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Informed Consent and Treating Clients during COVID-19 / Consentement éclairé et traitement des clients pendant la COVID-19

We have received enquiries from members regarding waivers during the COVID-19 pandemic. The following is our guidance in this regard.

As with all matters, members should follow the guidelines as outlined by the profession regulator, the CMTNB, and those of WorkSafeNB relating to risk mitigation, including those specifically related to the pandemic. Creating a low-risk environment within a member’s practice includes communication with the client about steps taken to minimize risk of viral transmission. Therefore, members should take into account the reality of COVID-19 in their informed consent with each client. This requires clear and thoughtful communication plus well-informed explanations for your clinical choices to minimize the risk of transmission so that clients can safely receive massage therapy.

As a first step, it is your responsibility to advise your client that informed consent is required. This includes ensuring that your client understands that while you’ve taken measures to minimize the risk of viral transmission, the nature of massage therapy means that physical distancing is not possible in the treatment room. Your professional ethics, honesty and clear communication underpin the informed consent discussion. It is your responsibility to explain both the risks and the potential benefits of treatment, and to make decisions in your client’s best interests.

The CMTBC (College of Massage Therapists of BC) has advised its members to include the following in their informed consent:
• any massage therapy treatment involves some risk of COVID-19 transmission;
• the RMT is following a protocol to reduce or mitigate risk, but that risk cannot be reduced to zero;
• the patient consents to treatment despite some risk; and
• the RMT documents the patient’s consent.

Some RMTs have adopted an additional consent form or “waiver” from sources on the Internet.

We encourage our members to consider including additional wording regarding COVID-19 and risk of infection as part of the informed consent process in addition to obtaining basic informed consent for the treatment, as you ordinarily would. We cannot provide legal advice regarding the use of separate waivers dedicated to COVID-19. But we can confidently say that our Informed Consent is part of our Standards of Practice in the province of New Brunswick.

“Proper adherence to consent procedures may also have the incidental effect of reducing the chances for RMT liability, although that is not their purpose.”(https://cmtbc.ca/registrants/interim-guidelines-for-return-to-practice/)

Remember that consent or waivers will not protect you from all liability. An informed consent is part of a process of obtaining a client’s agreement, following an explanation and discussion of why treatment is needed, including now the risks of treatment contemplated during the current COVID-19 circumstances.

Here is some suggested language:
• I understand that, because massage therapy work involves maintained touch and close physical proximity over an extended period of time, there may be an elevated risk of disease transmission, including COVID-19. By agreeing, I acknowledge that I am aware of the risks involved and give consent to receive massage from this practitioner.
• The Therapist has confirmed to me that they have complied with all hygiene and practice standards imposed by the College of Massage Therapists of New Brunswick (CMTNB) and WorkSafeNB. Notwithstanding the Therapist has complied with personal protection equipment (PPE) requirements and complies with the appropriate guidelines, the Therapist cannot guarantee there will be no contraction of COVID-19 arising out of the treatment.

Note: The ANBMT is providing this sample language as a reference and is not responsible for the legality or effect of the same.

Regardless of what document you choose to use, an informed consent document/process will never give the healthcare provider complete freedom to provide poor quality care. For example, if an RMT intentionally or negligently fails to follow appropriate infection control guidelines (some of which are rapidly changing as we learn more about COVID-19), an informed consent document will not provide immunity from liability. Informed consent sets forth the risk of treatment and is primarily for the purpose of informing your client of the risks and benefits of treatment.

As a healthcare professional, it is your responsibility to make the most informed decisions and to fully educate yourself, while considering all the benefits and risks involved. Should you have further concerns, or you would like to seek legal advice, please access Legal Guard, a free service available to you through your professional liability insurance (Lackner McLennan Insurance).

Legal Guard Information Service

Legal guard provides the following services:
• 24/7 telephone access to a legal information service for questions you have relating to your business.
• Unlimited access–use the service as often as you want.
• Legal information will be provided by qualified lawyers in response to your questions.
• If you need full legal representation or advice, referral to a lawyer can be arranged at preferred rates.
• 1-855-365-LEGA

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These are unprecedented times. Health and safety is a priority for you, your supervisor and employer and us at WorkSafeNB. As we cope with COVID-19, more people are interested in learning about the process to refuse unsafe work. Here are resources to help you navigate your right to refuse:https://www.worksafenb.ca/safety-topics/covid-19/covid-19-and-the-right-to-refuse/

 

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