Unlicensed beauty injections : who will take the blame – the clinic or the professional?

In the past, nobody was surprised when botulinum toxin (beauty injections) injections were performed in even the smallest hairdressers or beauty salons. Now it is well known that such procedures can only be carried out by professionals, so when they are needed, they are often rushed to beauty and health clinics. However, there are still situations where, for years, cosmetologists or other beauty professionals who have never had any medical training have been giving injections in clinics. Can an employer be held liable if an employee is not properly licensed and has failed to “follow” or ignored the legal requirements? Who is to blame in such a case if the service is provided as if illegally – the clinic or the professional?

Andra Mažrimaitė, an attorney at law in the Life Sciences and Healthcare Regulatory Subgroup of the law firm Ellex Valiunas, stresses that beauty and health clinics should pay very serious attention to the competences of their specialists performing invasive aesthetic procedures, as not only the specialist, but also the clinic could be held liable in such cases. Who can perform invasive procedures?

“Ellex Valiunas‘ lawyer says that in the past, a more liberal practice had developed in Lithuania, allowing certain aesthetic medicine procedures to be performed by a wider range of specialists. However, on 21 March 2023. The Supreme Court of Lithuania clarified that such procedures can only be carried out by doctors of a certain specialty. This clarification tightened the regulation of the sector and set clear boundaries on competences.

“In other countries, such as the Scandinavian region or Switzerland, general nurses can be authorised to perform invasive procedures under the supervision of a doctor, but in Lithuania the legal framework is stricter, so procedures are limited to specialist doctors,” says Andra Mažrimaitė.

According to Lithuanian medical norms, injections of botulinum toxin, hyaluronic acid preparations, mesotherapy and biorevitalization procedures can only be performed by:

A dermatovenerologist,

A doctor of plastic and reconstructive surgery,

Maxillofacial surgeon,

Oral and maxillofacial surgeon.

“Lithuanian legislation clearly regulates who can perform botulinum toxin injections, hyaluronic acid injections, mesotherapy and biorevitalization. If a clinic employs a specialist who is not qualified and allows them to carry out such procedures, the employer may be legally liable. The law provides that an employer who is aware of an employee’s lack of competence and allows him to provide prohibited services may be subject to administrative or even criminal prosecution. This can mean not only financial penalties, but also loss of reputation or restrictions on activities,” says Ellex Valiunas’ lawyer.

What are the potential liabilities for illegal activities?

“The illegal performance of invasive aesthetic medical procedures may be subject to administrative liability if the activity was carried out without the necessary licence or authorisation and was not of a large scale or repetitive nature. Administrative fines can range from €390 to €1 100. If the offence is repeated, the fine can reach up to €2,400,” warns Mažrimaitė.

She stresses that if a person systematically (entrepreneurially) engages in illegal activities or on a large scale, he/she may also be subject to criminal liability. In such cases, higher fines, imprisonment or even imprisonment for up to four years can be imposed. If the activity is found to have caused very significant material damage to the State, the penalty can be even more severe.

“It is also important to note that liability can be imposed not only on natural persons, but also on legal persons – companies, clinics. If the institution was aware of the illegal activities of the employee, it can be subject to fines and restrictions on its activities, and in aggravating circumstances, criminal liability. If the employee deliberately concealed his or her qualifications, the employer can challenge its liability, but this is assessed on a case-by-case basis,” she says.

As regards market surveillance, the State Service for Accreditation of Health Care Activities (SSAHCA) deals with cases (submissions, complaints) where health care institutions or professionals are operating without the necessary licences. If it is found that an establishment is providing services without suitably qualified professionals, the SACC may also revoke the healthcare establishment’s own licence.

According to Ms Mažrimaitė, even if a health care professional is working with a medical practice licence in another field, but provides false information about his/her competence, and yet is not qualified to carry out certain procedures, he/she may be warned, and in the case of repeated infringements, after an investigation by the HACCP, he/she may also face administrative or even criminal liability.

So who is responsible – the employer or the employee?

“If the employer was not aware of the illegal activity and it was not objectively possible to check it, for example if the employee submitted false documents or withheld information about his/her qualifications, only the professional can be held responsible. However, in each case, it is assessed whether the employer has taken all reasonable steps to ensure that the activity is lawful. If it is found that the employer did not check the worker’s qualifications carefully enough, or tolerated illegal activities, the employer may also be held liable,” she says.

It is important to remember that a legal person (clinic or salon) can be held liable if there is reasonable evidence that it has knowingly allowed illegal activities to take place or has failed to provide the necessary supervision: “If an establishment has been operating for a long period of time without adequate controls or has allowed staff to carry out unauthorised procedures, it may be subject to administrative fines, restrictions on its activities, or even the revocation of its licence. Employers therefore need to pay particular attention to staff selection and performance monitoring”, says the expert.

How to protect yourself from risks?

“Andra Mažrimaitė, an attorney at Ellex Valiunas, gives some tips on how a clinic can protect itself from similar situations and avoid risks:

Employee screening: before hiring, it is necessary to check whether the specialist is authorised to perform specific procedures. This can be done on the dedicated website of the HACCP.

Clear contracts of employment: employers should establish clear contractual conditions to ensure that the worker takes responsibility for his/her qualifications and legal activities.

Internal procedures and controls: there must be continuous monitoring of the services provided by staff and whether they are appropriate to their qualifications.

Adequate information to clients: ensure that clients are clearly informed of the qualifications of professionals and their right to provide certain services.

According to the lawyer, it is important for beauty and health clinics not only to ensure high quality services, but also to protect themselves from legal risks. When recruiting professionals, it is necessary to check their qualifications carefully and to clearly regulate the limits of liability. A responsible approach and preventive measures will help to avoid unpleasant consequences and ensure safe and legal services for clients.