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Cosmetic medicine: Three key medico-legal issues
Published: March 2023
The information in this article was correct at the time of publishing
As demand increases, a growing number of physicians are providing cosmetic medicine procedures to a range of patients. If you are providing – or thinking of providing – cosmetic medicine procedures, be aware that they raise some specific medico-legal concerns.
1. There may be a higher standard for informed consent
Because cosmetic medicine procedures are usually optional, and not generally necessary for a patient’s physical health, a physician must be sure that the patient fully understands the risks and benefits of the procedure. It is important to:
- Ensure the patient understands the risks associated with the procedure and how these risks may compromise the patient’s overall health (e.g. risk of scarring).
- Highlight any unique circumstances or health conditions that might increase risk or undermine the outcome of the procedure (e.g. a history of smoking).
- Manage expectations regarding the anticipated outcome and be clear about whether the patient’s expectations are realistic.
- Inform the patient if more than one procedure will be needed to achieve the results they are seeking.
Clear documentation is essential to demonstrate that a physician had an appropriate informed consent discussion with the patient regarding the expected results, the number of procedures needed, and the risks associated with the procedure.
2. Delegation must be appropriate1
It is not unusual for physicians performing cosmetic procedures to delegate certain tasks to other healthcare professionals (such as nurses). If you are delegating, be aware that:
- Physicians continue to have responsibilities to their patients with respect to tasks delegated to other healthcare professionals.
- Physicians need to ensure the individual is sufficiently trained and competent to perform the task.
- Physicians should be available to respond to questions or concerns raised by the individual performing the delegated task and be available to intervene when necessary.
- The task of obtaining consent may be delegated to someone with the experience and skill to provide the patient with the information necessary to make an informed decision.
- Some jurisdictions have specific policies around delegating cosmetic procedures (such as Botox and dermal fillers) outside of an existing doctor-patient relationship. For example, see the CPSO’s Advice to the Profession: Delegation of Controlled Acts, and the CPSBC’s practice standard on Injection of Botulinum Toxin, Dermal Fillers and Venous Sclerotherapy [PDF].
3. Patient privacy must be protected when using photos or videos for advertising
Case scenario: Patient’s name accidentally released
A patient agreed that her physician could use before-and-after photos of a cosmetic surgery for advertising purposes. The physician took the photos, which were included in the patient’s chart and sent to an IT consultant for posting to the clinic’s website. After the photos were posted, the patient learned that her name was still visible on the edge of the chart. The patient complained to the physician and threatened litigation on the basis of breach of confidentiality and breach of privacy.
The matter was settled. The use of a consultant did not relieve the physician of his responsibilities towards the patient. The physician should have taken greater care to ensure that the patient could not be identified before the photos posted to the website.
It is common for physicians performing cosmetic procedures to take pictures or videos of a patient before, during, or after a procedure in order to document the process or demonstrate the results. Physicians using photos or videos in this way must:
- Adhere to any rules their College may have regarding the use of images for advertising purposes. For example, see the CPSO’s policy on Advertising and the CPSBC’s practice standard on Advertising and Communication with the Public [PDF].
- Comply with all privacy obligations towards the patient, which includes:
- Obtaining express consent for the use of any before-and-after photo or video, and engaging in a conversation with the patient about the intended use. A note about the consent discussion should be included in the medical record.
- Asking the patient to sign a written consent form whenever photos or videos are being used promotional purposes. A copy of this consent form should be retained in the medical record.
Delegation and CMPA’s Extent of Assistance
Physicians and their employees may be named in legal actions arising from delegated tasks. CMPA members are generally eligible for assistance for medico-legal matters arising from clinical care in which they are named even if actions or omissions of their employees are at issue. However, CMPA assistance will only be available to employees of physician members if they meet the CMPA’s Principles of Assistance to Clinics and Facilities.
In Québec, healthcare professionals are only permitted to perform “reserved acts” authorized by their relevant governing legislation and in accordance with any specified requirements. Accordingly, physicians can only request that another healthcare professional perform a reserved act if the legislation governing the other healthcare professional authorizes them to perform that act.