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A Clinical Will is a formal written document that sets out what will happen to your clinical practice in the event of you suddenly being unable to practice, for example due to sudden illness or death. Its function is to provide instructions as to how an appointed clinical executor should act should you no longer be able to continue your clinical practice. This would include how to inform and support your clients and manage any additional administrative and financial arrangements that would be involved with your practice.
Unplanned or unexplained endings can be distressing for clients, and by having a Clinical Will in place, you can ensure that they are appropriately informed and supported should something happen to you. It also ensures that this this role is carried out by someone you trust and who is appropriate to take on this responsibility, removing the burden of this task falling to loved ones.
The BABCP Standards of Conduct, Performance and Ethics now includes the requirement that all members practicing CBT must have a clinical will in place.
8.2 You must have a process in place to ensure that appropriate action will be taken if you were to unexpectedly become unavailable, for example, due to serious illness, death, suspension or dismissal. This is usually referred to as having a ‘clinical will’. Arrangements include identifying who will be responsible for informing and arranging support for your clients if you are suddenly unavailable, and ensure that any other relevant person or organisation such as a referring agency is also informed. Employers may have a policy to make sure that this happens, independent practitioners must arrange their own. Therapists must declare that they have arrangements in place that cover their practice.
The format and content of the will is up to you. You can find apps and templates online and we have also created a flexible Clinical Will template for you to adapt.
Download a template Clinical Will here.
Before you prepare your Clinical Will, you will need to appoint one or two Executors of your Clinical Will. This needs to be a person who you can trust to carry out your instructions competently, within the limits of clinical judgement. It will include making arrangements for what happens to your client notes for up to seven years after your death or incapacity.
They must also be available and willing to act as Executor and this should be thoroughly discussed and agreed with them. Often the Clinical Will Executor is a trusted colleague or supervisor who has the relevant clinical experience to be able to perform this role.
You will also need to appoint a Clinical Will Initiator. This may be a close relative or friend, who can inform the Clinical Will Executor should you become incapacitated that they need to carry out the instructions in your clinical will.
Once you have these in place, you can start to draw up your Clinical Will.
The Clinical Will should cover three broad areas –
It is up to you exactly what information you put in your Clinical Will, but at the minimum we recommend the following to ensure that this can be carried out effectively:
You may also want to include:
There are no hard and fast rules on how long client notes should be kept for, but a client or their family could make a case against you for up to six years after your death. BABCP’s legal advisers therefore suggest that you to instruct your executors to arrange the retention of your client records for seven years after your last session with them. You also may have other contractual obligations to retain records for a specific period of time. For example, Balens request that notes are retained for seven years.
It might be practical to instruct your executor to transfer the notes to another organisation, such as a record managements company, insurer, or law firm. These organisations may be better placed to retain the records in a way that is technically secure. In this case, the executor should enter into a data sharing agreement with the organisation that will hold the records.
GDPR rules mean that the former clients can request access to their notes and the executor would be required to provide that data unless an exemption applied under the Data Protection Act 2018.
You may wish to instruct your Executor to help active clients find another therapist to continue their treatment if they want to. In this case, the Executor should ask if they would like their notes to be passed on – the new therapist would then become responsible for ongoing storage of all notes from then.
The Executor should make clear that, even if the clients do not want their records transferred to another therapist, they will still be retained the seven year period in case of any legal claims and in accordance with usual practice.
GDPR rules say that personal data must not be retained for longer than necessary. Therefore, as soon the seven year period has elapsed, the Executor will be responsible to arrange for the confidential disposal of the notes. Some record keeping companies can schedule disposal when they receive the records.
GDPR requires that you give your clients a Therapy Contract. The privacy part of this will include information on what will happen to their notes and information on the Clinical Will. If you die or become incapacitated within seven years of finishing therapy with them, their data will be shared with the Executor and any organisations which will securely hold their records until their disposal.
In order for your clinical will be to carried out, you will need to keep your Clinical Will up to date with the relevant information. This includes keeping your client information up to date. You should consider carefully how your Clinical Will Executor can access the information they need, and that any sensitive information is stored securely and in line with GDPR and data protection regulations.