Executive summary. 

Complaint and investigation. 

Information gathered during investigation. 

Opinion: Mr A — breach. 

Recommendations. 

Follow-up action. 

Appendix A: Independent clinical advice to Commissioner. 

 

Executive summary

1. This report concerns the care provided to Ms B over two sessions between late 2021 and early 2022 by massage therapist Mr A. Ms B complained that during the second session, Mr A did not assess her properly and over-treated her (in terms of time and intensity), resulting in further injury and significant pain.

Findings

2. The Deputy Commissioner found that Mr A did not facilitate the resolution of Ms B’s complaint in a timely and appropriate manner and made inappropriate comments about her character and mental health in his communications with HDC. Mr A acted unprofessionally and in breach of Right 10(3) of the Code.
   
   
3. The Deputy Commissioner was also critical that Mr A did not treat Ms B with adequate respect when she was seeking resolution of her complaint and highlighted the importance of respect in effective complaints management and resolution.
   
   
4. In addition, the Deputy Commissioner found that Mr A did not provide services with reasonable care and skill, as he did not keep a full and accurate clinical record, in breach of Right 4(1) of the Code.

Recommendations

5. The Deputy Commissioner recommended that Mr A provide a written apology to Ms B for the deficiencies outlined in the report, consider joining Massage Aotearoa New Zealand (MANZ), provide a written reflection on his practice, and undertake further education and training.

Complaint and investigation

6. This report discusses the care provided to Ms B by Mr A[1] at Ms B’s home. In particular, the report concerns a failure to facilitate the resolution of a complaint and an inappropriate standard of care.
   
   
7. The following issue was identified for investigation:

• • Whether Mr A provided Ms B with an appropriate standard of care between November 2021 and January 2022 (inclusive).

8. This report is the opinion of Deborah James, Deputy Health and Disability Commissioner, and is made in accordance with the power delegated to her by the Commissioner.
   
   
9. The parties directly involved in the investigation were:

Mr A                                                                             Provider/massage therapist

Ms B                                                                             Consumer/complainant

 

10. Further information was received from:

Osteopathy Clinic 1                                                      Non-subject provider

Osteopathy Clinic 2                                                      Non-subject provider

Nationwide Health and Disability Advocacy Service

ACC

11. Independent clinical advice was obtained from a massage therapist, Mr Barry Vautier (Appendix A).

 

Information gathered during investigation

Background

12. Ms B, aged in her fifties at the time of events, had experienced various injuries relating to her leg, hip, and back since the early 1980s. In October 2020, Ms B twisted her lower back and sought treatment from an osteopath. After continuing to experience pain, Ms B sought treatment from a physiotherapist (to try to strengthen her back).
    
    
13. On 2 July 2021, Ms B slipped and injured her right ankle and lower back. An ACC injury claim was accepted for an ankle sprain and lumbar sprain on 3 July 2021.
    
    
14. Prior to the events leading to this complaint, Ms B had worked as a therapist, and Mr A and Ms B referred to each other as ‘friends’.

How matter arose

15. During November 2021, Mr A provided Ms B with deep tissue massage therapy (Session One) at her home. Ms B told HDC that during the session she was lying in a supine[2] position, with the focus of the session on releasing her left iliopsoas muscle,[3] which felt tight.

Session Two — 16 January 2022

16. Ms B told HDC that she booked another session with Mr A (Session Two), after experiencing tightness in her lower back and right buttocks while walking up a hill. Ms B stated that she ‘did some massage into [her] buttock but it didn’t resolve it’. Therefore, she thought a session would relieve it.
    
    
17. On Sunday 16 January 2022, Mr A treated Ms B with neuromuscular therapy (NMT)[4] at her new place of residence.[5] In response to the provisional opinion, Ms B told HDC that in contrast to Session One, she was in a prone[6] position during Session Two.
    
    
18. Ms B stated that during Session Two, Mr A did not assess her properly, despite knowing her long-term history and that she was recovering from an injury, and he treated her for too long (for over 90 minutes and wanted to continue further until Ms B declined). Ms B claimed that as a result, Mr A rotated her pelvis on the right-hand side, leading to a sharp pain in her right lumbar region, which she felt up to her ribs and between her spine and right shoulder.
    
    
19. Regarding Mr A’s use of NMT, Ms B told HDC that she was aware that it ‘is a great modality’ but felt that Mr A over-treated her. In response to the provisional opinion, Ms B stated that Mr A ‘pulled with firm pressure on [her] right hip to laterally rotate it … for quite a while’, and that she ‘[did not] remember [Mr A] asking at the beginning nor in the middle of this technique about its intensity’. Ms B told HDC:

‘My guess is that [Mr A] doesn’t know how deep and full-on his sessions are particularly for older women who do not have a lot of muscle strength; he is used to working with top athletes.’

20. Ms B stated that the following day, she woke up to her back feeling ‘stiff and locked up’, she ‘could not stand straight, sit for long or move without pain’, and she felt worse after Session Two than after her initial injury in October 2020 (as then, Ms B was ‘still able to work with a back/hip support straight after the injury’).

Subsequent treatment

21. On 19 January 2022 (three days after Session Two), Ms B received a one-off treatment at Osteopathy Clinic 1. Clinical notes reflect that Ms B had a stuck sacroiliac joint,[7] with a twisted pelvis. The osteopath diagnosed Ms B with ‘sacral tension with irritation of the lumbosacral plexus[8]’ and applied various soft tissue treatments. Clinical notes reflect that at the conclusion of the session, Ms B’s pelvis had ‘much better symmetry’ and she could walk straighter and more easily.
    
    
22. On 2 February 2022, Ms B received an initial consultation at Osteopathy Clinic 2. Clinical notes indicate that a ‘normal passive structure assessment [was] impossible due to pain with little pressure’ and that Ms B was ‘position intolerant on [the] couch’. The osteopath diagnosed Ms B with a ‘suspect[ed] right sacro-iliac joint instability from case history’ and referred her to another colleague at Osteopathy Clinic 2 for a cranial-osteopathy approach.[9]
    
    
23. Between 15 February and 14 April 2022, Ms B was treated a further five times by a cranial osteopath at Osteopathy Clinic 2. Clinical notes reflect progressive improvement in Ms B’s pelvic pain symptoms during these sessions. However, the osteopath noted: ‘[Ms B] is very sensitive and what may be considered normal treatment procedures for most people will cause her to react to the treatment.’
    
    
24. Ms B told HDC that six and a half weeks after Session Two, she was still in significant pain and required a back support to complete daily activities such as driving, standing for longer periods, or lifting.

Attempts to raise concerns

25. Ms B told HDC that on Monday 17 January 2022 (the morning after Session Two), Mr A called her and said that she ‘should be feeling amazing’. Ms B stated that she then informed Mr A that she could not stand up and that he had twisted her back during Session Two, as she had experienced a sharp pain during the session, which had stopped soon afterwards. Ms B told HDC that Mr A ‘totally denied’ that he had twisted her back and did not want any further communication with her.
    
    
26. In the first instance, Ms B attempted to raise her concerns with Mr A through text messaging. Ms B was unable to provide HDC with copies of the text messages. She said that this was unsuccessful as Mr A ceased communication and ‘blocked [her] on [social media]’.
    
    
27. On 22 January 2022, Ms B sent a letter to Mr A outlining that she was still in pain and seeking a resolution to her concerns. She wrote:

‘[A]nything I do is very difficult, even after seeing my osteo[path] on Wednesday, and today, Sat[urday], I still cannot stand up straight, have to support myself leaning forward at the kitchen bench, crawl on my hands and knees to get stuff off the floor, having difficulty sleeping and can’t sit for too long without being uncomfortable and then in pain. In fact, I’m worse than the injury I had in Oct 2020 because I could go to work which there is no way at the moment, so I have lost income.’

Nationwide Health and Disability Advocacy Service

28. Mr A did not respond to Ms B’s letter. As a result, Ms B contacted the Nationwide Health and Disability Advocacy Service (the Advocacy Service)[10] to help her establish contact with Mr A and resolve her concerns. On 8 February 2022, a letter was sent to Mr A detailing Ms B’s complaint and asking him to respond in writing to each of Ms B’s issues. Mr A did not respond to this letter.
    
    
29. On 18 February 2022, Mr A sent confirmation to the Advocacy Service that he had received the letter but did not respond to its substantive content.

Complaint to HDC

30. On 22 February 2022, Ms B sent a final letter (of her own accord) to Mr A, which outlined that she was ‘still recovering from the session’ and was ‘confused and shocked by [Mr A’s] disregard’. Ms B stated in the letter that as Mr A had ‘ignored’ the letter from the Advocacy Service, she had ‘no choice’ but to make a complaint to HDC. Subsequently Ms B made a complaint to HDC on 3 March 2022.
    
    
31. On 10 March 2022, Ms B informed the Advocacy Service that she wished to take no further action through the Advocacy Service. Ms B told HDC that she withdrew her complaint with the Advocacy Service because she had made a complaint to HDC. On 21 March 2022, the Advocacy Service informed Mr A: ‘[Ms B] does not want to take any further action with Advocacy in relation to her complaint. The advocacy file will now be closed.’
    
    
32. Ms B told HDC that she had ‘tried all ways to contact [Mr A] to try and work through this amicably’, but he had continued to ignore her. She noted that this experience has been ‘extremely stressful’, and it affected her income and required many sessions with an osteopath.
    
    
33. In response to the provisional opinion, Ms B stated that the incident caused ‘a huge impact on [her] lumbar’, which remains an ongoing issue as her ‘right lumbar muscles so easily go into spasm’. Further, Ms B told HDC that she was ‘disgusted’ with the personal comments Mr A made about her in his communications with HDC.

HDC investigation

34. HDC sent a letter to Mr A on 31 May 2022 requesting further information related to Ms B’s complaint; however, he failed to respond.
    
    
35. Over the following year, multiple attempts were made to contact Mr A regarding this complaint, and on 20 May 2023 a final letter was posted to the massage clinic’s physical address, with a deadline to respond by 9 June 2023.
    
    
36. On 9 June 2023, this Office received a partial response from Mr A. Mr A said he believed that the complaint had been withdrawn by Ms B as the Advocacy Service had informed him that the file had been closed. He reiterated that HDC should ‘cease and desist’ any further communication on the issue.
    
    
37. On 21 June 2023, HDC confirmed to Mr A that Ms B’s complaint was still being investigated (by HDC) and requested further information (as his response on 9 June 2023 was inadequate and did not provide all the information necessary for the investigation).
    
    
38. On 2 October 2023, Mr A provided this Office with a response to HDC’s request for further information (first requested in May 2022).

Provider response

39. Mr A stated that during Session One, Ms B informed him of an ongoing back issue that she had been experiencing in ‘both her hip and lumbar area’ and expressed an interest in receiving NMT. Mr A told HDC that Ms B was ‘knowledgeable in anatomy and physiology’, and his initial assessment was informed by Ms B’s briefing ‘as to what she thought the problem was and the type of therapy she was after she felt would help’.
    
    
40. Mr A stated that for Session Two, Ms B asked him to ‘pretty much follow the same course of treatment’ as Session One and therefore, the treatment provided was ‘very similar’. Furthermore, Mr A stated that during his continued assessment, he found the areas of concern Ms B mentioned (lower back/lumbar area and right hip flexors) ‘to be very condensed almost to the point of muscle cramp’.
    
    
41. Mr A described his treatment during Session Two as follows:

1. 1. He utilised light to medium massage strokes (effleurage) to warm the affected areas before applying NMT.
      
      
   2. He treated several trigger points, which ‘had a positive effect in releasing the density and cramping’.
      
      
   3. After each trigger point application, he ‘always followed with light effleurage to “flush” the area’.
      
      
   4. He ‘appl[ied] very gentle lateral rotation of [Ms B’s] pelvis by moving her bent leg whilst securely holding the foot in order to access the [trigger points] of the gluteal muscles’. Mr A said that this technique ‘most always result[s] in [the] successful release of the affected area’. He also stated that during the lateral rotation, he checked Ms B’s comfort level periodically and she affirmed that she was fine at the time.
      
      
   5. The treatment was completed to both his and Ms B’s satisfaction.

42. Mr A stated that Ms B ‘seemed very happy’ after Session Two and ‘relieved of the discomfort she had been experiencing’. He said that prior to leaving her home, he recommended that Ms B book in with an osteopath if her condition worsened, and that he would be happy to provide a follow-up treatment.
    
    
43. In his response dated 9 June 2023, Mr A told HDC that the following day, he contacted Ms B to check how she was feeling, to which she responded that ‘it felt ok but was quite sore’. Mr A stated that this response was nothing unusual, as ‘deep tissue therapy will leave a small amount of discomfort for 1–2 days following treatment’. In his response dated 2 October 2023, Mr A said that Ms B was ‘very praiseworthy’ when he followed up with her.
    
    
44. Mr A told HDC that on 18 January 2022, Ms B contacted him and said the following:

1. 1. She felt worse, and her ‘sacrum and sacroiliac joint’ were ‘very tight and sore’;
   2. The ‘pelvic rotation had not been a good idea and probably exacerbated the issue’; and
   3. She had since tried to self-treat the issue, which Mr A felt was not in her best interests and would have caused further discomfort.

45. Mr A said that he responded that he ‘was very sorry to hear this’ and recommended that Ms B seek further treatment from an osteopath due to the accelerated worsening of the sacroiliac joint.
    
    
46. Mr A stated that over the next three hours, Ms B sent him ‘extremely rude and condemning text messages regarding the treatment and [his] expertise’, to which he asked her to stop communicating with him. Mr A claimed that he ‘blocked’ Ms B in response to the continual ‘nasty attack’ from her.[11]
    
    
47. Mr A denied over-rotating Ms B’s pelvis and stated that Ms B was ‘not of sound mind and has known mental conditions’, and that this was evident in the ‘preposterous claims’ made. Mr A stated that Ms B’s lumbar/pelvic strain was an ongoing issue that had been exacerbated by her sleeping in a ‘small hatchback vehicle for the previous [four] nights’. He also noted that it was likely that Ms B had ‘tried to self-treat her condition’ the day before his treatment, ‘no doubt making it worse’. In addition, he noted that around this time, Ms B had recently moved into a new home. He said that Ms B told him that she needed the session ‘due to her back injury being exacerbated probably by the moving’. Mr A did not provide HDC with evidence of this communication.
    
    
48. Mr A disagreed with Ms B’s claim that he wanted to continue the treatment for much longer than necessary. He stated that because of an awkward interaction with Ms B’s flatmate, he chose to finish the session in the prescribed hour.
    
    
49. No clinical records were provided to this Office. In his response dated 2 October 2023, Mr A told HDC that no treatment plan was created, as originally the massage therapy was provided as a one-off session to a ‘friend’ at her place of residence, on a casual basis.[12] He stated that if Ms B had requested a series of treatments, then he would have created a treatment record. However, in an email dated 18 October 2023, Mr A stated: ‘It was not a clinic situation so, no, I did not have or take any records and was providing the treatment she asked for based on what she briefed me on each time.’

Subsequent communication

50. HDC obtained independent clinical advice on this matter, and on 9 February 2024 Mr A was given the opportunity to respond to this advice. In addition, further information was requested. Mr A did not respond to the advice and did not provide any further information, despite multiple attempts by this Office to contact him.

Responses to provisional opinion

Ms B

51. Ms B was given an opportunity to respond to the information gathered during this investigation. Ms B’s comments have been incorporated into the opinion where relevant and appropriate.
    
    
52. Ms B told HDC that she disagreed with Mr A’s version of events. Ms B reiterated that she ‘went to all lengths to try to sort this out amicably’, and that she continues to live with the consequences of the poor treatment provided by Mr A.

Mr A

53. Mr A was given the opportunity to respond to the provisional opinion, but no response was received.

Relevant standards

54. Massage Aotearoa New Zealand’s Code of Ethics (2018) provides the following:

Client Relationships

‘Practitioners will:

Acknowledge the inherent worth and individuality of each person by not discriminating or behaving in any prejudicial manner with clients.

…’

55. Massage Aotearoa New Zealand’s Standards of Practice (2018) provides the following:

Client Health

‘On first consultation get client to complete and sign a client history information sheet and update where required.

Inform client during session on what treatment will be provided and continue to monitor and update when required.

Assess pressure, tissue tolerance and comfort levels during sessions and communicate with client on an ongoing basis.

Use appropriate assessment techniques and measures to assess client needs.’

Safety & Quality in Practice

‘Be able to conduct a client evaluation sufficiently to make a working assessment and formulate a treatment plan.

Be able to formulate and deliver a justifiable treatment plan or refer when necessary.

Ensure that your client records are full, accurate and completed promptly.

…’

Professionalism

‘…

Comply with equality and anti-discrimination laws.

…

Be open and honest when dealing with clients and colleagues and respond quickly to complaints.

…’

Opinion: Mr A — breach

56. Under the Health and Disability Commissioner Act 1994 (the Act), every consumer is entitled to the rights contained in the Code of Health and Disability Services Consumers’ Rights (the Code). These rights apply regardless of whether a charge is made for the service. Correspondingly, every healthcare provider (which includes any person who ‘provides, or holds himself or herself or itself out as providing, health services to the public’) is subject to the duties contained in the Code.
    
    
57. In New Zealand, the massage profession is a non-regulated profession under the Health Competence Assurance Act 2003. This means that there is no requirement for massage therapists to register with a professional association, and at the time of these events, Mr A was not a member of MANZ.[13] However, as stated by this Office previously, and as determined in Director of Proceedings v Mogridge [2007] NZHRRT 27:

‘The obligations of the Code apply to those who provide health services, whether or not they belong to any professional association or similar body, and whether or not they are aware of the standards set out in the Code.’

58. In addition to being subject to the obligations of the Code, as stated by this Office previously:[14]

‘[B]y holding [oneself] out to be a massage therapist, and by providing massage services for a fee, [the massage therapist] is required to meet the standards of a professional massage therapist, and … the ethical principles set out in the Massage NZ Code of Ethics provide a credible reference point in establishing the ethical standards that should apply in these circumstances. Accordingly, … the Massage NZ Code of Ethics and Standards of Practice [is] an appropriate benchmark for the assessment of [the massage therapist’s] practice.’

59. I agree with this conclusion. Mr A holds himself out to be a massage therapist, and therefore the Massage NZ Code of Ethics and Standards of Practice provide an appropriate benchmark for an assessment of his practice. Furthermore, despite Mr A contending that he provided massage therapy as a ‘friend’, and in a manner that was considered ‘casual’, nevertheless he provided health services to a consumer, and accordingly he is subject to the obligations of the Code. It follows that Mr A’s actions in providing massage therapy to Ms B fall within the Commissioner’s jurisdiction.

Complaint management — breach

60. The role of HDC is to uphold the rights of healthcare consumers, and it is imperative that healthcare providers engage with HDC to resolve consumers’ concerns. Right 10(3) of the Code states that ‘every provider must facilitate the fair, simple, speedy, and efficient resolution of complaints’.
    
    
61. As outlined above, Ms B attempted to resolve her complaint with Mr A directly; however, Mr A ceased communication with her. Ms B then sought assistance from the Advocacy Service. Mr A did not respond to the Advocacy Service’s letter nor Ms B’s ‘final’ letter (sent of her own accord). Ms B felt that she had ‘no choice’ but to make a complaint to HDC as she had exhausted all ways to contact Mr A and reach an amicable resolution.
    
    
62. After making a complaint to HDC on 3 March 2022, Ms B advised the Advocacy Service that she wished to take no further action with the service. It appears that Mr A misunderstood this to mean that the overall complaint had been closed. When HDC contacted Mr A and clarified that the complaint was still open and sought his response to the complaint, Mr A stated that Ms B was ‘not of sound mind’ and had ‘known mental conditions’, and that this was evident in Ms B’s ‘preposterous claims’.
    
    
63. Mr A took one year and four months to respond to HDC’s request for further information fully (during the preliminary assessment[15]of Ms B’s complaint).[16] Mr A was also largely unresponsive to HDC’s requests for further information after receiving notification of HDC’s intention to investigate the complaint formally.
    
    
64. My independent clinical advisor, Mr Barry Vautier, noted that the standard of care at the time of events was based on MANZ’s Code of Ethics and Standards of Practice. Mr Vautier advised that by refusing to address Ms B’s complaint adequately, Mr A breached the ethic of ‘Client Relationship’ and standard of ‘Professionalism’.
    
    
65. Mr Vautier advised that Mr A failed to acknowledge Ms B’s inherent worth through his ‘abusive and prejudicial behaviour in unilaterally ceasing contact’ when she was seeking a satisfactory resolution to her complaint. Mr Vautier noted that Mr A has not provided an apology to Ms B for potentially inappropriate treatment (causing her further pain or treating her for too long).
    
    
66. Further, Mr Vautier advised that massage therapists are required to act with integrity and without discrimination for ‘any condition a client presents with’. Mr Vautier stated that Mr A’s claim about Ms B’s ‘mental issues’ was without evidence, [17] and the reliance placed upon it (as a rationale for not engaging with Ms B’s complaint two days after Session Two) demonstrated a ‘serious breach of human care and was an abuse of good care and conduct as a massage professional’.
    
    
67. As a result, Mr Vautier found that there was a severe departure from the standard of care, as Mr A failed to address Ms B’s complaint in a timely and appropriate manner (by choosing to cease communication after two days). However, Mr Vautier noted that as there was a lack of information about what was said between the parties via text messages, the full picture of what was communicated to Ms B at the time of the events is subject to conjecture.

Right 10(3)

68. Previously this Office has outlined the importance of providers engaging in the investigation process:[18]

‘HDC decisions are impartial and fair processes. The correspondence sent to [the provider] by HDC were opportunities for him not only to clarify and resolve the issues raised by [the consumer], but also to provide information to support his assertions that the care provided to [the consumer] was appropriate. [The provider] did not take these opportunities, and, in doing so, unnecessarily delayed [the consumer’s] right to have her complaint handled in a speedy, efficient, and satisfactory manner.’

69. In addition, in a previous investigation,[19] HDC found that a counsellor’s failure to provide information that was crucial to a fair and speedy investigation of the complaint (a delay of over four months) breached Right 10(3) of the Code. Mr A has also failed to provide crucial information in a timely manner. As outlined above, there was a delay of one year and four months in Mr A responding to HDC fully during the preliminary assessment stage (including comments that HDC should ‘cease and desist’ any further communication on the issue, and that he was ‘responding for the last time on this issue’), general unresponsiveness after Mr A was informed of HDC’s intention to commence a formal investigation, and a failure to provide the requested information (such as clinical notes) relevant to the investigation.
    
    
70. Accordingly, I accept Mr Vautier’s advice that Mr A breached the MANZ standard of ‘Professionalism’ by refusing to address Ms B’s concerns adequately, and I accept Mr Vautier’s finding of a severe departure from the standard of care pertaining to Mr A’s communication with Ms B. In my view, Mr A hindered the fair, simple, speedy, and efficient resolution of Ms B’s complaint through his unresponsiveness and unwillingness to comply with this investigation.

Other comment

71. In addition to the above discussion of Right 10(3), I remind healthcare providers (in both regulated and non-regulated professions) that they are required to engage with consumers, and the wider complaints resolution process, in a respectful manner as a part of effective complaints resolution.
    
    
72. This is reflected in the Code,[20] which states that providers are required to comply with ‘other relevant Code rights’ (which includes the right to be treated with respect[21]), alongside their complaints management and resolution process. In the context of this case, this understanding is also reflected in the MANZ standard of ‘Interpersonal skills’, which states that professionals must ‘[l]isten to clients and respect their concerns and preferences’.
    
    
73. I am critical that Mr A did not treat Ms B with adequate respect when she was seeking resolution of her complaint, which is evidenced by Mr A ceasing communication with Ms B and making inappropriate comments about her in his responses to HDC.
    
    
74. I further highlight that the complaints mechanism established by the Health and Disability Commissioner Act 1994 is the primary vehicle for dealing with complaints about the quality of health and disability services in New Zealand. It is, therefore, vital that all parties engage with HDC’s process, and each other, in a respectful manner.

Conclusion

75. I find that Mr A did not facilitate the fair, simple, speedy, and efficient resolution of Ms B’s complaint, and therefore breached Right 10(3) of the Code.
    
    
76. In addition, I am critical that Mr A did not treat Ms B with adequate respect during the complaints resolution process.

Appropriate standard of care — breach

77. Right 4(1) of the Code requires healthcare providers to take reasonable care and skill in the provision of health services,[22] and this includes providers keeping a full and accurate clinical record. This Office has stressed the importance of good record-keeping and the accuracy of clinical records in several previous decisions.[23]
    
    
78. As discussed above, Ms B told HDC that she is concerned that Mr A did not assess her adequately and over-treated her (in terms of time and intensity), and this led to further injury and significant pain. In contrast, Mr A said that his assessment of Ms B was based on her direction, and he denied having injured her.
    
    
79. On 19 January 2022 (three days after Session Two) Ms B visited an osteopath. Clinical notes state that Ms B had a stuck sacro-iliac joint, with a twisted pelvis. Between February and April 2022, Ms B sought further treatment from another osteopath and saw progressive improvement in her pelvic pain. The osteopath told HDC that Ms B was ‘very sensitive and what may be considered normal treatment procedures for most people will cause her to react to the treatment’.
    
    
80. Mr A confirmed to HDC that he did not take any clinical notes as it ‘was not a clinic situation’. He stated that the sessions were provided to a friend, on a casual basis, and the treatment was based on Ms B’s briefing during each session.
    
    
81. Mr Vautier advised that the lack of clinical notes constituted a severe departure from the standard of care in providing record-keeping. Mr Vautier said that all professional massage therapists should keep clinical notes on a client’s case history, presenting symptoms, the clinical assessment, the treatment plan, what treatment was given, any treatment outcomes, and possible home-care advice and follow-up with the client. Mr Vautier noted that in cases where the therapist’s skill set is insufficient, they are required to refer the client to another health professional.
    
    
82. Mr Vautier advised that in the absence of clinical notes, no evaluation could be made of what Mr A did to assess Ms B, and it was ‘not possible to consider what structures were diagnosed or involved, how they were treated, and any subsequent treatment outcomes’. Mr Vautier said that as a result, the appropriateness of Mr A’s assessment and treatment was subject to opinion.
    
    
83. Mr Vautier advised that the lack of clinical notes resulted in a dependence on what other professionals (namely, the three osteopaths from whom Ms B sought treatment) found. The osteopaths’ clinical notes formed a picture of Ms B’s historical pain and her presentations post-treatment with Mr A. While it is possible that the treatment may have exacerbated an underlying chronic condition in Ms B, Mr Vautier highlighted that the presentations of consumers can differ from day to day, and therefore it is ‘conjectural as to what impact [Mr A’s] treatment may have had on exacerbating [Ms B’s] pelvic pain’.
    
    
84. Mr Vautier also noted that Mr A appears to have obtained some verbal history about the potential cause of Ms B’s pelvic pain (due to having slept in a hatchback car); however, Ms B later contested this statement. Mr Vautier further commented that Ms B’s pelvis may have been strained through an osteopathic manoeuvre (outside the scope of practice for a massage therapist). However, Mr Vautier noted that Mr A did not present any qualifications as a massage therapist or neuromuscular therapist and did not indicate where he had trained. Mr Vautier said that if Mr A had supplied his own clinical notes, a fairer assessment could have been made of his assessment and treatment of Ms B.
    
    
85. I accept Mr Vautier’s advice that there has been a severe departure from the accepted standard of care in record-keeping. However, without clinical notes, I am unable to determine whether the assessment and treatment of Ms B was appropriate. As discussed above, I do not accept Mr A’s submission that he did not keep clinical notes because it was not a clinical situation. Accordingly, I find that Mr A breached Right 4(1) of the Code, and I note that Mr A’s failure to provide clinical notes has hindered my investigation into aspects of this complaint.

Conclusion

I am critical that Mr A has been unwilling to participate in the resolution of this complaint. I also note that Mr A’s failure to document clinical notes has hindered my investigation into whether he provided Ms B with an appropriate standard of care. In conclusion, I find that Mr A breached Rights 10(3) and 4(1) of the Code. I consider that as a provider of healthcare services, it is incumbent on Mr A to improve the quality of his practice and restore public confidence in his commitment to the Code.

Recommendations

86. I recommend that Mr A:

1. 1. Provide a written apology to Ms B for the deficiencies outlined in this report, including the language Mr A used about Ms B in his communication with HDC. The apology is to be sent to HDC within three weeks of the date of this report, for forwarding to Ms B.
      
      
   2. Consider joining Massage Aotearoa New Zealand to obtain peer support and professional development, particularly on acceptable standards of client care, practice, and ethics. Mr A is to report back to HDC on this consideration within three weeks of the date of this report.
      
      
   3. Reflect on his practice in light of this report and report back to HDC on his learning, within one month of the date of this report.
      
      
   4. Undertaken further education/training on record-keeping, complaints resolution, and massage therapy (related to Mr A’s specific areas of practice). The education/training should be in conjunction with, or endorsed by, Massage Aotearoa New Zealand. Evidence of attendance (for example, a certificate) and a written reflection on the learnings and how these will be applied in practice is to be provided to HDC within three months of the date of this report.

Follow-up action

87. A copy of this report with details identifying the parties removed, except the independent advisor on this case, will be placed on the Health and Disability Commissioner website, www.hdc.org.nz, for educational purposes.

---