Aspects of good practice

Ian Thomson takes a look at a selection of ethical issues of relevance to human givens practitioners.

Human givens practitioners all want to do their best to help people in need. And all is generally well – until it isn’t well. A client takes something in an unintended way or remembers something differently; a therapist acts on an occasion in their personal life in a way that would be frowned on in their professional life; a minor or not so minor slip-up or genuine error is made; and suddenly the edges start to get blurred. Sometimes lawyers even get involved.

It is to cover eventualities like this that the Human Givens Institute (HGI) has an ethics and professional conduct policy (see the HGI website: www.hgi.org.uk), and a Registration and Professional Standards Committee (RPSC), which can offer advice to therapists to help them avoid such situations occurring, or cope best when they do, alongside its role of investigating any complaints against therapists that are made. The “Essential Information” section of the professional members area of the HGI website contains important information on what HG therapists need to know, to practise safely. It is hard, however, to anticipate all circumstances that might arise, so this article will take a look at a few areas that therapists may find it helpful to consider, drawing on advice sought from, or cases brought to, the committee over the last year or two, similar circumstances reported anecdotally, and issues raised at a recent seminar on complaints held by the Professional Standards Authority (PSA).

Records and notes – keeping and destroying them

Any health practitioner who keeps records on anyone else is, in law, a ‘data controller’ and has to comply with the Data Protection Act. If you keep records electronically you are obliged to register as a data controller with the Information Commissioner. (All the information you need about this can be found on the Information Commissioner’s Office website.) But even if you keep longhand notes and consider yourself outside the need to register, there are points that you should consider. Keeping records electronically includes clients’ names, addresses, email addresses, phone numbers, etc, from which they could be identified, kept on any electronic communication device – regardless of whether case notes are kept electronically or not.

Holding emails or text messages that contain revealing personal information, for instance about a medical/psychological condition or a particular circumstance, would also require registration. Emails or texts sent to make or confirm appointments don’t fall into this category, nor is it likely that any emails sent to clients between sessions, enquiring how they are getting on, encouraging them in achieving their goals or reminding them of useful information would fall foul of the Act. However, it is important not to mention diagnoses a client may have been given or refer to compromising circumstances (such as the doomed affair with the married boss that had led the client to seek help), whether registered as a data controller or not. You cannot be held responsible if a client emails or texts you confidential information but if you retain this information electronically, you must register as a data controller. And when/if you reply, it would be wise not to click the ‘reply’ button but to send a fresh email, so that there is no ongoing trail of identifiable revealing information.

It goes without saying that confidential information needs to be kept securely. In electronic form, that means on a password-protected computer and preferably with the additional security of an encryption programme. (It is important, too, to have electronically stored client information securely backed up, as computers can sometimes suffer disasters that render the hard-drive contents inaccessible. In that event, you will need to take responsibility yourself for destroying the hard drive, unless any IT expert you have consulted is willing to provide written evidence of having done so safely.) Written notes need to be kept in a locked cabinet.

There is no legal requirement to keep detailed notes. Indeed, according to the Data Protection Act, “Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed”. The HGI requires practitioners to keep “appropriate records”, containing “sufficient detail, including a description of the client’s presenting situation, their expectations of therapy, the treatment provided and the outcome, if known”. Some therapists may take notes during the session, in which case they might be a bit of a scribble; others write them from memory afterwards. Both methods have pluses and minuses – in the former, rapport may be lost if bent over notes, so it is important to strike a good balance, while, in the latter, something relatively important might fail to be recorded. Having good notes can certainly be helpful in the event of a complaint or legal proceedings of any kind. One human givens therapist was requested by a former client to give a statement to support a case being brought against someone who had abused the client for several years in childhood. When seeking therapy some years previously, the client had emphasised not wanting to address the abuse (saying that it had been “dealt with” during two years of psychodynamic therapy) but was looking for help with another matter, and told the ‘story’ purely for background. The client hadn’t wanted to bring a case at the time but had a change of mind when historical cases of child sex abuse started to be widely reported in the press. The therapist’s notes, in which the client’s account of the abuse had been recorded, played a part in events leading to the successful conviction of the offender, as they showed that the account given to a therapist by the client, deemed a highly credible witness, tallied with the account the client gave years later.

The Data Protection Act requires that personal information is not kept for longer than necessary. Current advice from the HGI is that records should be kept for at least seven years from the date of the last session. Your indemnity insurers may say, however, that while you must, indeed, keep records for a minimum of seven years, it is preferable to keep them as long as possible, as a legal case can still be brought 20 years down the line. A spokesperson for Balens, which offers HGI block insurance, confirms that, because there is no cut-off date after which legal proceedings cannot be brought, keeping records indefinitely does not contravene the Act. Equally, should the individual practitioner choose to dispose of records after seven years, this would not compromise the terms of their insurance and right to legal support. If in doubt, therapists should consult their indemnity insurer directly. Something that we may not tend to think about is making arrangements for safe disposal of our records in the event of our death or incapacitation. It is, therefore, a good idea to store a letter with client records, designating someone else to take them over in this event – for instance, a willing trusted colleague or relative. After keeping them for seven years, they should shred or burn them.

Communicating safely

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Any client can ask to see their notes, and so can a legal adviser working on their behalf. Additionally, in the case of a complaint, any written communications you have had with the client may well be scrutinised, so it is important to take care with use of language. Just as journalists use the word ‘alleged’ when claimed events are not known to be true, so we, too, need to be careful not to mix opinion with fact. For instance, whereas a client with a complaint might be motivated to argue with the validity of a statement such as “The client was distressed/angry/uninterested”, use of the word ‘seemed’ instead of ‘was’ makes it clear that what is written is an impression rather than fact.

A concern that has been raised in the past is that certain clients might misinterpret what is written in their notes, because of their own particular mental health condition or personality. Tim Bond and Barbara Mitchels give advice on this in their book, Confidentiality and Record Keeping in Counselling and Psychotherapy: “Any therapist who is concerned about the client’s response to seeing the records may offer to be present and explain the records or to arrange for another suitably qualified person to be present but cannot insist on this. …The client is entitled to unconditional access.

“A client who considers that there is an inaccuracy in the record may ask for it to be corrected with the agreement of the therapist. If there is a disagreement about what would be a correct record, it is good practice to include a record of the client’s objections in the notes.”¹

If asked for notes by a client or the client’s solicitor, it is advisable to provide the original notes (or photocopies), as well as a typed transcript, if the notes are not fully legible. It is important to supply both because a typed version is likely to be slightly different from the original, in that abbreviations may be lengthened and so forth, and therefore could (if someone decided to be awkward) be questioned as a true record. It may also make sense to define certain terms (such as ‘rewind’ or ‘utilisation technique’), making it clear that these clarifications are in addition to the original.

In any written communication, it helps to put yourself in the role of the reader. The following is an imaginary case, based on something similar that the RPSC was asked to advise on. A married couple sought couples therapy, during which it emerged that the husband had been having an affair with another woman, and had even brought that woman along once, when he had taken his young daughter on a trip. This had led to acrimonious arguments between the couple and the wife decided to start proceedings for divorce and sole custody of their child. The husband said that he was going to deny the affair, so the wife asked the therapist to provide confirmation that, during therapy, he had confessed to one (see also “Whose information is it?” below). The therapist rightly referred, in reply, to the relevant sections of the Data Information Act, including the section showing that it was permissible to divulge information without the husband’s consent only if the person making the request was at risk, and was planning to add, “I assume that is not the case”. Such a comment would be ill advised because it might be taken as an unintentional invitation to the client to claim that she was at risk, even if she was not.

When is there a duty to breach confidentiality?

Just how serious does risk to self or others need to be to warrant breaking confidentiality? As stated in our ethics policy, therapists must advise a client that if they reveal any illegal or potentially harmful act, the practitioner is obliged to inform the appropriate authority – for instance, if the practitioner has serious concerns about the safety of the client, the safety of others who might be endangered by the client’s behaviour, or the health, welfare or safety of children or vulnerable adults. (The HGI strongly recommends use of the customisable “confidentialty agreement” and “information for clients” documents downloadable from the “Essential Information” section of the professional members area of the HGI website.) However, many situations are not clear cut. For instance, while working to help someone recover from addiction, would it be necessary to report shoplifting to support their habit, engaged in by that person some years before? While the kind of crime deemed serious enough to warrant breach of confidentiality is not clearly defined in law, the Department of Health has offered the following guidance: “Murder, manslaughter, rape, treason, kidnapping, child abuse or other cases where individuals have suffered serious harm may all warrant breaching confidentiality. Serious harm to the security of the state or to public order and crimes that involve substantial financial gain or loss will generally fall within this category. In contrast, theft, fraud or damage to property where loss or damage is less substantial would generally not warrant breach of confidence.”² Thus it would appear that a therapist may exercise discretion in relation to lesser offences, especially when a person is seeking therapy specifically to make important life changes and move on from the past.

If disclosure is thought appropriate (or if you are not sure), you should seek advice from your indemnity insurer before taking action. The insurers’ lawyers will be able to advise on what legally can and can’t be disclosed, as it is important not to give more information than is relevant. For instance, while it will be necessary to report money laundering or drug dealing, it is unlikely to be appropriate to supply information about the perpetrator’s relationship problems.

Expressed suicidal intent by a client remains the most common circumstance that therapists may need to make a judgement about, in terms of breach of confidentiality. A consensus statement produced on behalf of the Department of Health in 2014 states that, if a client is believed to be at serious risk of committing suicide, the therapist should break confidentiality and warn the person’s GP, a family member or close friend.³

While we always aim to shift a suicidal client into a state of hope, we cannot be certain that they will not revert to extremely low mood the next day or week. But it is not always helpful to report suicidal intent, even if it appears to be serious. In one case recently, a young woman sought therapy purely because her sister pleaded with her to give it a try but openly admitted that she wasn’t really interested in participating and didn’t want to live. She demanded to know whether the therapist would report her if she revealed more, because this had happened before – her parents had called the police and she ended up being taken to a psychiatric hospital where, because she was highly articulate, she easily convinced the psychiatrist that she had no intention of taking her life. This, however, led her to break off contact with her parents, who had previously been a strong source of support. On the grounds that this was a last chance to do something positive that might shift the client’s thinking, the therapist agreed not to alert either the GP or police – and, indeed, was able to widen the client’s perspective and instil hope of a better future.

As therapists, we constantly have to make judgements. If a highly emotionally aroused clients roars, “I’m going to burn her house down!”, it is common sense to explore whether that truly is a risk and whether helping them to calm down and get perspective alters their mindset.

Whose information is it?

Sometimes a third party (i.e. someone other than the client who received therapy) may request information that a therapist holds about the client. You should not disclose such information without the client’s express consent, even if the request you receive is from the third party’s solicitor. We had an instance where a partner of a former client wrote to ask the therapist for their opinion of the client, to use in a court case about the latter’s alleged behaviour. The law is very clear that compliance is not warranted without client consent. Exceptions are where a court order is received, requiring disclosure.

Sometimes information might be requested by a third party to support a claim against somebody else. For instance, let’s suppose a 14-year-old boy is brought to therapy because he has lost his confidence after bullying at school. The therapy is successful but the therapist makes the point that, if the bullying continues, the work is likely to be undone. The bullying continues and the parents decide to take action against the school. They ask the therapist to confirm that the boy was badly affected by the bullying and that nothing was done to stop it. In such a circumstance, the therapist can only confirm that the boy came for treatment and described being bullied at school as the cause of his distress – and do this only if the child has supplied informed written consent. (If the child were a lot younger, there would be an issue with whether consent, however seemingly freely given, could truly be informed.) Even if the therapist genuinely feels that the anti-bullying policy was not properly put into effect, and may feel indignant about this on the child’s behalf, this is beyond what can be commented on. The parents’ high emotional arousal may lead them to be overdemanding or overbearing in their request for the support they want and this may feel intimidating. It can, therefore, be particularly helpful to have the law to fall back on, in such cases.

If you are uncertain about what information you can and can’t give and to whom, don’t say anything that will lead the person asking to expect that you will comply without first having checked out the legal situation. At a recent PSA seminar on complaints, Ania Slinn, an associate lawyer from Capstick Solicitors, made it clear that breaking the Data Prevention Act in third party complaints, however unintentionally, can have rather serious consequences – in some cases, fines of up to £500,000. And while this might be a rarity, she said that breaking data protection rules in this way could easily lead to £15,000 fines, plus court costs. She also referred to a case where a GP was fined £50,000 for inadvertently disclosing information about one spouse to the other, when they were estranged.

Sometimes the problem may be not a third party request but a ‘change of use’ for information that was willingly given. In one such case, a therapist was asked by a former client if she would appear as a witness in a divorce case, to testify to the fact that certain things were said during a couple’s session by the other party, as demonstrated in an audio recording made of the session, with both parties’ permission. This would be illegal without the former partner’s consent because, although permission was given to record the therapy session, it wasn’t given for any other purpose.

Appearing professional

It is probably taken as read that, when we see clients, we dress appropriately and invite them into a therapy room that is clean and orderly. How we might live our lives the rest of the time is another matter – our choice if we want to wear clothes that might raise an eyebrow in certain settings or indulge in wild dancing or drumming. Unfortunately, although we used to have lives we could call private, the rapid spread of social media has largely changed that. Practitioners need to think about what pictures of themselves might get posted on line – for instance, looking the worse for wear at a celebratory party or horsing about in a playful manner at a barbecue. It is also likely to be unwise to befriend or follow a client or former client on Facebook or Twitter. LinkedIn, as a professional forum, might be viewed differently: while it still is preferable not to be ‘connected’ with clients or former clients, there will be exceptions, especially where the client relationship has been over for some time and the link up could be of genuine mutual benefit; or more affront might be caused by preventing someone from joining one’s network than accepting. Please note, however, that the HGI Code of Ethics and Conduct strongly discourages therapists from entering into business relationships with clients, past or present.

Sorting out complaints with the least amount of stress

Clearly, much misery can be avoided if any complaint is handled respectfully and sensitively in the first place, rather than defensively – assuming it is not indefensible. It is possible to say sorry, if appropriate, without admitting liability (one can be sorry that a client was upset, for instance). Language should be plain and clear, so that misinterpretation is highly unlikely to occur, and it can be helpful to imagine writing with a smile, rather than a frown, to help achieve the right tone.

Your indemnity insurers will be a good source of advice on relevant matters. The Information Commissioner’s Office can offer help on data protection – helpline 0303 123 1113 (local rate) or 01625 545 745 (national rate). You can also contact the RPSC via the HGI office for advice. Sometimes a complaint about one thing can, in the course of investigation, lead to discovery of something different – such as inadequate record keeping or lack of supervision – which could result in a fitness to practise investigation quite separate from the complaint. All HGI therapists and trainee status therapists have signed up to our Code of Ethics and Conduct and it is the therapist’s responsibility to keep up to date with professional requirements, so do please make a point of looking at the professional area of the HGI website every month or so for any changes. As said at the start, we all only want to do our best.

This article first appeared in "Human Givens Journal" Volume 23 - No. 1: 2016

REFERENCES

1. Bond, T and Mitchels, B (2008). Confidentiality and Record Keeping in Counselling and Psychotherapy (page 65). British Association for Counselling and Psychotherapy.
2. Confidentiality: NHS code of practice (2003). Department of Health.
3. Department of Health, Royal College of Psychiatrists, Royal College of General Practitioners (2014). Information sharing and suicide prevention consensus statement. Department of Health