Help please. Employer asking therapists to get disclaimers signed by clients to provide contraindicated treatments.

[user 156776]

Employer is asking therapists to get clients to sign disclaimers for contraindications if the client says that they still want the treatment.
E.g. Massage but the client has had a DVT, high blood pressure, cancer treatment, early/late pregnancy, diabetes etc
Our training states that disclaimers should not be signed as they are irrelevant and that if you do the treatment then the therapist is at fault.
What do we do?

 

[TheDuchess]

Oh!

Get the employer to give you written instructions to obtain disclaimers from clients. Also ask for a disclaimer from him/her for yourself confirming that it is not gross misconduct or negligence to carry our a contra-indicated treatment at client’s own risk with a disclaimer. Also ask for an indemnity (written guarantee) that in the event you are named personally in any action for negligence after carrying out a contra-indicated treatment at the client’s request, your employer will provide legal representation.

To put your mind at ease, you can carry out treatments on almost everyone as long as you are experienced and understand what you need to do to keep your client safe. Turning away a client with health problems is discriminatory so there does need to be a bit of give and take. The strict guidelines given when you are training are to ensure you don’t use your own judgement when you are too inexperienced to customise a treatment safely.

For example, I can massage a client on every day of her pregnancy or journey with cancer. I have lots of clients with diabetes, high blood pressure , DVT history, I don’t turn anyone away - but I do have a conversation with the client to assess that they feel well. (I can also massage unwell clients but that’s a different story)

You could also request upgrade training to provide oncology or pregnancy massage. It’s really rewarding to know how to offer these services well.

Your employer isn’t necessarily being unsafe, but from the sound of things she could have handled giving you a directive a bit better.by educating you so you felt less anxious and stressed.

 

[user 156776]

Thanks for your reply. However, I don't think you are quite right with your answer. If you speak with insurance companies you are told not get clients to sign disclaimers. You either do the treatment because it is safe or you do not. If a client has a letter from a GP stating it is safe, for example, then you are covered. Due to GDPRS that is now a rarity. If you are even thinking about getting someone to sign a disclaimer then at that point you are admitting that you are about to do a treatment that may cause the client an issue and by law they cannot sign something that negates another of harming them. You are professionally bound to perform the treatment as the professional that you have been trained to be and within the constructs of your training. Hence there are additional courses available to provide oncology or pregnancy massage.

 

[SorceryLash]

You’re absolutely correct in that disclaimers are not in any way acceptable- it’s your job as the therapist to decline treatment to individuals who are contraindicated.

I would suggest that you clarify your current position with your insurer and have them outline the relevant section of your policy in either writing or email- if you have any pushback from your boss (or the clients!) then you have it there in black and white, from a relevant party, that none of you are protected by the law in carrying out the treatment.

 

[user 156776]

You’re absolutely correct in that disclaimers are not in any way acceptable- it’s your job as the therapist to decline treatment to individuals who are contraindicated.

I would suggest that you clarify your current position with your insurer and have them outline the relevant section of your policy in either writing or email- if you have any pushback from your boss (or the clients!) then you have it there in black and white, from a relevant party, that none of you are protected by the law in carrying out the treatment.

Thank you. I had asked for exactly this a number of times from the employer and was told they would look into it, then never did. Just told by management that it is what I have to do!

 

[TheDuchess]

You are quite right, disclaimers don’t hold up in court (I’m a qualified commercial insurance broker). However, if you are an employee, the insurance issue isn’t really your concern.

The sort of insurance an individual purchases is not the same as the insurance a company might hold to cover a business. So my advice is based on you being an employee, rather than a freelance therapist holding your own insurance. To cover yourself you should ask for written instructions from your boss. If your boss won’t put in writing (signed and dated) that they want you to treat a client with contra-indicated health conditions, then I wouldn’t treat. Your boss may simply expect you to customise the treatment so that it is safe. There’s no reason why you can’t just do something nice like smooth a cream into the skin. So clarify what they expect you to do or ask for upgrade training.

The finer points of legal liability are not really part of this thread. You’ve asked for general advice about managing a difficult situation at work. There is a big difference between not bothering to do a patch test and signing a disclaimer instead (never justifiable, always wrong) and asking a client to consent to receive a treatment when they have an underlying health condition.

Ultimately as an employee you have to do as you are told. That means carrying out a treatment as well as you can if your boss says treat this lady. Refusing to treat someone in the situations you have outlined could get you fired. You may think you’re in the right but you’re not.

 

[user 156776]

You are quite right, disclaimers don’t hold up in court (I’m a qualified commercial insurance broker). However, if you are an employee, the insurance issue isn’t really your concern.

The sort of insurance an individual purchases is not the same as the insurance a company might hold to cover a business. So my advice is based on you being an employee, rather than a freelance therapist holding your own insurance. To cover yourself you should ask for written instructions from your boss. If your boss won’t put in writing (signed and dated) that they want you to treat a client with contra-indicated health conditions, then I wouldn’t treat. Your boss may simply expect you to customise the treatment so that it is safe. There’s no reason why you can’t just do something nice like smooth a cream into the skin. So clarify what they expect you to do or ask for upgrade training.

The finer points of legal liability are not really part of this thread. You’ve asked for general advice about managing a difficult situation at work. There is a big difference between not bothering to do a patch test and signing a disclaimer instead (never justifiable, always wrong) and asking a client to consent to receive a treatment when they have an underlying health condition.

Ultimately as an employee you have to do as you are told. That means carrying out a treatment as well as you can if your boss says treat this lady. Refusing to treat someone in the situations you have outlined could get you fired. You may think you’re in the right but you’re not.

Thanks for your reply.

I'm not talking about adapting the treatment e.g. avoid a small cut, eczema patch, blister or light strokes over something like a knee replacement etc or anything that would amount to discrimination, which we all do and have been trained to do.

I'm being asked to treat people that are contra-indicated for that treatment and to get them to sign a disclaimer so they can have the treatment. I've asked the employer to give me this direction in writing and not just verbally, but they have not. Always they will look into it and get back to me, then never do.

Why I am concerned regarding the insurance is because the employers insurance wouldn't cover the treatment. So legally they can sue the therapist and the spa.

As employees, we do to a point have to do what is required by the employer, but as professional therapists, we have a duty of care to our clients to perform our therapies as per training and to the standard that we are taught.

 

[TheDuchess]

Thanks for the clarification. If you are responsible for the insurance to cover your treatments, DO NOT TREAT contra-indicated clients. You are NOT an employee and can make your own decisions.

The arrangement as you describe it - an employee responsible for both your treatment decisions and liability insurance is not an arrangement recognised in U.K. employment law nor by HMRC for taxation purposes. This means that no one can offer you the clarity you are seeking. It would be down to Trading Standards to decide if you had a case to answer if a client suffered harm and a Court to decide whether you were liable AND that the harm was proven to be a result of your negligence. The client might decide to bring a civil case - they will sue the person with the greatest chance of being able to pay - in your situation, I would suggest they will go after the person that they paid ie your Boss. In the situation you describe we cannot be prescriptive that you are automatically negligent if you treat. It would be pretty irresponsible to ignore training guidelines but not automatically negligent - it would depend on the specifics of the situation.

Any sensible person would not want to get involved in this. It’s just not reasonable. I am playing devils advocate by considering what power you have to refuse to do your job. I’m afraid your employer calls the shots here. You can’t refuse to perform a service and keep your job. You have to decide whether to work or walk. I’m so sorry.

Sadly there is no concept of a “professional therapist” anyone can call themselves a beauty therapist it’s not a protected occupation. We are not bound in law by the restrictions of a professional body, everything is advisory only, It is up to the client and the business owner to decide if they are happy with the risk. If you pay for the insurance you are the business owner, not your “employer”.

If it’s helpful I should explain that I am a professionally qualified member of the Chartered Insurance Institute. I am not giving you a definitive answer, only explaining some of the complexities based on my 20 years of experience in U.K. contract and liability law as applied in the U.K. Courts.