Canada: Top Five Legal Tips For The Health And Wellness Industry

Lawsuits involving the health and wellness industry happen, though they are not often the subject of reported decisions in Canada. It is crucial for regulated health professionals, non-regulated consultants (aestheticians/cosmeticians/laser technologists), as well as spa and medi-spa owners and operators in the industry to be wary of potential risks, which may leave them vulnerable to liability and negative publicity. Below are five of our top tips based on our experience in this area.

1. Don't expect to rely on waivers of liability

Regulated health professionals cannot rely exclusively on waivers or release of liability forms in medical negligence claims.

In the 2018 case, Rush v De Ruiter,1 the Ontario Superior Court of Justice (ONSCJ) considered the effect of a waiver of liability in the context of Intense Pulsed Light (IPL) therapies administered by a registered nurse. The plaintiff brought a claim for negligence in the administration of the IPL therapy. On a summary judgement motion, the defendant nurse claimed that the consent and waiver of liability form signed by the plaintiff barred her claim in negligence because it contained the words, "I hereby release this clinic, its staff, and any other provider from any and all liability for any adverse effects that may result from this treatment."

Justice B.A. Allen considered the claim to be within the realm of medical negligence, despite the fact that the treatment provided was of a cosmetic nature and did not need to be performed by a regulated health professional. In dismissing the defendant's claim, the court found that there were no authorities that involved the exclusions from liability in a medical negligence context and held that:

[f]undamental to that reason is that doctors and other medical practitioners have an overriding professional obligation to do no harm. This is what is expected by the profession. This is what patients seeking treatment and the public expect.

The effect of a release from liability in a consent to medical treatment would be that a patient signs away their right to sue a practitioner for their careless errors. This would mean that the patient themselves would assume the risk of errors while the medical practitioner escapes legal responsibility for their own substandard practice.

Although the court did not set out why the cosmetic treatment rose to the level of medical negligence, it is likely that this conclusion was reached, in part, because the treatment was provided in a clinic by a regulated health professional, who would otherwise be held to a higher standard of care than a non-regulated consultant. Even though this case involved a regulated health professional, it could be influential for non-regulated consultants where a cosmetic treatment involves a risk of harm comparable to a medical treatment. As such, we caution that non-regulated consultants not assume that they can rely on the use of waivers for their services.

2. Informed consent is a process, not a form

Those in the beauty industry should be cautious when relying solely on a form to obtain consent for a proposed cosmetic treatment. The Health Care Consent Act mandates that consent to treatment, which includes anything done for a cosmetic purpose except if the treatment poses little or no risk of harm to the person, must:

  • relate to the treatment proposed;
  • be informed;
  • be given voluntarily; and
  • not be obtained through misrepresentation or fraud.

Consent is considered informed if the person receives information about:

  • the nature of the treatment;
  • the expected benefits of the treatment;
  • the material risks of the treatment;
  • the material side effects of the treatment;
  • alternative courses of action; and
  • the likely consequences of not having the treatment,

that a reasonable person in the same circumstances would require in order to make a decision about the treatment. In addition, the person must receive a response to any requests for additional information they may require about the matters just listed.2

When providing a cosmetic treatment with the potential of harming the individual to whom it is provided, it is important to ensure that the information above is shared with, and understood by, the client before proceeding with the treatment. An invitation to questions and a subsequent discussion, along with the provision of a form, assists in ensuring that the client is properly informed.

The appropriate amount of disclosure will depend on the treatment being administered. In Anderson v Lafontaine,3 the Ontario District Court considered the amount of warning regarding specific risks required before proceeding with a treatment. There, the plaintiff sought damages for injuries she alleged were suffered due to the defendant's negligent administration of electrolysis treatment on a blackhead on her upper lip. The plaintiff alleged that the defendant had an obligation to warn the plaintiff of the specific risks associated with the procedure.

Justice Hoilette held that the actual result of the procedure, which was a small pit in the place of the blackhead, was one within the contemplation of the plaintiff. Additionally, while an "abundance of caution may well have inspired the defendant, specifically, to direct the plaintiff's mind to the likelihood of a more obvious 'pit' replacing a more or less apparent blackhead. The failure to do so, [cannot] be viewed as such a departure from what might reasonably be expected of someone in the position of the defendants as to constitute negligence."

3. Documentation is evidence

Documentation can be the best defence when facing claims in negligence. An adult plaintiff typically has two years to initiate a lawsuit, and even when the lawsuit is filed promptly, it can take years before the relevant party may have to recall the events which took place. As such, timely, accurate records are essential in establishing the quality of the service provided.

Any discrepancies and inaccuracies could be used to discredit your evidence. In the 2009 case, Ayana v Skin Klinic,4 the ONSCJ preferred the evidence contained within electronic clinic notes entered an hour after the treatment over the oral evidence of standard practice of the technicians performing the laser hair removal treatments at issue.

4. Medi-spas, spas and beauty clinics are liable for their staff's negligence

Medi-spas, spas and personal service settings may be found vicariously liable or liable as owners and operators for a number of claims against them and their staff. It is crucially important that organizations ensure staff are qualified and properly trained to:

  • provide the treatment;
  • obtain informed consent to treatment;
  • use the products and equipment; and
  • properly document the treatment, in compliance with applicable laws, including taking contemporaneous notes whenever there is a problem or complaint.

Also, medi-spas, spas and personal service settings must ensure that they and their staff keep up to date with Health Canada recalls on the products they offer and the equipment they use.

As reiterated by the court in Ayana, where technicians were found negligent, it follows that the clinic or spa at which they are employed would be negligent as well. Clinics are not, however, vicariously liable for the actions of independent contractors operating out of their location, as was held by the British Columbia Supreme Court in Harris v Pavel.5

5. The consequences of a privacy breach can be significant

Medi-spas, spas and personal service settings must comply with applicable privacy legislation and understand their clients' rights to privacy and the security of their personal information, while balancing legal requirements and business needs.

Regulated health professionals must also comply with their record-keeping obligations under their professional specific acts and regulations. For example, registered massage therapists must meet the requirements of the General Regulation made under the Massage Therapy Act, 1991 in addition to any College of Massage Therapy standards of practice, guidelines and policies. And non-regulated consultants must comply with their record-keeping obligations under the Personal Service Settings Regulation made under the Health Protection and Promotion Act.

With privacy, less is more. That is, the collection and use of personal information should be limited to legitimate and identified purposes that are disclosed to clients and for which informed consent (through a process and not just a form) is obtained.

Medi-spas, spas and personal service settings must also put in place appropriate privacy and data protection policies and practices that withstand legal scrutiny.

The consequences of a privacy breach can be significant, involving complaints, investigations, findings, fines and damages awarded in court cases. Privacy class action lawsuits are becoming more common. Don't let your efforts to grow your business, make more sales, and reach more people be thwarted by law suits or negative publicity resulting from a privacy breach.

As a final/bonus tip, we recommend that those working in the health and wellness industry tread carefully when considering the issues raised above. To minimize their potential exposure, they should consult with a lawyer with experience in the industry well before they are faced with a lawsuit or a privacy complaint.

Footnote

1 2018 ONSC 1210

Health Care Consent Act, 1996 (s.11).

3 1989 CarswellOnt 2580.

4 2009 CarswellOnt 4734.

5 [1997] B.C.J. No. 357.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions