Advising People in a Forum Can Land You in Court
Susie Thompson McMahon is a Permanent Makeup Technician based in Glasgow, and was formerly a clinical negligence solicitor, and Head Of Education at the Royal College of Physicians and Surgeons. *Whilst the legal position in this article is based on UK law, the general principals should be useful to all PMU technicians.
THE PERMANENT MAKEUP INDUSTRY – When a casual conversation giving advice creates a legal liability.
TO GIVE ADVICE, OR NOT TO GIVE ADVICE?
We have all been on forums, where a stranger, or perhaps even a colleague, needs PMU or Beauty advice. Those of us who frequent these forums, also know how much conflicting advice is out there. We also see daily cases of PMU gone wrong.
Being asked for informal advice, is in fact, for some of us a daily occurrence
Providing some guidance or advice in such a context is unlikely to cause any problem, but that is not to say it is an entirely risk-free activity.
Where an ‘expert’ SPMU technician has assumed responsibility towards someone he or she advises, to the extent that he or she owes them a duty of care, there may also be an inference that the “expert” has assumed some or all of the normal professional obligations he or she would owe to a client.
Factors that are looked at when assessing whether an advisor has assumed responsibility, include:
the precise relationship between the person giving the advice and recipient
the precise circumstances in which the advice or statement, or other information came into existence
whether the advisee could rely on other professional advice
the precise circumstances in which the advice or information or other information was communicated to the recipient, and
the opportunity (if any) given to the advisor to issue a disclaimer
The risk-free course would be to decline to advise at all in such circumstances, particularly if the question falls outside your field of expertise.
Clearly, indicating where the colleague could find appropriate expert PMU advice (eg recommending a technician specialising in the right area) is not likely to cause any problem. If you do choose to give advice, you may also wish to offer some form of disclaimer to the effect that the discussion is not to be relied on as formal advice, perhaps something like “ no liability is accepted for reliance on the advice given”
You could also
make it clear that you are providing general principles, not formal advice
keep the advice general and do not provide detailed discussion or instructions
suggest that the individual seek formal advice from an expert
if you are giving serious advice make clear the basis on which it is being given
There is little case law to assist us with examples, but needless to say there are more examples in the US, particularly with lawyers being pursued for damages as a result of informal legal advice given
So what is the key guidance to be taken from this article?
It is certainly not meant to frighten you in to declining to give advice, but rather as responsible technicians, with a duty of care, we should think about what advice we are giving, and make it clear that we do not assume responsibility for that advice. Some of you may feel that this is going overboard, but having worked in the legal profession for a number of years, I know the importance of covering my own back.