Citation: [2015] NSWLC 9
Court: Local Court of New South Wales
Date: 4 May 2015
Judge: Antrum LCM
Background
The Australian Health Practitioner Regulation Agency (AHPRA) prosecuted an individual who had practised as an osteopath, chiropractor, and naprapath since the 1960s but was no longer registered in any relevant health profession. AHPRA alleged that on 23 October 2013 at Wagga Wagga, he performed a manipulation of the cervical spine on a patient in breach of section 123(1) of the Health Practitioner Regulation National Law (NSW). The maximum penalty for that offence is $30,000.
The patient was in fact a private inquiry agent who had attended the accused's home practice covertly, making a video recording of the consultation. That recording formed the central piece of evidence in the prosecution.
The accused did not dispute that he was unregistered, nor that he was not a student or otherwise authorised under regulation. His sole defence was that what he performed did not constitute a "manipulation of the cervical spine" within the statutory definition.
Legal Issues
- What does "manipulation of the cervical spine" mean under section 123(2) of the National Law, specifically the phrase "high velocity, low amplitude thrust"?
- Whether the procedures observed on the covert video recording satisfied each element of that definition.
- Whether the prosecution proved beyond reasonable doubt that the thrust moved the patient's cervical joints beyond his usual physiological range of motion.
Decision
The court received expert evidence from a qualified chiropractor who explained the anatomy of the cervical spine and the clinical meaning of the key statutory phrase. He described "high velocity" as simply meaning "quick" and "low amplitude" as meaning "short," so that a high velocity, low amplitude thrust is a quick movement applied at the end of a joint's range over a short distance. A further element of the statutory definition is that the joints must be moved beyond the person's usual physiological range of motion, which extends beyond both the active range (movement under the person's own muscle power) and the passive range (movement assisted by another person) into what is called the paraphysical range.
Reviewing the video, the court was satisfied on two of the three required elements. The thrusts visible in the second episode of treatment were demonstrably quick, satisfying the "high velocity" requirement, and were short, satisfying "low amplitude." The expert's evidence about hand placement and positioning also satisfied the court that the thrusts were directed at the cervical spine rather than the nearby thoracic region. The accused's late suggestion that he was targeting only the junction between the lowest cervical vertebra and the first thoracic vertebra was found unconvincing.
However, the prosecution failed on the third and critical element. Neither the inquiry agent's own account nor the expert evidence established beyond reasonable doubt that the patient's cervical joints were actually moved beyond his usual physiological range of motion during the procedure. That element was indispensable to the statutory definition, and without proof of it the charge could not be made out.
The charge was accordingly dismissed. The court also observed that section 123 presents significant practical difficulties for any prosecuting authority: the definition is technically complex, the procedure is brief and easily obscured on video, and assembling evidence sufficient to prove movement into the paraphysical range is inherently challenging.
Orders Made
- The charge against the accused was dismissed.
Key Takeaways
- Under section 123 of the Health Practitioner Regulation National Law (NSW), a prosecution for unlawful cervical spine manipulation requires proof of three distinct elements: a high velocity thrust, a low amplitude thrust, and movement of the cervical joints beyond the patient's usual physiological range of motion. All three must be established beyond reasonable doubt.
- The Local Court accepted that "high velocity" means quick and "low amplitude" means short, reflecting the plain clinical meaning rather than requiring precise biomechanical measurement.
- Proving movement into the paraphysical range (that is, beyond both the active and passive ranges) is the element most likely to defeat a prosecution. Neither lay testimony from the patient nor expert interpretation of video footage was sufficient on the facts of this case.
- This decision is described as a novel prosecution, at least in the NSW Local Court, meaning there was no settled judicial authority on the construction of the definition at the time of hearing.
- The court noted that the statutory definition in section 123(2) is inherently difficult to apply in both clinical and legal contexts, and that Parliament itself had revised the definition on multiple occasions in attempting to capture the relevant procedure accurately.
Legislation and Cases Referenced
Legislation:
- Health Practitioner Regulation National Law (NSW), sections 123(1) and 123(2)
Cases cited: No cases were cited in the judgment.