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Directorof Proceedings v Douglas - Neuro-Muscular Therapist

Human Rights Review Tribunal, HRRT No: 13/09 and 14/09

The Director of Proceedings brought a claim in the Human Rights Review Tribunal on behalf of two aggrieved persons against Mark Douglas, a neuro-muscular therapist. Both cases proceeded by way of a declaration based on an agreed summary of facts, other relief claimed having been resolved between the parties. By consent, the Human Rights Review Tribunal made a declaration that Mr Douglas breached the Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996 (the Code) when treating the complainants in each separate case.

Complainant A (HRRT13/09)

This case involved a 14-year-old girl who sought massage therapy for foot pain following a bunion operation. The claim alleged a breach of Right 4(2) (the right to have services provided that comply with legal, professional, ethical and other relevant standards), Right 6(2) (the right to information that a reasonable consumer in that consumer's circumstances needs to make an informed choice or give informed consent), and Right 7(1) (services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent) of the Code.

The claim essentially was that Mr Douglas failed to adequately explain where he intended to massage Ms A, and did not provide adequate explanations of his proposed treatment. Consequently, when Mr Douglas massaged Ms A in her upper thigh area and in her inner groin area, she felt confused and upset. She did not understand why he was massaging her in this area. Ms A did not have sufficient information upon which to decide whether or not she consented to the treatment because Mr Douglas failed to explain what he intended to do and he used language that she did not understand. The technique employed by the defendant when massaging Ms A was not the most appropriate for the condition she presented with.

The Tribunal made the orders sought.

Complainant B (HRRT 14/09)

This case related to the care provided by Mr Douglas to Ms B, who presented with pain and stiffness in her neck and shoulder. Again it proceeded by way of an agreed summary in which Mr Douglas acknowledged that his conduct constituted a breach of Right 4(2), Right 6(2) and Right 7(1) of the Code. Ms B attended two appointments for massage treatment with her husband present. At the third appointment her husband was not present. At this appointment Mr Douglas asked Ms B to lie on her back on the hydraulic massage table with her arms positioned on the table above her head and with her back arched. He asked Ms B if he could lower the towel but did not explain how low he intended to lower it. He proceeded to lower the towel fully exposing both her breasts, and left her exposed in this way while he prepared massage oil and then massaged both her breast areas. During the massage of the breast area Mr Douglas touched Ms B's nipples and cupped her breast. Mr Douglas stated that the touching of the nipple was accidental. He did not provide Ms B with adequate explanations of the proposed treatment, including where, why or how he intended to massage her. She was not able to provide informed consent. The technique employed by Mr Douglas was inappropriate for the condition Ms B presented with, and it was unacceptable for Mr Douglas to expose both Ms B's breasts in this manner or to touch her nipples.

The Tribunal made the orders as sought.

Both cases can be found at http://www.nzlii.org/nz/cases/NZHRRT/2010/4.html