Australian Health Practitioner Regulation Agency v Black [2015] NSWLC 9 records a prosecution for breach of section 123(1) of the National Law:

123   Restriction on spinal manipulation

(1)  A person must not perform manipulation of the cervical spine unless the person—

(a)  is registered in an appropriate health profession; or

(b)  is a student who performs manipulation of the cervical spine in the course of activities undertaken as part of—

(i)  an approved program of study in an appropriate health profession; or

(ii)  clinical training in an appropriate health profession; or

(c)  is a person, or a member of a class of persons, prescribed under a regulation as being authorised to perform manipulation of the cervical spine.

Mr Black did not contend that he was registered, or that he was a student in an approved program of study, or that he was a person otherwise prescribed under regulation as being authorised. Rather he asserted that what he performed on a patient was not a manipulation as defined.

Necessarily, this judgment became a decision about whether the accused performed a “high velocity, low amplitude thrust” to the cervical spine beyond the person’s usual physiological range of motion:[4] The procedure had been covertly recorded by the patient.

At [42] the court concluded that Section 123 of the National Law requires that the manipulation be one in which there is movement beyond the person’s normal physiological range. The prosecution was not able to prove this aspect beyond reasonable doubt.

The court commented at [34]: is …evident that there are inherent difficulties in utilising a layperson to garner evidence of a professional procedure. In particular, a procedure that is governed by a statutory definition, and which introduces its own complexities. This is not the situation in which you send a punter into a brothel to determine whether certain services are being offered. In this case, it is not only a question of whether it is a chiropractic service, but further whether it is a service that comprises a manipulation of the cervical spine using a particular procedure that has a specific statutory definition which refers back to clinically understood manoeuvres. This is the realm of the qualified expert, and short of sending such an expert onto the patient’s table, or of extracting certain concessions from the errant practitioner, it is difficult to envisage how a breach of s 123 of the National Law might be successfully prosecuted.

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