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Source: MIL-OSI Submissions

Source: Health and Disability Commissioner

The importance of seeking clear informed consent before undertaking treatment was highlighted in a decision by Deputy Commissioner Carolyn Cooper, who found an acupuncturist in breach of the Code of Health and Disability Services Consumers’ Rights (the Code).
A woman saw an acupuncturist for acupuncture, massage, and cupping treatment. The woman was partially undressed for the treatment, and was alone in the treatment room with the acupuncturist. The treatment provided was not what the woman was expecting, and she claimed that the acupuncturist rubbed his body against her inappropriately, but the acupuncturist denied this and said any contact with the woman was inadvertent.
Ms Cooper considered that the acupuncturist did not adequately inform the woman about his intended treatment. Without adequate information, the woman was unable to make an informed choice and give informed consent for the treatment.
While Ms Cooper accepted that some part of the acupuncturist’s body came in contact with the woman’s hand, she was unable to determine whether or not the contact was deliberate, and what part of the acupuncturist’s body was involved. However, she had concerns with the acupuncturist’s use of draping to protect the woman’s dignity and privacy, and that he made a comment about the woman’s appearance.
Ms Cooper highlighted the inherently unequal relationship between a provider and patient, with the provider being in a position of power by virtue of their professional role.
“The woman was in a vulnerable situation – she was partially undressed, and alone in a treatment room with a male practitioner whom she had met only once previously.
“The acupuncturist had an ethical duty to ensure he was maintaining appropriate professional standards and boundaries at all times,” said Ms Cooper.
Ms Cooper recommended the acupuncturist apologise in writing to the woman, and attend training (as approved by Acupuncture NZ) on draping techniques, client privacy, communication with clients, and the Code.
Following this case, the acupuncturist has made changes to his practice. This includes: providing an explanation of treatment methods prior to starting treatment and use of a written consent form; highlighting to patients the option to bring a chaperone or support person to consultations; having treatments take place only when staff are on premises; appropriate use of towels for draping; and ensuring width and height of his treatment table enables safe practise for patients at all times.
This case relates to a complaint made to HDC in 2019. We aim to investigate complaints as promptly as possible, while ensuring natural justice and the interests of all the parties involved to provide information, and respond to evidence put forward by others is considered.
Names have been removed from the report to protect privacy of the individual involved in this case. We anticipate that the Commissioner will name Te Whatu Ora (previously DHBs), and public hospitals found in breach of the Code unless it would not be in the public interest or would unfairly compromise the privacy interests of an individual provider or a consumer. HDC’s naming policy can be found on our website here.