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Consent to massage of sensitive areas - Health and Disability Commissioner

Contributor:
Fuseworks Media
Fuseworks Media

Health and Disability Commissioner Anthony Hill today released a report finding a massage therapist in breach of the Code of Health and Disability Services Consumers’ Rights (the Code) for failing to ensure that a woman consented to the massage of sensitive areas.

The woman went to the massage therapist’s house for a massage. The massage therapist asked the woman to complete a form where she agreed that she wanted a full-body massage. The form referred to glutes, legs and feet, chest/abs, arms and face as massage sites. At the start of the massage, the massage therapist asked the woman whether there was any part of her body she did not want to be massaged. She replied in the negative.

During the massage, the massage therapist exposed the woman’s chest without warning or offering any covering and massaged her stomach and breasts, making contact with her nipples. The woman reported feeling frozen, and too exposed to speak up. She also expressed that she felt uneasy as she was possibly alone in the house with the massage therapist. Once she was dressed she confronted him and explained that she felt the massage was inappropriate.

The massage therapist considered at the time that as the woman did not positively indicate that she did not want her breasts massaged, that amounted to consent to the procedure. During the course of the investigation, he said he believed that if there was something wrong with the massage, the woman would have said something.

On the evidence of both parties, the man failed to communicate his intention to massage sensitive areas. The form describing the massage sites was insufficient as, in the Commissioner’s view, a reasonable person would expect to be informed explicitly that the intention was to massage their breasts, as reference to the chest could be taken to refer to the upper chest area.

"It was inappropriate to massage her breasts and nipples, and unacceptable to expose her breasts and abdomen without warning her that this was his intention and obtaining her prior consent," said Mr Hill.

Mr Hill recommended that the man receive mentoring for 18 months, receive supervision, review his processes and attend training for informed consent. Mr Hill also recommended that the massage therapist apologise to the woman, which he has done. The massage therapist has been referred to the Director of Proceedings.

The full report for case 19HDC00788 is available on the HDC website >  https://www.hdc.org.nz/decisions/search-decisions/2020/19hdc00788/. 

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