The definition of a disclaimer is ‘any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally recognized relationship. In contrast to other terms for legally operative language, the term disclaimer usually implies situations that involve some level of uncertainty, waiver, or risk
A disclaimer form can also be called a waiver form.
In the beauty industry a disclaimer is often used by a therapist to avoid or limit their liability if something goes wrong during a treatment.
A therapist may obtain a completed disclaimer from their client with the intention that their client cannot pursue a claim against them if there is an injury as a result of the treatment.
In particular, many therapists use a disclaimer instead of carrying out a patch test prior to the treatment. In some situations, it may be difficult to arrange a patch test if a client calls into a salon hoping to have a treatment there and then or if you work on a mobile basis it may be difficult to travel to a client 24 hours before the treatment to carry out the patch test.
But, the problem is in reality a disclaimer does not protect the therapist from having a claim made against them as a client still has the right to pursue a claim, even if they have signed a disclaimer.
In a court of law, a judge would deem the therapist to be the professional as they are acting within their profession and have had the necessary training to do so. This training means the therapist should be leading their client as to how the treatment is correctly performed. If a therapist has been trained to carry out a patch test it would be deemed that they are acting unprofessionally to advise their client to sign a disclaimer and not to carry out the patch test. It is a therapist’s duty to carry out a patch test in accordance with their training and the manufacturers guidelines. In this situation should a claim be taken to court then the judge would rule in favor of the client and NOT the therapist as quite simply, the therapist should have known better and followed their training.
This is also very important with regards to adhering to the conditions in your insurance policy. For example if a client who signed a disclaimer to confirm that although they had eczema, they were happy for the treatment to be performed, then had an adverse reaction to the treatment and proceeded to pursue a claim, as the therapist had not carried out the treatment in accordance with their training then this is a breach of their insurance policy condition and the Insurer would not meet the claim. This would leave any settlement amounts down to the therapist to pay themselves.
In summary, a disclaimer is not worth the piece of paper it is written on and should not be used as a way to cut corners or try and reduce therapist liability.