Health care consent act canlii

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 (ONSC) 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.

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