In their article, ‘When the police come knocking’, (vol 10, issue 6), Eve Turner and Declan Woods discussed a coaching dilemma that occurred when the police had wanted to seize the coaching notes of one of Eve’s supervisees. The situation highlighted the importance of having insurance, but what of taking notes and record keeping? Turner and Woods take an in-depth look at the latter, with the help of one of the contributors, Jo Mountain, of Howden Insurance Brokers, and with support from BLM Solicitors
By Eve Turner, Declan Woods and Jo Mountain
What should coaches pay attention to when keeping notes on clients?
Issues around keeping notes and requests for access to a client’s notes can be complex. But while it is not possible here to give a definitive answer to all potential questions that may arise, we will look to outline some key points that will hopefully offer some assistance. That said, we would advise that, if you are faced with a request to disclose your notes, a sensible first course of action would be to contact your professional indemnity insurers to seek initial advice as to how to respond.
Should I keep my notes?
The starting point, and a question often asked, is whether there is a requirement to keep notes of client sessions.
It’s a tricky area and needs to be approached with care and thought. Guidance and recommendations vary widely, depending on the modality of your work, for example, record keeping can, in itself, be seen as a breach of client confidentiality. Trying to avoid Data Protection issues by keeping two sets of notes is folly and would fall foul of the Data Protection Act (DPA), which covers all personal data and would therefore apply to both sets. Similarly, not keeping notes at all – a seemingly easy fix – will not be very helpful in the event of any kind of dispute (be it a claim for compensation, complaint to a regulator, etc) with a client or former client, as notes that were taken contemporaneously will be seen as strong evidence by a court or panel, who may be faced with conflicting accounts of events.
In short, and in general, note taking and record keeping is a recognised and valuable part of the process. Seek advice also, from the professional or regulatory body you are registered with to ensure you are complying with their requirements (if any).
At Howden Insurance Brokers, however, we suggest the following:
- It’s professional to keep records
- There has been a move away from keeping process notes to factual records
- Remember that whatever notes you keep may be called upon by a court
- Tell your clients that you keep notes of the sessions
- Be consistent in your record keeping
- Include your supervision record with your notes
- Keep your records in a secure place – the boot of your car doesn’t count!
- If you computerise your notes, keep them on an external drive, securely stored, not on the hard drive. If you use disks, reformat them, as erasing files does not remove data permanently. USB sticks can be encrypted
- Print computerised notes in case of disk failure – and store them securely
- Shred any confidential documents once you are finished with them
- Code your records rather than using full names, in case they are seen
- If you are called on to provide notes, don’t just hand them over. Only do so as a result of, for example, a court order or request from a statutory agency.
How long should I keep my notes?
As a general guide, factors of potential relevance to assessing how long you should keep your notes are:
1) The likely limitation periods for a claim being brought against a practitioner:
- three years for a claim in negligence
- six years for a claim for breach of contract.
2) That your professional organisation may have a time limit in which they will hear complaints. However, they may also have the discretion to deal with complaints outside of that period.
On the basis of the above, retaining notes for a period of seven years may be a justifiable position, covering the six years for a breach of contract claim (with a ‘buffer’ of one year added as it may be several months after a claim has been issued at court before it is ‘served’ and you become aware it has been made). However, this is not definitive, as there may be circumstances (for example, in cases involving children), where a claim could be brought many years after the seven-year timeframe.
Requests for access to records
A request for disclosure of a client’s notes may come in different forms – it may be a simple informal request from a client, a letter from the client’s solicitors with a form of authority from the client, a ‘Subject Access Request’ (SAR) under the Data Protection Act 1998, or a Court Order requiring disclosure. It may also be a request from the police without a court order (see also vol 10, issue 6, pp28-34).
Request from client/client’s solicitor
There can be difficult issues around the disclosure of notes. Advice should be sought initially if there are any concerns about disclosure, starting with your insurer. However, in the ‘normal’ course of events, the general position is that clients have the right to see their notes, so if a request is made by a client, or a client’s solicitor with an appropriate form of authority, then it should be complied with.
SAR under the DPA
If you keep notes about your clients it is likely you will have to register as a ‘data controller’ with the Information Commissioner’s Office (ICO). There is an annual fee of £35 to register.
It is possible for a client to make a formal request (SAR) for their notes, under the DPA. A SAR needs to be made in writing and, once received, needs to be complied with within 40 calendar days.
Again, SARs under the DPA can throw up complex issues, but some key points are:
1) If the notes are held as part of a ‘relevant filing system’, they will fall to be dealt with under a SAR. There is case law and ICO guidance as to what is meant by a ‘relevant filing system’, but the general position is that if the notes are held on a computer or in some kind of structured way, such that specific information relating to a particular client is readily accessible, for example, an alphabetical system, then they would be included. If handwritten notes are not stored in any particular order, then there may be arguments that they do not fall to be dealt with under a SAR, but that would need to be looked at on a case-by-case basis.
2) There are exemptions from disclosure under the DPA, and one that may be of potential relevance is a circumstance where it is considered that the disclosure of the records may cause serious harm to the physical or mental health of the data subject or to another individual.
3) Another exemption that may apply is if the records contain confidential information about a third party who does not consent to the disclosure.
4) A failure to comply with the requirements of the DPA can result in compensation awards for damages/distress, so it is important to ensure that a SAR is dealt with appropriately. Such failings may also result in complaints to the relevant professional body.
It is possible that you may be asked to disclose your notes to the police as part of their investigations.
This may take the form of an initial request for the notes, ie, a request that falls short of a Court Order.
At this stage you may wish to consider whether you have the consent of your client to disclose the notes, and whether there are any other concerns that you may have about disclosure, for example, the confidentiality of third parties, and it may be appropriate to set these concerns out in writing when responding to the request.
Further guidance is given in vol 10, issue 6, pp28-34. However, as stated at the start of this article, do call your insurers, who will put you in touch with their lawyers as appropriate.
However, if the stage has been reached where a Court Order has been made to disclose the notes, then the advice would almost invariably be that the notes should be disclosed. Not doing so could amount to a Contempt of Court, which is a serious matter.
A Court Order may be made following an application from the police, but may also be made as part of civil proceedings.
There can be complex issues relating to the making, disclosure and retention of notes/records, and each case will need to be assessed in all the circumstances. However, some general principles are:
- Keeping notes may well assist in the event of a civil claim or a complaint to a regulator and may also be a requirement of your professional body.
- If a request for notes is made by a client, then the starting point is that it should generally be complied with. However, there may be valid reasons not to disclose in certain circumstances, and each request should be considered carefully.
- Be particularly careful if faced with a SAR request under the DPA, as a failure to respond appropriately can result in a compensation award.
- There are no ‘rules’ for how long notes should be kept for those working in private practice, but keep in mind the potential limitation periods for claims to be made.
- Jo Mountain is associate director at Howden Insurance Brokers Limited
- Eve Turner is an accredited masterexecutive coach and coach supervisor
- Declan Woods is global head, Standards & Accreditation, Association for Coaching, and founder of ZPD Consulting
- Call your insurers if you have a concern about someone wanting access to your notes
- Check and comply with the ethical code of your professional body on note taking and record keeping
- Comply with the laws and agreements of the country you are in. In the UK, for example, comply with the Data Protection Act and register with the Information Commissioner’s Office
What the professional bodies’ codes of ethics say
The Global Code of Ethics (EMCC/AC) urges members to “keep appropriate and accurate records of their work with clients and ensure they remain confidential, are stored securely, and comply with their country’s data protection and privacy legislation.”
See the Global Code at: bit.ly/20MsbUV
The International Coach Federation (ICF)’s Code of Ethics urges members to “maintain, store and dispose of any records, including electronic files and communications, created during my coaching engagements in a manner that promotes confidentiality, security and privacy and complies with any applicable laws and agreements” and to “maintain the strictest levels of confidentiality with all client and sponsor information unless release is required by law”….. and to “have a clear agreement when acting as a coach, coach mentor, coaching supervisor or trainer, with both client and sponsor, student, mentee, or supervisee about the conditions under which confidentiality may not be maintained (eg, illegal activity, pursuant to valid court order or subpoena; imminent or likely risk of danger to self or to others; etc) and make sure both client and sponsor, student, mentee, or supervisee voluntarily and knowingly agree in writing to that limit of confidentiality. Where I reasonably believe that because one of the above circumstances is applicable, I may need to inform appropriate authorities.”
See the ICF Code at: bit.ly/1RI0bul