AJCC April 2001


April 2001
Click Here to go Back to CBP® OnLine

Activator and Other Mechanical Adjusting
Devices Ruled Illegal.
X-Ray next?

by Chris Colloca, BS, DC

Imagine being disciplined by your own association, fined and having to reimburse your Government insurance for adjusting patients with an instrument. This type of persecution has become a reality for Dr. Brian Thompson and Dr. Robert Simpson ever since they were charged and fined by their own association for adjusting patients with the Activator Adjusting Instrument (AAI). Paying fines and attorney fees approaching $100,000 to practice their chosen technique, they were joined by 13 other chiropractors in 1996 who sued their provincial association, the Chiropractic Association of Saskatchewan (CAS) on the basis of unlawful interference with economic relations, abuse of public office, intimidation, and injurious falsehood. The roller coaster legal battle that ensued over the course of four years ultimately found in favor of the CAS - a wake-up call to all chiropractors who don't believe that they need to be politically active in their profession.

BACKGROUND.

The dispute in Saskatchewan arose from the use of the AAI to treat patients in the province - a no-no in Saskatchewan that stems from a 1977 bylaw prohibiting its use as a substitute method of manual chiropractic adjustment that was later adopted in The Chiropractic Act (1978, 1994). Leaders of the CAS took steps to end the practice of instrument adjusting in the province. The Plaintiffs alleged that the CAS advised the Canadian Chiropractic Protective Association (CCPA) that the use of Activator technique was prohibited. The CCPA, in turn, advised the plaintiffs that the use of an Activator could result in cancellation of their liability insurance thereby jeopardizing the plantiffs ability to carry on the practice of chiropractic. The CAS further advised the Injuries Department of Saskatchewan Government (SGI) that Activator was prohibited, and subsequently SGI would not pay for services rendered involving the use of Activator. SGI was further instructed to report any billing for treatment involving the use of the AAI to the CAS for disciplinary purposes.

As reported, SGI demanded repayment from some of the Plaintiffs for services involving the use of Activator and threatened that if repayment is refused those PlantiffÕs SGI billing numbers would be cancelled. The Plaintiffs subsequently satisfied demands for repayment by SGI and further alleged that these activities not only interfered with their economic relations, but also affected the professional reputation of the doctors. They further argued that if the use of Activator technique has been prohibited or made illegal through the enactment of the CAS bylaws and regulations, then its prohibition has been procured by a willful and malicious abuse of power and public office by the CAS for the purposes unrelated to the legitimate purpose of regulating the practice of chiropractic under the Act in the public interest. The case went before the QueenÕs Court in February, 1999.

The Day in Court.

Having been called in for expert testimony, I provided a review of chiropractic techniques, clinical guidelines and research on Activator demonstrating its benefits to the hundreds of thousands of patients receiving this form of chiropractic care in my testimony. I discussed the benefits of using instruments to adjust the spine - the biomechanical and physiological responses that occur during Activator adjustments, and research comparisons among chiropractic techniques. For the defense, two other chiropractors from Saskatchewan testified that there were limitations to the research that I presented, and that they continued to hold the belief, in spite of the new research that I presented, that Activator lacked the evidence in their opinion to be worthy of reversing the bylaw banning its use for chiropractic adjustment.

After reviewing all of the evidence, the Judge made his ruling. The court dismissed the PlaintiffÕs action. In doing so, however, the Judge found that there was a significant amount of evidence demonstrating the utility of Activator technique, and that it may well be more beneficial to patients as an alternative chiropractic technique of choice. He further found that there was no evidence which fairly supported the proposition that Activator Technique was ineffective. As well, the Judge found that there was a Ôcomplete dearth of evidenceÕ that would suggest that Activator Technique had any negative attribute or posed any potential threat as a chiropractic adjustment, as opposed to a chiropractic adjustment by hand. Inasmuch, the PlaintiffÕs succeeded in demonstrating an entitlement to the use of the Activator that acted to overturn the bylaw that disallowed the use of Activator in the province.

But Wait - An Appeal.

By a slim margin (three votes) the CAS decided to appeal the JudgeÕs decision. The association argued that the JudgeÕs decision exceeded the scope of the action stating that the bylaw Ôwas well within the powers of the Association to enact and is therefore valid.Õ In February, 2001, The Court of Appeal agreed with the CAS and overturned the JudgeÕs ruling once again making the use of Activator illegal in Saskatchewan. Attorney for the defense, Jim Ehmann was quoted as stating, ÔIndividual members of a profession who are looking to bring about changes in the regulations or rules, whatever they may be, need to go about it by gathering evidence and convincing their professional colleagues in accordance with the democratic processes of their own profession (Cowan P. Saskatchewan News Network).Õ Indeed, Saskatchewan chiropractors desire to foster such discussion within the CAS.

Despite the CASÕs assertion that they will review new evidence in regard to Activator, in my testimony I provided over 50 papers in support of its use - papers which demonstrate the biomechanical and physiologic effects of the Activator adjustment, RCTÔs comparing Activator to other techniques demonstrating no difference in patient outcome, and numerous other case reports, observational studies, and basic science evidence. Even the Mercy (U.S.) and Glenerin (Canada) Guidelines were put into evidence - both giving Activator an acceptable rating. One has to wonder just how much research is necessary for the CAS to allow Activator. Is their opinion based upon comparing the scientific evidence of Activator to other acceptable methodologies - or more of a personal bias among some of its leaders? Could this be a chiropractic ethnic cleansing to shape a certain style of chiropractic practice in Saskatchewan?

WhatÕs Next - X-Ray Ban?

Although the Plaintiffs desire to take their case to the Supreme Court of Canada, they are pretty distraught over the most recent verdict. Just recently, it has been reported that the Investigation Committee of the CAS has filed a suit against nine Saskatchewan chiropractors (some of which whom are involved in the case discussed herein) for “ordering x-rays of their patients with excessive frequency exposing such patients to unnecessary health risks.” “The Investigation Committee is of the opinion that on the basis and nature of the case, each of the Respondents should be prohibited from ordering x-rays pending the outcome of the investigation and any hearing before the discipline committee.” In the complaint, the Affidavit of chiropractor Dr. Alexander Grier states, “In my opinion, x-rays should be taken only to confirm or rule out pathology with the affected region.” The defendant chiropractors have now retained legal counsel to defend their right to take x-rays that they believe are clinically indicated in the management of their patients.

A Call To Action.

The chiropractic profession has struggled for a long time to gain acceptance with the public and the other health-related professions. This acceptance must be vigilantly protected. The last thing the chiropractic profession needs is for professional associations to denigrate and outlaw accepted techniques -

techniques such as Activator that are not only reviewed and rated in International Professional Guidelines, but are also taught in accredited Chiropractic Colleges and Post-Graduate educational coursework. In this action, the CAS is opening the door to the critics of chiropractic and undermining the practice of chiropractic everywhere. For example, after the decision of the Saskatchewan Court of Appeal, the London Free Press, of London, Ontario, Canada ran an article entitled ÔChiropractors Using Questionable Devices.Õ The article further stated that many Canadian chiropractors are treating patients, including children, with what it called Ôillegal devicesÕ such as the Activator. Articles such as this are of grave concern to all chiropractors.

The chiropractic profession as a whole has a duty to put pressure on the CAS to stop undermining widely accepted and legitimate chiropractic practice. Chiropractors who wish to help in this cause should write letters of support which could be forwarded to the Saskatchewan Minister of Health. Letters and financial contributions to offset costs including legal fees for the brave Saskatchewan chiropractors who stood for their beliefs may be sent to Dr. Brian Thompson at