Physiotherapists Registration Board Of Western Australia and Townsend
[2007] WASAT 81
•5 APRIL 2007
PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA and TOWNSEND [2007] WASAT 81
| Link to Appeal : | [2008] WASCA 25 |
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 81 | |
| PHYSIOTHERAPISTS ACT 1950 (WA) | |||
| Case No: | VR:209/2006 | 12 MARCH 2007 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) MR M WIKLUND (SENIOR SESSIONAL MEMBER) MS D NEWMAN (SENIOR SESSIONAL MEMBER) | 5/04/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA GRANT TOWNSEND |
Catchwords: | Physiotherapist Allegation of misconduct in a professional respect or alternatively improper practice or misconduct not in a professional respect Allegation of fondling and massaging breast Differing accounts of course of treatment Physiotherapist believing treatment beneficial to patient Inadvertent contact with breast tissue |
Legislation: | Physiotherapy Regulations 1951 (WA), reg 20, reg 21 |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 |
Orders | The application is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : PHYSIOTHERAPISTS ACT 1950 (WA) CITATION : PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA and TOWNSEND [2007] WASAT 81 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR M WIKLUND (SENIOR SESSIONAL MEMBER)
MS D NEWMAN (SENIOR SESSIONAL MEMBER)
- Applicant
AND
GRANT TOWNSEND
Respondent
Catchwords:
Physiotherapist Allegation of misconduct in a professional respect or alternatively improper practice or misconduct not in a professional respect Allegation of fondling and massaging breast Differing accounts of course of treatment Physiotherapist believing treatment beneficial to patient Inadvertent contact with breast tissue
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Legislation:
Physiotherapy Regulations 1951 (WA), reg 20, reg 21
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr A Metaxas
Respondent : Mr A Hershowitz and Mr D Short
Solicitors:
Applicant : Arthur Metaxas & Co
Respondent : Guild Legal Limited
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
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Summary of Tribunal's decision
1 The Physiotherapists Registration Board brought a complaint against Mr Grant Townsend, a registered physiotherapist, that, in the course of treating a patient, he fondled and massaged her breasts, and was thus guilty of misconduct or improper practice.
2 Mr Townsend denied the allegation. He did acknowledge that, during the course of providing massage to the patient in relation to symptoms of neck stiffness, he administered a massage to the pectoral muscles which involved massaging to the sides of the patient's breasts, resulting in some inadvertent contact between his hand and some breast tissue. The Tribunal heard evidence from both the patient and Mr Townsend, and from experienced physiotherapists who discussed the treatment provided by Mr Townsend. It concluded that, whilst criticism could be made of Mr Townsend about the way he undertook the treatment, what occurred did not amount to fondling and massaging of breasts as the Board alleged. The Tribunal accepted that he believed that the treatment which he administered was of benefit to the patient. In the circumstances, the Tribunal found that the allegation of misconduct or improper practice was not made out, and dismissed the complaint.
The allegation against Mr Townsend
3 Mr Grant Townsend is a registered physiotherapist. He has practised physiotherapy since 2002, and in 2003 obtained post graduate qualifications in manual therapy. In 2005 he commenced working at SportsMed Subiaco on a part-time basis. He is currently engaged in study for a medical degree. He is 28 years old.
4 Mrs J is a former employee of SportsMed Subiaco. She ceased working with SportsMed Subiaco in October or November 2005. She had occasionally met Mr Townsend, and spoken to him briefly, on occasions when they were both working at SportsMed Subiaco. They have also met and conversed at two social functions organised through their work. Prior to April 2006, Mrs J had received physiotherapy treatment at SportsMed Subiaco on many occasions, and on six of those occasions had been treated by Mr Townsend.
5 On 22 April 2006, which was on a Saturday, Mrs J rang Mrs Anna Wall, the receptionist on duty at SportsMed Subiaco, to enquire whether there was an appointment available that morning. Mr Townsend
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- was working that morning. There was a 20 minute appointment available, and Mrs J booked it. She required treatment for neck tightness which she thought was causing migraine headaches.
6 It is Mr Townsend's conduct during the course of Mrs J's treatment that morning which forms the subject matter of the complaints brought by the Physiotherapy Registration Board of Western Australia (the Board). The Board alleges that in the course of treating Mrs J, Mr Townsend "fondled and massaged" her breasts. The Board alleges that that conduct constitutes misconduct in a professional respect (which attracts a penalty of being struck from the register under reg 20 of the Physiotherapy Regulations 1951 (WA)), or alternatively improper practice or misconduct not being misconduct in a professional respect (which attracts either a reprimand or a suspension of licence for up to 6 months under reg 21).
The conflict of evidence
7 The accounts given by each of Mrs J and Mr Townsend as to what occurred in the treatment room on 22 April 2006 differ. This is, therefore, one of those difficult cases where the Tribunal must determine whose version of events should be preferred. That difficulty is compounded by our conclusion; that, having observed both witnesses, we consider both endeavoured to give their evidence honestly. We consider it highly likely that, given the distress or shock which Mrs J said she experienced on the day, the distress which Mr Townsend said he experienced following the complaint by Mrs J being made, and the passage of time before they gave their evidence, that they each recall events in a way which supported their perception of what had occurred.
8 The allegations against Mr Townsend are serious, and have a potentially serious impact on his standing and reputation as a physiotherapist, and on his capacity to earn a livelihood in that profession. The allegations also potentially impact upon his future as a medical practitioner in the event that he completes his present field of study. In those circumstances, as the Tribunal has consistently recognised, while facts are to be determined on the balance of probabilities, the Tribunal should take what is commonly referred to as the Briginshaw approach: see Briginshaw v Briginshaw (1938) 60 CLR 336. That approach involves a requirement that the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation against a person has been made out.
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Mrs J's version of events
9 In her letter to the Registrar of the Board on 6 May 2006, Mrs J recounted events as follows:
"The treatment began in the treatment room with Mr Townsend massaging my neck and loosening the upper part of my spine. I was face down for most of the treatment, but I offered to turn on to my side for ease of access to my neck. He then commented that my right pec was rather tight and asked me to slip my right bra strap off to massage the appropriate area which he did while standing to the side of me. Up until this stage I was completely satisfied with Mr Townsend's treatment; he not only explained what he was doing in a professional manner, his application of treatment was also to a professional standard. During this time we were also having a friendly conversation regarding his recent wedding. During this treatment I was lying on my back.
Mr Townsend then commented that my left pec was also tight and asked me to loosen the other strap of my bra. All of my pain was on the right hand side of my neck and shoulder but I thought he would know best as to the method of treatment. He moved behind me and began to massage both of my breasts simultaneously with both his hands including the nipple and lower region with oil. He did this while standing behind me (i.e. over top and behind my head). During this time he began to breathe heavily, this went on for a period of minutes. During this time no conversation was entered into. At no time was I offered any explanation for his actions and in no way did I encourage or indicate that I consented to Mr Townsend touching my breasts. He finished abruptly and hurridly [sic] left, saying he would leave me to get dressed. I am a forty five year old woman, happily married with children and consider myself to be quite confident and yet I felt completely overwhelmed and powerless during the latter part of the treatment."
10 She elaborated on that statement in a witness statement which she signed on 26 February 2007 for use in the Tribunal proceedings, and in her oral evidence. In her witness statement she explained that, after being treated while lying on her side, Mr Townsend suggested that her right pectoral muscle was tight. She lay on her back and Mr Townsend massaged the pectoralis minor muscle. Mrs J said that that massage "was
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- good because it was releasing pressure on the muscle". It was during this massage that they were talking about Mr Townsend's recent marriage. She said that, while this massage was taking place, her "bra cup rose up a bit and may have slightly exposed some of her breast but not a significant amount". She said that this did not unduly concern her and she did not know whether Mr Townsend noticed. In cross-examination she acknowledged that during the massage of the right pectoralis minor muscle, she may have smiled at Mr Townsend as they talked.
11 Mrs J denied that, at any of her treatments by him, Mr Townsend had offered her a towel for modesty. She acknowledged that in previous treatments of her neck and back she had not felt uncomfortable in Mr Townsend's presence wearing only her bra above the waist. She accepted that, the treatment having begun with her lying face down, she did not see any need for a towel when she moved to lie on her back.
12 Mrs J said that, after a few minutes of massage on her right pectoral muscle, Mr Townsend suggested that her left pectoral muscle was also tight and he asked her to remove her bra strap so that he could massage it. She complied, and Mr Townsend moved from her right side to a position behind her head. She said that he put both hands near her pectoral muscles, that is near her shoulder blades, and then slid both of his hands down the front of her body under and around her breasts and then "commenced to massage [her] breasts" for a number of minutes. In oral evidence, she described that massage as involving use of the finger tips from her shoulder down the outer side of her breasts, around the underside of the breasts, and then between them back towards the shoulder. In executing that movement, Mrs J said that his hands came in contact with her breast, although she acknowledged that "he did not massage the nipples".
13 Mrs J said that she did not ask him to stop because she was "shocked, dumbfounded and scared".
Mr Townsend's version of events
14 Mr Townsend wrote a detailed response to the Registrar of the Board after being advised of Mrs J's complaint. He confirmed that she attended at 9:30 am on 22 April for treatment of her recurrent right cervical neck problem. He said that he wished to use taping and hyperfix to correct the right shoulder protraction, but Mrs J stated that she was allergic to tape. In her evidence, Mrs J confirmed that she had previously been treated using tape, and that she had told someone at SportsMed Subiaco that she was allergic to it, but she did not discuss it with Mr Townsend on this
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- occasion. Mr Townsend said, after taking her history and examining her, he began his treatment by cervical massage with her lying initially face down, and on her side. He said that, prior to the massage commencing, Mrs J was asked if she would like a towel for coverage, given that she was wearing only her bra, but Mrs J said that "she was fine". Mrs J denied being offered a towel for coverage.
15 Mr Townsend said that he considered that symptoms being experienced by Mrs J in her neck may have been affected by tightness in her pectoral muscles. He considered that manipulation of her right pectoral muscle might be of assistance. He said that she agreed to that treatment and lay on her back. He asked her to lower her bra strap to enable him to perform the technique. He commenced by focussing on the right upper aspect of the pectoral muscle. He said that, as he progressed with the massage, it did inadvertently expose the breast as it lifted the bra up. That is consistent with Mrs J's account of events. However, Mr Townsend said that he apologised and offered to complete the massage there, but that Mrs J asked him to continue. Mrs J denied that conversation. He did so, extending the massage to the pectoral major muscle, which involved massaging either side of the breast. He said that he used his fingers in a movement from the shoulder area down the outer side of her breast, moved back towards the shoulder, and then continued the motion down between her breasts. He said that he did not massage around the underside of the breast. He said that when he completed the treatment of the right side, Mrs J requested massage on the left side as well. Mr Townsend said that as she did have a degree of left pectoral major tightness he agreed to provide the treatment. He did so by moving behind her head, and continuing to massage both the left and right pectoral muscles simultaneously, again involving a movement using the tip of the fingers down the outer side of each breast, back to the shoulder area, and then down between her breasts. Again, he denied massaging around the underside of the breasts, or making any direct contact with her nipples although he accepted that there was contact with breast tissue. This part of the treatment lasted a matter of two or three minutes.
16 Mr Townsend said that he enquired of Mrs J a number of times whether she was comfortable with the treatment, and she confirmed that she was. Mrs J denied any such enquiry. Mr Townsend denied that he was breathing any more heavily that usual, although he accepted that there were several periods of time when he was not talking to her as he was concentrating on his massage technique, and also providing a quiet environment. Mr Townsend said that Mrs J had asked him on a number of occasions for treatment by way of massage, and had reported to him
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- that it was helpful. He considered that, on this occasion, the treatment he administered was designed to assist Mrs J to relax, and was undertaken with her entire concurrence. Mr Townsend said that at no time did he consider that Mrs J was unhappy with the treatment nor did she ask him to stop. He considered that the treatment she had requested was therapeutically justified.
17 He agreed, as Mrs J had asserted, that the treatment came to a fairly abrupt end. Mr Townsend's explanation for that was that he realised that the treatment had gone beyond the allocated time, and he was aware he had other patients waiting.
Events subsequent to the treatment
18 Ms Wall gave evidence that Mrs J came out of the appointment, she looked "a bit flustered" and told her that "Grant had tried to loosen her muscles up by massaging around her shoulder and breasts, but then had focussed only on her breasts". Mrs J lifted her shirt and invited Ms Wall to feel oil on the outer side of her breasts. According to Ms Wall, Mrs J said that the treatment did not "feel right", and that she would go home and call back. Mrs J did call back about half an hour later and told Ms Wall that she was "absolutely sure that whatever Grant did it wasn't right". Mrs J, in her evidence, said she was quite shocked after the appointment, but her main concern was that the practice might suffer if Mr Townsend treated another female patient as he had treated her.
19 Mrs J subsequently spoke to a principal of the practice, Mr Annear, and after several discussions with him, and other principals of the practice, made her complaint to the Board.
The expert evidence
20 Expert evidence was called by each party. The Board called Gillian Mary Henderson, an experienced physiotherapist who has been involved in lecturing to physiotherapy students. The respondent tendered a statement of Mr Stephen James Edmondson, also an experienced physiotherapist and currently the Associate Professor of Musculoskeletal Physiotherapy at the University of Western Australia.
21 Ms Henderson carried out a helpful review of the patient records for Mrs J, her letter of complaint to the Registrar and Mr Townsend's response to the Board. In respect of most of Ms Henderson's observations, Mr Edmondson was in agreement. The thrust of Ms Henderson's opinion was that, for the most part, the treatment
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- administered by Mr Townsend in response to the symptoms reported by Mrs J was not inappropriate. She did, however, express the view that his treatment of the pectoralis major, being the large muscle extending from the clavicle to the lower portion of the rib cage, and lying beneath the breast tissue, lacked a therapeutic justification. In particular, where in Mr Townsend's letter to the Board he uses the expression "I focussed on the pectoral muscles around each breast" Ms Henderson observed that as the muscles are underneath the breast, that treatment would be pointless. It is apparent that Ms Henderson also considered that the expressions used by Mr Townsend in his letter to the Board suggested that he was utilising a "full hand massage while working around the breasts".
22 As the evidence emerged, it is clear that Mr Townsend was using the tips of his fingers and thumbs in the treatment he was administering. Ms Henderson acknowledged that massage may be appropriate to try to lengthen the fibres of the pectoralis major and minor muscles, but that would involve a specific movement of the thumb or fingers to help lengthen the muscle which would cause considerable discomfort to a patient. She indicated that she would not consider utilising that treatment if it involved attempting to massage through breast tissue.
23 Mr Edmondson, in his witness statement, which was tendered by consent, agreed broadly with Ms Henderson's comments in relation to Mr Townsend's treatment.
24 In cross-examination, Mr Townsend agreed that the massage he was administering had no clinical justification from the physiotherapy point of view. That is, it would not be effective in lengthening the fibres of the pectoralis major in the way that the uncomfortable form of massage described by Ms Henderson is designed to achieve. Mr Townsend's explanation was, however, that he considered that, given his patient's report of benefit from more relaxing forms of massage, he considered that his conduct was therapeutically justified. That approach was reinforced by what he said were regular enquiries as to whether the patient wished him to continue with the massage, and whether it was assisting.
Conclusion
25 We are satisfied that Mr Townsend did consider that the treatment he was administering, on the basis of her reports, was assisting Mrs J's symptoms. It is clear that, up until the last two or three minutes of the treatment, which on the evidence lasted at least 25 minutes, the treatment was entirely appropriate, and was accompanied by ongoing conversation. We are satisfied that part of that conversation involved enquiries by
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- Mr Townsend as to whether his treatment was assisting her symptoms. We are also satisfied that Mrs J responded positively to those enquiries.
26 The question at issue is whether, in those last two or three minutes, Mr Townsend's treatment changed in character and, as Mrs J described it, "became overtly sexual in nature". We are satisfied that the treatment was a progression of a treatment which, although not soundly clinically based, was, so far as Mr Townsend was concerned, providing benefit to his patient.
27 There are criticisms which can be fairly levelled at Mr Townsend. He should have, as he now acknowledges, insisted that Mrs J be draped appropriately so as to avoid the accidental contact between his hands and her breast tissue. In hindsight, he should have taken more care to fully explain the progression of the treatment, and the modality he had chosen. He appears to have strayed beyond a treatment which had a sound clinical basis to a treatment which he believed offered subjective benefit to the patient without adequately assessing the consequences of his actions. The complaint against him, however, is that he "fondled and massaged" Mrs J's breasts. We are satisfied that his objective was to reduce tension in the pectoralis major, and he sought to do so by providing a relaxing massage by the use of his finger tips around the sides of the breasts, rather than massaging the breast itself. As Mr Townsend acknowledges, there was contact between his hands and breast tissue, but that was of an accidental nature. What occurred does not constitute either massaging, or fondling, of the breast. We consider that the impression created by Mrs J's letter of complaint which used the expression "massage both of my breasts simultaneously with both hands including the nipple and lower region with oil" does not accurately describe the process. That description of the treatment is inconsistent with Mrs J's oral evidence, and with Mr Townsend's description of what he did.
28 We accept that Mrs J was uncomfortable with the last two or three minutes of the treatment. As she acknowledges, she said nothing to indicate that discomfort, probably because she was uncertain how to deal with her discomfort. It would appear that, while she was uncertain about the position initially, it was only after going home and considering the matter further that she formed the view that what had occurred was definitely inappropriate. From Mr Townsend's perspective, however, the fact that Mrs J gave no indication of discomfort led him to believe that the earlier assurances that the massage was helping continued to apply throughout the whole period of the treatment. In those circumstances, and given the inconsistency in Mrs J's description of the massage in her initial
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- letter of complaint and in her oral evidence, we prefer Mr Townsend's account of precisely how he applied the massage in the breast area.
29 We are not satisfied that Mr Townsend fondled and massaged Mrs J's breasts, and thus we are not satisfied that he is guilty of improper practice or misconduct. The application will be dismissed.
Orders
30 The application is dismissed.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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