Guidance for Therapists on note and record keeping

Issues around note-keeping and requests to access a client’s notes can be complex. Each circumstance where this occurs is unique, and it is often not possible for us, as insurance brokers, to give a definitive ‘one size fits all’ answer to questions. In the following article, we look to answer some key questions that often arise that will hopefully offer some assistance and clarity.

We always advise that, if you are faced with a request to disclose your notes, you should contact your Professional Indemnity insurer to seek initial advice as to how to respond.

Do I need to keep notes?

Whether there is a requirement to keep notes of clients' sessions is a tricky area and needs to be approached carefully. Certain therapeutic models suggest that record keeping can interfere in the therapeutic process. Guidance and recommendations vary depending on the modality of your work. However, the general trend has been towards an expectation that notes will be kept. If you are to consider not keeping notes then it may well be prudent to contact your regulatory body/training organisation, speak to them about it and then look to put something in writing which documents the position.

Whilst not keeping notes at all may seem to be an easy fix regarding Data Protection and other requests for notes, it will not be helpful in the event there is any kind of dispute. This may be a claim for compensation or a complaint to a regulator etc. Notes that were taken contemporaneously will be seen as strong evidence by a Court or a Panel who may be faced with conflicting accounts of events.

In general, note taking and record keeping is a recognised and valuable part of the process. At Howden, we suggest the following actions to our clients to ensure you are complying with requirements:

How long should I retain notes?

As general guidance, factors that would seem to be of potential relevance to assessing how long you may wish to keep your notes for are:

1. The likely limitation periods for a claim being brought against a practitioner. These are:
   1. 3 years for a claim in negligence and
   2. 6 years for a claim for breach of contract.
2. Your professional organisation may have a time limit in which they would hear complaints. However, they may also have the discretion to deal with complaints outside of that period.

On the basis of the above, it may be considered that generally retaining notes for a period of 7 years may be a justifiable position. This would cover the 6 years for a breach of contract claim (with a ‘buffer’ of 1 year added as it may be several months after a claim has been issued at court before it is ‘served’ and you become aware that the claim has been made.

However, this is not definitive, as there may be circumstances where a claim could be brought many years after the 7 year timescale, for example in cases involving children.

Request 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 solicitor with a form of authority from the client, a ‘Subject Access Request’ under the Data Protection legislation , or a Court Order requiring disclosure. It may also be a request from the police without a court order.

We outline below how you may deal with each of these requests for disclosure. Remember, there can be difficult issues around the disclosure of notes, and first and foremost you advice should be sought if there are any concerns about disclosure, starting with your insurer.

Request from Client/Client’s Solicitor

The general position here in the ‘normal’ course of things, is that clients have the right to see their notes, and if a request is made by a client, or a client’s solicitor with an appropriate form of authority, to see their notes, that should be complied with.

Subject Access Request (SAR) under the Data Protection legislation

As a starting point, if you keep notes about your clients then 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 £40 to register.

It is possible for a client to make a formal request for their notes, known as a ‘Subject Access Request’ (SAR) under the Data Protection legislation. A SAR needs to be made in writing and, once received, needs to be complied with within 30 days.

Again, SAR’s under the Data Protection legislation can be complex, but some key points are:

1. If the notes are held as part of a ‘relevant filing system’, then 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 specific case-by-case basis.
    
2. There are exemptions from disclosure under the Data Protection legislation, and one that may be of potential relevance is a circumstance where it is considered that the disclosure of records may cause serious harm to the physical or mental health of the data subject or another individual.
    
3. Another exception 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 Data Protection legislation can result in compensation awarded for damages and/or distress, so it is important to ensure that an SAR is dealt with appropriately. Such failings may also result in complaints to the relevant professional body.

Court Orders

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, i.e. 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. It may be appropriate to set these concerns in writing when responding to the request.  Do call your insurers who can put you in touch with lawyers if 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, as not to do 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.

Key Takeaways

As stated from the outset, there can be complex issues related 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:

1. 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.
2. 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 a valid reason not to disclose in certain circumstances, and each request should be considered carefully.
3. Be particularly careful if faced with a SAR request under the Data Protection legislation, as a failure to respond appropriately can result in a compensation award.
4. There are no ‘rules’ for how long notes should be kept for when working in private practice, but keep in mind the potential limitation periods for claims to be made.

Remember – if you have any concerns the about disclosure of notes, seek advice from your insurer or professional or regulating body.