By: Carina Lentsch
Principal Lawyer, ACL LAW
Individuals have a fundamental right to make decisions about their bodily integrity. As a registered massage therapist (RMT), your informed consent practice can have significant implications on the relationship you have with your clients, your legal risks, and your good standing with the College of Massage Therapists of Ontario (CMTO).
As a professional regulation and discipline defence lawyer, I help my clients defend against allegations of professional misconduct and navigate the complaints, investigations, and discipline process at the CMTO. Unfortunately, I frequently see complaints that the massage therapist failed to obtain the client’s consent for the treatment provided. As these types of allegations can have a very significant and lasting impact on the therapist’s career, I have compiled some FAQs about consent that every Ontario RMT should know the answer to:
What laws on consent should RMTs be aware of?
The Supreme Court of Canada has held that health professionals have a legal duty to obtain informed consent from a patient or client before providing treatment. Failing to do so can result in the healthcare professional being held liable to pay damages to the patient or client. 1
In Ontario, the legal requirement to obtain a person’s consent before providing treatment is codified set out in Ontario's Health Care Consent Act, 1996. 2
RMTs who fail to obtain a client’s consent before providing massage therapy treatments to the client may be discipline by the CMTO for professional misconduct. The regulations under Ontario's Massage Therapy Act, 1991 provide that it is an act of professional misconduct when a massage therapist does "anything to a client for a therapeutic, preventative, palliative, cosmetic or other health-related purpose in a situation in which a consent is required by law, without such a consent."3 Massage therapists should consult the CMTO's Standard of Practice on Consent to ensure they meet the regulator's expectation on informed consent practice.
In addition to potential civil liability and professional discipline, in some circumstances the failure to obtain consent from a client can result in criminal liability. As set out in the Criminal Code, applying force to a person without their consent constitutes criminal assault, and non-consensual touching of a sexual nature may result in a sexual assault conviction. 4
Is there a difference between "consent" and "informed consent"?
The CMTO frequently uses the terms "consent" and "informed consent” interchangeably. In a healthcare setting consent to treatment must always be informed, which means that the risks of the treatment must be sufficiently explained to the client to permit them to make an informed decision about the treatment.
My clients sign a consent form. Is that enough?
No. While the consent form provides documentary evidence that you have obtained your client's informed consent, the informed consent process does not start and stop with the client signing the consent form. Rather, it is an ongoing discussion RMTs must have with his or her clients.
What should informed consent discussions include?
The CMTO requires that massage therapists discuss the following six elements to obtain a client’s informed consent:
1. The nature of the treatment;
2. The expected benefits;
3. Risks and side effects;
4. Alternative courses of action;
5. Likely consequences of not having treatment; and
6. The client’s right to ask questions about the information provided and that assessment or treatment will be stopped or modified at any time at their request. 5
Effective informed consent requires clear communication. Consent discussions with your clients should not leave any doubt whether the client agrees to the treatment in general, the treatment of a particular body part, the level of pressure or technique used.
When should RMTs talk to their clients about consent?
CMTO requires that massage therapists must have consent discussions with their clients before the assessment and treatment, during the treatment, and at any time they are modifying the treatment plan. Your check-ins during the treatment are an important part of making sure that your client continues to be comfortable, and that you have their continued consent to provide the massage therapy treatments.
Can clients withdraw their consent?
Yes. Consent must always be voluntary and clients are permitted to withdraw their consent at any time. If this happens, the therapist must stop the treatment until the client indicates that they wish to continue.
If the client raises a concern or expresses discomfort during treatment, it is good practice to stop the treatment and ask the client about their concern. If there is any doubt whether a client wishes to continue with the treatment, the therapist should clearly ask the client whether they would like the treatment to continue or to stop the treatment.
How should massage therapists document client consent?
The CMTO requires RMTs to document consent conversations in the client’s health record (SOAP notes) within 24-hours of the assessment and/or treatment. Any written consents obtained from the client should also be kept part of the health record.
Documenting consent is an important risk management tool. If questions arise whether a therapist has obtained a client's informed consent, the treatment record will be an important piece of evidence that can help demonstrate that the massage therapist has met his or her legal and professional obligations.
Many healthcare professionals may see documentation requirements as a chore. It is easy to put off tasks that we do not particularly enjoy. However, delaying your documentation of the treatment provided and your consent discussion is never a good idea. Records made contemporaneous to the events carry more weight and are seen as more credible in legal proceedings. Good documentation practices will help you defend against false allegations.
When is written consent required?
The CMTO requires that Ontario RMT's must obtain the client’s written informed consent prior to every assessment and/or treatment of sensitive areas. The CMTO defines sensitive areas to include the upper inner thighs, chest wall muscles, and the breasts.
Massage therapists must also obtain written consent of the client before assessing and/or treating the buttocks (gluteal muscles). Even though written consent is not required for each time the gluteal region is treated, it is good practice to do so regardless. Having your client complete written consents can protect you from legal liability and allow you to more effectively defend against potential allegations of professional misconduct.
The risks involved with not having a written consent from a client can be very significant. The treatment of a client’s sensitive areas and/or the gluteal region without the required written consent may be grounds to support a finding that the massage therapist has sexually abused the client, as defined by Ontario's Regulated Health Professions Act. 6 In certain circumstances a finding of sexual abuse will lead to the revocation of the therapist’s certificate of registration with the CMTO. 7
What happens when a client complains to the CMTO that a massage therapy treatment was provided without their consent?
Failing to meet or breaching the duty to obtain a client's informed consent can create significant risks for RMTs. If a client complains to the CMTO, the CMTO is required by law to investigate the matter and the matter is reviewed by the Inquiries, Complaints and Reports Committee (ICRC).
Many complaints about RMTs to the CMTO result from a miscommunication between the therapist and their client, or because the client somehow felt uncomfortable during the treatment. Complaints about the failure to obtain informed consent can be difficult to resolve as these cases often involve a disagreement between the therapist and the client about what happened. Unfortunately, the ICRC cannot resolve credibility issues and allegations of professional misconduct for failure to obtain a clients’ informed consent are frequently referred to a hearing before the Discipline Committee.
Informed consent is legal obligation that is all about communication. It is an ongoing discussion RMTs must have with their clients before any treatment is initiated and continued throughout the treatment. RMTs should know when written consent is required and when verbal consent is sufficient. Consent should always be clear and documented in a timely manner.
Check in frequently with your clients to make sure they are happy and are receiving the treatment they are expecting. It will not only help you meet your legal obligations but is also good for business!
Carina Lentsch is an Ontario health lawyer. Her law practice focuses on advocating for health professionals in College complaints, investigations, fitness-to-practice, registration, and discipline proceedings, as well as privacy, human rights complaints and other civil litigation matters.
Her articles provide general information for educational purposes only and do not constitute legal advice. If you have a question about a specific situation, please contact her to schedule a consultation: Carina@acllaw.ca or 416-907-5652, www.acllaw.ca
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2 Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 10
6 See section 1(3) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
7 CMTO’s Prevention of Sexual Abuse (Standard), https://www.cmto.com/rules/standard-of-practice-prevention-of-sexual-abuse/