Bradbury v Cummings - [1999] WASCA 301

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BRADBURY -v- CUMMINGS [1999] WASCA 301

CORAM: WHEELER J

HEARD: 7 DECEMBER 1999

DELIVERED : 20 DECEMBER 1999

FILE NO/S: SJA 1139 of 1999

BETWEEN: KIMBERLEY IAN BRADBURY
Appellant (Complainant)
AND
JILLIAN GRACE CUMMINGS
Respondent (Defendant)

Catchwords:

Physiotherapy - Use of ultrasound - Purpose of curing or alleviating abnormal condition

Legislation:

Physiotherapists Act 1950 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant (Complainant) : Mr E M Heenan QC
Respondent (Defendant) : Mr P G McGowan

Solicitors:

Appellant (Complainant) : Arthur Metaxas & Co
Respondent (Defendant) : Phillips Fox

Case(s) referred to in judgment(s):

Bradbury v Wayte, unreported; SCt of WA (Owen J); Library No 8804; 10 April 1991

Case(s) also cited:

Nil

WHEELER J: The appellant laid a complaint in the Kalgoorlie Court of Petty Sessions on 16 July 1998 against the respondent for six breaches of the Physiotherapists Act 1950 (WA) ("the Act"). The only charge which was the subject of a trial, was that Jillian Grace Cummings between 1 October 1997 and 9 October 1997 at Kalgoorlie, "not being a registered physiotherapist holding a current licence to practice physiotherapy, issued by the Physiotherapists Registration Board, ("the Board") did practice physiotherapy on a patient, Willian Renton on four occasions in the form of ultrasound therapy, such therapy being a proclaimed method of physiotherapy contrary to s 11 and s 14 of the Act."
Subject to certain exceptions in s 11 and s 12, which are not presently relevant, the practice of physiotherapy is prohibited unless a person is registered as a physiotherapist and holds a licence issued by the Board. Under s 2 of the Act, "physiotherapy" means:
"The use by external application to the human body for the purpose of curing or alleviating an abnormal condition thereof of manipulation, massage, muscle re-education, electricity, heat, light or any proclaimed method but does not include the internal use of a drug or medicine or the application of a medical or surgical appliance except insofar as the application of the appliance is necessary in the use of such manipulation, electricity, heat, light or proclaimed method."
"Proclaimed method," means:
"A method of practising physiotherapy which on the recommendation of the Board, the Governor by proclamation published in the Government Gazette declares to be such for the purposes of this Act."
Section 14 gives the Governor power to declare any method a proclaimed method for the purpose of the Act. A proclamation dated 31 October 1958 declared:
"The use by external application to the human body for the purpose of curing or alleviating an abnormal condition thereof of manipulation, massage, muscle re-education, electricity, heat, light or any of the following machines…"
as a proclaimed method. The list of machines includes "ultrasonic machine".
"Ultrasonic machine" is the same as ultrasound. Ultrasound is a form of treatment in which sound waves come from a machine and penetrate into bodily tissue. Registered physiotherapists receive up to 12 months formal training in the use of ultrasound equipment for physiotherapy.
The respondent is a qualified occupational therapist and admitted that she was not a registered physiotherapist at the material time. William Arthur Renton was referred to the respondent by a Dr Joseph for treatment of his right shoulder and neck pain resulting from a motor vehicle accident in February 1997. The respondent treated Mr Renton on four occasions between 1 October 1997 and 9 October 1997. The respondent had an ultrasound machine which she used in conjunction with myofascial therapy (manipulative therapy applied to pressure or trigger points).
The respondent used her ultrasound machine when treating Mr Renton for a period of about five minutes before proceeding with myofascial therapy. The function of the ultrasound was, she said in evidence, to increase the blood flow in the area, which temporarily reduces the concentration of noxious substances. She said she did this in order to increase Mr Renton's pain threshold prior to the painful manipulation of trigger points that myofascial therapy involved.
At trial, his Worship found that the respondent was not using the ultrasound machine for the purpose of curing or alleviating an abnormal condition and thus she was not practising physiotherapy within the terms of the Act and the charge was dismissed.
This appeal is brought on the ground that the learned Magistrate misdirected himself in law in that his Worship construed the legislation in a semantic or artificial way without regard to the purpose of the legislation, that is, protection of the public. It was submitted by the appellant that the administration of the ultrasound by the respondent should be regarded as part of the overall therapy designed to improve the abnormal condition of Mr Renton's body. Similarly, it was submitted that although the injection of a local anaesthetic by a dentist, preparatory to drilling a tooth, is not in itself therapeutic, it is a component of the dental therapy.
The respondent submitted that the Act did not completely prohibit the use of ultrasound other than by physiotherapists. Certain persons are excluded from the Act by way of s 12 (although this does not include occupational therapists). Further, techniques fall within the definition of physiotherapy only when used by external application to the human body for the purpose of curing or alleviating an abnormal condition. Thus, the use of massage, for example, for relaxation rather than for the purpose of curing or alleviating an abnormal condition is not within the definition of physiotherapy.
The respondent submits that it was not necessary to use ultrasound in order to undertake the myofascial therapy and that it was not used to improve the condition. The ultrasound was used merely to reduce the pain experienced during the therapy and thus was not itself for the purpose of curing or alleviating an abnormal condition.
The appeal comes down to an interpretation of the words "for the purpose of curing or alleviating an abnormal condition thereof" used in the proclamation and the definition of physiotherapy in s 2 of the Act, within the context of the Act as a whole. Section 19 of the Interpretation Act 1984 (WA) requires that preference is given to a legislative interpretation that promotes the purpose or object of the Act.
In Bradbury v Wayte, unreported; SCt of WA (Owen J); Library No 8804; 10 April 1991, his Honour said at 11: "the intent of Parliament in enacting the Act was to regulate certain aspects of the physiotherapy professions." This is clearly correct. Such an intention is likely to be better served by an avoidance of a limited and artificial understanding of the expression "for the purpose", although that expression should not be expanded beyond a meaning it could ordinarily bear.
In this case, Mr Renton was referred to the respondent for treatment on an abnormal condition, myofascial pain syndrome. It appears from the evidence, which his Worship accepted, that the condition could have been treated by manipulative trigger point therapy alone. In fact, the respondent had, for some time, managed patients this way. However, in 1997 the respondent acquired an ultrasound machine. This was used prior to the manipulative therapy in order to make it less painful.
It is not apparent from the evidence whether manipulative trigger or pressure point therapy would be painful if there was not some underlying abnormal condition, such as the myofascial pain syndrome that Mr Renton had. In any event, I am not persuaded that it makes any difference.
Mr Renton would not have required the myofascial therapy unless he had an abnormal condition of the body, ie, the shoulder and neck pain described as myofascial pain syndrome. The myofascial therapy itself involved the infliction of pain by manipulation of pressure or trigger points. The ability to cope with this pain was said to be increased by the use of the ultrasound machine prior to the therapy. By increasing Mr Renton's ability to cope with the pain of the therapy, the therapy was less unpleasant and more effective in that Mr Renton was less likely to flinch, find himself unable to co-operate, or perhaps even discontinue therapy.
In a situation such as this, there are a number of possible levels of purpose. At one level, the purpose of the ultrasound was merely to enable a less painful therapy; not itself a "cure or alleviation", but preparatory to it. At another, the purpose was, in conjunction with the myofascial therapy, to treat an abnormal condition; that is, the pain Mr Renton had. Alternatively, the pain inflicted by the myofascial therapy could itself be viewed as an abnormal, albeit temporary, condition, which was alleviated by the prior application of ultrasound.
It is an unduly narrow and artificial view of the Act, I think, to separate the various steps taken by the respondent, so as to find that the use of ultrasound was not for the purpose of curing or alleviating Mr Renton's pain. It was used in conjunction with the myofascial therapy, and was used because it was, in the respondent's judgment, the best way of ensuring that a cure or alleviation could be achieved successfully and without undue pain.
I would allow the appeal.