Australian Health Practitioner Regulation Agency v Black, Robert

[2015] NSWLC 9

Local Court

New South Wales

Medium Neutral Citation:	Australian Health Practitioner Regulation Agency v Black, Robert [2015] NSWLC 9
Hearing dates:	14 August 2014, 14 October 2014, 5 February 2015
Decision date:	04 May 2015
Jurisdiction:	Criminal
Before:	Antrum LCM
Decision:	Charge dismissed.
Catchwords:	CRIMINAL LAW - particular offences - practice protections - manipulation of the cervical spine - chiropractic WORDS AND PHRASES - "manipulation of the cervical spine" - "high velocity, low amplitude thrust" - Health Practitioner Regulation National Law (NSW), s 123(2)
Legislation Cited:	Health Practitioner Regulation National Law (NSW), s 123
Category:	Principal judgment
Parties:	Australian Health Practitioner Regulation Agency (Prosecution) Robert Black (Defence)
Representation:	R Ranken (Counsel for the Prosecution) Crown Solicitor's Office (Solicitor for the Prosecution) Defendant (Self-represented)
File Number(s):	2014/52965
Publication restriction:	Nil

​judgment

1. ​Mr Robert Black, the accused, has been charged with performing a manipulation of the cervical spine when he was not registered in an appropriate health profession and was not a student or trainee in an appropriate health profession on 23 October 2013 at Wagga Wagga. If such manipulation occurred, and as alleged by the prosecuting authority, the Australian Health Practitioner Regulation Agency ("AHPRA"), then the procedure amounts to a breach of s 123(1) of the Health Practitioner Regulation National Law (NSW) ("National Law"). That section is in the following terms:

"123   Restriction on spinal manipulation

(1)  A person must not perform manipulation of the cervical spine unless the person—

(a)  is registered in an appropriate health profession; or

(b)  is a student who performs manipulation of the cervical spine in the course of activities undertaken as part of—

(i)  an approved program of study in an appropriate health profession; or

(ii)  clinical training in an appropriate health profession; or

(c)  is a person, or a member of a class of persons, prescribed under a regulation as being authorised to perform manipulation of the cervical spine."

2. The maximum penalty for a breach of this section is $30,000. The significant penalty that can be imposed is reflective of the purpose of that subdivision which is “practice protections”. The protection is for those persons who seek out such services, and to ensure that only qualified and registered personnel undertake specified procedures.

3. The phrase “manipulation of the cervical spine” is defined in s 123(2) of the National Law and “means moving the joints of the cervical spine beyond a person's usual physiological range of motion using a high velocity, low amplitude thrust.”

It is this definition which occupied three days of hearing time and a considerable degree of technical discussion around its precise meaning at law, and execution in clinical practice.

4. The accused entered a plea of “not guilty” on 12 March 2014. Mr Black does not contend that he was registered, or that he was a student in an approved program of study, or that he was a person otherwise prescribed under regulation as being authorised. The accused asserts that what he performed on a patient (who covertly recorded the procedure) was not a manipulation as defined in s 123(2) of the National Law. Necessarily, this judgment is a decision about whether the accused performed a "high velocity, low amplitude thrust" to the cervical spine beyond the person’s usual physiological range of motion.

5. I understand that the prosecution is a novel one, at least in this jurisdiction. Accordingly, there is little in the way of settled judicial opinion with respect to the proper construction of the phrase “manipulation of the cervical spine”. The National Law is part of a Commonwealth approach to regulation of certain health professions, including the chiropractic and osteopathic professions.

What is clear from a brief reading of Parliamentary Debates (Hansard) is that Parliament has, over the years, grappled with the definition as well. The current definition is the most recent formulation attempting to describe the procedure to the spine that trained chiropractors undertake.

6. The accused cites on his resume that he graduated from the Sydney College of Osteopathy in 1968. From 1964 until 2012 he was in private practice as an osteopath, a chiropractor, as well as a number of other descriptions which included, relevant to these proceedings, practice as a “naprapath”.

7. There were two witnesses for the prosecution. One of them was the expert witness, Mr John Kelly. Mr Kelly has a Diploma of Chiropractic from the Sydney College of Chiropractic dated 1979. He has been in private practice as a chiropractor since that date. Mr Kelly has been a lecturer at Macquarie University in chiropractic philosophy and principles, and he is a regular presenter to professional audiences on chiropractic matters. Despite coming under some criticism from the accused, I had no difficulty in accepting his expertise.

8. Mr Kelly explained that the cervical spine is that portion of a person’s spine that goes from their skull to the top of the shoulder region. It consists of seven vertebrae that are described as C1 to C7 respectively, going on to the thoracic spine starting with T1.

9. Mr Kelly further explained that a person’s usual physiological range of motion can be divided into two segments. One is called the active range of motion, and one is called the passive range of motion. The active range of motion with respect to the head is a person’s maximum ability, unaided, to turn their head. Mr Kelly continued, 

“it consists of the amount of range you can turn to the right using your own musculature, or for that matter intra flexion, bending forward, or extension, bending backwards, or bending sideways, ear to shoulder, both directions. That is the active range of motion. The passive range of motion is the motion available beyond the active range which is obtained by a third, or a second party, turning the neck beyond that range. Passive range is to go beyond that range that the muscles will give by a third person doing the movement for you.”

Mr Kelly said that the joints of a person’s cervical spine might be moved beyond the usual physiological range of motion by the application of force at the end of the passive range which allows for ligament stretch to let the joints separate a bit further and then come back to their normal position.

10. Mr Kelly also gave evidence in relation to the clinical understanding of what is described in the legislation as a "high velocity, low amplitude thrust". Disarming the careful work of Parliamentary draftsmen, he said that high velocity means “quick”, and low amplitude means “short”.

“So a high velocity low amplitude thrust is a quick movement applied at the end of range over a short distance”, he added.

11. In chiropractic practice it is sometimes the case that when such a manoeuvre is performed a cracking or popping sound is heard. The chiropractic term for that phenomenon is “cavitation”. Mr Kelly said that cavitation occurs when two adjoining services of the vertebra are momentarily moved apart. This creates a negative pressure inside the joint, and a gas bubble is formed which comes from nitrogen being drawn out of the synovial fluid and then rapidly collapsing.

Cavitation, however, is not always the end result of a manipulation of the cervical spine. It is possible, according to both the accused and Mr Kelly, that manipulation of the cervical spine can occur without causing cavitation.

12. The prosecution’s other witness was a private inquiry agent who had been retained to undertake covert surveillance within the accused’s home where he also undertakes his practice. The product of this surveillance was a video (or "DVD") which was played in these proceedings. The video was provided to Mr Kelly to prepare a report on, and it was tendered as an exhibit purporting to show the accused performing high velocity low amplitude thrusts resulting in a manipulation of the cervical spine. The investigator, Mr Mark Penny, was engaged by Lancaster Global Investigations to conduct this surveillance. He made an appointment with the accused, and attended upon his room on 22 October 2013 for the purpose of receiving treatment.

13. The video footage showed a number of preparatory actions by the accused, none of which would infringe the National Law. There were two episodes, however, during the course of the video in which the accused performed procedures on and around Mr Penny’s neck which attracted comment from Mr Kelly, and which the prosecution relies upon as evidence of a breach of s 123(1) of the National Law.

14. The difficulty arises in respect to one of the episodes; that is, where the accused is standing on the left side of Mr Penny, and his body occludes any clear view of the manipulations performed. It is for that reason that the prosecution principally relies upon those manipulations which are visible when the accused is standing on the right side of Mr Penny. The prosecution contends that what is seen at this point is the accused performing two high velocity low amplitude thrusts to the cervical spine of Mr Penny in quick succession. The accused denies that they are high velocity low amplitude thrusts within the meaning of the National Law and says that he was performing another manoeuvre which is part of his naprapathic practice.

15. Mr Kelly, in his report dated 4 April 2014, observed that the first manipulations on the video were occluded by the body of Mr Black. He refers then to Mr Black changing sides and says that the positioning of Mr Black’s arms and hands are obvious. His report continues: “two rapid movements are seen to take place which are consistent with the manipulative procedure commonly referred to as a cervical supine reverse rotation thrust.”

16. In his brief report, Mr Kelly gives his opinion that having viewed the video he believes that Mr Black performed a manipulation on the cervical spine of Mr Penny. The reasons for his opinion included that Mr Penny was placed in a position consistent with the way in which a patient would be positioned for manipulation of the cervical spine, Mr Black assumed the position beside the table consistent with the positioning required to perform such a manipulation, and Mr Black is seen on video applying short rapid movements to the neck of Mr Penny which could be described as being high velocity and low amplitude in nature.

17. Mr Kelly does not, in his report, make any specific reference to the manipulation going beyond the usual physiological range of motion, apart from making an observation that the presence or absence of a cavitation sound would be inconclusive as to this aspect.

18. I have referred to there being two relevant manipulation episodes. The first episode lacks the assistance of any visual representation on the video given that the accused's body blocks any perspective. While the prosecution did not abandon that evidence, it was clear in closing submissions that the prosecution preferred to focus on that which was recorded on video, and which I describe as the second episode. Even if that were not the case, I would consider it unsafe to convict on the evidence that was presented with respect to the first episode. For that reason, this decision will be largely confined to an examination of the second episode. Having said that, Mr Penny did hear a “pop, crack sound” with respect to the first episode and experienced “a couple of cracking sensations around my neck area.” This is interesting in so far as it provides a comparison to what occurred during the second episode.

19. During the second episode, Mr Penny described that his face had been turned to the left again and it had been turned “as far as it could naturally go”. He said that there were another couple of quick jerks to the left again. Importantly, he was asked how far his head had moved to the left at that point. Mr Penny responded, “I couldn’t be exactly sure how far but it was just like a quick jerk and then it was back”. He was then asked whether he felt any sensations at that time in his neck and he responded, “just the jerking motions that time.” When asked if he heard anything he responded, “not the second time, no”.

Mr Kelly said that his expert report was limited with respect to the first episode, but added that the two rapid movements that he saw, being the second episode, are consistent with the manipulative procedure.

20. The accused cross-examined Mr Kelly and asked him to give a scientific definition of "velocity". Mr Kelly said, “it is simply the speed over time, the time that you would apply a high velocity thrust is measured in milliseconds. In the neck, somewhere between 80 and 150”. In this matter, there was no proposition with respect to the actual speed of the thrusts performed and, indeed, that would probably be an impossibility. But it underlines the difficulty of applying such a general definition in a legal environment.

21. The accused raised many aspects in his defence. He represented himself and relied on his knowledge of chiropractic, osteopathic and naprapathic procedures over many years to test the prosecution case. Much of that argument had limited relevance to the proceedings, but it was possible to excise that which was relevant to the allegation of a breach of s 123(1) of the National Law.

22. Amongst the accused’s many arguments was an assertion that the manipulations performed were not “high velocity”. With respect to amplitude, the accused pointed to potential vagueness around the phrase “low amplitude”, likening it to “the length of a piece of string”. Further, the accused denied that Mr Penny’s treatment operated beyond the physiological range, and belatedly, asserted that the manipulation was performed on the thoracic spine rather than the cervical spine. The latter assertion was made at a late stage of the proceedings and was not something that was put to either Mr Penny or, more particularly, Mr Kelly. The prosecution’s submission that that aspect of his evidence was recent invention had resonance, and it reflected my overall view that Mr Black was conducting his defence in a manner akin to throwing as many darts at the dartboard in the hope that one might hit the bullseye. This is perhaps understandable in the context where Mr Black was representing himself. Whatever his tactical approach might have been, it did not alleviate the prosecution of its obligation to prove its case beyond reasonable doubt.

23. It became clear to me in the proceedings that the real issue, on these facts and on the evidence before the Court, was whether the second episode included a thrust beyond the physiological range. Even Mr Kelly had to be reminded that a breach of that section would require an extension beyond the physiological range; under cross-examination, Mr Kelly asked to review the provision to enquire if it required a movement beyond the usual physiological range of motion. It is in this aspect that his report is also less forthcoming; understandably so, as it is not something that he could say with certainty on a viewing of the video. 

24. In examination in chief, Mr Kelly did say that he saw some pre-tensioning of Mr Penny’s neck during the second episode and that he then saw a short quick thrust delivered with the hands in order to effect the manipulation of the neck. Mr Kelly concluded that a manipulation of the cervical spine had occurred during the course of the treatment of Mr Penny. Such an opinion could not be conclusive on any objective standard as to whether or not the physiological range had been extended, but it was Mr Kelly’s professional opinion that there had been a manipulation of the cervical spine.

25. The accused said that he informed Mr Penny that his treatment would be a naprapathic manipulation as he had retired as a chiropractor. In evidence he said, “I also said the treatment consisted of a deep naprapathic massage followed by naprapathic manipulations and ligament and tendon stretching. I also said that the naprapathic manipulations were similar to chiropractic but for obvious reasons it can’t be called chiropractic.” The accused described the manoeuvres that he performed as “naprapathic releases”.

26. This is what the accused said about the second episode:

"I then picked up his head in my two hands raising his head to bring into play the upper T1 to 2 joint on Mr Penny’s spine and then digitally fixing the cervical segments so they would not move as outlined in any decent manual osteopathic or naprapathic articulation, which is never adjust a bone unless you have a problem with it, I then used a reverse supine side bending articulation without impulse which I repeated twice. Now when I’m on Mr Penny’s left hand side I bent his head away from me which is towards his right shoulder as evidenced on the DVD. The neck was not taken to full side bend in this procedure and the neck was not taken to full rotation, therefore there can be no infringement of the National Law with or without digital fixation of the cervical segments. It was a pure and simple articulation procedure. I only used the procedure twice which Mr Penny described as stretching, which it is, and well within Mr Penny’s physiological range of motion in both left lateral rotation and right side bending. The medium velocity reverse rotation component introduced is to assist longitudinal ligaments stretching and to prevent facet jamming."

27. The accused also queried why there were two successive manipulations if he was in fact using high velocity low amplitude adjustments when all of the professional literature indicates that you would not use two such adjustments in rapid succession on the one cervical segment on the one patient in the one treatment session. The prosecution submitted that just because the procedure is performed unprofessionally or against clinical benchmarks does not mean that it did not occur.

28. The accused sought to describe his articulations as being of medium velocity. He made reference in later submissions to some American literature which delineates medium velocity from high velocity, however this was never produced to the Court. I suspect that it does not exist. I was quite satisfied that high velocity means “quick”. The manoeuvres which I observed on the DVD could not be described as slow, and if there is a middle ground to be applied to such manoeuvres, I am of the view, consistent with Mr Kelly’s observations, that the thrusts performed by the accused had moved well beyond any middle ground.

29. The accused said that the articulation procedures utilised on Mr Penny took 24 seconds in total. He said that when he was a practising chiropractor each one of these “HV LA” adjustments took approximately 10 seconds each to set up and to complete. This might be compared to what he describes as “performing nine procedures on Mr Penny’s T1 and connecting ligaments in 24 seconds.”

30. The accused explicitly denied that he moved Mr Penny’s head to the end of the passive range of motion saying “no, nowhere near it”. And he denied that he went beyond the usual physiological range of motion. He denied that he was seeking to mobilise the C7 vertebrae saying that there was no contact and that he was only “digitally locking” on the cervical vertebrae.

31. The interpretation difficulties are one aspect. There were also difficulties about the evidence of Mr Penny. In summary form, there was a lack of precision about his testimony, and documents that may have assisted the prosecution in its case were lost by the investigating company. The lack of precision might be explained in that Mr Penny has no chiropractic qualifications, or indeed any health related qualification, although has had cause to see a chiropractor in the past. He was really unable to give much more than a salutary observation about some of the things he heard, some of the things he saw, and some of the things he felt. Those observations provided Mr Kelly with some useful information, but they could not, on their own, come anywhere close to a convincing portrayal of a breach of s 123(1) of the National Law.

27. For example, Mr Penny said that in his initial conversation with the accused he said he “needed some chiropractic – or something on my back and sciatica.” He did not press the accused when the accused told him that he could not claim his receipt. He was unable to recall with any precision as to what any of the signage or certificates hanging in the accused’s entry room referred to. He said that he thought one was a schedule of fees and that there were other certificates that he was unable to read properly.

When the accused said to him that he does not call it chiropractic “for obvious reasons”, Mr Penny did not ask the accused what those obvious reasons were. The receipt that was issued to him, and the photocopy of suggested exercises that was provided to him by the accused at the conclusion of the consultation, were both lost by the retaining company.

Mr Penny said that the couch he was lying on had a hole in it for your face to go through, however the accused’s evidence was that there is no hole in the couch and that towels are used to support the neck.

The phone number that was quoted by Mr Penny as being the phone number on the receipt issued was incorrect, and conceded by him to be “possibly a type error”.

In his statement, Mr Penny refers to a cracking or popping in his back, but it was put to him that it was only in his testimony before the Court that he referred to a popping sound during manipulations to his neck.

33. Mr Kelly also differed in his observations of the video from what Mr Penny said he experienced. During the first episode, Mr Penny said that his neck was “jolted” five times, however Mr Kelly said that he saw three short sharp manipulations, and not five.

34. Putting aside the evidence retention difficulties of the investigating agency, and the difficulties in recollection of the investigator, it is also evident that there are inherent difficulties in utilising a layperson to garner evidence of a professional procedure. In particular, a procedure that is governed by a statutory definition, and which introduces its own complexities. This is not the situation in which you send a punter into a brothel to determine whether certain services are being offered. In this case, it is not only a question of whether it is a chiropractic service, but further whether it is a service that comprises a manipulation of the cervical spine using a particular procedure that has a specific statutory definition which refers back to clinically understood manoeuvres. This is the realm of the qualified expert, and short of sending such an expert onto the patient’s table, or of extracting certain concessions from the errant practitioner, it is difficult to envisage how a breach of s 123 of the National Law might be successfully prosecuted.

35. The accused alleged bias on the part of the expert Mr Kelly on the basis that the accused had had some part in writing an adverse report in the past. While that was a matter of continuing professional torment for the accused, Mr Kelly could not remember the particular proceedings, or any involvement with Mr Black. I was satisfied that there was no apparent bias on the part of Mr Kelly and, as I have indicated, he was appropriately qualified and a competent and impressive witness.

36. The accused made it quite clear that his relationship with the chiropractic community was not a happy one. He made a point of repeatedly attacking the credibility of Mr Kelly, an attitude that did not impress the Court and attracted no sympathy. The accused’s attempts to ambush and embarrass the expert were futile, and seemingly borne more of professional rivalry than any forensic utility.

37. Legitimate questions of the accused as to why he had failed to maintain treatment notes and to produce them in these proceedings were met with the rather hollow response that they had been destroyed as a result of a computer virus. This may well have been the case, but the assertions lacked the attendant minutiae of truth. I have already commented on the belated defence posture that the manipulations were on the thoracic rather than the cervical spine, but for the reasons that I set out in this decision, that distinction and late assertion is of little import in the determination of this matter.

38. Returning then to the critical aspects to be determined. During the second episode of treatment upon Mr Penny, did the accused perform a high velocity low amplitude thrust, at least once, to the cervical spine which went beyond Mr Penny’s normal physiological range?

39. Was it a "high velocity" thrust? Yes, it was quick. Semantics around low, medium and high velocity are just that. To the lay person and the professional observer, the thrust is demonstrably a quick thrust and that satisfies, in my view, the requirement that it be high velocity.

40. Were the thrusts "low amplitude"? Yes, they were. The two thrusts observed in the second episode were short.

41. Were the thrusts to the cervical spine? Mr Kelly is quite confident that the placement of the hands and the positioning at the table are consistent with a manipulation to be performed on the cervical spine. The accused’s earlier evidence suggested that he was focusing on the cervical area rather than the thoracic area. His later suggestion that he was referring to the linkage between the C7 and T1 was unconvincing. I am satisfied on the strength of Mr Kelly’s evidence that the manipulation was to the cervical spine.

But that is not enough.

42. Section 123 of the National Law requires that the manipulation be one in which there is movement beyond the person’s normal physiological range. The prosecution has not been able to prove this aspect beyond reasonable doubt. Neither the evidence of Mr Penny or of Mr Kelly, or of them both combined, go so far as to conclusively or even persuasively suggest that Mr Penny experienced movement into the paraphysical range during the second episode.

43. Section 123 of the National Law is fraught with difficulty in terms of its construction, and application in the clinical and legal environments. I have already referred to the inherent difficulties of mounting a prosecution where a breach is alleged. Even without the hurdles such as the view of the procedure being occluded, evidence being lost, and lay recollection of a vague and ad hoc nature, interpretation of the section and the mustering of evidence which might substantiate a breach presents formidable challenges to any authority seeking to enforce it.

44. It follows that the charge is not made out and it is dismissed.

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Decision last updated: 23 July 2015