A woman who visited a Chinese acupuncture clinic for treatment on her lower back alleged she had her breasts rubbed, had a vibrating massager held between her legs and was told to lose weight.

The actions led to an eating disorder for the woman, in her 50s, who also gave up working as she battled depression linked to the alleged experience.

While police said there was insufficient evidence to charge the practicioner, deputy Health and Disability Commissioner (HDC) Vanessa Caldwell has found the man breached the patient’s rights.

The case has now been referred to the Director of Proceedings to determine if professional charges should be laid.

According to Caldwell’s decision released today, the woman sought treatment from the practitioner, who is not a member of a regulatory body, in June 2016.

She was suffering from sciatica in her lower back and had pins and needles in her lower body.

During her first acupuncture appointment, the woman alleged the man unclipped her bra without asking and stroked her hair, arms and legs.

She also alleged he patted her stomach and said “you need to lose this”. He then reconnected her bra for her.

In response to the allegations from this first appointment, the practitioner said if the woman appeared to have “low energy” he would give them a “soft touch skin massage”.

He admitted to patting her stomach and telling her to lose weight, and apologised for not seeking consent to massage her body.

The woman told the HDC that “despite not feeling comfortable”, she reluctantly returned for a second appointment.

During this acupuncture consultation, the practitioner used a vibrating massager on the woman’s head, neck, arms, spine and left leg, without her consent, before placing it between her buttocks and then between her legs for “a concerning amount of time”.

She alleged he used the massager on her breasts and when she tried to push away the machine, she said the practitioner told her “no, you need this”.

When he stopped, she alleged he put his hands under her shirt and massaged her breasts for 30 seconds, before rubbing her stomach and commenting she was “very beautiful”.

He asked for “skin on skin” treatment at the next appointment.

She told the HDC that she was left feeling shocked and frightened but was unable to leave as she had acupuncture needles in her legs.

The following month she filed a police complaint.

Practitioner sought consent via ‘eye contact’

In response to the allegations related to the second appointment, the man denied putting the massager between the woman’s legs but admitted it was placed “at some intimate parts”.

He denied touching her breasts with it.

The practitioner said his focus was on relaxing the tension in her body and claimed to have done this by patting her with his fingers. He denied stroking her.

He admitted to calling her beautiful and said he did that to cheer her up as she was in a “gloomy mood”.

The practitioner claimed to have not had enough time to explain the process and theory for each treatment he applied within the one hour appointment. He said he relied on “implied” consent via eye contact.

“He said that he could explain this well in English but did not provide an explanation to [the patient] because he considered that most ‘western people’ did not understand, and it confused them,” Caldwell wrote in her decision.

The practitioner apologised to the woman and regretted how the treatment affected her. He said he should have been clearer in his communication.

Caldwell found the man had not obtained informed consent for the massage at both appointments.

“[The patient] was not comfortable, and I am extremely critical that he continued with the massage despite this.”

Caldwell was also concerned with the touching of the woman’s stomach, the comment about her weight, and that he had called her “beautiful” and asked for “skin on skin” contact.

“Every consumer has the right to be treated with respect, and I consider that [the practitioner’s] conduct towards [the patient] showed a disregard for this.

“It is not my role to determine whether a provider may have sexually assaulted a consumer. However, it is clear to me that [the practitioner], in undertaking a non-consented massage on sensitive areas of [the patient’s] body, significantly invaded her personal privacy.”

Caldwell found the practitioner breached three parts of the Code of Health and Disability Services Consumers’ Rights.

Those were failing to provide information on the treatment, failing to obtain informed consent, and failing to treat the woman with respect.

The practitioner told the HDC he now explained his treatment to patients more thoroughly, the decision stated.

Caldwell made a number of recommendations, including that the practitioner consider registering with the Chinese Medicine Council of New Zealand and abide by its guidelines, that he arrange a mentor from the council for 12 months, and use a written consent form for all patients.

She also advised he review his website to include details of the practices used, and develop a leaflet with the same information.

Caldwell further recommended the Chinese Medicine Council to confirm mentoring arrangements and review whether the doctor is sufficiently competent if he registers with them.

Ethan Griffiths covers crime and justice stories nationwide for Open Justice. He joined NZME in 2020, previously working as a regional reporter in Whanganui and South Taranaki.