Massage therapist sued for unnecessary touch

A massage therapist is being sued for allegedly unnecessarily touching two female patients in sensitive areas.

The action against Mark Douglas is being taken by the Director of Proceedings, under the Health and Disability Commissioner Act in front of the Human Rights Review Tribunal in Auckland.

It is alleged Mr Douglas touched the breast of one complainant when it was unnecessary.

In the second case, he was said to have needlessly touched a 14-year-old girl near her genital area.

In each case, it is alleged Mr Douglas failed to obtain informed consents for the treatment provided.

The director is seeking awards of compensatory and exemplary damages plus declaratory and other relief for the complainants.

The case has been set down for three days next month.

In a preliminary decision following a "blizzard" of pre-hearing applications, the tribunal rejected claims by Mr Douglas' lawyer, Evgeny Orlov, that the proceedings were an abuse of process.

The tribunal said it was important to emphasise that Mr Douglas opposed the director's claims and denied any wrongdoing, though some aspects of the significant facts were accepted.

The tribunal said it was alleged in the case of one girl that, during a therapy session in May 2007, Mr Douglas applied pressure with his fingers or thumbs to the area of her groin immediately adjacent to the outer labia.

"His response to the allegation appears to accept that was what happened, but it will be his evidence that before the treatment he had explained to the complainant and her mother - who was present throughout - what he was doing and why," the tribunal said.

Mr Douglas said the procedure was carried out with their fully informed consent.

"As will be seen, the issues here are not really about what touching occurred, but whether the treatment was warranted, whether the touching was necessary for the treatment being provided and/or whether the treatment was carried out with the complainant's informed consent," the tribunal decision said.

In the other case during a consultation in June 2007, Mr Douglas was alleged to have repeatedly cupped a woman's breast in his hand, touching her nipple.

His explanation was that, if he touched her nipple, it was inadvertent.

"As to the touching of the breast, however, he explains that he was trying to hold the breast out of the way so that he could carry out the massage he was doing."

The tribunal said Mr Orlov claimed the cases really involved allegations of conduct of a criminal kind and as such the tribunal had no jurisdiction to deal with the claims.

But the tribunal said that while it had no authority to deal with criminal culpability "the claims that have been filed do not ask us to do anything of the sort".

There was "nothing in the claims filed by the director to suggest that he is making such an extreme allegation here".

The tribunal said it had been told that the complainants had not gone to the police, did not intend to do so and there was no serious suggestion that the matters ought to be referred to the police.

- NZPA