Informed consent for treatment a fundamental right of patients

Names have been removed (except the expert who advised on this case) to protect privacy. Identifying letters are assigned in alphabetical order and bear no relationship to the person’s actual name.

 

 

Acupuncturist, Mr B

 

 

A Report by the Deputy Health and Disability Commissioner

 

 

Contents

Executive summary
Complaint and investigation
Information gathered during investigation
Opinion: Mr B
Changes made since events
Recommendations
Follow-up actions
Appendix A: Independent clinical advice to Commissioner
Appendix B: Relevant standards

Executive summary

  1. This report concerns the care provided to a woman during a treatment session that included acupuncture, massage, and cupping treatment. The woman was partially undressed for the treatment, and was alone in the treatment room with the male practitioner, whom she had met only once previously.
  2. The woman complained that the practitioner did not explain the treatment he intended to perform, and that during the treatment he rubbed his body against hers inappropriately.
  3. The report highlights the importance of providers ensuring that they maintain appropriate professional standards and boundaries at all times.

Findings

  1. The Deputy Commissioner accepted that some part of the practitioner’s body came in contact with the woman’s hand. However, the Deputy Commissioner was unable to determine whether or not the contact was deliberate, and what part of the practitioner’s body was involved.
  2. The Deputy Commissioner considered that the practitioner did not adequately inform the woman about his intended treatment, and found him in breach of Right 6(1) of the Code. Without adequate information, the woman was unable to make an informed choice and give informed consent, and, accordingly, the Deputy Commissioner found the practitioner in breach of Right 7(1) of the Code.

Recommendations

  1. The Deputy Commissioner recommended that the practitioner 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.

 

Complaint and investigation

  1. The Health and Disability Commissioner (HDC) received a complaint from Ms A about the services provided to her by Mr B. The following issue was identified for investigation:
  • Whether Mr B provided Ms A with an appropriate standard of care in July 2019.
  1. This report is the opinion of Deputy Commissioner Carolyn Cooper, and is made in accordance with the power delegated to her by the Commissioner.
  2. The parties directly involved in the investigation were:
Ms A                                               Consumer/complainant
Mr B                                                Acupuncturist/provider   

       
  1. Further information was received from the New Zealand Police.
  2. Independent expert advice was obtained from an acupuncturist, Mr Thomas Lin (Appendix A).

 

Information gathered during investigation

Background

  1. This report relates to the alleged conduct of Mr B on 12 July 2019 when Ms A attended her second appointment with Mr B for acupuncture treatment.
  2. Mr B told HDC that he qualified from the New Zealand School of Acupuncture and Traditional Chinese Medicine with an NZQA Level 7 Diploma in Acupuncture/ Traditional Chinese Medicine and a Diploma in Tuina/Qigong. He said that in the years following graduation he worked at several clinics and travelled overseas to further his studies in traditional Chinese medicine. Mr B has been a member of Acupuncture NZ for several years and holds a current practising certificate. His online information states that he uses a combination of acupuncture, traditional Chinese massage therapy, and Chinese exercise, and specialises in a variety of conditions.
  3. In 2018 Mr B began providing acupuncture services and traditional Chinese medicine at the clinic where the events that are the subject of this investigation took place.

Treatment room

  1. Mr B said that while he was working at the clinic he shared a treatment room with a physiotherapist and, at the time of these events, he had been using a treatment table provided by the physiotherapist for approximately four months. He said that the treatment table was narrower than he was used to, and measured 1.9 metres long and 60cm wide.
  2. Mr B stated that while the height of the treatment table was able to be adjusted, he kept it at mid-thigh height in order to provide treatment comfortably while he was in either a standing or a seated position.

Initial appointment 24 June 2019

  1. Ms A told HDC that she has acupuncture because she has RSI (repetitive strain injury) and her wrists get sore. Her first appointment with Mr B for acupuncture was on 24 June 2019. Ms A said that Mr B talked about the techniques he uses, and she asked him about his training.
  2. Mr B told HDC that Ms A reported having generally good health, and advised him that she had received acupuncture treatment on a weekly basis for many years. Mr B completed an “ACC Acupuncture Information and Treatment Record” form, which Ms A signed. The form states: “Any treatment given will be explained to me and I have the right to clarify, question or stop the treatment at any time.” The form notes the reason for the visit as “Meridians” (channels that allow the flow of energy, known as Qi, to circulate throughout the body), and the subjective findings as “Channels blocked?”. There is no record of the information provided to Ms A, or of her consent to treatment having been obtained.
  3. Ms A said that Mr B performed standard acupuncture on her wrists and arms. She stated that she had immediate relief from the pain after the acupuncture, but it lasted only two to three days. She said that she did not make another appointment immediately, but having decided that she needed further acupuncture, she made an appointment with Mr B for 12 July 2019.

Second appointment 12 July 2019

  1. Ms A said that on 12 July 2019 it was raining hard and she was about 10 minutes late for the appointment, so when she arrived she apologised to Mr B for being late, but she felt that he was angry. She stated:

“He didn’t really accept my apology so I was a bit nervous because of his attitude … He had tightness around [his] mouth, like seething. He didn’t accept my apology in a non-verbal way. I thought he was weird.”

  1. Ms A said that Mr B told her that it was going to be a short session because she was late, and she replied that this was fine.
  2. Mr B agreed that Ms A was late for the appointment, but he said that he was not angry with her because of this, nor does he believe that there was anything in his tone or body language that could have created that impression. Mr B said that he apologises if anything about his behaviour caused Ms A to feel nervous and uncertain as a result of her lateness, as this was most certainly not his intention.
  3. Mr B told HDC that at the commencement of the treatment session, Ms A advised him that generally she had felt better after the first treatment, but she now had a sore neck. Ms A said that Mr B talked about using cupping, which he had not used during the previous appointment, and told her that he wanted to look at her spine while she was sitting up on the table.
  4. The “ACC Acupuncture Information and Treatment Record” form contains a brief record of the treatment provided on 12 July 2019, but no record of the diagnosis, treatment principle, information provided, or consent given.
  5. Mr B said that during this appointment he provided Tuina therapy[1] on Ms A’s neck, upper back, and shoulders. He also provided moving cupping (see below), and acupuncture treatment to Ms A’s back and abdomen. While the acupuncture needles were in situ, he provided acupressure by holding the back of Ms A’s neck for approximately five minutes.
  6. Ms A stated that on arrival she was wearing a raincoat, a long-sleeved jumper, a long-sleeved shirt, and a camisole. She took off her coat, jumper, and shirt, and put them on the chair, and rolled down her camisole around her waist. She was still wearing her bra, underpants, socks, and track pants. She said that Mr B remained in the room and watched her while she undressed.
  7. In contrast, Mr B said that he left the room while Ms A removed her clothing, and also went out each time she repositioned herself, and, when he returned after she had removed her clothing, he tucked a towel into the back waistband of her track pants to prevent the oil he used getting on her clothing.
  8. Ms A said that Mr B did not provide any draping to preserve her privacy, whereas Mr B said that there were towels available for this purpose.
  9. Ms A said that she then sat on the edge of the table and Mr B walked behind her and examined her back. She stated that he ran his hand down her spine looking for points on her spine that were painful, which took a minute or two. He then asked her to lie face down on the table, which had a hole into which she put her face.

Cupping

  1. Cupping is a type of alternative therapy that involves placing cups on the skin to create suction. The suction is believed to facilitate healing with blood flow. Proponents also claim that the suction helps to facilitate the flow of “qi” (life force) in the body. They believe that cupping helps to balance yin and yang, or the negative and positive, within the body. Restoring balance between these two extremes is thought to help with the body’s resistance to pathogens, as well as its ability to increase blood flow and reduce pain.
  2. Four main categories of cupping are performed: dry cupping (a suction-only method), wet/bleeding cupping (which may involve both suction and controlled medicinal bleeding), running cupping (which involves moving suctioned cups around the body after applying oil to massage the desired area), and flash cupping (which involves quick, repeated suction and release of cups on an area of the body).
  3. Moving cupping therapy is a type of dry cupping that involves the application of lubricant to the body part or to the mouth of the cup, and the use of the flashing method or the cotton sticking method to hold the cup to the treatment area. In the flashing method, the provider pushes the cup by hand to move it up and down and left and right, thus causing flushing, congestion, and even bruising of the skin in the treatment area.
  4. Ms A said that she had previously had a form of cupping that involved the use of a herb under a heated cup. The cup was put on the skin and it attached with suction. However, Mr B used a different technique, with which she was not familiar, and which involved him running the cup up and down her back.
  5. Ms A said that she was lying face down on the table with her arms outstretched beside her body, and her palms facing upwards. Mr B rubbed ointment along her back and on each side of her spine up towards her neck, so that the cup could slide up and down her body. He used two hands, and rubbed each part of her spine, going up and down her back and working around her bra. At that time he was standing on her right-hand side. Mr B said that although Ms A was still wearing her bra, the clasp was undone during the cupping treatment.
  6. Ms A said that the table was narrow, so her hands were close to the edge. She stated that while Mr B was rubbing her back he pushed his body towards her and she felt him thrust his crotch into her right hand. She said that he repeated this thrusting six or seven times and, although she could not see this happening, she felt it in her hand. She stated that nothing was said while he was pushing his crotch into her hand.
  7. Ms A stated:

“I put both hands under my body so he couldn’t put his [crotch] into my hand. I was frozen with fear and lay there wondering what to do next. He stopped doing what he was doing when I put my hands under my body.”

  1. Ms A said that Mr B then put the heated cup on her back and rubbed it up and down her spine. He then asked her to sit up and turn onto her back.
  2. Mr B “categorically denies” that at any stage during the treatment he “shoved his [crotch] into [Ms A’s] right hand” as she lay on the treatment table. He also does not accept that his groin could have inadvertently come into contact with Ms A’s hand during the treatment. He said that Ms A was face down on the treatment table, and her face was inserted into the hole in the table, so she was unable to observe any part of his body. He stated:

“It must therefore be assumed that [Ms A] is basing her allegation solely on experiencing the sensation of something coming into contact with her hand. [He] accepts that it is possible that his body came into contact with [Ms A’s] hand during the treatment, given the narrow dimension of the treatment table and that if this occurred it was inadvertent and most likely [his] thigh.”

Acupuncture

  1. Ms A said that Mr B walked to the corner of the room and watched her while she turned over onto her back, and he did not respect her privacy. In contrast, Mr B said that he left the room again, closing the door, while Ms A put on her singlet top (camisole) and re-positioned herself lying face up on the treatment table prior to the acupuncture treatment.
  2. Ms A said that Mr B did not discuss the intended treatment. He put at least a dozen needles into her hands, arms, legs, and feet, and also put needles into her back. She said that she just lay there and did not move because it hurt if she moved.
  3. Ms A does not recall how long that part of the treatment took, but thinks that it could have been 10 or 15 minutes. She said: “I couldn’t wait for it to be over but I couldn’t move because he had all these needles in me.”

Acupressure

  1. Ms A said that near the end of the session, Mr B sat behind her while she was lying on her back and put his hands under her neck for three or four minutes. She stated that he did not discuss the intended treatment and gave her no warning before touching her.
  2. Mr B does not accept that he gave Ms A no warning about touching her body, or that he did not discuss the intended treatment with her. Mr B agrees that he sat at the end of the table behind Ms A and placed his hands on her neck. He said that this was part of his acupuncture treatment. He does not recall exactly how he explained to Ms A the rationale for the treatment to her neck. However, he believes that prior to touching her neck he would have explained that he was going to sit quietly behind her and hold the back of her neck while the acupuncture needles were in place, and that he would have sought her consent to do so. He said that he believes that verbal consent was provided, as otherwise he would not have provided the treatment.
  3. Mr B told HDC that acupressure is the application of pressure on a certain area of the body with the hand or fingertips. The pressure can be applied with varying degrees of force depending on the type of treatment. He said that typically he utilised this type of treatment while acupuncture needles were in place.
  4. Mr B stated that the acupressure applied to Ms A’s neck was provided to further enhance the acupuncture that was applied to her stomach area. The pressure applied to her neck, and in particular to the area of the Fengchi GB-20 points,[2] sought to draw the acupuncture treatment in the stomach through into the area of concern, Ms A’s neck, via the gallbladder channel.

Comment about appearance

  1. Ms A recalls Mr B saying that she had a great body for her age. She said that he remarked about what a good body she had and commented that she looked after herself. She stated that she may have said that she felt that her body was tired from the work that she does, and he then made the comment, which she thought was unprofessional.
  2. Mr B said that during the conclusion of the treatment when Ms A stated that she felt old and tired, he made a comment to the effect that she looked good for her age. He said it was intended to be an affirmative statement to Ms A, and was not meant to cause offence or distress. Mr B believes that he had the conversation with Ms A during the acupressure.

Conclusion of treatment

  1. Ms A said that Mr B removed the needles but he left one needle in her hand. She stated that when she pointed out that he had failed to remove a needle, he made a joke and then removed the needle. Mr B does not recall having left a needle in Ms A’s hand, but said that if that had happened he would not have made a joke about it.
  2. Ms A stated that she then got up, got dressed, and paid Mr B before she left.
  3. Mr B said that Ms A asked him to rebook her for another appointment the following week, and asked whether the next treatment could be covered by ACC because of the pain in her neck. He told her that he was not registered as a primary provider, so he could not complete a new injury ACC 45 form for her neck.
  4. Mr B stated that they agreed that Ms A would lodge an ACC claim with her chiropractor before scheduling another appointment with him, but he has had no further contact with her.

Subsequent events

  1. Ms A said that the following week she spoke to her chiropractor and told her that Mr B was “creepy”. Ms A stated that she also spoke about the incident fully with her neighbour. Subsequently, Ms A made a complaint to the owners of the clinic, who met with her on 26 July 2019 to discuss her concerns. One of the clinic owners told the Police that once she was aware of Ms A’s allegations, she arranged with Mr B that he would work at the clinic only at times when an owner was present.
  2. Ms A said that she consulted her GP, who encouraged her to make a complaint. She made a complaint to the New Zealand Police, but following an investigation they decided not to lay any charges.

Responses to provisional opinion

  1. Mr B was given the opportunity to comment on the provisional opinion. He did not wish to comment and agreed to action the recommendations set out in the opinion.
  2. Ms A was given the opportunity to comment on the “Information gathered during investigation” section of the provisional opinion. She did not respond to HDC’s invitation to comment.

 

Opinion: Mr B

Introduction

  1. Ms A was concerned about Mr B’s conduct during the appointment on 12 July 2019. Ms A had had previous experience of acupuncture, and it is evident that the events that occurred that day caused her significant distress. Subsequently she told her neighbour and her GP about her concerns, and complained to the owners of the clinic, the New Zealand Police, and this Office.
  2. The provider–patient relationship is an inherently unequal relationship, with the provider being in a position of power by virtue of their professional role. Ms A was also 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. Mr B had an ethical duty to ensure that he was maintaining appropriate professional standards and boundaries at all times.
  3. Ms A’s and Mr B’s accounts of events are substantially different, and no one else was present. As such, it is difficult to determine exactly what happened.

Treatment provided — no breach

  1. On 12 July 2019, Ms A had her second appointment with Mr B. Mr B provided Tuina therapy on Ms A’s neck, upper back, and shoulders. He also provided moving cupping to her back, and acupuncture treatments to her back and abdomen. While the acupuncture needles were in place, he provided acupressure for approximately five minutes.
  2. My expert advisor, acupuncturist Thomas Lin, said that Mr B’s examination of Ms A and his use of cupping and acupuncture were appropriate. However, Mr Lin had some concerns about Mr B’s practice, as discussed below.

Informed consent — breach

  1. Right 6(1) of the Code of Health and Disability Services Consumers’ Rights (the Code) states that every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive, including an explanation of his or her condition, and an explanation of the options available.
  2. Ms A said that Mr B discussed with her the form of cupping he used, which was different from the cupping she had experienced previously. However, she said that he did not explain the intended acupuncture treatment or the acupressure, and gave her no warning before touching her.
  3. Mr B does not recall exactly how he explained to Ms A the rationale for the acupressure. However, he believes that prior to touching her neck he would have explained that he was going to sit quietly behind her and hold the back of her neck while the acupuncture needles were in place, and that he would have sought her consent to do so. He said that he believes that verbal consent was provided, as otherwise he would not have provided the treatment.
  4. The “ACC Acupuncture Information and Treatment Record” form contains a brief record of the treatment provided on 12 July 2019, but no record of the diagnosis, treatment principle, information provided, or consent given.
  5. Ms A also said that Mr B put at least a dozen acupuncture needles into her back, hands, arms, legs, and feet. I acknowledge that Ms A had had acupuncture previously, and to some extent would have known what to expect. However, given that the treatment on 12 July 2019 was different from the first appointment — for example, it included cupping and acupressure — Mr B should have discussed the proposed treatment, the possible risks of the treatment, and the options available, so that Ms A would be in a position to make an informed choice and give informed consent to the treatment.
  6. Mr Lin said that Mr B should have explained clearly what his methods would be, and should have helped Ms A to understand each treatment procedure fully before commencing the treatment. The Acupuncture NZ Code of Ethics requires that members take care in explaining the diagnosis and treatment they propose to administer, and why it is necessary, in language the patient can understand.
  7. Mr Lin stated that Mr B could have obtained written consent, and perhaps suggested to Ms A that she could have a support person during the treatment. The Acupuncture NZ Code of Ethics states that express or implied consent to treatment is required, and encourages written consent. It states that the treatment should be explained to the patient throughout every treatment.
  8. I agree that written consent is beneficial, but I note that Right 7(6) of the Code would have required written consent to this procedure only if it entailed a significant risk of adverse effects on the consumer. I do not consider that the threshold was met in this case. The primary issue is whether Ms A was informed appropriately. Furthermore, I consider that Mr B should have made a record of the information and consent given.
  9. In my view, Mr B should have informed Ms A throughout the treatment about what he intended to do and the reasons why, and should not have touched her without having done so. I am left with the situation where Ms A said that she was not fully informed, and Mr B does not recall what he told her, and relies on his standard practice. There is no record of the informed consent process. Given that Ms A has been consistent in her recollection of events, and Mr B does not recall what was said and relies on his standard practice and has no written record, I consider it is more likely than not that Ms A’s account is correct.
  10. I conclude that Mr B did not fully inform Ms A about his intended treatment, and so breached Right 6(1) of the Code.[3] It follows that Ms A was unable to make an informed choice and give informed consent, and, accordingly, that Mr B also breached Right 7(1) of the Code.[4]

Privacy — adverse comment

  1. Ms A said that Mr B remained in the room and watched her while she undressed and when she repositioned herself on the table. In contrast, Mr B said that he left the room and closed the door on each occasion. I am unable to make a finding as to whether Mr B remained in the room, but I consider that if he did do so, he should first have discussed with Ms A whether she preferred that he leave the room, and he should have had the room set up with curtains or a screen to maintain his clients’ privacy.
  2. Ms A also said that Mr B did not drape her to preserve her privacy. Mr B said that there were towels available for this purpose, but the only draping he described was that he tucked a towel into the waistband of Ms A’s track pants to avoid soiling her clothing. I note that Ms A was wearing track pants throughout, but that during the cupping her bra was undone. Mr B did not use other draping. Mr Lin noted that providing a towel or light blanket to cover Ms A’s chest while she lay on her back would have made her more comfortable.
  3. I remind Mr B of the importance of protecting his clients’ dignity and privacy.

Touching hand — adverse comment

  1. Ms A has consistently alleged that while Mr B was rubbing her back as part of the cupping treatment he pushed his body towards her and she felt him shove his crotch into her right hand. She said that he repeated this thrusting six or seven times, and although she could not see this happening, she felt it.
  2. Mr B “categorically denies” that he “shoved his [crotch] into [Ms A’s] right hand” as she lay on the treatment table. He also does not accept that his groin could have inadvertently come into contact with Ms A’s hand during the treatment. He does accept that it is possible that his body came into contact with Ms A’s hand during the treatment, given the narrow dimension of the treatment table, and said that if this did occur, it was inadvertent and most likely it was his thigh that touched her.
  3. Mr Lin advised that it would be inappropriate for Mr B’s thigh to touch Ms A even if it happened inadvertently while he was doing cupping on Ms A’s back, and, if it was inadvertent, it would be a mild departure from accepted standards. Mr Lin said that if Mr B’s crotch touched Ms A’s hand while he was providing treatment to Ms A’s back, the departure would be moderate if it was not deliberate, but it would be severe if it was a deliberate action.
  4. I accept that some part of Mr B’s body did come in contact with Ms A’s hand. However, I am unable to determine whether or not the contact was deliberate, and what part of Mr B’s body was involved. As such, I am unable to determine that Mr B’s actions were more than a mild departure from accepted standards. However, I consider that Mr B should have been mindful of the challenges of the narrower table and taken care to avoid such contact and, if it did occur accidentally, to explain and apologise. By failing to do so, Mr B caused Ms A to be distressed for the remainder of the appointment.

Comment about appearance — adverse comment

  1. During the acupressure, Mr B commented to Ms A about the appearance of her body, which she thought was unprofessional. Mr B said that it was intended to be an affirmative statement and was not meant to cause offence or distress.
  2. In my view, even if well intentioned, personal comments about a consumer’s appearance are generally unwise and should be avoided. At that time, Ms A was lying on the table and could not move because of the needles. It was misguided to comment about her body while she was in such a vulnerable position.

 

Changes made since events

  1. Mr B said that his usual practice is now to provide an explanation of the treatment methods he intends to use before starting treatment, and he now uses a written consent form in his practice.
  2. With regard to offering a chaperone or support person, Mr B said that as the majority of his clients make their first appointment using his website, it can be challenging to convey to new patients that they can bring a chaperone or support person to their first consultation. He has included a notice on his website saying that all patients are welcome to bring a chaperone or support person. He also has a copy of the HDC “Know your Rights” poster on his treatment room wall, which includes reference to the ability to have a chaperone present during treatment.
  3. Mr B now works in a treatment room at the back of a store, and treatments take place only when the store is open and staff are present. He uses a table that is much wider than the table used when he treated Ms A, making any inadvertent contact between his upper thigh and the patient much less likely to occur.
  4. Mr B keeps the treatment room door closed during treatment, and always has towels available for draping, and uses them when appropriate.
  5. Mr B is vigilant to ensure that no other part of his body comes into contact with a patient at any time, and that the width and height of his treatment table enables him to practise safely at all times.

 

Recommendations

  1. I recommend that within three weeks of the date of this opinion, Mr B apologise in writing to Ms A for the criticisms in this report. The apology is to be sent to HDC for forwarding.
  2. I recommend that within three months of the date of this opinion, Mr B attend training, as approved by Acupuncture NZ, on draping techniques, client privacy, communication with clients, and the Code of Rights. Mr B is to provide HDC with evidence of having attended the training, and the content.

 

Follow-up actions

  1. A copy of this report with details identifying the parties removed, except the expert who advised on this case, will be sent to Acupuncture NZ, the NZ College of Chinese Medicine, and the Ministry of Health, and placed on the Health and Disability Commissioner website, www.hdc.org.nz, for educational purposes.

 

Appendix A: Independent clinical advice to Commissioner

The following expert advice was obtained from an acupuncturist, Mr Thomas Lin:

“27 September 2021

Complaint: [Mr B] at [the clinic] Ref: C19HDC01472

I have been asked to provide an opinion to the Commissioner on case number C19HDC01472, and that I have read and agree to follow the Commissioner’s Guidelines for Independent Advisors. My qualifications MB (China), over 30 years’ experience (5 years in China and 27 years in NZ) of Acupuncture, Moxibustion, Acupressure and Chinese Herbalist.

Instructions from the Commissioner

[Ms A’s] complaint:

She attended an acupuncture appointment with [Mr B] on 12 July 2019. She was 10 minutes late for her appointment and he was angry — he did not accept her apology. He instructed her to remove her shirt and camisole and sit on the table. She then lay face down. [Mr B] applied a product to her back which would facilitate the cupping technique he was going to use. He began to shove his [crotch] into her right hand as she lay on the table. She moved her hand away. After a few moments, he stopped. He was fully clothed. He continued with the cupping technique. He moved to the end of the room and watched as she turned over to lie on her back. He inserted acupuncture needles. He placed his hands on the back of her neck for around five minutes. He commented that she had a great body for her age. He left one needle in her hand and she had to ask him to remove it.

[Mr B’s] account:

He was not angry and no body language or tone indicated this. Apologises if anything caused [Ms A] to feel nervous or uncertain as a result of her lateness. He denies that he shoved his [crotch] into [Ms A’s] right hand. He does not accept that his groin could have come into contact with her hand and claimed that is supported by photos which show his body position. He accepts it is possible that his body came into contact with her hand given the narrow dimension of the table and if it occurred, it was inadvertent and most likely it was his thigh. He left the room while she repositioned her body. He sat at the end of the table and placed his hands on her neck as part of the acupuncture treatment. He made a comment about her looking good for her age in response to her saying she felt old and tired. He did not mean to cause offence or distress. He did not leave a needle in her hand.

The facts and assumptions on which my opinion is based (I make all comments based on my knowledge and my experience).

Whether [Mr B] used appropriate acupuncture and cupping techniques;

  1. What is the standard of care/accepted practice?

Here are the standards for Acupuncture and cupping for sore neck: The common problem for sore neck are neck injury, Torticollis Cervical and spondylopathy. Practitioner usual provide Tui Na (also call acupressure or Chinese massage), acupuncture and cupping to help sore neck. Torticollis (Lao Zhen). Torticollis is characterized by neck rigidity, soreness and pain in the neck with difficult turning or limited movement on one side of the neck. It is very commonly seen in clinic and usually caused by wind cold invading the local meridians and collaterals, or by derangements of qi and blood due to awkward sleeping position, and sprain of the neck due to carrying a heavy weight. In all these conditions, the circulation of qi in the meridians are hindered. The treatment principle should be eliminating wind and cold evils and dredging the meridian passage. It may be similar to rheumatic pain in the neck or chronic cervical disc injury in modern medicine. The differentiation and treatment in this section can be referred to in their treatments.

Treatment Principle. Eliminating wind cold and relaxing the tendons and collaterals — Acupoint Selection. Select Houxi (SI 3), Xuanzhong (GB 39), Ahshi points, Fengchi (GB 20), Dazhui (DU 14), Tianzhu (BL 10), Jianwaishu (SI 14), Jianjing (GB 21) and Laozhen (EX-UB) as main points. For difficulty in extending and flexing the neck, add Kunlun (BL 60) and Lieque (LU 7). For inability the head from side side, add Zhizheng (SI 7). CERVICAL SPONDYLOPATHY Cervical spondylopathy is also called cervical syndrome, often seen in the middle-aged and the old, manifested by retrograde degeneration of cervical intervertebral disc, which is divided into nerve-root type, cervical artery type, spinal-cord type and sympathy-type.

Acupuncture treatment of cervical spondylopathy has a better effect. Acupuncture points selection: Cervical — Artery Type: Fengchi, Tianzhu, Bailao, Baihui, Waiguan, Huatuojiaji points in the diseased cervical vertebra. Spinal — Cord Type: Fengchi, Bailiao, Jianjing, Dazhui, Huatuojiaji points in the diseased cervical vertebra. Sympathy — Type: Fengchi, Bailiao, Huatuojiaji points, Neiguan, Shenmen and Zusanli.

Cupping

Cupping is an important part of TCM practice and is used by itself or together with massage and/or acupuncture. Few scientific studies have been conducted in the West. However there is a considerable body of empirical clinical evidence amongst TCM practitioners for the efficacy of this technique. According to TCM theory cupping balances yin and yang, promotes the circulation of qi and blood, enhances zang fu function, expels pathogenic factors, warms muscles and relieves pain.

Techniques

It is essential to check state of skin before commencing. 1) Glass cups Used with some form of fire to create vacuum within the glass. This can be a taper, cotton wool soaked in methylated spirit and held in forceps, or incense sticks. Care must be taken to prevent moisture forming within a cold glass cup; this may cause blistering. Ensure that the rim is thick and will not cut into tissue. Apply over acupuncture points for 10 to 20 minutes, or over fleshy areas without reference to acupoints. If the cup is painful and/or burning hot, remove immediately and check the area is normal. If so, the cup can be re-applied with less suction. Wash cups in warm water and mildly alkaline or PH-neutral detergent.

Problems and Precautions

Danger of burning, care that there is no moisture present when using traditional glass cups. Apply a thin coat of vaseline or oil to hirsute areas and also smear vaseline on the rim of the cup. Bruising or blistering due to prolonged strong cupping. (A blister should be punctured with a sterile needle and a dry dressing applied). Do not use on broken or damaged skin. Avoid in the first 3 months of pregnancy. Thereafter, avoid the abdomen and points Hegu LI4, Sanyinjiao SP6, Jianjing GB21. Do not cup over varicose veins and other vascular irregularities. Do not cup consumers with haemophilia or cardiomyopathy. Do not cup over recent surgical scars. Cupping should be avoided if the consumer has been drinking alcohol, is influenced by recreational drugs, or recovering after exercise. Avoid strong cupping over the kidney areas, and TCM texts recommend avoiding cupping in functional kidney and liver disorders. Cupping should generally not be done on the face. The following Meridian are connecting to neck: The Ren Meridian (CV) starts from the inside of the lower abdomen and emerges from the perineum. It goes anteriorly to the pubic region and ascends along the interior of the abdomen, passing through Guanyuan (Ren 4) and the other points along the front midline to the throat. Ascending further, it curves around the lips (5), passes through the cheek and enters the infraorbital region (Chengqi, S 1). The Stomach Meridian of Foot — Yangming (St) starts from the lateral side of ala nasi (Yingxiang, LI 20). It ascends to the bridge of the nose, where it meets the Bladder Meridian of Foot — Taiyang (Jing- ming, B 1). Turning downward along the lateral side of nose (Chengqi, S 1), it enters the upper gum. Reemerging, it curves around the lips and descends to meet the Ren Meridian at the mentolabial groove (Chengjiang, Ren 24). Then it runs posterolaterally across the lower portion of the cheek at Daying (S 5). Winding along the angle of the mandible (Jiache, S 6), it ascends in front of the ear and traverses Shangguan (G 3). Then it follows the anterior hairline and reaches the forehead. The facial branch emerging in front of Daying (S 5) runs downward to Renying (S 9). From there it goes along the throat and enters the supraclavicular fossa. Descending, it passes through the diaphragm, enters the stomach, its pertaining organ, and connects with the spleen. The straight portion of the meridian arising from the supraclavicular fossa runs downward, passing through the nipple. It descends by the umbilicus and enters Qichong (S 30) on the lateral side of the lower abdomen. The branch from the lower orifice of the stomach descends inside the abdomen and joins the previous portion of the meridian at Qichong (S 30). Running downward, traversing Biguan (S 31), and further through Femur — Futu (S 32), it reaches the knee. From there, it continues downward along the anterior border of the lateral aspect of the tibia, passes through the dorsum of the foot, and reaches the lateral side of the tip of the 2nd toe (Lidui, S 45). The tibial branch emerges from Zusanli (S 36), 3 cun below the knee, and enters the lateral side of the middle toe. The branch from the dorsum of the foot arises from Chongyang (S 42) and terminates at the medial side of the tip of the great toe (Yinbai, Sp 1), where it links with the Spleen Meridian of Foot — Taiyin. The Large Intestine Meridian of Hand — Yangming (LI). The Large Intestine Meridian of Hand — Yangming starts from the tip of the index finger (Shangyang, L I 1). Running upward along the radial side of the index finger and passing through the interspace of the 1st and 2nd metacarpal bones (Hegu, L I4), it dips into the depression between tue tendons of m. extensor pollicis longus and brevis. Then, following the lateral anterior aspect of the forearm, it reaches the lateral side of the elbow. From there, it ascends along the lateral anterior aspect of the upper arm to the highest point of the shoulder (Jianyu, LI 15). Then, along the anterior border of the acromion, it goes up to the 7th cervical vertebra (the confluence of the three yang meridians of the hand and foot) (Dazhui, Du 14), and descends to the supraclavicular fossa to connect with the lung. It then passes through the diaphragm and enters the large intestine, its pertaining organ. The branch from the supraclavicular fossa runs upward to the neck, passes through the cheek and enters the gums of the lower teeth. Then it curves around the upper lip and crosses the opposite meridian at the philtrum. From there, the left meridian goes to the right and the right meridian to the left, to both sides of the nose (Yingxiang, L I 20), where the Large Intestine Meridian links with the Stomach Meridian of Foot — Yangming. The Liver Meridian of Foot —Jueyin (LIV). The Liver Meridian of Foot — Jueyin starts from the dorsal hairy region of the great toe (Dadun, Liv 1). Running upward along the dorsum of the foot, passing through Zhongfeng (Liv 4), 1 cun in front of the medial malleolus, it ascends to an area 8 cun above the medial malleolus, where runs across and behind the Spleen Meridian of Foot —Taiyin. Then it runs further upward to the medial side of the knee and along the medial aspect of the thigh to the pubic hair region, where it curves around the external genitalia and goes up to the lower abdomen. It then runs upward and curves around the stomach to enter the liver, its pertaining organ, and connects with the gallbladder. From there it continues to ascend, passing through the diaphragm, and branching out in the costal and hypochondriac region. Then it ascends along the posterior aspect of the throat to the nasopharynx and connects with the ‘eye system’. Running further upward, it emerges from the forehead and meets the Du Meridian at the vertex. The branch which arises from the ‘eye system’ runs downward into the cheek and curves around the inner surface of the lips. The branch arising from the liver passes through the diaphragm, runs into the lung and links with the Lung Meridian of Hand — Taiyin. The Gallbladder Meridian of Foot — Shaoyang (GB): The Gallbladder Meridian of Foot — Shaoyang (GB) originates from the outer canthus (Tongziliao, G 1) (1), ascends to the corner of the forehead (Hanyan, G 4) (2), then curves downward to the retroauricular region (Fengchi, G 20) (3) and runs along the side of the neck in front of the Sanjiao Meridian of Hand — Shaoyang to the shoulder (4). Turning back, it traverses and passes behind the Sanjiao Meridian of Hand — Shaoyang down to the supraclavicular fossa (5). The retroauricular branch arises from the retroauricular region (6) and enters the ear. It then preauricular region (7) to the posterior aspect of the outer canthus (8). The branch arising from the outer canthus (9) runs downward to Daying (S 5) (10) and meets the Sanjiao Meridian of Hand — Shaoyang in the infraorbital region (11). Then, passing through Jiache (S 6) (12), it descends to the neck and enters then comes out and passes the supraclavicular fossa where it meets the main meridian (13). From there it further descends into the chest (14), passes through the diaphragm to connect with the liver (15) and enters its pertaining organ, the gallbladder (16). Then it runs inside the hypochondriac region (17), comes out from the lateral side of the lower abdomen near the femoral artery at the inguinal region (18). From there it runs superficially along the margin of the pubic hair (19) and goes transversely into the hip region (Huantiao, G 30) (20). The straight portion of the channel runs downward from the supraclavicular fossa (21), passes in front of the axilla (22) along the lateral aspect of the chest (23) and through the free ends of the floating ribs (24) to the hip region where it meets the previous branch (25). Then it descends along the lateral aspect of the thigh (26) to the lateral side of the knee (27). Going further downward along the anterior aspect of the fibula (28) all the way to its lower end (Xuanzhong, G 39) (29), it reaches the anterior aspect of the external malleolus (30). It then follows the dorsum of the foot to the lateral side of the tip of the 4th toe (Foot — Qiaoyin G 44) (31). The branch of the dorsum of the foot springs from Foot — Linqi (G 41), runs between the 1st and 2nd metatarsal bones to the distal portion of the great toe and terminates at its hairy region (Dadun, Liv 1), where it links with the Liver Meridian of Foot — Jueyin (32). The Bladder Meridian of Foot — Taiyang (BL): The Bladder Meridian of Foot — Taiyang starts from the inner canthus (Jingming, B 1) (1). Ascending to the forehead (2), it joins the Du Meridian at the vertex (Baihui, Du 20) (3), where a branch arises, running to the temple (4). The straight portion of the meridian enters and communicates with the brain from the vertex (5). It then emerges and bifurcates to descend along the posterior aspect of the neck (6). Running downward alongside the medial aspect of the scapula region and parallel to the vertebral column (7), it reaches the lumbar region (8), where it enters the body cavity via the paravertebral muscle (9) to connect with the kidney (10) and join its pertaining organ, the bladder (11). The branch of the lumber region descends through the gluteal region (12) and ends in the popliteal fossa (13). The branch from the posterior aspect of the neck runs straight downward along the medial border of the scapula (14). Passing through the gluteal region (Huantiao, G 30) (15) downward along the lateral aspect of the thigh (16), it meets the preceding branch descending from the lumbar region in the popliteal fossa (17). From there it descends to the leg (18) and further to the posterior aspect of the external malleolus (19). Then, running along the tuberosity of the 5th metatarsal bone (20), it reaches the lateral side of the tip of the little toe (Zhiyin, B 67), where it links with the Kidney Meridian of Foot — Shaoyin(21).

  1. If there has been a departure from the standard of care or accepted practice, how significant a departure do you consider this to be?

[Mr B] described that [Ms A] came for acupuncture treatment with her Meridians issue in her ACC Acupuncture Information Treatment Record on 24 June 2019. [Mr B] considered her channels blocked by subjective his finding (he marked on back of neck), [Ms A] didn’t felt hot or cold, not chills or fever, sometimes has sweat (day/night), [Ms A] has good big appetite with good digestion, [Ms A] felt thirst, urination was OK, stool was good, sleep was patchy, [Ms A] got pain in left wrist, emotions was all good, gynecology felt all good, no headaches, no cough, eyes felt good, hearing was good. [Mr B] considered the meridians possibly affected. Then [Mr B] provided the following treatments for [Ms A]: Acupuncture on the points for CV(12, 10, 6), St(25, 24,26), LI(4, 3,6), LiV(3,6) Referrer the following recorded by [Mr B].

(Mr Lin set out the treatment record)

In the follow up treatment on 12/07/2019, [Mr B] described that [Ms A] feels better after last treatment, then [Mr B] provided the following treatment for [Ms A]: Tui na on her neck and shoulders, massage and cupping on Bladder channel, and acupuncture on the points CV(12, 10, 6), St(25) Sp(15), SmI(31, 12 R13, L14).

[Mr B] responded letter on 15/10/2019 (by [lawyer]): 17. [Ms A] was scheduled for a 60 minute treatment. [Mr B] provided Tuina therapy on [Ms A’s] neck, upper back and shoulders. He also provided moving cupping and acupuncture treatment to [Ms A’s] back and abdomen. While the acupuncture needles were in-situ he provided some acupressure, holding the back of [Ms A’s] neck for approximately 5 minutes. [Mr B] demonstrated his cupping techniques (see photos). 

According to [Mr B’s] examination and he has provided acupuncture and cupping in those areas, it was appropriate.

  1. How would it be viewed by your peers? One of my colleague who has been practising Chinese medicine over 20 years, he considered [Mr B] hasn’t done wrong with his examination and treatment.
  2. Recommendations for improvement that may help to prevent a similar occurrence in future. My recommendation for improvement that may help to prevent a similar occurrence in the future, [Mr B] maybe have the patient written consent and make clear explanation how his acupuncture and cupping methods will be and improve communication to help client fully understand each treatment procedure before treatment, and [Mr B] maybe offer the female client to have a support person onside the treatment.
  3. Whether it was accepted practice for [Mr B’s] thigh (by [Mr B’s] account) or his crotch (by [Ms A’s] account) to touch [Ms A’s] hand.
  4. What is the standard of care/accepted practice? Code of Ethics — NZASA Sexual Misconduct with Patients

9.1.1 NZASA supports Touch as a crucial healing part of acupuncture when that Touch is caring or nurturing and not sexual or exploitive.

9.1.2 It is always the responsibility of the Practitioner to ensure that interaction with each patient occurs in a context in which the patient is informed and consents.

9.1.3 Breaches of the Practitioner/Patient relationship risks causing psychological damage to the patient. Sexual misconduct inevitably harms the patient.

 9.1.4 Exploitation of the patient is an abuse of power. Because of this power imbalance between practitioner and patient, patient consent can never be a defence.

9.1.5 Should the Practitioner and patient mutually agree to a relationship outside [the profession, then that should ensure the patient is first referred to another practitioner].

9.1.7 Definitions: Sexual abuse can be described on 3 levels: Sexual impropriety Sexual transgression Sexual violation. Sexual impropriety includes but not limited to: Inappropriate disrobing or draping practices, including deliberately watching a patient dress or undress, and inadequate privacy for this procedure. Conducting an intimate examination of a patient in the presence of students or other parties without the informed consent of the patient. Inappropriate comments about, or to the patient, as well as making sexual comments about a patient’s body or underclothing. Making sexualised or sexual demeaning comment to the patient. Ridicule of a patient’s sexual orientation (homosexual, heterosexual, or bisexual). Making comments about potential sexual performances during an examination or consultation (except where pertinent to professional issues of sexual function or dysfunction). Requesting details of sexual history or likes and dislikes not clinically indicated for the type of consultation. Any conversation regarding the sexual problems, preferences or fantasies of the practitioner.

Sexual transgression means any inappropriate touching of a patient that is of a sexual nature, short of sexual violation. Sexual transgression includes but not limited to: The touching of breasts or genitals, except for the purpose of appropriate physical examination or treatment, or where the patient has refused or withdrawn consent to the touching as part of such examination or treatment. Kissing of a sexual nature. Propositioning a patient. Sexual Violation means practitioner/patient sexual activity, whether or not initiated by the patient, including but not limited to: (a) Sexual intercourse, masturbation and other forms of genital or sexual stimulation.  

  1. If there has been a departure from the standard of care or accepted practice, how significant a departure do you consider this to be?

[Ms A] described when she raised the complaint on 8/0/8/2019:  [Mr B] responded with letter on 15/10/2019 (by [lawyer]): 22.              

[Mr B] categorically denies that at any stage during the treatment he ‘shoved his [crotch] into [Ms A’s] right hand’ as she lay on the treatment table. Further, [Mr B] does not accept that his groin could have inadvertently come into contact with [Ms A’s] hand during the treatment either. This is supported by the photographs which show [Mr B’s] body position in relation to a patient lying face down on the treatment table. [Ms A] alleges that this occurred while she was face down on the treatment table. We note that while in this position [Ms A’s] face was inserted into the hole in the table thus prohibiting her from being able to observe any part of [Mr B’s] body. It must therefore be assumed that [Ms A] is basing her allegation solely on experiencing the sensation of something coming into contact with her hand. [Mr B] accepts that it is possible that his body came into contact with [Ms A’s] hand during the treatment, given the narrow dimension of the treatment table and that if this occurred it was inadvertent and most likely [Mr B’s] thigh. [Mr B] responded with letter on 05/11/2020 (by [lawyer]): 8.    

Description of treatment (5) Whether any other parts of [Mr B’s] or [Ms A’s] bodies were involved: As described above [Mr B] applied gentle pressure to [Ms A’s] neck with his fingers/hands. No other bodily contact was made during this aspect of the treatment, nor is it necessary as evidenced by the photograph demonstrating the positioning of the practitioner/patient. [Mr B] demonstrated his cupping techniques (see photos).

If [Mr B’s] thigh touched [Ms A’s] hand during [Mr B] doing cupping on [Ms A’s] back when [Mr B] bended forward but only not by purpose I consider, it was not appropriate, the significant a departure was mild. According to [Ms A’s] account that [Mr B’s] [crotch] to touch [Ms A’s] hand when [Mr B] provided treatment on [Ms A’s] back I consider, it was not appropriate, the significant a departure was moderate (when it was happened without purpose) and it was severe (when it was happened with purpose).

  1. How would it be viewed by your peers?

My colleague said they were totally two different stories, and the practitioner or patient would feel very embarrassed when practitioner’s thigh or [crotch] touch patient’s body by no purpose during providing treatment. But [Ms A] had the right to refuse treatment, advice or examination procedures. She also had the right to ask the practitioner to stop any procedure once it has begun.

  1. Recommendations for improvement that may help to prevent a similar occurrence in future.

My Recommendations for improvement that may help to prevent a similar occurrence in future is the practitioner need to remind themselves their body keeping away from the patient’s body and only hands to touch patient when doing acupuncture or Tuina, if the practitioner’s other part of body have to contact the patient’s body for treatment purpose, it must explain very well and get the patient consent.

  1. Whether it would have been expected that [Mr B] would use draping to protect [Ms A’s] privacy.
  2. What is the standard of care/accepted practice?

Code of Professional Ethics 2016 — Acupuncture New Zealand 5 Professional Conduct 5.2 Acupuncture NZ continues to support touch/palpation as a crucial part of acupuncture diagnosis and treatment. 5.4 It is required that an extra person be present during a physical examination if a patient’s breasts or genitals will be exposed either during the examination or the treatment itself. Members must appropriately drape the body using towels or light blankets. Standards, Ethics and Safe Practice 2011 — NZASA (New Zealand Acupuncture Standards Authority Inc. Code of Ethics Sexual impropriety includes but not limited to:

  • Inappropriate disrobing or draping practices, including deliberately watching a patient dress or undress, and inadequate privacy for this procedure.
  1. If there has been a departure from the standard of care or accepted practice, how significant a departure do you consider this to be?

[Ms A] drew the treatment room location: [drawing of treatment room].

[Ms A] responded by email on 07/07/2021: Were you were wearing your bra, and clothing on your lower body, throughout the treatment? Yes I was wearing my bra and long pants. They were rolled up at the ankle to accommodate the needles.

[Mr B] responded on 02/08/2021 (by [lawyer]): 4. Question 3: The treatment took place in winter. [Ms A] arrived wearing winter clothing. After being invited into the treatment room [Mr B] left and closed the door while [Ms A] removed her outer garments. [Ms A] initially sat on the treatment table while [Mr B] provided treatment to her neck. She was dressed in long pants, a bra and a singlet top. [Mr B] then left the treatment room and closed the door while [Ms A] removed her singlet top and positioned herself face down on the treatment table. [Mr B] returned to the room and tucked a towel into the waistline of [Ms A’s] long pants to prevent the oil used in the moving cupping treatment from getting on her clothing. [Ms A’s] bra remained on, but the clasp was undone while the moving cupping treatment was provided to her back. [Mr B] then left the room again closing the door while [Ms A] put her singlet top back on and re positioned herself lying face up on the treatment table prior to the acupuncture treatment being carried out.

Question 4: No draping was used during the treatment.

Question 5: Refer to paragraph 22(3) of the 15 October 2019 correspondence: [Mr B] is clear that on each occasion when [Ms A] was required to re-position her body that he left the room to enable her to do so in private. On each occasion [Mr B] left the room closed the door and stood in waiting room/reception area. It is his usual practice to wait for approximately 90 seconds before knocking, asking if it is ok for him to re-enter and waiting for a response. He did this on each occasion that he left the room during the treatment session with [Ms A].

  1. How would it be viewed by your peers?

[Mr B] should provide a towel or light blanket to cover [Ms A] chest while she lied on back, then [Ms A] would feel more comfortable.

  1. Recommendations for improvement that may help to prevent a similar occurrence in future.

My Recommendations for improvement that may help to prevent a similar occurrence in future is the practitioner should keep the door close during client stay inside the treatment room, the patient would feel more privacy and comfortable.

  1. Whether [Mr B] would be expected to leave the room while [Ms A] repositioned herself
  2. What is the standard of care/accepted practice?

There is no standard of requirement for practitioner to leave the room while patient repositioned.

  1. If there has been a departure from the standard of care or accepted practice, how significant a departure do you consider this to be?

[Mr B] responded on 02/08/2021 (by [lawyer]) 4. Question 3: The treatment took place in winter. [Ms A] arrived wearing winter clothing. After being invited into the treatment room [Mr B] left and closed the door while [Ms A] removed her outer garments. [Ms A] initially sat on the treatment table while [Mr B] provided treatment to her neck. She was dressed in long pants, a bra and a singlet top. [Mr B] then left the treatment room and closed the door while [Ms A] removed her singlet top and positioned herself face down on the treatment table. [Mr B] retuned to the room and tucked a towel into the waistline of [Ms A’s] long pants to prevent the oil used in the moving cupping treatment from getting on her clothing. [Ms A’s] bra remained on, but the clasp was undone while the moving cupping treatment was provided to her back. [Mr B] then left the room again closing the door while [Ms A] put her singlet top back on and re positioned herself lying face up on the treatment table prior to the acupuncture treatment being carried out. According to [Mr B’s] response on 02/08/2021 what he has done it was appropriate.

  1. How would it be viewed by your peers?

My colleague said the practitioner should not watch the patient reposition especially when a female patient only wears the bra, but he doesn’t have to leave the room. For those old or very weak patients the practitioner must keep eyes on them to avoid danger situation happen when the client change position.

  1. Whether it would be expected that [Ms A] would be offered a chaperone and/or informed whether there were other people in the premises.
  2. What is the standard of care/accepted practice?

Here is the standard for offer a chaperone or other support person. Code of Professional Ethics 2016 — Acupuncture New Zealand

3 Consent and Informed Consent 3.3 Treating Minors: A minor is any person under the age of sixteen (16) years. Members must obtain the written consent of the parent or guardian of all patients under the age of sixteen wherever this is possible. A parent/guardian should be encouraged to accompany any minor throughout the treatment.

5 Professional Conduct

5.4 It is required that an extra person be present during a physical examination if a patient’s breasts or genitals will be exposed either during the examination or the treatment itself. Members must appropriately drape the body using towels or light blankets.

  1. If there has been a departure from the standard of care or accepted practice, how significant a departure do you consider this to be?

According to the code of professional ethics of Acupuncture New Zealand that [Mr B] didn’t ask [Ms A] to bring the chaperone and informed whether there were other people in the premises, it was appropriate.

  1. How would it be viewed by your peers?

My colleague said [Mr B] don’t have to ask for a chaperone for an adult female patient during treatment.

  1. Recommendations for improvement that may help to prevent a similar occurrence in future.

My Recommendations for improvement that may help to prevent a similar occurrence in future is [Mr B] can give this offer as a suggestion to female patient to bring for a chaperone in the first treatment.

  1. Whether it was accepted practice for [Mr B] to place his hands on [Ms A’s] neck.
  2. What is the standard of care/accepted practice?

Here is the standard for touch/palpation Code of Professional Ethics 2016 — Acupuncture New Zealand 5 Professional Conduct 5.2 Acupuncture NZ continues to support touch/palpation as a crucial part of acupuncture diagnosis and treatment.

  1. If there has been a departure from the standard of care or accepted practice, how significant a departure do you consider this to be?

[Mr B] responded on 15/10/2019 ([lawyer]). [Mr B] accepts that he sat at the end of the table behind [Ms A] and placed his hands on her neck. As outlined above this was part of his acupuncture treatment. [Mr B] responded on 05/11/2020 ([lawyer]) 9.  

[Mr B] does not recall exactly how he explained to [Ms A] the rationale for the treatment to her neck. However, he believes that prior to touching [Ms A’s] neck he would have explained that he was going to sit quietly behind her and hold the back of her neck while the acupuncture needles were in place and that he would have sought her consent to do so. [Mr B] believes that verbal consent was provided as otherwise he would not have provided the treatment. According to the standard of practice and [Mr B’s] examination he placed his hands on [Ms A’s] neck as part of treatment it was appropriate. How would it be viewed by your peers? My colleague said [Ms A] has got sore neck and [Mr B] had to check and provide treatment on [Ms A’s] neck with touching, it was nothing wrong.

  1. Recommendations for improvement that may help to prevent a similar occurrence in future.

My recommendation for improvement that may help to prevent a similar occurrence in the future, for each treatment all patients should be informed of the purpose, benefits and possible risks of treatment, including adverse reactions to treatment. This allows the patients to make up their own mind as to whether to commence treatment or not. Practitioners should explain the different procedures throughout the treatment and seek the permission of the patient to continue. Informed consent is both a legal and ethical requirement.

  1. Whether it was appropriate for [Mr B] to comment about [Ms A’s] appearance
  2. What is the standard of care/accepted practice?

Here is the standard for comment about patient’s appearance.

Code of Professional Ethics 2016 — Acupuncture New Zealand 6 Responsibility 6.2 Members must not discriminate on the basis of race, colour, disability, ethnic group, culture, Standards, Ethics and Safe Practice 2011 — NZASA (New Zealand Acupuncture Standards Authority Inc.). Code of Ethics Sexual impropriety includes but not limited to: Inappropriate disrobing or draping practices, including deliberately watching a patient dress or undress, and inadequate privacy for this procedure. Inappropriate comments about, or to the patient, as well as making sexual comments about a patient’s body or underclothing. Making sexualised or sexual demeaning comment to the patient. Ridicule of a patient’s sexual orientation (homosexual, heterosexual, or bisexual). Making comments about potential sexual performances during an examination or consultation (except where pertinent to professional issues of sexual function or dysfunction). Requesting details of sexual history or likes and dislikes not clinically indicated for the type of consultation. Any conversation regarding the sexual problems, preferences or fantasies of the practitioner.

  1. If there has been a departure from the standard of care or accepted practice, how significant a departure do you consider this to be?

[Ms A] described in the complaint on 08/08/2019 [Mr B] commented that I had a great body for my age. [Mr B] responded on 15/10/2019 ([lawyer]) 22. During the conclusion of the treatment when [Ms A] stated that she felt old and tired, [Mr B] recalls making a comment to the effect that [Ms A] looked good for her age. [Mr B] is adamant that it was intended to be an affirmative statement to [Ms A] and was not meant to cause offence or distress.

According to [Mr B’s] comment about [Ms A’s] appearance it was appropriate.

  1. Any other matters in this case that you consider warrant comment

There were lots of argument in this complaint between both parties, I can’t make any comments on between those arguments.

References:

Cheng Xinnong, Chinese Acupuncture and Moxibustion, 1987 Standards, Ethics and Safe Practice 2012, NZASA Clinical Procedures and Safe Clinical Practice 2016, Acupuncture NZ Code of Professional Ethics 2016, Acupuncture NZ Liu Gongwang, Clinical Acupuncture & Moxibustion, 1996 Kong Zhaoxia, Tu Yousheng, A Practical Course of Acupuncture and Moxibustion, 1993.

That is my report to HDC for above complaint.

Yours sincerely

Thomas Lin

HDC independent Advisor”


 

Appendix B: Relevant standards

The Acupuncture NZ “Clinical Procedures and Safe Clinical Practice” (2016) states:

“2 Informed consent

For each treatment all patients should be informed of the purpose, benefits and possible risks of treatment, including adverse reactions to treatment. This allows the patients to make up their own mind as to whether to commence treatment or not. Practitioners should explain the different procedures throughout the treatment and seek the permission of the patient to continue. Informed consent is both a legal and ethical requirement.

Additionally, a specific Informed Consent form must be completed by the patient and practitioner prior to the administration of the following five treatment protocols: dermal hammering, gua sha, thread embedding, scarring moxa, bleeding.

Patients have the right to refuse treatment, advice or examination procedures. They also have the right to ask the practitioner to stop any procedure once it has begun.

9 Cupping

Precautions for cupping

—    As with all procedures the process must be explained fully to the patient before commencement of the cupping

—    The patient must be advised to inform the practitioner immediately if the procedure is too uncomfortable

—    The patient must be advised of the possibility of bruising

—    Disposable cups must be used if there is any possibility of bleeding — ie cupping after needling

—    Glass cups may only be used over intact skin

—    Care must be taken not to overheat the cups before placement on the body

—    As long as there has been no bleeding, cups must be washed with hot water and detergent after every patient. If bleeding has occurred, then cups must be autoclaved or disposed of.”

The Acupuncture NZ Code of Ethics 2016 states:

“Consent and Informed Consent

3.1 Consent: The treatment of a patient is legally permitted only with his or her express or implied consent. Acupuncture NZ encourages that consent is obtained in writing and that treatment is explained to the patient throughout every treatment.

3.2 Informed Consent: Members should therefore take care in explaining the diagnosis and treatment they propose to administer, and why it is necessary, in language the patient can understand. Patients have the right to refuse treatment, to ask that treatment be halted at any time or to ignore advice.

Professional Conduct

5.2     Members must not take physical, emotional or financial advantage of any patient.

5.3     Acupuncture NZ continues to support touch/palpation as a crucial part of acupuncture diagnosis and treatment.

5.4     The member must take the history, examine and treat in a manner which is respectful, sensitive and appropriate.

It is required that an extra person be present during a physical examination if a patient’s breasts or genitals will be exposed either during the examination or the treatment itself. Members must appropriately drape the body using towels or light blankets.

It is always the responsibility of the member to ensure that interaction with each patient occurs in a context in which the patient is informed and has given consent.”

 

 

[1] Tuina massage stimulates the flow of qi to promote balance and harmony within the body using many of the same principles of acupuncture. It is similar to acupuncture in the way it targets specific acupoints, but practitioners use fingers instead of needles to apply pressure to stimulate these points.

[2] Feng Chi, also known as Gallbladder 20 (GB20), is an acupuncture point located at the meeting-place of the base of the skull and top of the neck, close to the tendons of the trapezius muscle.

[3] Right 6(1) states: “Every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive, including — (a) an explanation of his or her condition; and (b) an explanation of the options available, including an assessment of the expected risks, side effects, benefits, and costs of each option …”

[4] Right 7(1) states: “Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent …”