LAW REPORT
So in summary , any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is committing a crime . Healthcare practitioners can often find themselves in a very vulnerable position in relation to this offence - in particular , massage therapists , whose clients are undressed and lying on a table . To avoid committing any such offence no healthcare practitioner should ever have sex with a client . A healthcare practitioner must always maintain an appropriate relationship with a client and act in a professional and businesslike manner towards them .
Even if a client consents to or initiates the sexual activity , it is never acceptable . Generally , if a healthcare practitioner wants to engage in sexual activity with a client then the professional relationship must first stop . After a suitable time has passed then they may engage in a sexual relationship . Please note though that for some healthcare practitioners , such as counsellors for example , it is never appropriate for them to engage in sexual activity with a former patient .
The other point to note regarding consent is that even if a patient agrees because they are led to believe that there are therapeutic benefits in the sexual activity , the law will not recognise this as consent . Note also subsection ( 8 )( d ) in relation to abuse of trust .
The offence of sexual assault is fairly clear cut and easy to avoid but the offence of sexual touching is a little more complicated . This new offence replaced the offence of indecent assault in late 2018 but has the same criteria .
Sexual touching is where a person touches another person with any part of their body or with anything else , in circumstances where a reasonable person would consider the touching to be sexual . The act of the person would be judged against the standards of an ordinary reasonable person .
So what would be taken into account to judge the behaviour ? One thing would be where the person was touched , for example in the genital or anal areas or the breasts of a female , or if any other aspect of the touching , that is , the circumstances in which it was done , makes it sexual . Some behaviours that have been found to be sexual touching are intentionally touching a woman ’ s breasts through her clothing without her consent and kissing a person when it was clear that the kiss was unwanted . Obviously , accidentally brushing against a woman ’ s breasts or bumping into someone is different . The difference is in intentionality .
Again , this offence is particularly pertinent to healthcare practitioners , particularly those like massage therapists who touch their clients . As with sexual assault , this is an area where practitioners can be left vulnerable if they do not maintain appropriate professional behaviour towards clients . This offence is much more subtle than the other in that there is no sexual activity and that some people find certain behaviours more appropriate than others , that is , some people are naturally flirty or touchy .
The key to avoiding this potential offence is to maintain appropriate boundaries always . These are in place to protect the client and the healthcare practitioner . While touching may be part of the treatment , other behaviour may confuse the situation . A client can easily misinterpret a practitioner ’ s comments or feel uncomfortable when a practitioner touches them in certain places .
For a massage therapist this is particularly important . In order to avoid being charged with any offence , a therapist should always get informed consent before massaging their client ’ s inner thighs , buttocks and abdominal areas . Informed consent here means that the therapist explains what they are going to do and why and then ask the client if they are happy to proceed . If the client says yes , then go ahead but if they say no , do not go ahead with the treatment . Check throughout the massage that they are still comfortable with what you are doing . Never massage a person ’ s breasts , nipples , genital or anal areas .
No healthcare practitioner should ever flirt with a client or make comments about their body . This creates a sexualised environment and while a client may not say anything , they might feel uncomfortable . Never put yourself in a position where your behaviour may be misinterpreted or called into question . Maintain professional boundaries at all times . Tell the client what you are doing and why . Don ’ t surprise them .
In New South Wales , the Unregistered Health Practitioners Code of Conduct governs all healthcare practitioners who are not covered under the Health Practitioner Regulation National Law . This is a civil area . All states have a similar code .
Clause 13 is very clear on behaviour expected of healthcare practitioners in this area .
13 , Health practitioners are not to engage in sexual or improper personal relationship with clients ( 1 ) A health practitioner must not engage in a sexual or other close personal relationship with a client . ( 2 ) Before engaging in a sexual or other close personal relationship with a former client , a health practitioner must ensure that a suitable period of time has elapsed since the conclusion of their therapeutic relationship .
Clause 13 makes it very clear that a healthcare practitioner must not engage in sexual or improper personal relationships with a client .
The balance of power in this relationship rests with the healthcare practitioner . There is a high level of vulnerability in the client and the balance of power is uneven ,
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