Director of Proceedings v Xu  NZHRRT 30, (26 September 2023)
The Director of Proceedings filed proceedings by consent against a massage therapist, Shengming (Steven) Xu, in the Human Rights Review Tribunal (‘the Tribunal’), regarding the care he provided to Mrs N.
Mrs N had a 60-minute full body relaxation massage at a massage clinic located in a shopping mall in Auckland. Mr Xu did not discuss or document the proposed massage with Mrs N, including what areas of her body she wanted massaged. During the massage, Mr Xu exposed and massaged Mrs N’s breasts and abdomen. The massage clinic advised the Health and Disability Commissioner (‘the Commissioner’) that full body massages do not include the chest or the abdomen. However, Mr Xu advised that a full body massage usually included a breast massage and that clients could tell the therapist which body parts they did not want massaged. Mr Xu also said that when he was massaging Mrs N’s abdomen, she did not say anything or express any concerns.
Independent advice provided to the Commissioner confirmed that Mr Xu’s massage did not fit the standard of care and accepted practice of professional massages in New Zealand. Mr Xu now accepts that it was inappropriate for him to massage Mrs N’s breasts, and to expose her breasts and abdomen without warning her that this was his intention. Mr Xu accepts that he did not communicate adequately with Mrs N and did not provide her with the information to which she was reasonably entitled. He now accepts that a reasonable person in Mrs N’s position would expect to be asked explicitly to consent to the massage of sensitive areas such as the breasts and abdomen. Mr Xu also accepts that because he did not give Mrs N the information she was entitled to receive, she was not able to make an informed choice or give informed consent to the massage of her breasts and abdomen. He accepts that it is not sufficient to assume that a client has given informed consent if the client does not object to specific actions. Finally, Mr Xu now accepts that he did not comply with accepted professional and ethical standards and that he did not take adequate steps to protect, maintain, or respect Mrs N’s privacy.
Mr Xu has accepted that his failures in care amount to breaches of the Code of Health and Disability Services Consumers’ Rights (‘the Code’), and the matter proceeded by way of an agreed summary of facts. The Tribunal was satisfied that Mr Xu failed in the care he provided to Mrs N and issued a declaration that he breached Rights 1(2), 4(2), 6(1) and 7(1) of the Code.
The Tribunal’s full decision can be found at: http://www.nzlii.org/cgi-bin/download.cgi/cgi-bin/download.cgi/download/nz/cases/NZHRRT/2023/30.pdf