Treatments as a Therapist
Allergic Reactions and Reactions to Treatment
These should always be handled with care both pre and post treatment advice. Always go with what you were taught to do in these situations but refer to us if unsure. Where a product or procedure for example requires a patch test, as required by your insurance conditions, please make sure you perform it: if you do not comply then your claim could be rejected. We have processed many cases for Intense Pulse Light (IPL). It is particularly important that a patch test is completed for IPL at least 24 hours in advance, and that the treatment is given at the same strength of laser as the patch test was performed. If you wish to increase the strength of the laser, a further patch test must be taken.
Do make sure that you give clients adequate post treatment advice and information detailing possible reactions which may occur. These could include information about possible physical discomfort or even temporary reduced mobility and how to deal with it. Explain to them that if symptoms do not subside after a reasonable period they should contact you for further advice. You should note this advice in their records.
Consent for minors
The issues relating to the treatment of minors are full of contention. The policies we offer require that the consent of a parent or guardian be sought before treatment for those under 16, however there is legal precedent for when this may not necessarily be the case and our policies reflect this to include Fraser guidelines and ‘Gillick competency’. It is viewed in UK law that a minor can make their own decisions related to their health, according to ‘Gillick competency’ and the ‘Fraser guidelines’ where appropriate. A UK Law Lords ruling in the early 1980’s on the Gillick Contraception case states:
“...whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.”
“Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”
Gillick Competence and the Fraser guidelines originally issued in connection with contraception advice, have since cascaded into other areas especially those concerning the health and well-being of the minor involved. Whether you choose to treat a minor or not without parental consent, based upon the above will be individual to you and your own conscience, but regardless of this, do bear in mind that the statute of limitation is much longer and may be overturned in the case of minors. This is why we always recommend you keep case notes indefinitely and include your rationale as to why you decided to treat /advise without parental consent, in order to defend a late discovered claim.
If you are providing a demonstrating session, or quick taster treatment perhaps on a stand at a show, you still need to keep a record of the date and name of the person you have treated, and to ask them about medical history questions.
We have had cases where people have made a claim in this situation, and it was the therapist’s notes that showed the Individual was not treated at the time, thus the claim was repudiated.
Refunds of treatments
We regularly get clients who prejudice their claims by trying to pacify injured, difficult or angry clients with refunds, purchasing remedies, paying medical expenses or offering free treatments – please don’t as this may invalidate your insurance cover – come to us first and we will guide you through these situations! Remember - it is a requirement of your Balens insurance to advise us of any incident that MAY give rise to a claim. The sooner you advise us, the sooner we can help you to deal with the situation, and give advice to help prevent the incident turning into a claim against you.
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.
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 but 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 they reach 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’.
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 keep a record of this on the file.
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. 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 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.
What information do you need to retain for insurance purposes?
We are often asked what information is necessary for a practitioner to retain, in order to meet the record keeping requirement of their insurance contract. The purpose of these records is to provide a defence in the event of a potential claim against you, and they therefore need to record as a minimum details of the Treatment provided - specifically related to processes and procedures. These should include a record of:
- Dates, times, locations and for whom;
- What treatments were performed / given;
- Details of products used;
- Confirmation of patch testing where necessary (check product and policy wording requirements);
Any advice given including after care;
- Details of medical information, but only where this may result in a contra indication, for example it would be relevant for an Aromatherapist to know if a client is pregnant or has a nut allergy, as this would have an impact on the oils that are used.
It will generally not be necessary for you to retain additional sensitive personal information that a client may have divulged, although your Professional Association may have additional requirements regarding record keeping. If required to be retained, Sensitive Information may also be retained under 'processing in the substantial public interest for Counselling etc.' and 'insurance' as notified in the Data Protection Act 2018. Details of this should be noted in your Privacy Notice, which needs to be provided to all clients at the point when their personal data is taken.
Do you have a Massage Couch or similar with a weight limit?
It may be a trope, but we understand that the odd waistline or two may have increased slightly over lockdown. This can have consequences for therapists who use equipment with weight limits as part of their practice.
At Balens we have noticed a number of incidents where massage couches have buckled when a therapist's client has got on them, and it appears this is because the weight limit of the couch has been exceeded. We understand this can be a sensitive subject, and difficult for therapists to breach with their clients. However it's important that therapists can find a way of discussing this with their clients, should they have concerns that the limits may be exceeded.
Have you had any Complaints or Claims against you?
Please remember, if any client makes a complaint or claim against you, it is important to contact your Insurance Broker for support and guidance as soon and as early in the process as possible. Don't wait for situations to escalate, your Broker is there for you, not to judge, but t provide the benefit that you purchase your insurance for. A complaint handled well may lead to a happy client for years to come, if handled badly, it could lead to a potentially stressful and time consuming claim. For a list of dos and don'ts in some common complaint situations, please see Balens website Claims - Balens Ltd.
Property Owners Considerations
General Contents and Buildings Claims - Under Insurance
Unfortunately people are still having their claims reduced due to under insurance or forgetting to revise or add items. In commercial buildings and contents claims the insurer will proportionately reduce the level of pay out if you have not had sufficient cover in place. We would advise that you remember to review and revise your cover with us regularly. For businesses this may include additional equipment purchased, and for home owners this may include revising your sums insured for any jewellery, with the increases in the gold and diamond markets.
You have a common law duty to mitigate losses in buildings and contents claims, so temporary repairs and prompt action to prevent further deterioration loss or damage are advisable. Please keep relevant receipts and documentation. Always let us know immediately if an incident occurs rather than delay matters and we will guide you through the process.
Tenants improvements & decorations
If you are renting premises, in most cases you are likely to want to improve or add to the property. For example, moving into a new office and adding an air conditioning unit, perhaps you re-decorate or re-carpet. Please remember changes or improvements you make to the property or room are probably your responsibility to insure! If something were to happen to the building, the landlord may not be responsible for any changes you have made! Please also ensure your contents sum insured reflects any contents you are responsible for via a landlord’s contract.
If you are performing a treatment at a client’s home, please remember that a non-permeable sheet must be put down to prevent any products making contact with your client’s furniture or floor coverings.