations interfere with nerve function;
Interference to nerve function causes brain/body
communication interference;
*** Interference has a negative impact on the nervous
system or organ system functioning thereby
adversely affecting optimal health;
*** Chiropractors detect and remove subluxations;
*** Ergo, by removing subluxations, brain body
communication and function are optimised
enhancing overall health [8].
The problems with this ideology have been discussed
elsewhere [9–12]. Suffice it say that at best chiropractic
vertebral subluxation (VS) as a cause of disease is a po-
tentially testable hypothesis, at worst it is a dogmatically
retained anachronism that does not have any role in the
twenty-first century health care system.
The professional within chiropractic is demonstrated by
the actions of the chiropractic research community in re-
sponse to the ICA reports. By professional we mean having
the recognized attributes of a profession [13] upholding
fiduciary duties [14] and abiding by the social contract
between the profession and society [15]. The chiropractic
research community reviewed the ICA reports and found
they “provided no valid clinical scientific evidence that
chiropractic care can impact the immune system” [16].
Similarly, the World Federation of Chiropractic’s (WFC)
examination of chiropractic and immunity found:
There is no credible scientific evidence that chiroprac-
tic spinal adjustment/manipulation confers or boosts
immunity. Chiropractors should refrain from any com-
munication that suggests spinal adjustment/manipula-
tion may protect patients from contracting COVID-19
or will enhance their recovery. Doing otherwise is po-
tentially dangerous to public health [17].
Professionalism is further demonstrated by collaborative
research examining social media claims by chiropractors
that chiropractic treatment can prevent or impact
COVID-19 [5, 6]. The results demonstrated alarmingly
high and widespread misinformation by chiropractors.
These researchers urged all chiropractic stakeholders to
view the COVID-19 pandemic as a call to action to elim-
inate the unethical, unsubstantiated and potentially dan-
gerous claims made by chiropractors who practise outside
the boundaries of scientific evidence [5, 6]. Similarly, regu-
latory agencies advise it is vital that health practitioners
only provide information about COVID-19 that is scientif-
ically accurate and from authoritative sources, such as a
state, territory or Commonwealth health department or
the World Health Organization (WHO) [18].
Assertions such as the ICA’s and others illustrate unpro-
fessional conduct. They constitute deceptive conduct by
misuse of the scientific literature. They breach fiduciary du-
ties, professional conduct codes, and consumer laws. Such
conduct is likely to appeal to fear and lead health care con-
sumers into potentially dangerous decisions [19, 20].
We contend that a chiropractor making the claim or im-
plying that chiropractic boosts immunity or any other unsub-
stantiated claim cannot fulfil the requirements of informed
consent. The primary aim of this paper is to examine this
and the implications this failure has. This necessitates initially
reviewing the expansion of disclosable information within
informed consent (IC). Following consideration of these mat-
ters, we will assert that it is impossible to fulfil the require-
ments of IC as a chiropractor promoting subluxation-based
care and in doing so, these practitioners are exposed to liabil-
ity under the doctrine of informed consent.
The evolution of the scope of the duty of disclosure
has other implications for chiropractors. We will also
discuss the evolving scope of disclosure as it relates to
non-clinical matters such as practitioner characteristics
and practice patterns, practitioner qualifications and ex-
perience, and practitioner financial interests.
From consent to disclosure of material risks
The doctrine of informed consent in health care is rooted
in the English Common Law doctrine of assault and
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60 Page 3 of 12
battery. It developed during the twentieth century from
three main sources: moral (fiduciary duty), ethical (client
autonomy), and legal (defence against trespass, battery
and negligence) [21]. Regardless of which model of
physician-patient relationship is used, patient autonomy
and the provision of consent are central concepts [22].
The basic principle of consent within the context of health
care has remained unchanged for centuries: touching
without consent is the tort of battery. Battery within
health care requires two elements:
1. Did the patient know that the practitioner would
perform the procedure?
2. Did the patient authorize the practitioner to
perform the procedure?
If either question elicits a ‘no’ answer, battery has
occurred. While it is not the case that all medical
care requires touching, chiropractic care typically
does. Within this context, touching an un-consenting
client would be battery even if the touching is consid-
ered beneficial [23].
Consent affords the practitioner lawful justification for
touching and hence treatment. If consent is not informed,
the practitioner can be found negligent. Exceptions to
obtaining consent include necessity and the therapeutic
exception. Necessity can be argued, for example, where
the patient requires treatment urgently but is unconscious
or otherwise unable to decide. Therapeutic exception is
varyingly called physician discretion, therapeutic nondis-
closure or therapeutic privilege. This exception allows the
practitioner to withhold relevant information if disclosing
the information might create incapacitating emotional
distress or violate a patient’s personal, cultural, or other
social requirements. However, therapeutic exception can-
not be a justification to avoid a patient’s refusal of care
thought necessary by the practitioner. Obviously, invoking
therapeutic privilege requires significant judgment by the
practitioner. Nondisclosure is likely to be detrimental to
the provider/patient relationship and does not sit well with
the moral duty for truth telling by the practitioner. Import-
antly, nondisclosure weakens patient autonomy by limiting
a patient’s ability to determine what is done with their
own body. From a medico-legal perspective, necessity is a
defence to battery, necessity and therapeutic exception are
defences to negligence [24].
The term informed consent (IC) is a form of short-
hand for all aspects of obtaining permission from a pa-
tient. In reality IC is about the duty of the practitioner
to provide the patient with sufficient accurate informa-
tion to allow the patient to make informed decisions.
Thus, information disclosure is a dominant concern at
the very core of the doctrine of informed consent. As IC
developed during the twentieth century it evolved from
a paternalistic model to one in which patient autonomy
in clinical decision making is paramount [25]
IC can be regarded as a meeting of the minds, analogous
to a contractual procedure between a competent, compre-
hending, uncoerced patient and a health care provider
(HCP) who must disclose all relevant information includ-
ing a valid basis for the proposed care. Having understood
the disclosed information, the patient voluntarily consents
to or rejects the proposed care plan. The HCP undertakes
to provide treatment using their skill, knowledge and
judgment to achieve a desired result and the client con-
tracts to compensate the HCP for their services. Failure to
disclose all relevant information may vitiate consent and
may render the HCP liable in negligence. During the past
four decades information considered disclosable has ex-
panded to not only include treatment specific information,
but also practitioner specific information [23, 26–30].
Laws governing professional conduct, including con-
sent, are set out legislatively and by court decisions.
They are administered through governmental institu-
tions and relevant professional bodies. The courts inter-
pret the laws to which individuals must abide. Court
interpretations understandably evolve in keeping with
societal changes while respecting the fiduciary relation-
ship between the patient and HCP [31, 32]. Because the
law governing IC varies across jurisdictions and coun-
tries, we examine disclosure requirements as they
emerged from landmark twentieth century cases in four
major common law countries – the United Kingdom
(UK), the United States of America (US), Canada, and
Australia. Readers desirous of detailed analysis are di-
rected to leading texts dealing with each jurisdiction: UK
[33], US [34, 35], Canada [36], Australia [37] with the
definitive analysis and description of the informed con-
sent concept being Faden and Beauchamp’s text [21].
The 1914 decision in the US case of Schloendorff v So-
ciety of New York Hospital [38] is credited with estab-
lishing the concept of consent and patient autonomy
within health care. Justice Cardozo wrote:
Every human being of adult years and sound mind
has a right to determine what shall be done with his
own body; and a surgeon who performs an oper-
ation without his patient's consent commits an as-
sault, for which he is liable in damages.
The 2015 UK case of Montgomery v Lanarkshire Health
Board [39] became the most recent milestone in the
evolution of the duty of disclosure and informed con-
sent. It effectively embedded materiality into the doc-
trine of disclosure. The Court ruled:
The doctor is therefore under a duty to take reason-
able care to ensure that the patient is aware of any
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60
material risks involved in any recommended treat-
ment, and of any reasonable alternative or variant
treatments.
The 101 years between Schloendorff v Society of New
York Hospital and Montgomery v Lanarkshire Health
Board have seen the requirements for disclosure in con-
sent progress from a doctor-centered model in which
the practitioner determined the course of care to a
patient-centered model in which patient autonomy in
decision-making is paramount.
The term informed consent emerged in the 1957 in
the US case of Salgo v Leyland [40]. Justice Bray recog-
nized that written consent was ineffective if the patient
did not understand critical information about the pro-
posed procedure. Justice Bray wrote:
A physician violates his duty to his patient and sub-
jects himself to liability if he withholds any facts
which are necessary to form the basis of an intelligent
consent by the patient to the proposed treatment. ...
The physician has such discretion consistent, of
course, with the full disclosure of facts necessary to
an informed consent.
By the middle of the twentieth century physicians were ex-
pected, but not necessarily compelled, to provide the com-
petent patient with sufficient information to facilitate an
informed decision. Typically, disclosure was limited to
therapeutic information about the purpose, benefits, and
potential risks of a health care intervention, and alterna-
tives to the proposed care including doing nothing. The
scope of disclosure was judged by the Bolam test which
emerged from the 1957 UK case of Bolam v Friern
Hospital Management Committee [41]. Simply stated the
Bolam test considered what the reasonable physician in
the same circumstances would disclose (or withhold).
From 1972 onward, the courts recognised the limitations
of the reasonable practitioner standard including: impeding
patient autonomy; lack of consensus amongst practitioners;
unwillingness of practitioners to speak out against their col-
leagues [42]. This recognition saw the scope of disclosable
information expanded to encompass material risks which
focuses more on the patient’s interests.
Material risks were defined by Waltz and Scheuner-
man [43] in their influential 1970 paper. They explained
the materiality (importance) of a risk may be initially de-
termined by the physician. Once determined by the
practitioner, the risk should be disclosed when the pa-
tient would consider it important information in their
decision making [43]. Waltz and Scheunerman proposed
the following reasonable person standard for both the
physician and the courts:
Page 4 of 12
A risk is thus material when a reasonable person, in
what the physician knows or should know to be the
patient's position, would be likely to attach signifi-
cance to the risk or cluster of risks in deciding
whether or not to undergo the proposed therapy
[43]. p. 640
Faden and Beauchamp [21] advised that materiality or
what is important is the legal litmus test used to deter-
mine the extent of disclosure under the reasonable per-
son standard. In other words, patient, not the physician,
is the arbiter. Landmark cases in the US (Canterbury v
Spence 1972 [44]), Canada (Reibl v. Hughes 1980 [45]),
Australia (Rogers v Whitaker 1992 [46]) and the UK
(Montgomery v Lanarkshire Health Board 2015 [39]) all
adopted some variation of the reasonable person stand-
ard set out in Waltz and Scheunerman. Court decisions
nearly unanimously consider lack of IC as a matter of
negligence of the HCP to disclose necessary information
to patients. Therefore, in practice the materiality test is
now legal doctrine in the common law countries consid-
ered and an HCP’s failure to fulfil their fiduciary duty to
disclose material risks as part of the process of IC would
be considered liable in negligence.
We have briefly reviewed the evolution of the duty of dis-
closure, which is more commonly known as informed con-
sent, from its origins as a paternalistic one in which the
practitioner could choose what to disclose or not disclose
to the patient to the current patient-centric model in which
the practitioner must disclose not only treatment specific
information, but also any material risks that the reasonable
person in the patient’s position would want to know. Just as
the elements of informed consent have evolved, so have the
specifics of what constitutes disclosable information and
the practitioner’s fiduciary duty of disclosure. This warrants
further exploration because in this domain HCPs may find
themselves at odds with current standards.
Negligent nondisclosure
As part of the overall duty of care, HCPs must exercise rea-
sonable skill and care. This includes the duty to disclose in-
formation to the client during the informed consent
process. Consent requires disclosure of a provider’s valid
basis for care. If a patient consents to a procedure and an
undisclosed risk eventuates, if a different procedure is per-
formed or went beyond or deviated significantly from that
for which the consent was given, the HCP may find them-
selves defending an action in the tort of negligence. For a
negligence action to succeed, damage (harm) must be
proved [47]. In the clinical setting, harm is anything that
worsens the patient’s condition including violation of
patient autonomy. Thus, harm could be physical (pain,
disability), emotional (harm to a patient’s dignity) or finan-
cial (paying for excessive or treatment(s) not medically
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60 Page 5 of 12
indicated) and the harm can be prolonged. It is conceivable
that an HCP may have a duty of care to disclose their own
medical condition, financial interests or qualifications and
experience if that information poses a material risk to their
patient and nondisclosure could cause harm. Given this, it
is plain to see that disclosure of material risks may take
many forms. Therefore, full disclosure of the correct infor-
mation is not only important, it is necessary.
As outlined above there is a fairly standard list of
items required for ‘informed’ consent:
(1) emphasizing the patient’s role in shared decision-making
(2) disclosure of information
a. explaining the patient’s medical status including
diagnosis and prognosis
b. describing the proposed diagnostic and
therapeutic intervention, including the likelihood
and effect of associated risks and benefits of the
proposed action, including material risks
c. discussing alternatives to the proposed
intervention, including doing nothing
(3) prompting and answering patient questions related
to the proposed course of action (NB. this involves
probing for understanding, not simply asking ‘do
you have any questions’), and
(4) eliciting the patient’s preference (usually by
signature). (NB. A signed form is not consent. The
conversation between the clinician and the patient
or carer is the true process of obtaining informed
consent. The signature on the consent form is proof
that the conversation took place and that the
patient understood and agreed.)
The disclosure model stipulates disclosure is adequate
only if “the physician’s basic thinking has been rendered
transparent to the patient” [48]p.7. Rather than requiring a
standardized disclosure of risks and benefits, the physician
would instead be required to explain their decision-making
process and the factors considered in making a recommen-
dation. Since the late twentieth century, the list of disclosa-
ble information has gradually expanded to include areas
previously not considered part of the therapeutic encounter.
Materiality is expanding to include: practitioner experience,
personal characteristics, health, disability, training, practice
patterns, qualifications, statistics related to outcomes, dis-
ciplinary history, financial and research interests as well as
an HCP’s religious or conscientious beliefs. Any of these
may now be considered disclosable [23, 26, 27, 30, 49].
Disclosure of Practitioner’s physical condition
Is the practitioner’s physical condition a risk factor similar
to success rate or post-procedure complications? The
courts have considered consent cases in which plaintiffs
argued the physician’s physical condition is material and
thus should be disclosed. The opinions hinge on whether
the physician’s condition could affect their ability to de-
liver health care. For example, for a practising surgeon or
dentist, HIV positive status or Raynaud’s syndrome would
likely be disclosable information whereas well controlled
epilepsy or HIV positive status in a non-surgical physician
would likely not be considered disclosable information.
Alcohol abuse is considered a material risk that must be
disclosed if it can be demonstrated that the abuse affects
practitioner judgment or ability to perform and function.
Similarly, a history of illicit drug use outside of work and
while not on call may be disclosable if it can be demon-
strated that the abuse affects practitioner judgment or
ability to perform and function although it seems unlikely
that failure to disclose such information would lead to a
consent action by itself. However, if a risk eventuates,
these matters would undoubtedly be raised in a subse-
quent negligence action both as a consent matter and a
performance matter [27].
These examples focus on physical harm to the patient.
Typically, a hindsight approach is taken. If the HCP’s
physical condition contributed to the physical harm of the
patient, it should have been disclosed as part of the con-
sent process. However, given the expanded definition of
harm, if the patient is not given information material to
their declining the procedure or seeking care elsewhere,
including the HCP’s physical condition, informed consent
has not been obtained. To disclose or not to disclose, that
is the question. Ginsberg’s considered advice in 2019 was:
The most reasonable approach would support a re-
quired disclosure if the physician’s health condition
creates a realistic risk to the patient which would
not exist in the absence of that condition [23]. p.73
Disclosure of practitioner training, qualifications and experience
Whether an HCP’s training and qualifications to perform
a procedure or experience in performing a procedure can
constitute a material risk and as such be disclosable infor-
mation is a vexed question. On one hand the intent of
practitioner registration is to ensure patient safety. Thus,
when attending a registered or board-certified HCP, a pa-
tient should reasonably presume the practitioner is com-
petent by virtue of their registration and thus practitioner
experience should not be disclosable information. On the
other hand, a practitioner’s experience or lack thereof in
performing a particular procedure and their complication
rate may be material to a reasonable patient, in which case
the information becomes disclosable during consent and
failure to disclose may open the HCP to an action in negli-
gence. In the 1996 US case of Johnson v Kokemoor [50] for
example, a patient rendered quadriplegic after surgery,
brought an informed consent claim on the grounds that
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60 Page 6 of 12
her physician failed to provide information material to her
making an informed decision. In this case involving brain
aneurysm surgery, the patient questioned the practitioner
about his experience in performing the surgery. He told
her he had performed the difficult procedure ‘dozens of
times’ which he had not. Furthermore, he failed to provide
the correct morbidity and mortality rate and failed to ad-
vise the patient the risk was significantly lower when the
procedure was performed by a more experienced surgeon.
The jury found that the surgeon
failed to [accurately] divulge the extent of his ex-
perience in performing this type of operation. The
jury also found that a reasonable person in the
plaintiff's position would have refused to consent to
surgery by the defendant if she had been fully in-
formed of its attendant risks and advantages.
The court ruled that a reasonable person in the patient’s
position correctly informed of the practitioner’s lack of
experience and provided with the correct mortality and
morbidity statistics would likely have sought a more expe-
rienced surgeon. Johnson v Kokemoor was preceded by the
1988 Australian case of Chappel v Hart [51]. In Chappel v
Hart in the practitioner failed to inform the patient that a
remote risk was lower if the procedure was performed by
a more experienced surgeon. The risk eventuated. The pa-
tient claimed that had she been made aware of this risk;
she would have sought a second opinion and had the op-
eration at the hands of a more experienced surgeon at a
later date. The Court found for the patient.
Beyond saying that practitioner training, qualifications
and experience will be judged disclosable on a case by case
basis, there is no clear understanding to be gained from
the courts. The overall impression is that practitioner
training, qualifications and experience are generally not
disclosable in consent but under certain circumstances
these are likely to be elements of informed consent under
the materiality test. Generally, if a technique is complex
and the practitioner is relatively inexperienced in perform-
ing it, they likely have a legal duty to disclose their level of
experience when a reasonable person would expect to be
informed. Notwithstanding this, fraudulent misrepresenta-
tion of experience and qualifications will never be
regarded by the courts as a positive. Paraphrasing Gins-
berg’s advice: the most reasonable approach would sup-
port required disclosure if the physician’s relative
inexperience creates a realistic risk to the patient which
would not exist absent that condition.
Disclosure of practitioner research or economic interests
Broadly speaking case law and legislatures have placed
the onus on an HCP to disclose information to clients
when the HCP’s research or financial interests may
affect treatment recommendations. This is in keeping
with standard conflict of interest disclosure recommen-
dations that exist in other areas of business and com-
merce. In the 1990 US case of Moore v Regents of the
University of California [52] the California Supreme
Court considered a suit against a physician who failed to
disclose that he had financial incentives to develop and
sell a lucrative cell line derived from the patient’s cells.
The Court concluded:
In soliciting the patient's consent, a physician has a
fiduciary duty to disclose all information material to
[that] patient's [informed] decision.
Accordingly, we hold that a physician who is seeking
a patient's consent for a medical procedure must, in
order to satisfy his fiduciary duty and to obtain the
patient's informed consent, disclose personal interests
unrelated to the patient's health, whether research or
economic, that may affect his medical judgment.
Disclosure of professional disciplinary history
The courts paint a fairly clear picture here. There is an as-
sumption that the outcome of disciplinary matters will be
reflected in practice conditions on or undertakings by the
provider. If the disciplinary matter related for example to
record keeping, disclosure would not be expected. If, how-
ever, the disciplinary history relates to unprofessional con-
duct, competence and patient safety, a court could
reasonably find that disclosure is required as part of con-
sent. Indeed, some disciplinary decisions require HCPs to
disclose the finding to their patients [23, 26, 27].
Disclosure of religious, conscientious beliefs and practice patterns
When an HCP’s religious or conscientious beliefs impact
their practice and treatment recommendations, transpar-
ency about those influences on medical judgment would
follow informed consent doctrine. And, to the extent
that some courts have recognized that physicians have a
duty to disclose financial conflicts of interest as well as
other personal interests that may affect clinical judg-
ment, disclosure of religious conflicts affecting medical
judgment is a natural extension of this reasoning [26].
Lastly, if a practitioner’s practice pattern places the pa-
tient under financial stress, this needs to be disclosed
during the consent process thereby providing the patient
with the opportunity to seek care elsewhere [53].
The expanded duty of disclosure: implications for chiropractic
We have demonstrated that in the common law coun-
tries considered, a reasonable person in the patient’s
position must be supplied with medically material facts
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60 Page 7 of 12
if the consent is to be judged ‘informed’. Further, we
have explored the expansion of materiality to include
non-medical information such as physician characteris-
tics etcetera. In doing so, we have confirmed that the
courts recognize circumstances that may necessitate dis-
closure of non-medical information. How is a practi-
tioner to decide what to disclose? Sawicki reminds us,
“the common law principles of fiduciary duty and in-
formed consent in medical practice arguably support the
imposition of a duty on physicians to disclose personal
commitments that impact the provision of a case” [54]
p.87. Human decision-making is a finely nuanced thing.
In health care, the lines between medical and non-
medical interests often blur [25] which means that a
blend of medical and non-medical information is likely
to combine in the patient’s autonomous decision-
making process.
Given this, the task is now to apply this information to
the chiropractic profession. The first question we will
examine is whether it is possible for a vertebral
subluxation-based (VS-based) chiropractor to obtain in-
formed consent or implement a compliant treatment plan.
The second question to consider relates to the duty of dis-
closure, experience/qualifications and conflict of interest.
The duty of disclosure and vertebral subluxation-based care
By way of clarification, when discussing vertebral
subluxation-based care we are referring to a practice ideol-
ogy aligned with traditional Palmerian subluxation theory
or a variant thereof. For adherents, reduction or removal of
vertebral subluxation (VS) is theorized to improve health,
quality of life, unleash human potential [55]. For these prac-
titioners the chiropractic raison d’être is locating and re-
moving subluxation. Establishing a diagnosis as recognized
by the International Statistical Classification of Diseases and
Related Health Problems (ICD) and a care plan is irrelevant.
We note that chiropractic “vertebral subluxation” is not
amongst the 14,000 disease codes available in the ICD-10.
But for VS-based chiropractors, VS is the diagnosis and the
care plan is subluxation removal. For these practitioners VS
are hypothesised to be biomechanical changes within the
spine resulting in clinically significant maladaptive effects
on the body’s neurological and immune function [56]. They
typically conduct a long-term vitalistic vertebral subluxation
wellness focus style of practice [57]. This practice is a classic
example of doctor-centered care which is at odds with
twenty-first century patient-centered care [58, 59].
However, VS is highly contentious. Keating et al.
reminded the profession that although volumes have been
written about VS and the theoretical VS construct is em-
braced by much of the profession, “little if any substantive
experimental evidence for any operational definition of the
chiropractic lesion [VS] has been offered in clinical trials”
[9] p.2. There exists no evidence in the literature that
supports VS-based chiropractic care as a credible approach
to primary prevention or early secondary prevention in
general health [60]. Implying that VS has any clinical mean-
ingfulness beyond a localized musculoskeletal disorder is an
unsubstantiated claim. This explains why significant num-
bers of chiropractic teaching institutions have relegated VS
to the history shelves [61]. Given this, is it possible for a
subluxation-based practitioner to comply with practice
standards? Is it possible for a patient to provide informed
consent for the removal of an entity without credible evi-
dence? We will first consider this from the perspective of
the Chiropractic Board of Australia (CBA).
Chiropractic is a regulated health care profession in
the countries under consideration. This means to be
employed in that profession there is a requirement for a
practice license or certificate from the governing regula-
tory body. Regulatory bodies set professional practice
standards, investigate complaints about members of the
profession and, where appropriate, discipline them. We
will discuss the Australian practice standards because of
our familiarity with them however, professional practice
standards are fundamentally the same across the four
common law countries considered.
Australian, UK and NZ chiropractors fall under a
regulatory system regarded as approximating that of
an “explicit” government regulation system. In
Australia this is embodied in a single National Regis-
tration and Accreditation Scheme governing 15 reg-
istered health care professions including chiropractic.
The profession’s role in formulating legislation is
limited to consultation. Regulatory compliance is
mandatory and there are punitive sanctions for non-
compliance. There is little flexibility in interpretation
and compliance requirements. The National Registra-
tion and Accreditation Scheme empowers and tasks
government appointed National Boards with the pri-
mary directive to protect the public [62]. The at-
tendant CBA Code of Conduct (Code) places
standards upon the registrants that allows them the
privilege of engaging in clinical practice.
The Code expresses that a program of care should be
developed in a patient-centered and evidence-based con-
text. This is evidenced by treatment being based on clin-
ical need, tailored to the specific needs and expectations
of each patient and should consider the natural history
of the condition. Further it should be based on a reason-
able clinical impression/diagnosis with any proposed
management containing measurable outcomes (using
validated measures) for monitoring care and occur
within a reasonable estimated timeframe for achieving
the expected benefit of care to the patient. Even the
most superficial investigation of subluxation-based
chiropractic leads to the conclusion that a VS-based
chiropractor cannot provide good practice as outlined in
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60 Page 8 of 12
the Code. This raises the question: can a patient provide
informed consent to receive VS-based care?
The CBA’s informed consent section in its Code of
Conduct is silent on the matter of the expanding scope
of disclosure [referring here to practitioner characteris-
tics]. The only information it advises is disclosable are
the customary medically material facts. The Code of
Conduct refers practitioners to a National Health and
Medical Research Council (NHMRC) publication Gen-
eral guidelines for medical practitioners in providing in-
formation to patients. This NHMRC publication was
rescinded in 2014 and has not been updated, however, it
is available in the NHMRC archive. These general guide-
lines did not go beyond disclosing medically material
facts. In fact, no consent code or statute was uncovered
in any of the jurisdictions considered that did include
the expanding scope of disclosure.
The CBA’s lack of current information on the expand-
ing scope of disclosure leaves some within the chiroprac-
tic community ill-informed. Because the CBA’s guidance
is silent, we need to look elsewhere for direction. Further
guidance on the potential liability is available in Austra-
lian Civil Liability Laws and consumer protection law.
Australian civil liability Laws, duty of disclosure and peer professional opinion
Australian Civil Liability Laws encompass the common
law principles governing negligence liability. Their scope
is broad and applies to any claim for harm resulting from
negligence in tort, contract, under statute or otherwise.
Division 5 of The Queensland Civil Liability Act
(QCLA) deals specifically with the duties of a profes-
sional. While not explicitly referring to IC, it details the
duty of disclosure held by a professional in relation to
patient dealings. The disclosure requirements match
those delineated by Waltz and Schunerman [43]. Ac-
cording to the QCLA, the professional breaches their
duty of disclosure if they fail to provide risk related in-
formation including:
(a) information that a reasonable person in the pa-
tient’s position would, in the circumstances, require
to enable the person to make a reasonably informed
decision about whether to undergo the treatment or
follow the advice;
(b) information that the doctor knows or ought rea-
sonably to know the patient wants to be given be-
fore making the decision about whether to undergo
the treatment or follow the advice [63]. p.17
The QCLA advises that peer professional opinion cannot
serve as a defense for failing to meet the duty of disclosure
if the court considers that that opinion is irrational or
contrary to a written law [63]p.18. If the peer professional
opinion is deemed irrational, the courts can ignore the
opinion. Irrational in this context means there is no ra-
tional basis for the practice. Division 5 of the QCLA is re-
vealed in the 1998 UK case, Bolitho v City and Hackney
Health Authority which ruled that expert opinion must be
based on logical and defensible grounds [64].
A 2018 Australian suitability to practise case serves
as an example. In Health Care Complaints Commis-
sion (Tribunal) v Limboro [65] the practitioner pled
guilty to 11 counts of advertising a regulated health
service in a false, misleading way. This followed his
criminal conviction for breaches of §133 of the Aus-
tralian Health Practitioner National Law which deals
with advertising. At sentencing in the criminal pro-
ceeding the Magistrate said:
the obligation is on you at every turn, to ensure that
the material that is any way linked to you is as far
as possible accurate, well researched, and provides
an overall assessment of the good and the harm that
it can do to an individual person [65].
The practitioner’s advertising advocated subluxation re-
moval for preventing and curing cancer. Limboro’s defence
consisted of his own testimony and peer professional opin-
ion that:
He [the practitioner] did not believe, and had never be-
lieved, that chiropractic treatment is a treatment for,
or preventative of, any kind of cancer. Nor did he ever
inform patients that he could treat, or cure, cancer.
He [the practitioner] provides all of his patients with
a standard form to read and sign which states that
they understand that ‘We do not guarantee that we
can prevent or cure any illness, injury or disease.
The chiropractor’s purpose it to restore health
through the natural flow of energy in the nervous
system. This gives the body the maximum oppor-
tunity to heal itself’ [65].
In essence this is an admission of adherence to the VS
ideology outlined above.
Expert reports requested by the criminal court and ac-
cepted by the Tribunal were in agreement. There is no
credible evidence that:
misalignment of the spine (VS) is a cause of any
form of cancer;
that chiropractic treatment can prevent any form of
cancer; or
that chiropractic treatment can cure or treat any
form of cancer [65].
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60 Page 9 of 12
These views were also in accord with the understanding
of the current state of scientific knowledge concerning the
limits of chiropractic treatment held by the professional
members of the Tribunal. The Tribunal also referred to a
CBA statement issued on 7 March 2016 which advised
registrants:
The Board is concerned about a number of practi-
tioners who are making claims in advertising that there
is a relationship between manual therapy (e.g. manipu-
lation) for spinal problems and achieving general well-
ness or treating various organic diseases and
infections; or that spinal problems may have a direct
role in various organic diseases and infections. There is
insufficient scientific evidence to support these claims.
Advertising claims that are contrary to high level
evidence are unacceptable. High level evidence will
usually take the form of meta-analyses, systematic
reviews or one or more high quality and well
respected and acknowledged studies [66].
The Tribunal proceeded on the basis that it is undis-
puted that chiropractic treatment is not a treatment for,
or preventative of, any kind of cancer. The practitioner
was found unfit to be a chiropractor and his registration
was cancelled for two years.
The findings of the criminal court and the Tribunal
could be regarded as a rejection of VS-based practice. A
VS-based practitioner advertised that chiropractic could
cure or prevent a serious organic disease, cancer. When
examined, he testified that chiropractic does not treat
any disease, rather it removes nerve interference thereby
enhancing the body’s innate recuperative powers. The
Court and the Tribunal rejected this testimony relying
instead on the most accurate, well researched scientific
information which concludes chiropractic care is inef-
fective for anything other than a well-defined list of
musculoskeletal conditions. Any claim to the contrary is
misleading, deceptive or likely to deceive.
Consumer protection Law and VS-based Care
Consumer protection laws safeguard buyers of goods
and services, and the public, against unfair practices in
the marketplace. Besides other provisions, these laws
prohibit misleading and deceptive representations about
the quality, availability, effectiveness of goods or services
and a buyer’s need for the goods or services. We will dis-
cuss Australian Consumer Law because of our familiar-
ity with it however, similar consumer laws are in place
in the four common law countries considered.
The Australian Consumer Law (ACL) includes,
amongst other things, a national law guaranteeing con-
sumer rights when buying goods and services including
health care services. Misleading and deceptive represen-
tations or representations likely to deceive about goods
and services are breaches of the ACL. They attract pen-
alties, enforcement remedies and consumer redress op-
tions. Subluxation-based chiropractors customarily
recommend regular ongoing appointments for sublux-
ation detection and removal. Under the ACL, represen-
tations made to people regarding any future matter must
be supported by reasonable grounds. Opinions may be
deemed misleading and deceptive if the person making
the statement does not have reasonable grounds on
which to base them. The Australian courts consider rea-
sonable grounds to be clinical science validity, basic sci-
ence consistency or logical reasoning, demonstrated by
reproduceable published results, preferably a systematic
review [67]. For example, chiropractors have reasonable
grounds for claiming efficacy in managing some muscu-
loskeletal disorders [68, 69]. In addition, under the ACL,
a seller (HCP) must not make false claims about a
buyer’s need for goods or services. We believe it can be
argued that there is no evidence to establish the need for
VS-based care for patients, therefore any claims about
its purported benefits are misleading. Consequently, it
would be difficult to recommend VS care and meet the
expectations of the Australian Consumer Law. The ACL
also prohibits bait advertising and unsubstantiated cre-
dence claims. It is beyond the scope of this paper to
examine these aspects of VS care and consumer law, but
as a thought experiment one is drawn to the conclusion
that VS-based practitioners could have a case to answer
if they advertise care for musculoskeletal disorders and
then convert patients to subluxation based care claiming
it to be superior to non-VS-based chiropractic.
The extended duty of disclosure and chiropractor experience/Qualifications & Conflict of interest
An internet search using ‘chiropractic weekend tech-
nique seminar’ yields multiple different techniques
claiming that even a single weekend seminar is sufficient
to begin using the technique Monday morning. We will
not delve into the quality of these seminars or the claims
made about the effectiveness of the techniques, we sim-
ply raise the question: Would a reasonable person in a
patient’s position consider it material to be informed
that their practitioner ‘learned’ the proposed technique
in a seminar the weekend beforehand? Would a reason-
able person be entitled to know their HCP’s reasonable
grounds for providing the proposed care? Based on
Court findings discussed above, it is conceivable there is
a duty to disclose. Similarly, where practitioners sell
products or services in their clinics, for example orthot-
ics, pillows or radiographic services, is it conceivable that
the practitioner has a duty to disclose their training to
prescribe products or the availability of reasonable
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60 Page 10 of 12
alternatives to the products and services offered? Clearly
a conflict of interest exists between the practitioner’s
business interest [selling products/services] and their fi-
duciary duty [placing their patient’s interest above
theirs]. Court rulings would suggest there is a duty to
disclose to facilitate an informed decision by the patient.
Discussion
We have examined the evolution of the duty of disclos-
ure and highlighted implications this brings. We now
briefly consider the duties of registration boards, profes-
sional associations, and chiropractic teaching institutions
should have in this domain and that individual practi-
tioners must have.
Chiropractic registration Boards
A Registration board’s primary duty is to safeguard the
public by ensuring registrants are suitably qualified and
compliant with a code of conduct, practice standards or
statutes. As discussed, the CBA’s code of conduct is si-
lent on disclosing non-medical information. The other
codes we have examined are similarly deficient. Regula-
tory bodies must keep abreast of these changes and up-
date their codes, standards and statutes.
Professional associations
Professional Associations exist to support their member-
ship. It would therefore seem logical that they would
clearly guide members regarding their duty of disclosure.
Continuing professional development modules would
need to be updated to keep up with the evolution of in-
formed consent and any other pertinent matters. To do
anything less would be a disservice to the membership.
Chiropractic program accreditation and VS-based practice
Chiropractic teaching programs are accredited by regula-
tory agencies known as Councils on Chiropractic Education
(CCEs). CCEs set competencies graduates must attain be-
fore graduation and standards the chiropractic programs
must meet when delivering their curricula. In this way,
CCEs indirectly influence patient care and safety through
their role of ensuring the standards of training delivered by
chiropractic educational institutions [70]. CCEs are there-
fore well positioned to ensure that ethics & jurisprudence
units taught at chiropractic programs are updated to keep
up with the evolution of informed consent.
It would be logical to assume that CCE standards would be in step with those of the broader society. However CCEs standards have been silent on VS-based care despite it conflicting with regulatory, consumer and civil standards [71].
We note that within the same CCE regions there can be programs teaching VS-based care and chiropractic programs teaching VS only within chiropractic history units. One wonders about the implications of this for
the CCEs. How can a program teaching VS-based care be-
come accredited if their graduates are exposed to negli-
gence in consent liability because of the ideology
underpinning the program? We also muse on the infor-
mation that VS chiropractic programs should disclose to
prospective students for them to make an informed deci-
sion to undergo training based on an historical ideological
model that does not meet societal expectations for in-
formed consent. These questions are beyond the scope of
this paper, but we suggest that the profession must grap-
ple with them.
Individual practitioners
The fiduciary relationship remains as it was when the
concept emerged in the eighteenth century. Historically,
a fiduciary relationship arises when a person (fiduciary)
undertakes to act in the fiducie’s (fiducie – the person
whose goodwill is held in trust by the fiduciary
[72]p.243) best interests or is obliged to do so and the
fiducie places their trust/confidences in the fiduciary to
do so. This exemplifies the doctor-patient relationship.
The relationship is predicated on three duties: care, loy-
alty and disclosure. Over time, the legal system has split
these duties into separate sections of the law. What is
considered in the best interest of the patient has evolved
in terms of the primacy of patient autonomy and the
broadened scope of disclosure.
From a legal perspective this has been important be-
cause certain consequences flow from its existence. These
consequences are moral and legal obligations placed on
the fiduciary over and above the other duties in contract
or tort [21]. Breach of a fiduciary duty may give the fiducie
legal remedy. The practitioner must uphold their fiduciary
duties and, of necessity, modify their practices.
Conclusion
Informed consent is a relatively new phenomenon. Its requirements unsurprisingly evolve as societal values and expectations change.
Patient autonomy in clinical decision making is now paramount. The underlying assumption for IC doctrine is that the physician’s basic thinking be transparent to the patient to provide valid care.
This necessitates more than simply explaining the risks and benefits of any proposed care. The physician must explain their decision-making process.
This transparency relates to disclosure of all matters, medical and non-medical, that may influence the HCP’s delivery of that care and affect the patient’s informed decision. And the arbiter of materiality is the patient, not the practitioner.
The profession’s response to the evolution of the duty of disclosure is not apparent. For example, the professional regulatory body is silent on matters of guidance beyond disclosing medically material facts. The profession needs to recognize that dereliction of the fiduciary
Simpson and Innes Chiropractic & Manual Therapies
(2020) 28:60
duties may lead to professional liability, disciplinary complaints and lawsuits. It can be informed by other sources such as consumer and consent case law.
For us this raises several concerns for chiropractic.
Can a patient ever provide informed consent for the re moval of an entity (VS) without credible evidence / reasonable grounds?
Can VS care ever meet the code of conduct standards when it lacks an evidence base and is practitioner-centered?
What is the responsible educative or punitive action for CCEs, chiropractic educators and professional associations, given this knowledge?
For the individual VS practitioner, it necessitates conversations about recommending a plan of care that seeks to remove a theoretical entity without quantification for diagnosis, monitoring or discharge. For others it requires disclosures of, among others, conflict of interest when recommending ‘inhouse’ products, and recency of training.
Ultimately such matters are informed and propagated by the deliberations of the courts. Because of the developments of the law, many patients are now better informed about relevant risks and the legal obligation to provide patients with meaningful advice about risks is clear.
Some within the legal profession bemoan the readiness of insuring agents to settle such matters before coming under such scrutiny and providing clarity. It is our opinion that the sign of a mature, responsible profession is that it critically self-evaluate and respond in the best interests of the patient. Further, we hope that this discussion paper serves as a steppingstone for the chiropractic profession in this self-evaluation process.
Acknowledgements
Jo-Anne Maire is gratefully acknowledged for copy editing and editorial assistance in reviewing the paper’s multiple drafts for clarity.
The following legal professionals are acknowledged for their assistance. But- for their contribution some important legal aspects may have been
overlooked.
David Cheifetz, Retired Civil Litigation Barrister, Toronto, Canada.
Michael Weir, Law Professor, Bond University, Queensland, Australia.
Emma Cave, Professor of Healthcare Law, Durham Law School, UK.
Nadia Sawicki, Georgia Reithal Professor of Law, Co-Director, Beazley Institute
for Health Law and Policy, Loyola University Chicago School of Law, USA.
Authors’ contributions
JKS conceived the idea of this manuscript. JKS produced the initial outline and draft of the manuscript and contributed to subsequent revisions.
SI redrafted the implications and conclusions and contributed to subsequent revisions. Both authors approved the final manuscript.
Funding
Not applicable.
Availability of data and materials
Not applicable.
Ethics approval and consent to participate
Not applicable.
Consent for publication
Not applicable.
Page 11 of 12
Competing interests
None.
Received: 18 May 2020 Accepted: 7 October 2020
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