ACA Massage Therapy story: Analysis of Legal and Ethical Issues raised

Introduction

This analysis is written to satisfy the requirements of the CIT Massage Therapy Practice
course. It discusses issues arising from a story aired on A Current Affair (ACA) which
alleged, among other things, that a massage therapist’s treatment was the primary cause
of a young woman suffering a stroke. This report will discuss the likelihood of these
allegations being true as well as whether or not the massage therapist breached his Duty
of Care obligations. Other subjects that will be touched upon include relevant medico-
legal issues in this case and the issue of Governmental regulation of massage therapists in
Australia.

ACA story

The ACA episode in question details the story of a young woman, Asha Prasad who was
paralysed from the neck down following a cerebrovascular accident (CVA), commonly
known as a stroke. This incident occurred five days after an, “unusually rough” neck
massage and was caused by a ruptured artery in the Asha’s neck. This rupture affected
the blood supply to Asha’s brain, eventually causing an ischemic stroke. The report
implied that the nature of the massage was sufficiently rough to cause this blood vessel to
rupture.

The report then continued in a vein likely to cast serious doubt on the safety of massage
in general, citing an unnamed doctor who apparently stated that, “they see about one case
a month of a massage causing serious injury”.

The CEO of the Australian Association of Massage Therapists (AAMT), Tricia Hughes,
was quoted as saying that more cases of serious injury arising from massage therapy are,
“inevitable unless national guidelines are set”.

Legal Issues

The two main legal issues involve questions of negligence and compensation. If the first
is proven in court then the second is likely to follow.

Negligence is pursued as an action constituting four separate parts: a duty of care, a

breach of this duty of care, either through action or omission, harm being caused and a
causal link between the breach of duty of care and the harm caused.

The first is clearly present in the massage therapist’s actions i.e. he has the responsibility
to adhere to a reasonable standard of care while performing an act that has the potential to
cause harm (the massage). The question of the remaining three aspects being present
would form the basis of a negligence claim.

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It is questionable whether it could be demonstrated convincingly that the practitioner
breached his duty of care (by massaging in a reckless manner) and that a direct causal
link could be established between an overly vigorous massage and the tearing of an
artery. Even the question of whether the harm caused has any link whatsoever to the
massage is drawn into question, with the CVA occurring five days after treatment. The
AAMT Code of Ethics states that all members are,”required to keep adequate and
relevant client records” (section 5.1), this record would also be a useful tool in
determining if the practitioner was negligent in his treatment. It is noted that a necessary
clause that should be included on patient forms should state that any pertinent health
information withheld by the client cannot form the basis of a later complaint.

From the website of seatedmassage (Standard of Care): “Whilst all care is taken,
seatedmassage and its practitioners take no responsibility for any issues arising if
individual health information was withheld from us. Recipients must also take
responsibility for offering any current personal health information to their practitioner.”

If the question of negligence was decided against the therapist then compensatory
damages could be ordered by a court. If the therapist in question was a member of the
AAMT and adhering to its Code of Ethics then he will have current Public Liability and
Indemnity insurance (section 7.2) which should provide sufficient cover for any ordered
compensation.

Ethical Issues

A number of ethical issues need to be considered in this matter. Notably, the questions of
whether the client gave informed consent to the treatment (more specifically the aims of
the treatment) and whether the practitioner gave sufficient consideration to the possible
consequences of the treatment (AAMT Code of Ethics section 4.2).

It is not stated whether the client specifically requested treatment for a specific ailment,
whether the massage therapist inquired about the comfort of the client during the massage
or if the massage therapist had ignored any contraindications to treatment. All of these
issues would need to be addressed before the question of professional negligence could
be resolved. However, the presence of a Client Information sheet detailing the health
history of the client would certainly aid in this determination.

Other Considerations

The ACA story also highlighted the need for nationwide registration of massage
therapists. This, in turn, would lead to tighter regulation of the industry and hopefully, a
standardisation of practice that would reduce the number of massage accidents due to
under-trained therapists or other “cowboy” practitioners.

It could be anticipated that if the industry were regulated then the public perception of it
might lean towards that of a bona fide therapeutic methodology, practiced by accredited
professionals.

Luke Clews Massage Therapy Practice

References

Stewart P, Stuhmke A, 2009 Australian Principles of Tort Law, Federation Press, Sydney

AAMT, Code of Ethics & Standards of Practice, viewed 1/5/2010,

<http://www.aamt.com.au/docs/About/AAMTCodeEthics&StandardsPractices.pdf>

Pagura I, 2004, Code of Ethics and the Massage Therapist, viewed 1/5/2010
<http://www.massagereferences.com/articles/Code_of_Ethics.pdf>

seatedmassage, 2009, Standard of Care, viewed 1/5/2010

<http://www.seatedmassage.com.au/default.asp?action=article&ID=179 >

Luke Clews Massage Therapy Practice