Positive Health Online

In today’s claims culture, aided by the rise of ‘no win, no fee’ solicitors and the effects of our recessionary times, the ability to sue is no longer restricted to the rich or famous. If you carry out a treatment, or give advice regardless of to whom, you may be vulnerable, even if you have done nothing wrong!

We asked David Balen, Managing Director of Balens, the UK’s largest Specialist Insurance Brokers for Health & Well Being Professionals, about how this affects Therapists and to paint a broad landscape picture of this terrain.

Initial Thoughts

Insurance is based on Trust, Protection, good relationships; information that is clear, fair and not misleading and of course - good quality communication!

Over the years, the different types of Insurance policies have caused confusion in the minds of clients. Whilst much progress has been made in evolving plain English policies from the older, more legalistic style of wording, there are many words and phrases used, particularly in Health Professionals’ wordings, which may still leave a degree of uncertainty. Also, the modern day requirements laid down by financial regulators means that documentation tends to be more voluminous and complex, which doesn’t always help!

I hope that this article will be of use to you in demystifying the cover that is protecting you and your livelihood! In a piece as short as this, there has to be a balance between detail and simplicity. I hope that I have got this balance right.

How can Therapists Protect Themselves?

There is no substitute for a healthy practitioner-patient therapeutic alliance - a relationship founded on good communication, confidence and a positive approach, backed up by competent and well-intentioned work. Adequate pre- and post- session information is also crucial to avoiding complaints and requests for a refund.

As a back up and to protect your client as well as yourself (nobody is perfect!) I would recommend ensuring that you have a good quality Insurance to help protect against clients or others who have chosen to make a claim or complain. Some policy wordings are quite adequate, and some are more comprehensive, giving the insurer the chance to say ‘yes’ to dealing with a wider variety of situations which may occur.

The definition of a Health or Well-Being Professional or Business can be very wide and their remit can be far-reaching. In addition to their usual treatment and advice with individual clients, it could include acting as an Agent, Teacher, and Student for work done prior to qualification, running a Clinic, or School. It could include any principal (e.g. someone who contracts you to work for them on a self-employed basis), employer or other party with whom you have entered into a contract for the purposes of delivering services in the course of the business.

As well as the delivery of healthcare and/or well-being sessions, treatment and advice, you may be giving out information, advice on personal development, doing medico–legal work or acting as a witness; running a consultancy, coaching, or being involved in the sale or supply of products. If you add to this the running of occasional demonstrations, workshops, lectures, supervising students or peers and so on  -  as you can see, the potential range to be covered is very wide indeed.

You need to be sure any policy you take out is flexible and comprehensive enough include everything you do and how you describe your activities and that the cover offered is appropriate for those activities. An advising consultant would not necessarily need treatment cover but would need Professional Indemnity, Confidentiality and other covers for financial loss or harm caused to another etc.

A basic Cover should include Public Liability, Medical Malpractice, and Products Liability. A more comprehensive offering would add Breach of Confidentiality, Financial Loss, Professional Indemnity, Libel and Slander and possibly a Legal and Tax package on top.

You need to be clear if previous work done when insured elsewhere (retroactive cover) carries on if you change insurer, and whether cover carries on for late discovered claims after you stop cover for any reason or change insurer (Run Off Cover).

There are very few wordings improving on these basic features but they do exist.

For more detailed information Balens offer a glossary and other useful information on their new website www.balens.co.uk  which explains the terminology, and various educational topics in their newsletters.

If you don’t have an adequate wording, you could find yourself held financially liable.

Where Am I Covered?

Most Professional Liability and Income Protection policies cover you anywhere in the UK, Ireland or abroad (excluding USA or Canada). This can be at a clinic, salon, your home, or the client’s home etc. Be wary if you regularly work abroad as many policies do have time restrictions on this. For USA and Canada, some insurers will extend.

For Building, Contents and Household policies these are premises-specific but items can be extended for travel.

Are there any Common Pitfalls in all of This?

I would say that most of the pitfalls we experience are due to a therapist’s lack of knowledge, or from not letting insurers know of any material facts or changes relevant to the risks being insured - for example, you have qualified in another therapy but didn’t change the insurance. Or maybe you innocently didn’t advise insurers when starting cover of a material fact as requested on the proposal form.

If you started working from home, many home insurance providers do not cover for working from home and they may choose to refuse a claim - even an unrelated one, if they discover you have been working from home and they were unaware of this. 

Other common pitfalls include individuals under-insuring themselves (i.e. taking out cover for their business contents for less than its value), and when the business becomes slightly larger with more therapists working in the same place, they do not grow their insurance cover with the business. It may be that they do not have a corporate policy in place as they believe they will be adequately covered by their own individual Professional Indemnity insurances. This is not always the case, and my advice would always be to seek professional advice on what cover you need at every stage of your business’ development.

There can also be confusion as to how long cover will last if you discontinue a policy. Some types of policy are on a ‘claims made’ basis and may not continue cover for an adequate period after terminating, or indeed, at all! Some do not pick up previous work performed under another policy when changing insurer - many ‘claims occurring’ type wordings are like this.

What are the most Common Complaints from Clients?

Many complaints arise within the first few sessions with a new client, and often result from misunderstandings, miscommunication, inadequate advice given at outset, failing to manage a client’s expectations or inappropriate behaviour.

Remember to keep your personal and professional boundaries, show good listening and communication skills: Never claim or imply that you are able to cure a condition and manage the clients’ expectations regarding your services, including cost, length of time it could take, and explain both the possible positive and possible negative effects of the treatment.

Feeling worse, poor value for money, not improving, demands for a refund, and of course actual malpractice where injury has been caused whether physical or mental/emotional, are the most common. Often also seen are complaints about the behaviour of the therapist and this can take many forms.

Record keeping- Facts you should Know!!

Remember to keep good records (for at least 7 years, preferably indefinitely) of what you have told the client, telling the story of the client and your interaction with them. Your records are your first line of defence if a claim is made against you and vital if an insurer is to deal with your claim.

a)  Adequately record each and every treatment given to each and every client in a factual way avoiding subjective impressions whenever possible;

b)  The record is to include full details of the consultation process, the treatment, the result of the treatment and any aftercare instructions given;

c)  The Policy requires you to keep records for at least 7 years following the last occasion on which treatment was given. In the case of treatment to Minors, it is advisable that records should be kept for 7 years after they reach the age of majority (i.e. 18). Also see our website regarding statutes of limitation - we usually suggest that you keep records indefinitely! I have written an article available upon request which covers this topic in more depth. You should also consider where to keep records if you retire, stop working for another clinic, or stop practice for any other reason, as the policy relies on these to defend you;

d) In the case of trial or demonstration sessions undertaken at Shows, Seminars, Talks, Conferences, Courses and Exhibitions instead of a), b) or c) above, the name and brief details of the person, date of session and if possible brief details of the condition being treated and any observations if relevant should be noted;

e) In the case of sessions or classes undertaken in the form of Yoga, Pilates, Fitness, Exercise, Meditation or Mediumship instead of a), b), c) or d) above, the name and brief details of the person, date of session and if possible brief details of the condition being treated and any observations if relevant should be noted and retained in a safe place.

What should a Therapist do if a Claim is Made Against Them?

First don’t panic. Contact your Broker; they should be able to give advice on how best to deal with the situation. Here are a few simple rules for guidance!

Requests for a refund

• Make sure that you do not get defensive with clients, particularly if they become aggressive with you. If they try and force you to agree to a refund, simply tell them that you need a little time to consider the matter once you have received details of their complaint in writing, and that you will get back to them as soon as possible;
• Please do not admit that you are insured, or mention your insurance company in conversation, as this tends to give people ideas;
• If you wish to offer a refund, seek guidance as to how to deal with this as a goodwill gesture - please don’t give free treatments, offers or refunds without referring to your insurance advisors first.

Claims involving Allegations of Professional Negligence

• We need all the paperwork regarding the complaint whether it is from a solicitor or from your client, plus full information from you;
• Please bear in mind that solicitors or clients have the right to ask for sight of the patient notes, but you should only release these on receipt of a signed request or form of release from your client;
• Please do not enter into any correspondence or communication unless insurers have said that it is in order to do so, and of course please do not mention that you are insured at this stage or that you are dealing with insurers;
• Acknowledgement letters are acceptable where you are at least letting the solicitor or the client know that you are dealing with their communication;
• If the matter has gone beyond the exchange of letters, then your insurers will become involved to defend you, up to and including court if necessary.

Disciplinary Hearings, Criminal Allegations, Tax Issues

• In case of you being notified of a Disciplinary Hearing, you may be able to receive solicitor’s pre hearings advice, depending on the policy you have. If it proceeds to a hearing, your legal expenses insurer will instruct a solicitor to defend your case;
• For Tax investigations and advice don’t assume insurers will pay if you don’t involve them in the process from the very beginning you were aware of a potential problem!
• Helplines are very useful but they can be frustrating and responses are not always immediate, due to workloads at times. Ask your advisor to get involved if you experience problems.

There are ways of dealing with problems that arise, which normally have a positive outcome as long as correct procedures are followed. If in doubt, ask. We all make mistakes, it is part of being human, but with good quality support you can be reassured that you will not be paying the price of that mistake yourself: you can then reflect, learn and move on.

Further information and articles on the different types of insurance available, the importance of good record keeping and home insurance can be found on Balens Website www.balens.co.uk

Completing the Picture - What else can be Considered Insurance –Wise?

• Various options exist to protect Buildings and Contents for Fire Burglary, Water Damage etc. These packages also include Money Insurance Liabilities and Employers Liability if you employ someone and are accused of negligence causing them injury, plus a Commercial Legal & Tax Package;
• Some Household Insurances can be extended to allow you to run a practice from home;
• If you are running or starting up a Products business selling Health Aids of various types there are special packages which can include product design and advice;
• Running a multi therapist clinic or a school requires special consideration;
• Health & Personal Accident & Sickness Insurance;
• Independent Financial Advice, Employment Benefit Packages;
• Pensions, Ethical Investment and Mortgages.

Final Thoughts

This whistle-stop tour of the basics necessarily has naturally required me to leave much information out! When seeing a client for the first time you try to and get a comprehensive picture and ask many questions - when considering your insurance policy which could have a bearing on your financial health, you should do the same! It pays not just to consider the price, but what the fine print says, how comprehensive the policies are and how much expert team back-up (whether during or out of business hours in an emergency) the provider or intermediary will offer you.