Charge

The Director of Proceedings (DP) brought two charges against Dr Sean Michael Parker (the chiropractor).

Charge 1

1. Between 11 April and 27 April 2007 the chiropractor failed to adequately:
   • Assess his patient's presenting injury to her elbow; and/or
   • Document his assessments; and/or
2. On 11 April 2007 the chiropractor recommended that his patient undertake a radiograph without any supporting clinical reason; and/or
3. Between 16 April and 27 April 2007 the chiropractor;
   • misrepresented the seriousness of his patient's condition and/or findings of his patient radiograph; and/or
   • recommended his patient to enter into a prolonged course of treatment which was not supported by clinical findings and/or his patient's radiograph report; and/or
   • failed to provide his patient with sufficient information about the prolonged course of treatment that he was recommending; and/or
4. Between 11 April and 27 April 2007 the chiropractor recommended that his patient enter into a prepaid prolonged treatment scheme that was contrary to the New Zealand chiropractor Board's Code of Ethics; and/or
5. Between 11 April and 25 January 2008 the chiropractor placed undue pressure on his patient to:
   • Continue with a prolonged course of treatment which was not supported by clinical findings; and/or
   • pay for a prolonged course of treatment which was not supported by clinical findings; and/or
   • pay for a prolonged course of treatment after his patient had declined to continue with it.

The DP charged that the particulars, either separately or cumulativley, amounted to professional misconduct.

Charge 2

1. On or about 27 April 2007 the chiropractor entered into a prepaid treatment scheme with Patient E that was contrary to the New Zealand chiropractor Board's Code of Ethics; and/or
2. The chiropractor failed to adequately document the care that he provided to Patient E.

The DP charged that the particulars, either separately or cumulatively, amounted to professional misconduct.

Finding

The chiropractor accepted that his actions as particularised in each charge, amounted to professional misconduct.  The Tribunal was satisifed that all the particulars, in both charges were made out and the chiropractor was guilty of professional misconduct.

Background

Charge 1

Following an elbow injury, the Patient attended for a consultation with the chiropractor.  The Patient had never previously sought assistance from a chiropractor for any injury.

At her first appointment, the chiropractor asked the Patient to sit on a plinth.  He then walked around and observed her, he did not examine her elbow or look at it.  The chiropractor questioned the Patient about previous spinal injuries to which she advised she had never had any neck or spinal injuries.  The chiropractor recommended that the Patient have a full spinal x-ray.  He did not explain why one was required.  The Patient asked about her elbow and the chiropractor said that he would get to that later but wouldn't deal with it then and there.  The chiropractor made brief notes in the Patient's clinical notes, but it was unclear from the documentation what his findings were.

The chiropractor told the Patient to get an ACC form so the x-ray would be covered by ACC.  The Patient spoke with the receptionist, about filling in the form as she was concerned that the x-ray was for her back, not her elbow and she would be charged for the x-rays.  The receptionist suggested that the Patient describe her elbow injury to include her back as then the Patient would be eligible for ACC.  The chiropractor, at this time, was not listed by the chiropractor Board as able to treat extremities and the only avenue into the ACC scheme was to record a spinal injury.

The Patient had a full spinal x-ray and the accompanying reports were all noted as "unremarkable".

After looking at the x-rays, the chiropractor told the Patient that the burrs on her spine were very serious and the beginning of arthritis.  He described how her spinal injury was severe.  The Patient told the chiropractor that she didn't think the x-ray or the report was that bad as it referred to her spine as being "unremarkable".  It seemed to the Patient the more she mentioned this, the more the chiropractor emphasised how serious it was and he pressured her to do something about it.

The chiropractor went through a form with the Patient called the "Health Investment Work Sheet" which set out three options.  Option A was a six month deep treatment programme with guaranteed results and it was described as "The Best structural correction available at the Spinal Health Foundation.  It is a completely specialised biomechanics correction protocol. Unique and effective, it corrects more than is possible with any other approach!" The cost of this programme was $3,700 payable upon commencement of treatment and was recommended by the chiropractor.  The chiropractor also told the Patient that finance was available through a finance company.  The Patient advised the chiropractor this was a lot of money and she would not continue with treatment.

That evening she received a phone call from the chiropractor asking why she was not going ahead with the treatment.  The chiropractor reitereated that she had severe spinal degeneration and would be in a wheelchair in a year if she didn't do something about it.  When she reminded the chiropractor about her lack of funds he told her that she needed to start the treatment immediately.  The Patient felt pressured by the chiropractor and agreed to another appointment with him in a few days time.

At the next consulation the chiropractor asked her to sign a contract and the total fee was $3,700.  At the time the Patient felt pressured and signed the document.  The chiropractor encouraged the Patient to pick up the papers from the receptionist to get finance for the treatment.

After discussions with her partner, the Patient phoned the chiropractor's clinic and advised that she would not be continuing with treatment as she could not get finance.

The Patient received a further phone call from the chiropractor asking why she had not been in for her treatment.  The Chriorpractor tried hard to persuade her to continue her treatment programme.  He told her that the Trustees did not accept she could sign an agreement and then just walk away from it.

The chiropractor saw the Patient again at the clinic when she had taken her mother there for an appointment.  He approached the Patient and told her that the Trustees did not accept her cancellation and she should continue with the treatment.  The chiropractor became distressed and angry with a raised voice and paced about the room.  The Patient was concerned as there was a waiting room full of patients and she thought the matter ought to be resolved elsewhere.  The Patient said that the chiropractor seemed oblivious to everything else, except threatening her with the consequences of not continuing treatment and legal action if she did not continue

The Patient then received an invoice for $3,700 from the Chriopractor and a threat to seek recovery from Baycorp.  She wrote to the chiropractor setting out her understanding of eveything that had happened and explained that she was not able or willing to pay for treatment she did not wish to have.

The patient received a reply from the chiropractor's lawyer offering settlement if she paid $1000 within 7 days, otherwise District Court proceedings would commence.  Her reply was that they would be taking the matter to the chiropractic Board.

The Patient was later served with a Statement of Claim on behalf of Certified Spinal Health Foundation Associates Ltd seeking recovery of $2,960 and interest on the sum at a rate of 7.5%.

Following contact with the chiropractic Board, she made a formal complaint to the Health and Disabliity Commissioner (HDC) on 27 September 2007.  The Patient received a letter in January 2008 from the chiropractor proposing resolution of the matter by him writing off the $3,700 and an assurance from him that he would take no further action against her if she withdrew her complaint to the HDC.

Charge 2

In March 2007 Patient E had an accident at his work which resulted in him experiencing severe neck pain which went down his left side and arm.  An orthopaedic surgeon diagnosed a loss of disc height and a discal bulge between the C5 and C6 vertebrae and recommended surgery.  Patient E was reluctant to undergo surgery.

Patient E saw an advertisement for the chiropracor who arranged for spinal x-rays.  Patient E explained his neck problem and the Diagnosis he had received.  The chiropractor told Patient E that he had neck surgery and it was a waste of time, and that he could fix his injury with a few visits.

The chiropractor did not ask any details about Patient E's history.  He did ask how the accident hapended and in the clinical notes the chiropractor made dashes next to physical examination tests except for two which were crossed out.  The annotations which are on the notes were of limited assistance in determining Patient E's clinical status at the time of the exam.

At the second appointment the chiropractor told Patient E that he was between 'phase 2 early" and "phase 2 late" of progressive spinal degeneration.  The chiropractor emphasised how bad Patient E's spine was and how it was going to degenerate.

At this appointment the chiropractor discussed treatment options incluidng a long-term prepaid plan at a cost of $3,700.  This was the same option that the chiropracor had recommended for Patient in charge 1 above.  The chiropractor produced forms for Patient E to obtain finance for the treatment.

Patient E spoke with the receptionist and said he really couldn't afford it and she told the chiropractor that he was not going ahead with the treatment. The chiropractor came out of his room and pressured Patient E to go ahead with the treatment and told Patient E that he would soon be back at work.  Patient E then signed the form and entered into the pre- paid treatment plan financing through a finance company.  After 3 or 4 treatments Patient E was dissatisfied with the short time that was being spent on the treatment and the focus on his posture rather than his neck where the pain was.  He phoned and spoke to the receptionist and told her that he did not want to continue with the treatment and cancelled his finance agreement with the finance company.

The chiropractor phoned Patient E at home that night and convinced him to continue with the treatment and that there was nothing for Patient E to worry about that he would be able to fix his problems quickly.  Patient E found the chiropractor very convincing and persuasive so he agreed to carry on with the treatment.

The chiropractor continued to work on Patient E's posture which did not help the pain or discomfort in his neck.  Patient E again became dissatified when the chiropractor reduced his appointments to less than three times a week and there had been no improvement.  Every time Patient E complained about the pain the chiropractor would tell him it takes three months for any improvement.

In July 2007 Patient E rang to cancel the appointment and discontinue treatment.  The chiropractor encouraged Patient E to continue but Patient E was adamant that he did not wish to continue.  Patient E advised the chiropractor in writing on 21 July that he was cancelling his finance contract and asked that the balance of the $2,076 be repaid to the finance company.

The chiropractor wrote to Patient E on 06 Augst 2007 and advised him that there was no provision in the contract for patient E to change his mind and noted that Patient E had failed to meet his obligations to attend as required for the prescribed course of treatment.

A Disputes Tribunal hearing followed and ruled in the chiropractor's favour.  The Disputes Tribunal noted that it was a contractual issue and any ethical or professional issues were matters for the relevant Board or Authority.

Reasons for Finding

Charge 1

The Tribunal noted that it was quite inappropriate to focus on spinal issues, without assessing adequately or at all, the problem with which the patient presented.  The Tribunal concluded that the documentation did not meet the appropriate standards, and would be considered a severe departure from accepted standards.  The Tribunal was very satisfied subparticulars 1(a) and 1(b) were established.

When considering particular 2 an expert said there was no evidence in this case to support the ordering of a full spinal x-ray, and, the chiropractor failed to demonstrate justification for ordering one.  The expert concluded that ordering a full spinal x-ray without sufficient clinincal justification was contary to accepted practice and would be viewed with severe disapproval by peers.  The Tribunal accepted the expert evidence both as to applicable standards, and as to the conclusions to be drawn from their application in this instance.

The Tribunal accepted tht the proposed treatment plan was clinically unnecessary and not based on true patient need.  The chiropractor exploited his position of power and trust.  The Tribunal considered such a breach would be viewed with severe disapproval by peers, and seen as a serious departure from accepted practice.  Subparticular 3(b) was estabished.

The Tribunal considered adequate information is essential for informed consent.  The Tribunal accepted the expert's evidence about the type of information a competent chiropractor would provide to a patient when proposing a treatment plan. It should include:

• A plausible diagnosis or assessment.
• an explanation for the rationale for examinations and why an x-ray was necessary.
• explanations for the reasons why the proposed treatment is needed with relevant clinical assessments and examinations to substantiate those reasons.
• offfering and discussing alternative options and associated risks.
• the general overview of  how the care would progress and expected goals and how they would be measured; and
• an explanation of how the care plan may need to change or be re-evaluated or modified.

The Tribunal found that the chiropractor failed to provide this information to the Patient and his actions fell below the accepted standard of a competent chiropractor and would be viewed with severe disappproval by his peers.  The Tribunal noted statements in the "Health Investment Work Sheet" were misleading as there was no evidence to support the assertion that the services were 'unique' or offered the "best structural care in New Zealand" or that there was specialised knowledge found only at the "Spinal Helath Foundation".  The Tribunal found that these statements were likely to appeal to a patient's fears, anxieties and emotions.  They clearly did not assist the informed consent process because they were not based on fact, and did not provide necessary information to the patient.  The Tribunal considered these factors enhanced the seriousness of established subparticular 3(c).

The Tribunal found particular 4 was established.  It considered the chiropractor breached the Code of Ethics regarding prepayment schemes in the following ways:

• There was no seven day "cooling off" period.
• There was no explanantion as to whether the payment was time based or based on the number of visits.
• Patients must be allowed to withdraw at any time yet the contract made it clear he considered she was not entitled to withdraw.
• There was no clinical justification for prolonged treatment.
• He pressured and coerced the patient into entering a contracted treatment plan.

The Tribunal found in the facts that all three subparticulars of particular 5 were established and that his actions fell significantly below accepted practice.

The Tribunal considered each indiviudual particular involved serious, and in some instances very serious departures from accepted practice.  It concluded that each particular warranted discipline.  It therefore followed that when the particulars were considered cumulatively the Tribunal found discipline was warranted.

Charge 2

The Tribunal accepted the evidence of the expert and found particular 1 was established and discipline was warranted.  The Tribunal was satisfied the chiropractor had breached the Code of Ethics regarding prepayment schemes in the following ways:

• There was no seven day "cooling off" period.
• There was no explanation as to whether the payment was time based on the number of visits.
• The patient thought he would be entitled to a refund when he elected not to continue the treatment.  Patients must be allowed to withdraw anytime yet the correspondence made it clear the chiropractor considered the Patient was not enttitled to withdraw and he refused to give the patient a refund.
• The programme was not tailored to fit the patient's needs.
• The patient was pressured and coerced into entering a contracted treatment plan.

The Tribunal was satisfied there were multiple deficits in the record and therefore particular 2 was established.  The Tribunal was satisfied discipline was warranted in this particular.

The Tribunal considered the two particulars cumulatively and found there were very significant issues which warranted discipline.

Penalty

On each charge the following penalties were imposed and they were ordered to run concurrently:

• The chiropractor was suspended from practice for a period of 18 months and he was censured.  The Tribunal ordered the chiropractor to pay $3,000 towards the costs of the DP, and $2,000 towards the Tribunal's costs.
• The Tribunal ordered that on resumption of practice, the chiropractor must satisfy the New Zealand chiropractic Board (the Board) that he has undertaken training and can demonstrate competence in fundamental chiropractic assessments and examinations, risks associated with the routine use of -rays and the appropriate assessments needed prior to ordering them; informed consent ethics and provision of information to patients; patient centred practice; ethical business practices for chiropractors; and ethics generally.
• The Tribunal further ordered that on resumption of practice the chiropractor is to produce a full and detailed assessment of his mental health condition from an independent psychiatrist nominated by the Board.
• The Tribunal further ordered that on the resumption of practice, the chiropractor be supervised for 18 months by a Board appointed supervisor.  Following the supervision, the chiropractor's caseload is to be monitored by the supervisor for a further 18 months.