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The danger of outdated definitions

I LEARNT something interesting this week: judges “use dictionaries all the time to define words, rather than experts in the field. The idea is that in the law, you have to use the plain meaning of the word…” (Alison Tilley, responding to an email sent to JudgesMatter)

I’ve been following a matter under litigation that relates to what professional titles actually mean, because I edit a magazine for the South African Society of Physiotherapy. Physiotherapy is, as you’ll know, one of the medical professions governed by the Health Professions Council of South Africa – along with dentists and family physicians and psychologists and medical technologists.

Like all the other registered professions, physiotherapists have to be able to prove that they have done the required education and training (in their case, a four-year university degree) before registering, and their registration remains contingent on proving lifelong that they engage in continuing professional development.

As you’d expect, right? Medical professionals, first-line practitioners like physiotherapists who don’t need a referral to see a patient, will be dealing with our lives, our health – patients need some regulated guarantee that they are qualified and competent.

The litigation revolves around who may use the title, ‘physiotherapist’. Can anyone who does a few months, maybe a year, of training in some physiotherapy techniques call themselves a ‘physiotherapist’ after qualifying – or should we as a country expect that the term has a real and quantifiable meaning in terms of qualifications and liability, which will protect patients from poor or dangerous practice?

In late December, there was occasion to ask a court for an interdict to stop another profession calling themselves physiotherapists. The interdict application was heard by Judge Weinkove, with a written judgment dated January 5 2017.

And yes, that’s the very same Acting Judge Leslie (AJ) Weinkove who would, in February, become the subject of news stories for some rather ill-judged comments he made about applicants in the Bromwell Road case. (Remember, he said of people who were upset that they’d be removed from their Cape Town homes, to be resettled on some windswept stretch of doer-and-gone land: “What’s the point of being near a school? What’s the point of them being near transport? Where are they going to go?”)

The judge’s decision in the interdict was based in part on something I consider a trifle shaky, a dictionary definition. He wrote: “Chambers Dictionary describes ‘physiotherapy’ as originating from the Greek language and means ‘treatment of disease by remedy such as massage, fresh air, electricity rather than drugs (1983 edition)’.”

1983 edition? 34 years ago? No wonder it sounds so quaint, so like a Scandinavian health fad from the late 19th century: “I prescribe a vigorous deep tissue massage, followed by some shock treatment and a brisk hour-long walk in the snow.” I bet it’s not your ‘plain’ understanding of physiotherapy either, right?

I happen to have a similarly aged edition of Chambers, a proud purchase by a young English student that still contains, pressed between its pages, a flower given to me long ago. Sigh.

So I thought I’d look up some things.

A computer, back then, was a “calculator: a machine or apparatus, mechanical electric or electronic, for carrying out, esp. complex, calculations, dealing with numerical data or with stored items of other information...”

Photography was “the art or process of producing permanent and visible images by the action of light or other radiant energy on chemically prepared surfaces”.

My own profession, journalist, was “one who writes for or conducts a newspaper or magazine,” which would exclude radio, TV and this online publication!

Careers and concepts that weren’t even in the dictionary at that time: social media manager, sustainability consultant, or nuclear medicine technologist. ‘Renewable’ was simply the adjective for the word renew, which meant to renovate, transform or make again. Climate change didn’t appear; rap was something you did on a door; frack was Scots for eager or lusty.

Things change radically in the space of three decades; should we be happy to accept a dictionary definition from 1983 as in any way the basis of a legal decision today? By the 21st century, Chambers’ physiotherapy definition had changed to something marginally more like the actual practice:

“… treatment of injury and disease by external physical methods, such as remedial exercises, manipulation or massage, rather than by drugs or surgery.”

Merriam Webster’s definition also includes the crucial concept of “restoration of movement and physical function”, and “patient education and training”.

So perhaps judges could seek modern definitions from at least three dictionaries, then?

Or could we, should we, expect that that the good judges take counsel from online sources that have credibility in the field, whether health or another (it takes two minutes, really)? The World Health Organisation, for example, begins its definition of physiotherapy thus:

“Physiotherapists assess, plan and implement rehabilitative programs that improve or restore human motor functions, maximize movement ability, relieve pain syndromes...” (More here – and note the training requirements given; that’s what I want to know when it comes to health professionals, how qualified do they have to be!)

Think about your profession or your role in an organisation: would you be happy for some ancient definition thereof to be used as the basis for a legal decision? Time to rethink this, I believe. Any judges care to respond?

* Mandi Smallhorne is a versatile journalist and editor. Views expressed are her own. Follow her on Twitter.

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