Cummings v Bradbury
[2000] WASCA 339
•8 NOVEMBER 2000
CUMMINGS -v- BRADBURY [2000] WASCA 339
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 339 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1139/1999 | 5 SEPTEMBER 2000 | |
| Coram: | WALLWORK J PARKER J MILLER J | 8/11/00 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | JILLIAN GRACE CUMMINGS KIMBERLEY IAN BRADBURY |
Catchwords: | Appeal from Judge Physiotherapy Use of ultrasound Purpose of curing or alleviating abnormal condition |
Legislation: | Physiotherapists Act 1950 (WA) |
Case References: | Beckwith v R (1976) 135 CLR 569 Bradbury v Wayte; unreported; SCt of WA (Owen J); Library No 8804; 10 April 1991 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CUMMINGS -v- BRADBURY [2000] WASCA 339 CORAM : WALLWORK J
- PARKER J
MILLER J
- Appellant (Respondent)
AND
KIMBERLEY IAN BRADBURY
Respondent (Appellant)
Catchwords:
Appeal from Judge - Physiotherapy - Use of ultrasound - Purpose of curing or alleviating abnormal condition
Legislation:
Physiotherapists Act 1950 (WA)
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant (Respondent) : Mr P G McGowan
Respondent (Appellant) : Mr E M Heenan QC & Ms K A Vernon
Solicitors:
Appellant (Respondent) : Phillips Fox
Respondent (Appellant) : Arthur Metaxas & Co
Case(s) referred to in judgment(s):
Beckwith v R (1976) 135 CLR 569
Bradbury v Wayte; unreported; SCt of WA (Owen J); Library No 8804; 10 April 1991
Case(s) also cited:
Nil
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Parker J and to the order which is proposed by his Honour.
2 PARKER J: On the hearing of a complaint of the respondent, Mr Bradbury, who is the Registrar of the Physiotherapists' Registration Board of WA, the appellant was acquitted on 12 July 1999 by a Stipendiary Magistrate in the Court of Petty Sessions at Kalgoorlie. The complaint on which he was tried and acquitted was in the following terms:
"Between 1 October 1997 and 9 October 1997 at Kalgoorlie, not being a registered physiotherapist holding a current license to practice physiotherapy issued by the Physiotherapists' Registration Board, you did practice physiotherapy on a patient, William 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."
- The Act was the Physiotherapists Act 1950 (WA) ("the Act").
3 The respondent appealed against the acquittal. On 20 December 1999 Wheeler J allowed the appeal, convicting the appellant and imposing a fine of $20 and ordered the appellant to pay the respondent's costs which were fixed at $750 for the proceedings in the Court of Petty Sessions and $2,300 for the appeal.
4 The appellant now appeals, by leave granted by Wheeler J, against that decision. The grounds of the appeal as formulated are extensive. The argument before this Court, however, identified the essential question to be whether the use of an ultrasound machine by the appellant, who is not a registered physiotherapist, in the circumstances revealed by the evidence, constitutes practising physiotherapy so as to be in breach of s 11 of the Act.
5 The appellant is a qualified and registered occupational therapist within the meaning of the Occupational Therapists Act 1980 (WA). As mentioned, she was not qualified or registered as a physiotherapist. In the course of her practice as a occupational therapist the appellant treated a patient, Mr Renton, who had been referred to her by a medical practitioner. Mr Renton was experiencing pain in his right shoulder and neck as the result of an motor vehicle accident. The appellant treated Mr Renton on four occasions between 1 October 1997 and 9 October 1997. In the course of that treatment she used an ultrasound machine in conjunction with myofascial therapy, which was described in the evidence as a manipulative therapy applied to pressure or trigger points. The
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- ultrasound machine was used, on the evidence of the appellant, for about five minutes before each session of myofascial therapy.
6 It was the function of the ultrasound, on the evidence of the appellant, to increase the blood flow to the affected areas. The appellant's evidence was that she did this to increase the pain threshold of Mr Renton before commencing that the trigger point therapy which was, for the respondent, a painful process. The appellant described how she found that Mr Renton had very painful trigger points throughout his interscapular region (between the shoulder blade and the spine). It was her evidence that it was not necessary to use the ultrasound in order to undertake the trigger point or myofascial therapy but what the ultrasound achieved was to make the trigger point therapy less painful so that the trigger points could be treated with less discomfort to Mr Renton and more deeply. The purpose of the trigger point or myofascial therapy was, on the appellant's evidence, to restore normal pain-free range of motion to Mr Renton. It was the evidence of the appellant that by the completion of the four treatment sessions Mr Renton was completely pain-free.
7 By s 11(1) of the Act the practice of physiotherapy is prohibited unless registered and licensed under the Act. By s 3 of the Act "physiotherapy" is defined to mean:
" … 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."
- By proclamation made under the Act on 23 October 1958 and published in the Government Gazette of 31 October 1958 at p 2838 "The use by external application to the human body, for the purpose of curing or alleviating an abnormal condition thereof …" of an "ultrasonic machine" was declared to be a "proclaimed method" pursuant to s 14 of the Act. It is common ground that an ultrasonic machine and an ultrasound machine are the same thing.
8 While there is some duplication of language in the definition of physiotherapy and the proclamation, the effect, relevantly, is that the use of an ultrasound machine will constitute the practice of physiotherapy
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- where that use is "for the purpose of curing or alleviating an abnormal condition" of the human body.
9 The learned Magistrate held that the appellant was not using the ultrasound machine for the purpose of curing or alleviating an abnormal condition and thus concluded that the appellant was not practising physiotherapy as defined by the Act. Hence, he dismissed the charge.
10 In her reasons for decision, Wheeler J approached the issue in this way:
"16. 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.
17. 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 preparation 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.
18. 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
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- alleviation could be achieved successfully and without undue pain."
- On this basis her Honour was persuaded that the use of the ultrasound machine by the appellant in the circumstances of this case was within the defined meaning of physiotherapy.
11 The appellant contends that Wheeler J fell into error in that she regarded the conduct of the appellant in treating Mr Renton as composite so that if any part of the treatment was ultimately directed towards curing or alleviating an abnormal condition of the human body then all stages of the treatment was within the proscription of the Act. It was further contended that the particular pain, to which the ultrasound treatment was directed, did not exist until the trigger point therapy was actually carried out. Hence, it is contended, at the time the ultrasound was applied it could not have been used for the purpose of curing or alleviating an abnormal condition, ie the pain caused by the trigger point therapy, because that pain did not then exist.
12 In my respectful opinion, the reasons of Wheeler J succinctly reveal that the question of the purpose of the appellant as she used the ultrasound machine in her treatment of Mr Renton may be posed and answered at a number of possible levels. Her Honour identified in particular three levels of purpose; to enable a less painful therapy but not itself a "cure or alleviation", in conjunction with the myofascial therapy to treat Mr Renton's persisting pain, ie the underlying abnormal condition, and to treat the abnormal but temporary pain inflicted by the myofascial or trigger point therapy by the prior application of ultrasound.
13 As Owen J concluded in the context of the Act in Bradbury v Wayte; unreported; SCt of WA (Owen J); Library No 8804; 10 April 1991 at 10 - 11:
"The primary task is to ascertain the intention of the legislature by reference, if possible, to the ordinary meaning of the words used.
Assistance in this task will be obtained by identifying the dominant purpose of the legislation.
Where there is ambiguity it is necessary to give effect to the dominant purpose by making the remedy effective without straining the words beyond a construction which they will
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- sustain and without extending the category of criminal offences."
- In this last respect, Owen J was seeking to reflect a passage he had quoted earlier from the reasons of Gibbs J in Beckwith v R (1976) 135 CLR 569 at 576:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563 at 567 - 568; Craies on Statute Law, 7th ed (1971) pp 529 - 534. The rule is perhaps one of last resort."
15 In the present case the issue arises in the context of legislation the dominant purpose of which is to regulate the practice of physiotherapy and to exclude from that field of practice those who have not qualified and been registered under the scheme of the Act. The practice of physiotherapy is one which requires training at a tertiary level and the practice is, of course, undertaken in a field of health care. Given such a purpose there is every reason to expect that the legislature would seek to avoid any artificial or contrived reading of what constitutes the field of practice of physiotherapy or which would lead to any narrow understanding of the field of practice from which those who were not suitably trained, qualified and registered were excluded.
16 In this case it is established that the treatment administered by the appellant in each of the four sessions was directed to curing or alleviating the persisting pain which Mr Renton was experiencing as a result of the motor vehicle accident. A particular aspect of that treatment was the myofascial or trigger point therapy. Because that involved particular pain the ultrasound machine was used to better enable Mr Renton to undergo
(Page 8)
- the myofascial treatment and to enable that treatment to be administered more effectively. In my view it is the more obvious and natural use of language, and one entirely consistent with the purpose of the legislation, to regard the use of the ultrasound machine as being a part of the treatment administered for the purpose of curing or alleviating the abnormal condition from which Mr Renton was suffering. In fact and in the view of the appellant, the use of the ultrasound made the myofascial treatment more bearable and enabled the myofascial treatment to be applied more effectively. On either or both of these bases, in the context of this legislation, the more natural and persuasive view is that the purpose of the use of the ultrasound is properly to be regarded as an integral part of the treatment of Mr Renton's abnormal condition. That is, it was used for the purpose of curing or alleviating that condition.
17 In my view, it is to divert from the objective or purpose most obviously and naturally contemplated by the definition, ie the purpose of the person in treating the patient, to attempt to analyse the purpose of each particular step in the treatment in isolation and from a strictly technical viewpoint. To do so is to turn away from the reality of what the appellant was engaged in when she treated Mr Renton and introduces a contrived or artificial analysis of purpose solely by reference to an isolated particular step. There was, in reality, only one reason why Mr Renton was referred to the appellant and there was one reason for all the appellant did for Mr Renton. This was to cure or alleviate the persisting pain Mr Renton was experiencing. The use of the ultrasound was, in the appellant's judgment, the most beneficial and appropriate way, in Mr Renton's interest, of pursuing the course of myofascial treatment which was considered appropriate to cure or alleviate the persisting pain.
18 By way of analogy, it is possible to say of a dentist that the use of an anaesthetic is not for the purpose of treatment to a patient's teeth but merely to alleviate the pain which treatment might cause. It is, however, much more realistic and in accordance with more natural usage to see that the use of the anaesthetic is to better enable the treatment of the patient's teeth. It makes the treatment more bearable. The purpose of the use of anaesthetic by the dentist is more naturally expressed to be for the purpose of treating the patient's teeth. It seems to me that the same holds good for the use of the ultrasound machine in the present case.
19 In my view, the acceptance of the submissions for the appellant about purpose would invite contrived, unexpected and unintended distinctions to be drawn so as to avoid and frustrate the dominant purpose
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- of the legislation. To countenance such an approach would, in my view, be to frustrate what Parliament has sought to achieve.
20 It is obvious, especially in any field of health care, that there is much scope for overlap in treatment between different fields of expertise. This is the purpose of s 12 and s 13 of the Act which provide as follows:
"12. Certain persons excluded from Act
(1) A person shall not be required to register under this Act, nor shall it be unlawful for him to apply massage or heat to the human body in the practice of his calling, by reason only of the fact that -
(a) he is engaged in the practice of osteopathy; or
(b) he is engage in the practice of chiropractic; or
(c) he practises face massage or scalp massage for cosmetic purposes only; or
(d) he applies massage or heat to persons engaged in playing or training for any game, sport or athletics for the purpose of training such persons, or alleviating injuries received by such persons in the course of such playing or training; or
(e) he practises chiropody; or
(f) he practises massage otherwise than for the curing or alleviation of any abnormal condition.
(2) In this section -
'osteopathy' means the adjustment by hand only of the bones or soft tissue of the human body for the purpose of curing or alleviating any disease or abnormality of the body;
'chiropractic' means the system of palpating and adjusting the articulations of the human spinal
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- column by hand only, for the relief of nerve pressure.
- 13. Application
Nothing in this Act shall extend or apply to or in any manner affect the practice of his profession by, or any rights or privileges of a medical practitioner or dentist."
22 Section 12 does not, of course, refer to the use of an ultrasound machine. It is submitted that it is a machine by which heat is applied to the human body, and hence it is within the operation of s 12. Interestingly, aspects of the appellant's evidence before the learned Magistrate seems to be directed to contradicting the proposition that an ultrasound machine was a means of applying heat to the human body. Nevertheless, if it is assumed that an ultrasound is a means by which heat is applied to the human body there would appear to be some force in the view that some of the categories identified in s 12(1) need not be persons with any particular training or qualification in the use of ultrasound. It does not appear to me, however, that this advances the case of the appellant in any significant way. It must be remembered that both the definition of physiotherapy and s 12 are provisions of general operation and that neither makes specific reference to ultrasound machines. The use of ultrasound has come to be a proclaimed method and therefore is within the definition of physiotherapy and on the argument advanced for the appellant an effect of the general provisions of s 12(1) may be that the use of ultrasound would not be unlawful for persons who came within the operation of s 12(1). It does not follow, however, that the legislature applied its mind directly to the use of ultrasound equipment when enacting the Act.
23 What is clear from s 12 and s 13 of the Act, however, is that occupational therapists do not enjoy the protection afforded by those provisions. The practice of occupational therapy is regulated by the
(Page 11)
- Occupational Therapists Registration Act 1980 in which occupational therapy is defined to mean:
" … the art and science of improving an individual's skills and behaviour by directing his participation in selected tasks in order to integrate, reinforce, and enhance newly learned techniques necessary for remedying any impairment to his skills or behaviour caused by aging, disability, or developmental or mental deficits and carrying out such adjustments to his immediate environment as are necessary to assist him or selecting an appropriate environment for that purpose."
The omission of occupational therapy from s 12 of the Act suggest that, for whatever reason, Parliament has determined that occupational therapists should not be excluded from the operation of the Act. Thus, Parliament has provided in effect that an occupational therapist, although qualified and registered as such, may not do anything which is within the scope of the practice of a physiotherapist, ie that is within "physiotherapy" as defined in s 3 of the Act. This includes the external application to the human body of a proclaimed method for the purpose of curing or alleviating an abnormal condition; the use of an ultrasound machine being a proclaimed method.
24 It is not for this Court to consider whether the omission of occupational therapists from s 12 of the Act is an unnecessary or unjustified omission. If a person such as the appellant is concerned at the omission, the remedy is to attempt to have s 12 amended. In the meantime, the Act must be interpreted and applied as it is presently framed.
25 What has been said in these reasons is sufficient to explain why I have been persuaded that Wheeler J was correct in her decision to allow the appeal from the learned Magistrate and to convict the appellant. The point of difference between her Honour's decision and that of the learned Magistrate turns solely on the correct interpretation of the definition of physiotherapy in the Act. In my respectful view, her Honour's approach is to be preferred to that of the learned Magistrate on that issue.
26 For these reasons, the appeal to this Court should be dismissed.
27 MILLER J: I have had the advantage of reading in draft the reasons published by Parker J. I am in agreement with those reasons and have nothing further to add.
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