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Director of Proceedings v O'Malley - Caregiver

Human Rights Review Tribunal, HRRT No: 81/07

On 2 February 2009 the Human Rights Review Tribunal held that Mr O'Malley had breached the Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996 (the Code). In particular they upheld a breach of Right 1(1), the right to be treated with respect, Right 2, the right to freedom from discrimination, coercion, harassment and exploitation, Right 3, the right to dignity and independence, and Right 4(3), the right to services of an appropriate standard. These breaches related to Mr O'Malley's action while employed as a caregiver of Mr A, a young man with significant disabilities.

Mr A was born with a chromosomal disorder which manifests itself in intellectual, learning and developmental difficulties. Mr A was also diagnosed as being on the autistic spectrum; he experienced significant difficulties in communication, social interaction and functioning. He struggled to interpret and understand the feelings he experienced, and to know how to react to them appropriately. Mr A was susceptible to suggestion, which meant that it was easy to take advantage of him.

In addition, Mr A had suffered head injuries, had low self-esteem, and suffered from depression. He had expressed suicidal thoughts and could be aggressive and violent. Mr A had been sexually abused by another man when he was 14 years of age.

When Mr A was 17 years of age he moved out of his mother's home and into a flat, where he was supported to live independently by caregivers, including Mr O'Malley. This care was intended to provide support to assist Mr A to achieve independence through home care, house management and personal care.

Mr A developed a relationship with a young woman, Ms B, who came to stay with him at his flat. Mr A and Ms B were not, however, in a sexual relationship. Mr O'Malley spent time with both Mr A and Ms B at Mr A's flat, and indulged in sexualized acts with Mr A and Ms B (including but not limited to sexualised "dares" and procuring Ms B to perform oral sex on him while Mr A was watching) when he (Mr O'Malley) was meant to be providing Mr A with disability services. Mr O'Malley also encouraged Mr A and Ms B to participate with him in games of a sexual nature, and to watch pornography with him, and talked about sex and women with Mr A in an inappropriate and derogatory way.

There was evidence from another caregiver and from Mr A's mother of the effect of these events on Mr A. He became suicidal and his behaviour regressed, and he became very depressed.

Tribunal decision

The Tribunal held that there was no doubt that Mr A was amongst the most vulnerable of people, and Mr O'Malley, as a caregiver, was in a position of great trust. One significant result of the events was that Mr A's first attempt at independent living failed in the most regrettable of circumstances.

The Tribunal ordered that Mr O'Malley pay compensatory damages of $20,000 to Mr A for the harm and distress his acts caused him, and exemplary damages of $10,000. The Tribunal also made a declaration of a breach of the Code and ordered that Mr O'Malley pay costs of $10,000.

The Director brought this case in order to vindicate the consumer's rights and recover compensation for him. These objectives were achieved without the consumer himself having to give evidence. The case should send a strong deterrent message against sexual exploitation of vulnerable consumers.

The Tribunal's full decision can be found at: http://www.nzlii.org/nz/cases/NZHRRT/2009/2.html