By Eve Turner and Declan Woods
A coaching dilemma
Imagine this happening to you. You are an independent coach who does some associate work, and you previously worked with a client as an associate around issues such as interpersonal skills, handling conflict and confidence. The coaching sessions were completed several months ago and you are aware that the client has had other support. You’re surprised when, out of the blue, you get a call from the police. They say the client you’d coached has made an allegation against another person which could result in prosecution. The police want to seize your notes as part of their investigation. This may be fictionalised, but would you know what to do?
Early in 2015, one of Eve’s supervisees started a regular session with the words: “The police have just been in touch and want to seize the notes on one of my clients… .” This article has emerged from what happened next. The fictionalised dilemma above raises the same issues the coach brought that day.
The supervisee and Eve agreed a course of action during the supervision, which included checking the wording of any court order very carefully and not allowing a ‘fishing expedition’ (where something is so loosely worded it could allow the police to seize anything they consider related to the case).
For speed, as supervisor, Eve contacted:
- the coach’s professional body, the Association for Coaching (AC), which is when Declan became involved
- two of her own supervisors to check the action she’d recommended, and
- re-read the professional bodies’ codes of ethics and good practice.
The coach contacted:
- his insurers, including its legal advice line
- the overarching organisation for whom he worked as an associate, and
- the other professionals involved in the former client’s care – a medical practitioner and a counsellor.
It emerged that there was no specific written guidance related to such a dilemma, so we (Dec and Eve) have drawn on guidance from a range of parties to fill that gap.
Our aim is to bring this area into coaches’ awareness so that coaches, if personally faced with a similar situation, are more confident and equipped to tackle it successfully. However, every situation will be different so we’re not seeking to offer legal advice or a ‘cure-all’ for coaches. This is impossible given the range of contexts in which coaches work and the prevailing laws in each country.
There is some truth to the old adage: ‘Good advice is seldom wasted’. First and foremost, we recommend coaches seek professional counsel (see Top Tips).
As coaches, we value confidentiality and maintaining clients’ trust. Our first emotional response to the police regarding this dilemma could be, “Get a court order or you’re getting nothing”, illustrated in Critical Path 2. But is there another way? In Critical Path 1, we have assumed the client agrees voluntarily to disclosure. Like other bodies, the AC advocates a collaborative approach to working with other related parties to resolve coaching dilemmas swiftly and successfully in the prevailing laws.
As coaches, we often want to be helpful. And it is worth noting that a court will require the police to have attempted to gain access to the records without a court order before issuing one (see Expert Views).
Steve Johnson, director of Oxygen Insurance, says voluntary disclosure must be based on ‘informed consent’, including potential consequences: “For example, if they are consenting to the release of the coach’s records in support of a court case, the client must understand that those records, and all that they contain, will be available to both sides in the court case.”
While there are potential dangers to voluntary disclosure, this would be compounded if the client did not agree to it. As insurers, lawyers and professional bodies agree, the only justification for not insisting on a court order or client agreement before disclosing client notes would be the urgency of the situation, where not disclosing might result in imminent serious harm and/or unlawful activity.
Ginny Kidd, a director at the Association for Professional Executive Coaching and Supervision (APECS), advises coaches should “proceed with great caution and make careful notes of their reasons for making a disclosure”.
This raises the area of contracting, and David Sleightholm, the European Mentoring & Coaching Council’s international vice president, standards, wonders: “What did the initial verbal and written contract specify? The client him/herself should be aware of the circumstances when I have to share information, despite the overall confidentiality agreement.”
The AC agrees, pointing out that the work may also be carried out under the auspices of the referring organisation under an associate-type agreement, and the terms and provisions need checking. They may include confidentiality, information disclosure, recording and storage of notes and even provide some form of cover, eg, liability insurance, which may guide the coach on how to act. The mandatory legal circumstances when this occurs, outlined by associate director Jo Mountain from Howdens, and Johnson from Oxygen, are included in Top Tips (9).
Sleightholm points to the UK’s Data Protection Act regulating how records are stored. And what about the quality of our note-keeping? The AC’s ethics code requires coaches to keep appropriate, accurate records of client work, readable after the coaching has ended, thus making disclosure a possibility in the first place.
Now let’s assume there is a court order, as in Critical Path 2, which releases us from the implications of the Data Protection Act. Joy Harcup, president, UK International Coach Federation, advises seeking legal advice for the jurisdiction in which the coach practices. “Whilst the confidentiality between coach and client is a hallmark of the coaching engagement, a court order requiring disclosure trumps the code of ethics in this instance.”
This brings another potential danger for the profession underlined by Kidd, namely the risk to a client’s confidence in a coach’s commitment to confidentiality if coaches comply with police requests. Experience suggests being prepared is advisable.
Sleightholm concludes: “The good news is that we do not encounter this dilemma frequently. The key advice is to work out the answer with your supervisor and take legal advice as necessary.”
We’ll leave the last advice to Mountain: “Take a deep breath and don’t panic then …seek help and think carefully before taking any action….”.
Inspector, UK police force
In the UK, how the police conduct investigations and gather evidence is covered by the Police and Criminal Evidence Act (PACE) (1984) legislation. Sections 14 and Section 11 cover the disclosure of a coach’s notes.
Nothing stops the police requesting such material and the material being provided by the coach voluntarily. If this were to happen, I ‘d be mindful that any disclosure by the relevant person (the coach) may well need the consent of the person (coaching client) about whom the records were made. If they weren’t an adult, I would also obtain consent of the legal guardian (eg, parent, carer).
Where voluntary consent is not given, the police have other powers to obtain it in the form of a court order or warrant. However, one of the criteria that must be fulfilled to obtain one is that ‘other means’ of obtaining the records must have been tried (and failed) by the police first.
Legal Assistance Direct, Howden’s legal helpline
It is important to reference that the person who is the subject of the disclosure request is presumed to be a responsible adult, ie, over 18 and without any mental health issues.
Following a simple police request for information, the ‘coach’ is under no obligation to automatically release any information held. Indeed, no information should be provided until the ‘coach’ has approached the client and sought their specific consent to its release. This is in accordance with the general principles of the Data Protection Act, 1998. Also, the client is under no obligation to provide same, but in view of the scenario presented, it would seem unlikely that their consent would be withheld.
However, if the police use a formal approach they should certify that the information is required for an investigation concerning national security, the prevention or detection of crime, or the apprehension or prosecution of offenders, and that the investigation would be prejudiced by a failure to disclose the information. This then provides a legal basis for supplying the data under the Data Protection Act exemptions. All requests for personal data from the police, apart from emergency requests, should be required to be on a section 28/section 29(3) form.
Steve Johnson, director, Oxygen Insurance
The dilemma… is more common among our counselling, psychotherapy and psychology clients, but it does happen to coaches too. As a coach, you have a professional duty of confidentiality.
I have seen cases where the police have just to be given sight of the notes and records (without taking them or making copies). This, of course, would still be a breach of confidentiality and should not be done without a court order or informed client consent.
A client could access the notes and records you hold on them (and then give them to anyone, including the police) by making… a Subject Access Request under the terms of the Data Protection Act, 1998. You are, of course, registered with the Information Commissioner’s Office (ICO) as a data controller, aren’t you? In that case, you would need to comply with the request within the specified timescale (usually 40 days)…. or the client can apply to a court (or through the ICO) to order
you to do so.
There are circumstances in which you may need to make a disclosure of what would otherwise be confidential material or information: 1. Legal requirements (mandatory reporting) and 2. Ethical issues.
In the case of mandatory reporting (see Top Tip 9) you are legally obliged to contact the authorities. If you don’t, you will be committing an offence. You may also be committing an offence if you tell your client you will be reporting them (tipping-off). Regulations exist to ensure that issues around Safeguarding of Children are reported to the appropriate authorities and there are calls for the introduction of mandatory reporting of suspected child abuse or neglect. There may be times you are ethically required to breach confidentiality with no legal requirement to do so, eg, a disclosed threat of harm to self or others.
Jo Mountain, associate director, Howden (Insurers)
Check carefully the terms of any warrant via your professional association or insurer or any legal helpline to which you have access that is able to give appropriate advice. If the police do not have a warrant and are simply making a request, you need to think carefully about your next steps…you need to balance public interest and only breach confidentiality where this applies, if you do not think it applies you should seek the client’s permission before making any breach…
Take help and advice from as many sources as you can and take time to make decisions; knee-jerk reactions are likely to lead to problems.
1 Keep calm
2 Proceed with caution
3 If there is no court order, as yet, disclose nothing at first
4 Take advice from your professional indemnity insurers, who will put you in touch with a retained solicitor. Ask the latter to check any court order that is produced now, or later, for legality and specificity
5 Contact your coaching supervisor
6 Contact your coaching/mentoring professional body and re-read their ethical/good practice guidelines
7 Contact your client – are they prepared to give informed consent? If the police say your client has agreed, check this before any disclosure
8 Within confidentiality boundaries, discuss the situation with other helping parties involved, to ensure consistency within all professional guidelines
9 Ask: does disclosure fall into one of three categories where you are legally obliged to inform the authorities if your client discloses involvement in, or knowledge of:
- An act, plot or threat of terrorism or funding of terrorism
- An act, plot or threat of treason, or
- Actions around money laundering (links to serious organised crime)
10 Consider how you discuss confidentiality with clients in the future – how is it written into your coaching agreement?
11 Consider how you store data (notes) and how you conform to Data Protection legislation. Register with Information Commissioner’s Office (ICO)
Professional bodies’ views
Professional bodies’ views were remarkably similar to those of the experts and, where duplicated, have not been repeated here. Additional perspectives are shown below, however, to give coaches a more rounded view of the situation
Ginny Kidd, a director at APECS
1 Give the client the opportunity to agree any disclosure (if possible)
2 Seek advice from APECS
3 Without a warrant, disclose nothing unless there had clearly been illegal activity or there was significant risk to another person or body
4 If there is a warrant, proceed with great caution
5 Seek legal advice on the validity of the warrant
6 Seek advice from the professional indemnity insurer on any liability arising from such disclosure
7 Take careful notes of any reasons for making a disclosure
8 Disclose the minimum amount of information to comply with the warrant
9 Seek the earliest possible supervision session
10 Take care of oneself
Declan Woods, global head of standards and accreditation, AC
We would expect that the coach is appropriately qualified and equipped to work with anyone they worked with, including, for example, children and young people, if relevant. They would also need professional indemnity insurance that covers coaching work with their relevant client groups. The AC’s code of conduct also stipulates the need for the coach to undergo a Disclosure and Barring Service (DBS) check before starting work with a child or vulnerable adult.
The AC expects that its coaches will reflect on their practice and development regularly with a
suitably qualified and experienced coaching supervisor as…an invaluable source of personal
support for the coach as well as a sounding board to discuss their options and best response.
David Sleightholm, EMCC international vice president, standards
Ethical dilemmas occur when two principles lead us to conflicting courses of action: confidentiality (exceptions are normal supervision, and when the coach judges that the client or someone else is in significant danger)…and that we operate within the law. As every circumstance is different, it is difficult to give advice that will cover all possibilities. I would breach confidentiality if:
- I’m legally required to do so…I would need legal advice on the specific circumstance to
enable me to decide this
- There could be other circumstances, where my best judgment was that sharing this
information could mitigate significant danger or potential significant danger to others
- The client authorises me to do so. I would share the issue with my supervisor who would help
me think it through
ICF Joy Harcup, president, UK ICF
Under the ICF’s recently revised Code of Ethics, a coach agrees “to maintain the strictest levels of confidentiality with all client and sponsor information, unless release is required by law”.
Dr Dasha Grajfoner, chair, British Psychological Society, Special Group in Coaching Psychology
1. Contact the ethics officer of the BPS SGCP
2. Contact your insurer
3. Based on the instructions from the SGCP ethics officer you may have to seek further advice
from a BPS representative/officer