How long you should keep notes and records and what sort of records do you need to keep? Is this a potential problem issue for Pilates Teachers and Therapists? Why should you keep them if you are just doing classes, and maybe you know the students well?
If you work in a multi-disciplinary setting or for someone else, do you know who owns the notes? What if you stop your practice or teaching arrangements or simply transfer to another set up? How does the Data Protection legislation influence or affect all this?
Many years ago the idea of keeping records was not in the usual teacher-training courses, nor even thought too much about. People tended not to complain, and people with some authority were not usually challenged if things went wrong. Over the years, the climate of opinion, and behaviour has evolved into a litigation and blame culture which was not prevalent then, and with the advent of “no win no fee” solicitors it is cheaper and easier for people to try and sue for redress than it ever was before.
The availability of quality Professional Indemnity Insurance funding defence, the growing understanding of the concept of Duty of Care, the ability of members of the public to redress any perceived grievances through the Law Courts, plus the increasing consumer protection ethos have changed the status quo.
Taking all this into account, more care needs to be taken to provide an audit trail of what happened and who was present in a class in order to defend any allegation in the future, not only because your insurers require it in order to deal with a claim, but because where it is one person’s word against another, the notes, if credible, are your main source of defence.
Whether you are teaching Pilates or any other form of exercise class, you need to rely on data as well as your ethics and skill to protect yourself! Your Professional Liability Insurance needs information recorded at the time that stands up to objective scrutiny to be able to defend you adequately, if called upon to do so. Relying on memory when giving evidence sometime after the event may not appear credible in a court of law, especially if you have given many classes in the past. Stating that you always do something a certain way and must have done it in this instance may not win the day in a legal argument.
My advice is that you should keep a chronological record of your classes. These records should include a brief lesson plan mentioning the postures and exercises given out and supervised. A list of those present should attach to these, so that if an allegation is made sometime after the event you know who was there at the time. If someone makes an allegation and you can show they weren’t in the class at the time, then the process is easy to defend and brings speedy closure. Any observations of particular difficulties of participants can be briefly noted together with relevant advice and interventions. Again if a student alleges an exercise caused pain etc., and you didn’t record any such comment after the class when you write up notes, then you have defence against such allegations.
Record Keeping, however brief, will not only give you back up if you are challenged, but also can form quite a good aide-memoire for your own self-reflection and development when reviewing your own performance in the future.
This may seem tedious and unnecessary, (and of course should not be done from a motive of fear, but rather one of common sense) but your Insurance will transfer risk and uncertainty. With no records there is virtually no defence and you may run the risk of not having your claim covered.
If you are running a professional practice it is not just about class or patient records either! Remember to keep a good audit trail of your business accounts, money in and money out, receipts for any expenses claimed and so on. A Teacher/Therapist colleague of mine found herself in a stressful 4-year tax investigation into to her modest and honest practice. Fortunately she was insured with us and we covered the accountant’s bills for time spent and any potential legal defence against HMRC, but it reminds us to be vigilant in these mundane matters! You should keep your records for Tax Purposes for at least 6 years.
So, how long should you keep class records or individual notes? When I ask this question in some of my lectures to would-be and even experienced teachers and therapists, there are usually many answers, all of them different!! The reality is that there can be overlaps or contradictions in the different types of law. Although Data Protection legislation, Contract Law, the Criminal Law and Human Rights legislation etc. are there to prevent abuse, they can cause confusion especially with regard to what you should do as part of your contract with the insurance company in complying with policy terms and conditions.
The Data Protection legislation says you should keep client records for no longer than necessary (although they don’t define how long that is!). The core purpose of this was to stop people abusing data held and using it for unethical purposes. On the other hand, we could say that you have a human right (protected by law) to have a livelihood and it is a normal condition of most, if not all, Professional Liability Policies (governed by Contract Law) that records be kept in order to defend you – and normally for a minimum of 7 years. Would that be longer than necessary according to Data Protection Law? Similarly the statute of limitation (Civil Law or Tort) extends the possibility of an action against you for negligence some years into the future. The Criminal Law (UK Statutes) also seems to embrace different time spans – so which one should you obey?
The simple answer is that we recommend you keep client records indefinitely. This applies even when you have left the set up where you taught the classes or administered any remedial work. Although in most cases the UK statute of limitation that applies for late discovered situations leading to an allegation of negligence could be up to 3 or 6 years from the date of discovering a problem according to the type of allegation, there are certain situations where the limitation period could be much longer especially, in respect of minors or those with learning difficulties.
Will you remember when to dispose of records for different minors or the disabled who you may have taught or treated recently, 24 years or more from now? Even if the policy only requires you retain records for 7 years, clearly in some cases this may not be enough, and 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.
Your case notes and records are your property, and you must retain them even if you move to another practice or environment. If, as a teacher trainer or clinical supervisor, you oversee a student’s work under your own professional practitioner insurance, the client’s records are yours. Although a client/patient can by written application seek access to notes they have no legal rights of ownership. However, if a client/student requests a copy of their notes, you must follow the procedure laid out in the Data Protection Act 1998 and keep a record of this on the file. Remember, your Insurance policy may require you to keep records for 7 years, so it is important that you know where they are at any time in order to fulfil the requirements of your insurance to defend an allegation against you.
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/classes, 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 students/clients are informed in writing in advance of the transfer and given the opportunity to object, in which event you must retain the original records.
You must also ensure that client/patients are kept fully informed and offered appropriate choices about their continuing care and the safe keeping and location of their original records. As it will be your policy that will defend you for previous work performed rather than someone else’s. You must ensure that the notes can be easily accessed or that you have copies, in order to fulfil the terms of the policy and in any event to allow yourself to be defended whether by the insurers – or anyone else.
Allegations against Pilates Teachers are few and far between, but it is wisdom and common sense these days to leave an audit trail as well as satisfied students or clients behind you!