None of us know when we may find ourselves in a potential claim situation. You have purchased your insurance to give you peace of mind, that should you ever find yourself in such a situation, you will have the knowledge there will be someone there to help and support you.
However, the reality is that regardless of the insurance, a complaint or claim against you or your business can be very stressful, time consuming and costly, with potential unexpected knock-on effects that may be hard to quantify.
In the unfortunate event of someone making a complaint against you, please contact ABT in the ﬁrst instance, in order that we are able to support you through the process. We will need you to formally notify us in writing, submitting your case history notes and treatment records, along with your own detailed version of the events of the situation.
Our Claims team are here to help, it is what you purchased your insurance for, and the earlier you advise us, the sooner we can give the support you may need. Whilst you will never be able to completely eradicate the risk, there is much you can do to mitigate the potential of a complaint or claim:
Communicate with your client
Good quality communication (especially listening skills) and developing a quality therapeutic relationship is key.
- Make sure you explain what you do and how you do it, explain potential side eﬀects or reactions as well as what the beneﬁts are. Clients can then make an informed choice about whether to proceed, and you can manage the protocol and structure of the client journey with you.
- Keep your boundaries; respect your client's autonomy.
- Please remember that you have a client-therapist relationship, so keep your communication style professional. Familiarity could become a double-edged sword.
- Try to keep personal relationships away from professional ones;
- Don't get intimate with your clients. It still happens and inevitably can cause problems.
- If you are asking someone to remove their clothes for treatment, remember to ensure they are comfortable to do so. Vacate the room, or provide a screen for them to get changed behind. Provide a robe if possible.
- Gain consent before you touch your client, and throughout the treatment, and note this in your records.
- Get ongoing consent if a series of sessions is likely.
Here is a list of recommended Do's and Don'ts in some common complaint situations.
Do listen. Regarding pain or perceived lack of progress – empathise, explain, reassure, make earlier follow-up appointment and maintain goodwill.
Do consider whether the complaint is about a "notiﬁable safety incident" thereby triggering the statutory duty of candour (see below).
Do notify ABT if clients still appear to be unhappy - remember to also note this information on your Insurance Renewal
Letter of complaint
Do notify ABT and pass on all correspondence together with clients notes and your response to the allegation unless a notiﬁable safety incident has occurred (see below).
Do acknowledge their letter and tell them you will respond within a reasonable period, e.g. 14 – 21 days.
Don't admit liability or respond directly in any way.
No show - missed appointment
Do ring the client to identify reason for no show. Most common reasons are that client the forgot.
Do treat as a verbal complaint if any concerns are raised as a reason for missed appointment.
Don't do nothing.
Do ask why. Request that they put the nature of the complaint in writing to the therapist so that it can be fully investigated. Contact ABT for further advice.
Don't get annoyed, angry or defensive.
Do ask why. If the client is not happy, give reassurance and explanation - oﬀer another appointment, complimentary if necessary, as a gesture of goodwill.
Do consider whether that has been a ‘notiﬁable safety incident' thereby triggering the statutory duty of candour (see below)
Don't get annoyed, angry or defensive, admit liability or indicate you are insured.
Request to see notes
Do give access, offer copy or write report from notes.
Do ask why, although this request is rarely to do with a complaint, usually the patient is moving or has an insurance claim as a result of an accident.
Do consider whether there has been a ‘notifiable safety incident' thereby triggering the statutory duty of candour (see below)
Don't get angry or defensive, admit liability or indicate you are insured.
Notiﬁable Safety Incident – Statutory Duty of Candour
Do notify ABT of the incident immediately.
Do arrange to meet with the client (or if they are deceased or lack capacity, someone able to lawfully act on their behalf) as soon as reasonably practicable. At that meeting the client / service user should be provided with:
- A factual account of what has occurred to the best of your knowledge at that time.
- Details of the future enquires that will be undertaken
- An apology which expresses sorrow or regret that the incident has occurred
Do ensure that there is a record of this meeting and that the client is subsequently written to conﬁrming what was discussed.
Do provide reasonable support for the patient/service used in relation to the incident.
Do, at the conclusion of the investigation, write to the patient conﬁrming the outcome of this and ensure that a detailed record of this is kept.
Don't speculate about what may have occurred when you ﬁrst met the client; instead keep to the facts as known at the time. If you are concerned that an apology may amount to an admission of fault or liability contact ABT for further advice in advance of the meeting.
Your records are your ﬁrst line of defence if a client makes a complaint or claim against you and are therefore of utmost importance. Please report everything relevant that happened in the therapy session and relevant comments from the client, both positive and negative.
Before you carry out the treatment you must also ensure that you check what medication your client may be on, any prescriptions they are taking and any medical conditions they may have, as there may be conditions which preclude the therapy.
We are often asked ‘how long should I keep my notes? What happens if I work in a clinic who owns the notes?' and ‘What happens if I leave a clinic or stop practicing?' or ‘What about Data Protection legislation?' The reality is that there may be overlaps or contradictions according to the diﬀerent types of law.
Data Protection legislation, Contract Law, the Criminal law and Human Rights legislation are there to protect the public and prevent abuse but they can cause confusion, especially with regard to what you should do as part of your contract with your insurance company in complying with policy terms and conditions. The core purpose of the Act was to stop people abusing data held and using it for unethical purposes. On the other hand, you have a human right (protected by law), to maintain your livelihood.
In order to defend you, it is usually a condition of your Insurance policy (Contract Law) that records be kept for at least seven years. Statutes of Limitation (Under Civil Law or Tort) extend the possibility of an action against you beyond the time limits of the Data Protection Act and your policy conditions - so which one should you obey? We recommend that you keep client records indeﬁnitely, particularly those for minors. This applies even when you have have left the client where you administered the treatment.
Although in most cases the Statute of Limitation that applies for late discovered situations leading to an allegation of negligence is three or six years from the date that the patient discovers a problem, there are certain situations where the limitation period could be much longer.
In the case of minors, this is three or six years (according to the type of claim) from the date that they turn 18.
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, so you can see our rationale for record retention.
Your client's case notes and records are your property, and you must retain them even if you move to another salon. If, as a clinical supervisor, you oversee a student's work under your professional practitioner insurance, the patient's records are yours. Although a client can, by written application, seek access to notes they have no legal rights of ownership.
However, if a client requests a copy of their notes, (which is allowed under the law) you must follow the procedure laid out in the Data Protection Act 1998 and keep a record of this on the ﬁle.
As your insurance policy may need to defend an allegation against you in the future, it is important that you know where your client records are at any time.
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 salon, 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 patient is informed in writing in advance of the transfer and given the opportunity to object, in which event you must retain the original records. The Data Protection Act says you should keep records for no longer than necessary (although they don't deﬁne how long that is).
You must also ensure that clients 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 (as long as run oﬀ cover is in place), 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.
If you are providing a demonstrating session, or quick taster treatment perhaps on a stand at a show, you still need to keep a record of the date and name of the person you have treated, and to ask them above medical history questions. We have had cases where people have made a claim in this situation, and it was the therapist's notes that showed the individual was not treated at the time, thus the claim was repudiated.
Refunds – General Malpractice Claims
We regularly get clients who prejudice their claims by trying to pacify injured, diﬃcult or angry clients with refunds, paying medical expenses or oﬀering free treatments – please don't as this may invalidate your insurance cover – come to us ﬁrst and we will guide you through these situations. Remember, it is a requirement of your ABT insurance to advise us of any incident that may give rise to a claim. The sooner you advise us, the sooner we can help you to deal with the situation, and give advice to help prevent the incident turning into a claim against you.
Allergic reactions & reactions to treatments
These should always be handled with care both pre- and post-treatment advice. Always go with what you were taught to do in these situations but refer to us if unsure. Where a product or procedure for example requires a patch test, as required by your insurance conditions, please make sure you perform it: if you do not comply then your claim could be rejected.
We have processed many cases for IPL. It is particularly important that a patch test is completed for IPL at least 24 hours in advance, and that the treatment is given at the same strength of laser as the patch test was performed. If you wish to increase the strength of the laser, a further patch test must be taken.
Do make sure that you give clients adequate post treatment advice and information detailing possible reactions which may occur. These could include information about possible physical discomfort or even temporary reduced mobility and how to deal with it. Explain to them that if symptoms do not subside after a reasonable period they should contact you for further advice. You should note this advice in their records.
Employers Liability & Public Liability
Recent legislation changes the procedure for Employers Liability and Public Liability injury claims. The time scales within which a claim is to be managed, the way a claimant's claim is funded and the amount in costs which will be recoverable by the claimant from the defendant. The changes impose much stricter timescales for the investigation and handling of Employers Liability and Public Liability Injury claims, therefore we will now need:
- A full record of any incident that may lead to a claim.
- You should collate photos, statements, training records, risk assessments, wages information and CCTV Records as relevant.
You must contact ABT immediately if you receive a claim notiﬁcation form.
General Contents & Buildings Claims
Unfortunately, people are still having their claims reduced due to underinsurance or forgetting to revise or add items. In commercial buildings and content claims, the insurer will proportionately reduce the level of pay out if you have not had suﬃcient cover in place. We would advise that you remember to review and revise your cover with us regularly.
For businesses, this may include additional equipment purchased, and for home owners this may include revising your sums insured for any jewellery, with the increases in the gold and diamond markets.
You have a common law duty to mitigate losses in buildings and contents claims, so temporary repairs and prompt action to prevent further deterioration loss or damage are advisable. Please keep relevant receipts and documentation.
Always let us know immediately something happens rather than delay matters and we will guide you through the process.
Tenants' improvements & decorations
If you are renting premises, in most cases you are likely to want to improve or add to the property. For example, moving into a new oﬃce and adding an air conditioning unit, perhaps you re-decorate or re-carpet. Please remember changes or improvements you make to the property or room is probably your responsibility to insure. If something were to happen to the building, the landlord may not be responsible for any changes you have made.
Please also ensure your contents sum insured reﬂects any contents you are responsible for via a landlord's contract.
If you are performing a treatment at a client's home, please remember that a non-permeable sheet must be put down to prevent any products making contact with your client's furniture or ﬂoor coverings.
Consent for minors
The issues relating to the treatment of minors are full of contention. The policies we oﬀer require that the consent of a parent or guardian be sought before treatment, however there is legal precedent for when this may not necessarily be the case and our policies reﬂect this to include Fraser Guidelines and ‘Gillick Competency'. It is viewed in UK law that a minor can make their own decisions related to their health, according to ‘Gillick Competency' and the ‘Fraser Guidelines' where appropriate.
A UK Law Lords ruling in the early 1980's on the Gillick Contraception case states: “...whether or not a child is capable of giving the necessary consent will depend on the child's maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.” And that: “Parental right yields to the child's right to make his own decisions when he reaches a suﬃcient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”
Gillick Competence and the Fraser Guidelines originally issued in connection with contraception advice, have since cascaded into other areas especially those concerning the health and well-being of the minor involved.
Whether you choose to treat a minor or not without parental consent, based upon the above will be individual to you and your own conscience, but regardless of this, do bear in mind that the statute of limitation is much longer and may be overturned in the case of minors. This is why we always recommend you keep case notes indeﬁnitely and include your rationale as to why you decided to treat /advise without parental consent, in order to defend a late discovered claim.
Information provided courtesy of Balens Financial Ltd. Whilst every care has been taken in compiling these notes, Balens Financial and ABT cannot be held responsible for any errors or omissions; the notes are not intended to be a substitute for specific advice.