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DP v Huang
Human Rights Review Tribunal, 1 December
2003
The Human Rights Review Tribunal, in its decision of 1 December
2003, made a declaration pursuant to s 54(1)(a) of the Health and
Disability Commissioner Act 1994 that Wellington acupuncturist
David Huang had breached Rights 1(2), 4(2), 6(2) and 7(1) of the
Code. In a further decision, dated 22 November 2004, the Tribunal
declined to make a restraining order pursuant to s 54(1)(b), but
under s 54(1)(c) it awarded compensatory damages to the complainant
for humiliation, loss of dignity, and injury to feelings, in the
amount of $6,500. The claim for exemplary damages was declined. The
complainant's name has been permanently suppressed, but Mr Huang's
application for name suppression was declined.
The complainant had sought treatment from Mr Huang for muscular
tension in her back and shoulders, and between 19 March and 9 May
1999 she attended a number of consultations. At the first
appointment, she understood that she was required to be naked from
the waist up. Upon seeing that she had removed her bra, Mr Huang
did not inform her that that was not necessary. At that appointment
and subsequent ones, the complainant continued to remove her
clothes and her bra for the purpose of treatment. The Tribunal
found that Right 1(2) was breached, but observed that because of
the fact that she was covered by a towel it was not satisfied that
she had suffered any particular humiliation, loss of dignity, or
injury to feelings in relation to the breach alone.
During the last two appointments, however, while the complainant
was lying on her back, the towel slipped and the complainant's
breasts were exposed for a significant period. The Tribunal found
that Right 1(2) had further been breached.
In the course of massaging the area of the complainant's breast
at the final appointment, the defendant touched the complainant's
nipple. While the Tribunal was not satisfied that there was any
element of sexual gratification involved in this incident, it found
that Mr Huang did not provide the complainant with sufficient
information upon which she could make an informed decision as to
whether she wanted treatment. Accordingly Rights 4(2), 6(2) and
7(1) were breached for a failure to obtain informed consent.
Restraining Order
The Tribunal was not persuaded that there was any need to fame a
restraining order in terms that are so wide that the order says
nothing more than that the defendant must comply with the Act and
Code. In particular, there was no evidence of any other similar
complaint, or that there had been a further breach of the Code. The
Tribunal accepted the defendant's evidence that his knowledge of
the Code had increased as a result of this case, and there was no
reason to be concerned that in future he was any more likely to
breach the Code than any other health provider. The delay between
the events and the hearing was also a factor. Finally, the Tribunal
queried the practical effect of a restraining order should a
defendant later breach the Code.