Top Legal Considerations for Osteopaths in Australia

Author: Zeinab Farhat, Progressive Legal

If you are an osteopath, or an allied health professional, there are a wide range of legal, compliance and regulatory considerations that you must consider in your practice. Allied health professionals are heavily regulated in Australia and as such, understanding key areas of risk and how best to protect your business are imperative to ensure the smooth functioning of your business.  

This article will consider what an osteopath is, the agency/ board that regulates the practice of osteopathy, and the key legal issues to consider as an osteopath.

What is an osteopath?

An osteopath is a government registered allied health practitioner.  

Osteopaths focus primarily on the neuro-musculoskeletal system (i.e. bones, muscles, nerves etc) and offer a wide range of services, including but not limited to: manual therapy, clinical exercise programs etc.

What agency/board regulates the practice of osteopathy?

Osteopathy is a registration-based practice.  

As such, in order to practice osteopathy, you are required to register with the relevant boards. Should no registration be obtained, you cannot use the title of “osteopath”. The five types of registration offered to osteopathy practitioners are: general, provisional, limited, non-practising and student.  

Should you practice with no registration, prosecution may occur with possible penalties of up to $60,000 or 3 years in prison.  

The Health Practitioner Regulation National Law (“National Law”) was enacted in each state and territory and provides a framework for the national boards.

The National Registration and Accreditation Scheme

The National Registration and Accreditation Scheme (“NRAS”) comprises 15 health profession boards (including osteopathy). The Australian Health Practitioner Regulation Agency (“AHPRA”) is the agency which implements NRAS, and works in partnership with these boards to provide (among other things) support and administration services.  

Mandatory standards of registration

In order to remain registered, there are certain mandatory standards which must be met. These are: 

1. criminal history; 
2. continuing professional development;
3. recency of practice; 
4. professional indemnity insurance; and 
5. English language skills  

What are some key legal issues to consider as an osteopath?

As an osteopath, you may have several questions in relation to various areas of law. 

We have pre-emptively outlined some of those questions, and applicable answers below.  

Intellectual property

Q: “How can I best protect my clinic’s brand, including name, logo, taglines etc?” 

A:  You will afford yourself the most legal protection via the registration of a trade mark. it is important to note that mere registration of a business name will not provide you with the exclusive right to use that name in relation to your services. As such, obtaining registered trade marks for your logo, business name etc will allow you to enforce your rights should the need arise.  

Q:  “Can I register copyright for any articles posted on our website?”  

A:  Australia does not have a registration based system of copyright. The author of the copyrightable work will own the work in most cases, unless that person is an employee. In such circumstances, the default is that the employer owns the copyright in the work.  

Commercial and corporate law

Q: “What are the commercial legal considerations for starting my own osteopathy practice” 

A:  From a preliminary point, before you open your osteopathy practice it is best to obtain advice from an accountant regarding the structuring of your business. For example, incorporation as a company offers you far more protection than trading as a sole trader.  

Further, as your business progresses, you want to ensure that you have solid commercial documentation in place such as terms and conditions, disclaimers/ waivers, privacy policies, employment contracts, contractor contracts and so on.  

Q: “How can I ensure compliance with any applicable regulations and legislative schemes?” 

A:  The osteopathy board provides a list of exhaustive codes and guidelines to assist osteopaths in conjunction with APHRA. A list of those codes and guidelines can be found here: https://www.osteopathyboard.gov.au/codes-guidelines.aspx. If you are unclear on how to approach these policies, you should engage a lawyer to assist in advising you accordingly.  

Advertising

Q: “Are there any advertising considerations that I need to be mindful of as an osteopath?” 

A: APHRA provides a guideline for advertising a regulated health service. Further, Section 133 of the National Law establishes the requirements for advertising a regulated health service. Section 133 provides the following regarding what types of advertising are not permissible:  

(1) A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that– 

(a) is false, misleading or deceptive or is likely to be misleading or deceptive; or 

(b) offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer; or 

(c) uses testimonials or purported testimonials about the service or business; or 

(d) creates an unreasonable expectation of beneficial treatment; or 

(e) directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services. 

Maximum penalty– 

(a) in the case of an individual–$60,000; or 

(b) in the case of a body corporate–$120,000. 

(2) A person does not commit an offence against subsection (1) merely because the person, as part of the person’s business, prints or publishes an advertisement for another person. 

(3) In proceedings for an offence against this section, a court may have regard to a guideline approved by a National Board about the advertising of regulated health services. 

As demonstrated by section 133(3), guidelines approved by national boards can be of high evidentiary importance in court proceedings. As such, ensure that you are across these guidelines in your own practice.  

If you are unsure about whether your advertising complies with the National Law, it is best to obtain legal advice.  

From an intellectual property perspective, you must also ensure that your advertising material does not use other people’s copyrightable content or trademarks so as to constitute an infringement of their rights.  

Online presence and digital content

Q: “Can I use social media as an osteopath?” 

A: Use of social media is not prohibited under the National Law.  However, it is important to be mindful of any privacy concerns (i.e. disclosure of information regarding people treated in your clinic) etc. It is also important to be mindful of the code of conduct provided by APHRA, which is also applicable to osteopaths.

Employment

Q: “What are some main considerations I should have in relation to employees?” 

A: Ensure that you have employment contracts in place with your employees that contain all relevant clauses, including clauses pertaining to intellectual property ownership, return of confidential information upon termination, and restraint of trade clauses. Noting however, that the enforceability of a restraint of trade clause will often depend on the facts of each case.  

Generally, the position is that restraints of trade are unenforceable except where that restraint is shown to satisfy the two-tier test of “legitimate protectable interest” and “reasonableness”.  

In New South Wales, the presumption of unenforceable restraints of trade clauses is reversed, and a restraint of trade clause is presumed to be valid under s 4(1) of the Restraint of Trades Act 1974 (Cth) subject to such clause not violating public policy.  

Licensing and franchising

Q: “If I want to franchise my osteopathic practice, what are some considerations that I need to be aware of” 

A: If you wish to franchise your practice, you must obtain legal advice from a franchise lawyer. Franchising is a complex process and there are a wide range of considerations for the franchisor (you) and any franchisees.  

Data Protection and privacy

Q: “What are some measures I should take into consideration regarding the security and confidentiality of patient information?” 

A: Allied health professionals are covered by the Privacy Act 1998 (Cth) as a health service provider. As a health provider, you will deal with sensitive health information about patients on a daily basis. As such, it is imperative that you treat such information carefully. All personal information which is collected during the course of providing a health service is health information under the Privacy Act 1998 (Cth). Such information is classified as “sensitive information” and stricter requirements may apply to dealing with it.  

Key takeaways

Allied health is a heavily regulated industry, with various codes of conduct, practice and guidelines implemented by the national boards and AHPRA.

As such, it is imperative that you are across these as you practice. Likewise, it is equally important to consider other legal issues such as intellectual property protection, business structuring, social media presence, privacy etc.