Are you concerned about how to protect the client’s data you’ve collected and how GDPR affects your business?.. Perhaps you are not sure if you should go paperless, perhaps you are not absolutely sure what records you are still supposed to keep or how best to store them.
At iPEGS paperless forms are we believe the best way to handle forms, is on the cloud. We are active in Utilities, Construction, Education, Real Estate and other Industries. Each area has different demands so it’s important to be up to speed in each area.
Ask an expert.
Talking to, one of the leading specialist insurance brokers in the field, helped me understand the particular legal challenges that affect the Wellness Industry. Insurers after all are in the front line of protecting members of the Health and Well-being Profession from damaging claims.
I spoke to several specialists, all of whom were supportive. I guess we all agree prevention is much better than cure. So much so, that Balens, one of the leaders in the brokerage field with over 25 years’ experience, offered to collaborate on a couple of blogs for our customers for free. Now that’s something you can’t turn down.
When I say collaborate, I mean Claire Squire at Balens kindly did all the work and we got an authoritative couple of blogs to share from leading experts in the field. Personally, I wish all my blogs were as well explained. It’s not the easiest of subjects of course, but neither are the textbooks you refer to when studying a case and it’s possibly as vital understand.
Here is the first, the second is ‘Professional Liability Insurance Considerations’ and will be published next week.
RECORD KEEPING FOR THERAPISTS
BALENS Specialist Insurance Brokers
Your records are your ﬁrst line of defence if a client makes a complaint or claim against you and are therefore of utmost importance. Please report everything relevant that happened in the therapy session and relevant comments from the client, both positive and negative.
Before you carry out the treatment you must also ensure that you check what medication your client may be on, any prescriptions they are taking and any medical conditions they may have, as there may be conditions which preclude the therapy. This information falls under special category data under the General Data Protection Regulation (GDPR),and may be retained under the lawful basis of processing in the substantial public interest for Counselling etc. and insurance.
How Long Should I Hold Clients Records?
We are often asked ‘how long should I keep my notes? What happens if I work in a clinic who owns the notes?’ or ‘What happens if I leave a clinic or stop practicing?’ and ‘What about Data Protection legislation?’
The reality is that there may be overlaps or contradictions according to the diﬀerent types of law. Data Protection legislation, Contract Law, the Criminal Law and Human Rights legislation are there to protect the public and prevent abuse. However, they can cause confusion, especially with regard to what you should do as part of your contract with your insurance company in complying with policy terms and conditions.
The Data Protection Act 2018 and GDPR says you should keep records for no longer than necessary (although they don’t deﬁne how long that is!). The core purpose of the Act was to stop people abusing data held and using it for unethical purposes. There is a proviso though that records may be kept for the establishment, exercise or defence of legal claims, allowing them to be retrained should a client request to exercise their Right of Erasure.
You have a human right (protected by law), to maintain your livelihood. In order to defend you, it is usually a condition of your Insurance policy (Contract Law) that records be kept for at least 7 years, or for 7 years after the client reaches the age of majority when treating minors. It is important to check your insurance policy conditions, to ensure you retain your records in accordance with these.
Although in most cases the Statute of Limitation (Under Civil Law or Tort), that applies for late discovered situations leading to an allegation of negligence, is 3 or 6 years from the date that the patient discovers a problem, there are certain situations where the limitation period could be much longer. In the case of minors, this is 3 or 6 years (according to the type of claim) from the date that they turn 18. In the case of people with learning diﬃculties and in certain other situations, there is no Statute of Limitation and the Courts can overturn limitation periods, so there is rationale for record retention beyond those imposed by your insurance policy if you are treating clients that fall under the category of ‘vulnerable adults’.
Whose Responsibility Are They?
Your patient’s case notes and records are your property, and you must retain them even if you have referred the client on or move to another practice. If, as a clinical supervisor, you oversee a student’s work under your professional practitioner insurance, the patient’s records are yours. Although a patient can, by written application, seek access to notes they have no legal rights of ownership. However, if a patient requests a copy of their notes, under their ‘Right of Access’ you must follow the procedure laid out in the Data Protection Act and provide a copy of the notes unless there are exceptions, the request is manifestly unfound or excessive. Please keep a record of this on the client’s ﬁle.
How Should I Best Store Them?
As your Insurance policy may need to defend an allegation against you in the future it is important that you know where your records are at any time. There is no legal requirement regarding the format of records. These may be stored in either a paper or electronic format, however under Data Protection you are responsible for the security of your client’s personal information, and therefore consideration must be taken with regards to record storage regardless of whether you choose a paper, PC or Cloud based system. There are pro’s and con’s with each method.
Paper records can be stored in a locked cabinet giving security, however, they will take up far more space than electronic storage. Personal Computer based systems can have the benefit of reducing storage, but if the computer itself is lost or stolen, and there are no copies of the notes, these too are lost, resulting in a client data breach, and potentially no method of defending yourself in any claims situation. Also, if the PC is used for internet access it can be vulnerable to cyber-attack which may again result in a client data breach and/or no access to the data. Cloud based systems can provide the benefit of reducing storage and ability to access the notes wherever you are, but security is then placed in the hands of the cloud provider, and it will be your responsibility under Data Protection law, to ensure that you have made adequate checks regarding their security capabilities.
We interrupt this blog for a quick message from our sponsor.
By using the iPEGS Paperless System for your Consultation Forms, Consent Forms, Medical Histories and Treatment Plans, you can be sure that your data is safe. Saved to the cloud there is no risk of a computer breakdown losing all your data. As the data processor we store and encrypt your data in a secure, state of the art, UK data centre.
We are Cyber Essentials Certified giving you peace of mind that our defences will protect against the most common cyber-attacks.
We have achieved the IASME governance standard in relation to GDPR where we have demonstrated wider governance for management of the controls protecting personal data.
Back to BALENS Specialist Insurance Brokers
Think ahead, you may want to appoint someone in your Will or any Power of Attorney arrangement you may have set up to be able to have access to the records in the event of a claims situation if you are too ill, disabled or incapable of accessing them. Your Will should include such information so that if your Estate was challenged after your death, the policy would be called upon to defend it and would be able to do so.
On selling or otherwise transferring your practice, you may pass on the original records if (a) the new owner will be subject to the same or similar rules to those referring to Case Notes above and (b) the patient is informed in writing in advance of the transfer and given the opportunity to object, in which event you must retain the original records.
By Claire Squire, Balens Specialist Insurance Brokers
Further information on the different forms of Insurance and Risk Management is available on Balens website www.balens.co.uk
Established in 1950, Balens are a fourth generation, ethical, family run Insurance Brokerage focussing on guidance, support and service.
Balens have been providing insurance policies for Health and Well-being Professionals and their businesses since the mid-1990s. We offer a wide range of insurance services for both individual and business requirements. For further details please visit our website at www.balens.co.uk