InfoLAW: Considerations for Providing Cosmetic Services

Cosmetic services and procedures have become a growing industry. As this is an evolving area of practice, this InfoLAW looks at the unique liability risks that may arise when providing cosmetic services.

Regulation of Cosmetic Nursing

The definition of cosmetic nursing varies by jurisdiction, and regulatory bodies may offer varying  standards of practice for nurses. For example, in certain jurisdictions, Registered Nurses (RNs) and Licensed Practical Nurses (LPNs) can generally only administer neuromodulators such as Botox^® or dermal fillers when the patient has been initially assessed by a physician or other authorized prescriber and when there is a client-specific order pursuant to a treatment.1

Some regulatory bodies further define limits and responsibilities in relation to cosmetic services. In some jurisdictions, such as New Brunswick, RNs require additional education and clinical experience to attain and maintain the necessary competency to perform cosmetic procedures.2 In other jurisdictions such as Nova Scotia, a physician or authorized prescriber must be present on site for the initial cosmetic injection, but subsequent injections can be administered by the nurse via directive if an authorized prescriber is include being available to assess a client on-site).3 It is important to note that as regulatory standards change from time to time, it would be prudent for a nurse to review the information available via their regulatory body both proactively and frequently to ensure that they are following the most current standards.

Regulatory bodies have also taken differing positions on Nurse Practitioners (NPs) providing cosmetic services as part of their practice. For instance, in certain jurisdictions, NPs may prescribe Schedule 1 drugs, which include Botox^® and other neuromodulators.4 By contrast, in others, NPs are limited to performing primary health care, and cannot prescribe or order cosmetic treatments.5

Further, there are instances where a cosmetic service may be considered a controlled act. For instance, Ontario’s Regulated Health Professions Act 1991, defines a “controlled act” as an activity that can cause harm if an unqualified person completes it.6 In cosmetic nursing, acts could include administering a substance by injection and performing a prescribed procedure below the dermis.7 This is particularly important as controlled acts are procedures that can cause considerable harm if the nurse does not have the authority, knowledge, skill or judgment to perform them.8 If the procedure is not performed properly, there can be several consequences such as infection, pain, and even death if the adverse reactions are not adequately managed in a timely manner.9

Informed Consent and Discharge

Valid and informed consent is a requirement for medical procedures, including within the provision of cosmetic nursing services. Performing a procedure on a client without consent can amount to assault or battery for which a court can award damages or make a criminal finding, even if the client does not suffer physical harm.

For consent to be valid, the client must have had the capacity to consent, must have been properly informed and the decision has to have been made voluntarily. Informed consent means that the client must be provided with sufficient information about the nature of the procedure, its anticipated outcome, and any material risks. In the context of elective cosmetic services where the intervention is not considered medically necessary, the duty of disclosure is even more onerous.

Given the subjective nature of cosmetic outcomes, those who deliver these types of services can have a greater exposure to the risk of being the subject of complaints to their regulatory body and/or civil actions initiated by their clients. In order to minimize this risk, it is prudent for nurses who perform cosmetic procedures to manage their clients’ expectations about the anticipated results of the procedure through careful and comprehensive discussions.

It is equally important that clients are given appropriate and adequate information after the procedure so that they can monitor for any unexpected results, side effects or adverse events to alert them to the need to seek further medical care. Clients should be informed as to where they should return for intervention, including outside of business hours.  A clear informed consent discussion at the outset about the signs and symptoms of common or possible complications will assist to minimize the risk for potential future harm. Both informed consent and informed discharge discussions with the client should always be carefully documented by the nursing professional.

Record-keeping Requirements

As with any nursing service, there are legal and professional obligations to document encounters with clients. All regulatory bodies have established documentation standards, which are equally applicable to cosmetic services when the nurse is acting in a professional nursing capacity. Client records must also be retained for a specified period.10

Proper and thorough documentation is also likely to be a nurse’s best defence in a legal proceeding. Legal proceedings often take place months or years after the service has been provided and records can be used to reconstruct events, refresh memory, and provide detailed evidence of care.11

There are also ethical and legal obligations to protect the confidentiality and privacy of clients’ personal health information. As always, it is important to store all records in a secure manner. Nurses in independent practice providing cosmetic procedures will often be considered the custodian of their clients’ records and are subject to the legal requirements imposed by the relevant privacy legislation.12

Independent Practice

Nurses who are considering opening a clinic or operating their own independent nursing practice to provide cosmetic procedures face unique challenges because they are also responsible for business management. It would be advisable for nurses in independent practice to consult with a business lawyer and/or accountant to determine the most appropriate business structure for the delivery of their services and to discuss other business-related matters, such as appropriate billing of clients, compensation practices, taxation issues, etc.

Advertising & Marketing

The marketing or advertising of cosmetic nursing services involves particular legal considerations. In British Columbia, advertising is defined as “any publication or communication in any medium with any client, prospective client or the public generally in the nature of an advertisement, promotional activity or material, a listing in a directory, a public appearance, or any other means by which professional services are promoted”.13 Although the specific wording will vary by jurisdiction, most regulators agree that advertisements on a clinic website need to contain true, accurate and verifiable information, that is not contrary to the public interest in the practice of a designated health profession.

Before undertaking any advertising or marketing, through paper or electronic media, it would be beneficial to consult the appropriate standards and/or guidelines to verify whether the advertisement is compliant. For example, in some jurisdictions, advertisements cannot include references to products that you use or sell, comparative statements, or statements claiming superiority.14 Further, some jurisdictions prohibit the use of client testimonials in advertising, for instance in Ontario when the nursing practice involves direct interaction with individual clients.15

Social Media Use and Privacy

A nurse may decide to use social media as a networking or marketing tool to grow their client base.  It would be prudent for nurses to consider the following when using social media within the scope of their practice:

• nurses are responsible for maintaining professional boundaries;
• privacy and confidentiality are not adequately safeguarded over social media platforms;
• informal exchanges may lead to the inadequate collection of personal health information;
• informal exchanges may lead the recipient to rely on the information provided as a professional opinion;
• the nurse may inadvertently establish a therapeutic relationship with the recipient of the information;
• nurses must adhere to marketing and advertising practice standards, guidelines, etc. While using social media platforms;
• social media platforms generally deprive the nurse of the opportunity to conduct a comprehensive assessment including verification of the patient’s identity or a thorough physical examination.

For more information on this topic, please consult our InfoLAW on the subject.

Liability Protection

The Canadian Nurses Protective Society (CNPS)’s professional liability protection is structured to assist individual eligible nurses16 with claims brought against them for professional negligence arising from the provision of nursing services. Performing procedures that are not considered professional nursing services may limit the extent of assistance available to a CNPS beneficiary.

Nurses in independent practice should also consider liability protection for their business entity, as CNPS protection does not generally extend to a business entity.

The CNPS offers several resources for nurses who operate a business or are independent practitioners. To learn more, visit “Operating a Business or Independent Practice?” or contact CNPS at 1-800-267-3390 for more personalized legal advice.

Nurses who partner with a spa or a clinic to deliver cosmetic nursing services are encouraged to inquire whether they will be covered under the insurance policy of the spa or clinic and, if so, determine the amount of coverage available to them. Alternatively, CNPS beneficiaries may also purchase business liability insurance from the commercial insurance market.

It would be prudent for nurses who are working in collaboration with other healthcare professionals to provide cosmetic procedures to confirm that each healthcare professional has adequate individual professional liability protection.

Risk-Management Considerations

It would be prudent for nurses to remain mindful of the following considerations when delivering cosmetic services:

• become familiar with any guiding documents from their nursing regulator and review these documents regularly;
• when obtaining informed consent, provide the client with sufficient information about the nature of the procedure, its anticipated outcome, and any risks;
• communicate with the client the potential signs and symptoms that may alert them to seek out further care in the case of an unexpected outcome or complication. Discharge instructions should include details about appropriate care, necessary medication, follow-up visits, potential complications, signs to watch out for, etc.;17
• document thoroughly at the time of care or as soon as possible after providing care;
• before undertaking any advertising or marketing, through paper or electronic media, it would be beneficial to consult appropriate regulatory standards and/or guidelines to verify whether the advertisement is compliant;
• consider professional boundaries, privacy, and the appropriateness of social media exchanges with clients;
• if operating an independent practice, consult with a business lawyer and/or accountant to determine the most appropriate business structure for the delivery of services and to discuss other business-related matters, such as appropriate billing of clients, compensation practices, taxation issues, etc. Also consider whether you have adequate business insurance and obtaining additional personal protection for regulatory matters.

Should nurses wish to continue their learning on this topic, a case study has been created as a complement to this InfoLAW.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. For example, in Alberta, please consult Aesthetic Nursing (joint document by CARNA, CRPNA, and CLPNA, https://nurses.ab.ca/standards-and-learning/aesthetic-nursing; In Manitoba, RNs can administer in this situation, but LPNs require additional education: https://www.clpnm.ca/wp-content/uploads/PD-Aesthetic-Nursing.pdf; In Québec, RNs and LPNs can administer in this situation : http://www.cmq.org/publications-pdf/p-1-2018-05-17-fr-medecine-esthetique-guide.pdf
2. For example, see the Nurses Association of New Brunswick position statement on “Medical Aesthetics” (June 2021).
3. Nova Scotia College of Nursing, Nurses Who Provide Aesthetic Services to Clients Q&A, September 2020, online: https://cdn1.nscn.ca/sites/default/files/documents/resources/NursesWhoProvideAestheticServicesToClients.pdf
4. College of Registered Nurses of Manitoba, Scope of Practice for Registered Nurse (Nurse Practitioners /RN(NP)s, May 2018, online: https://www.crnm.mb.ca/uploads/ck/files/RN(NP)%20Scope%20of%20Practice%20with%20watermark.pdf; CARNA, Who can prescribe neuromodulators and dermal fillers? 2020, online:https://nurses.ab.ca/standards-and-learning/aesthetic-nursing/lists/frequently-asked-questions-aesthetic-nursing/26955475-7fbe-4b2e-8397-a922a2fcd995
5. Supra, note 1; BCCNM, Scope of Practice for Nurse Practitioners, April 2021, online: https://www.bccnm.ca/Documents/standards_practice/np/NP_ScopeofPractice.pdf
6. College of Nurses of Ontario (CNO), Controlled Acts, 2014, online : https://www.cno.org/globalassets/4-learnaboutstandardsandguidelines/prac/learn/webcasts/controlledactswebcast.pdf
7. CNO, Can nurses in independent practice administer Botox?, July 2019, online: http://www.cno.org/en/learn-about-standards-guidelines/magazines-newsletters/the-standard/july-2019/nurses-independent-practice-administer-Botox/
8. Ibid.
9. CNO, Reflect before you inject, March 2020, online: http://www.cno.org/en/learn-about-standards-guidelines/magazines-newsletters/the-standard/March-2020/reflect-before-cosmetic-injectables-botox-prp/
10. For example, the College of Nurses of Ontario recommends that records of nursing services be retained for a minimum of 10 years after the nurse-client relationship is terminated.
11. For more information, please consult our InfoLAW on Quality Documentation: Your Best Defense.
12. For more information, please consult our Ask a Lawyer on Electronic Medical Records and Independent Practice.
13. British Columbia College of Nursing and Midwives-Bylaws, under “Marketing”:  https://www.bccnm.ca/Documents/regulation/BCCNM_bylaws_initial_2020_09_01.pdf#search=bylaws
14. CNO, Practice Guideline: Independent Practice, 2019, online: https://www.cno.org/globalassets/docs/prac/41011_fsindepprac.pdf.; BCCNM,  Bylaws for College of Midwives of British Columbia, https://www.bccnm.ca/Documents/regulation/BCCNM_bylaws_initial_2020_09_01.pdf#search=bylaws; CARNA, Advertising Standards, March 2021, https://nurses.ab.ca/docs/default-source/document-library/standards/advertising-standards.pdf?sfvrsn=1c682004_7
15. Supra, at note 14.
16. Eligible nurses are members in good standing with a CNPS member organization, or who have registered individually for beneficiary status with the CNPS. See cnps.ca/eligibility for details.
17. For more information on informed discharge, please consult CNPS’ checklist on patient discharge, located here: https://cnps.ca/education/the-np-corner/

May 2016, revised in July 2021

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.