Director of Proceedings v Rolston

Director of Proceedings v Rolston [2021] NZHRRT 35 (26 July 2021)

The Director filed proceedings by consent against massage therapist Steve Rolston (“the defendant”) in the Human Rights Review Tribunal, regarding the care he provided to Ms A.

Ms A attended the defendant’s home (from where he operates his massage business) to use a voucher for a 90-minute full-body relaxation massage. During the massage session, the defendant exposed Ms A’s chest and abdomen without warning or offering any covering, and massaged her stomach and breasts (including her nipples) without consent. 

Expert advice confirmed that it is unusual to massage the breasts as part of a full-body relaxation massage, especially for a male treating a female, and that specific informed consent should be obtained before massaging breasts. However, nipples are considered an erogenous zone and should never be massaged. Massaging the nipples (even with consent) would be seen as engaging in sexual misconduct, and a serious breach of the Code of Ethics. Expert advice was clear that massaging the chest and abdominal areas requires secure draping and should be done ensuring dignity and privacy, and treatment should not be performed under the draping. 

The defendant accepted that he failed to communicate adequately with Ms A and did not inform her prior to the massage that he intended specifically to massage her breasts and abdomen. Accordingly, the defendant accepted that he failed to obtain Ms A’s informed consent to massage those areas. Further, the defendant accepted that he failed to meet professional and ethical standards by massaging Ms A’s breasts and nipples; exposing Ms A’s breasts and abdomen without warning her that this was his intention and without obtaining her prior consent; and by failing to communicate adequately throughout the massage. The defendant 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 the defendant failed in the care he provided to Ms A, and issued a declaration that the defendant breached Rights 4(2), 6(1), and 7(1) of the Code.

This case is a reminder to all people who provide a health or disability service that paramount importance attaches to informed consent and the consumer’s right to self-determination, especially in situations such as massage sessions where consumers are often unclothed and vulnerable (and in this case, where the massage involved sensitive areas of the body).

The Tribunal’s decision can be found at:

https://www.justice.govt.nz/assets/Documents/Decisions/2021-nzhrrt-35-director-of-proceedings-v-rolston.pdf