What is a Clinical Will, and Do I Need One?
Therapists and counsellors have important relationships with their clients – what then should happen in the case of their own unexpected illness or death?
Psychotherapist Helena Cook explains the value of a clinical will and what it entails
A clinical will is essential for every therapist. It consists of the arrangements that therapists should make for the confidential welfare and support of their clients and closure of confidential aspects of their practice in the unexpected event of their death or serious illness or incapacity to continue to work.
Nobody wants to think that this will happen, but the coronavirus pandemic has brought severe illness and death to the fore for all of us. Yet even without this, we are all sadly vulnerable to illness, accidents or untimely death. As therapists, we have a professional and ethical duty to our clients to make adequate provision for these eventualities.
The professional bodies such as BPC, UKCP and BACP generally require therapists to nominate two qualified therapists to act on a therapist’s behalf in the event of incapacity and to carry out the terms of the clinical will. These may be called Professional Executors, Trustees or the like. Here I use the term Clinical Executors (‘CEs’). While relatively little detail has been provided in the past, these bodies have lately drawn up more detailed guidelines (see, for example, BACP Doc. GPiA 104 and the Jan. 2020 notes from BPC’s Ethics and Professional Standards Committee). Therapists should check all the provisions of the professional bodies to which they are affiliated for detailed guidance. Here I give a general introduction to the clinical will and to some of the basic issues to consider.
What is a clinical will for?
Your clinical will deals with the arrangements for informing and supporting your clients, trainees and supervisees as appropriate in the event of your unexpected death or incapacity. The fundamental concepts are:
- Support, containment and ethical management of clients in informing them and helping them decide what they want to do next and how to go about this;
- Terminating ethically and responsibly aspects of the therapist’s practice that require client confidentiality to be preserved and/or specialist knowledge or expertise;
- Strict preservation of the confidentiality integral to the therapeutic alliance.
When you engage with a new client, in accordance with date protection legislation, you should inform them that in the event of your death or incapacity to practise, two other qualified therapists will have access to their personal data in order to inform and support them. It is advisable to include this in the data protection statement that you issue to clients.
What does a clinical will need to include?
As well as the clinical responsibility to clients, your clinical will may need to include other financial and administrative matters. This might be the closure (and deletion if appropriate) of confidential files, work books, personal development notes, emails and mobiles containing client information. It may also include other tasks involving the closure of your practice (e.g.: insurance, membership of professional bodies, ending of training or writing contracts, tying up financial affairs etc.). Primarily it should cover any matter that involves the welfare, support and confidentiality of clients – other business matters which do not reveal client information could be closed down by others in charge of your affairs unless you wish your CEs to undertake these tasks or they require specialist knowledge of a therapy practice.
Your clinical will exists alongside your other arrangements for your death or incapacity. Ideally it should be in writing and it would be prudent for you and your two CEs to sign and each keep a copy. However, it is not a legal document and can be in any format – a letter of wishes, a memorandum etc. You should also have a personal will to cover all your other affairs and you may have nominated Powers of Attorney for your health and welfare and/or financial affairs. These are legal documents but your clinical will is not. However, it is vital that your next of kin, the executors of your personal will, your attorneys, your solicitor etc. are all known to your CEs and that they understand the role of the CEs and vice versa. This is particularly important as the CEs will need to act as a matter of urgency in the event of your incapacity or death in order to inform clients who may have imminent sessions with you. Consider whose task it will be to inform your CEs if something happens to you and ensure that everyone knows who this will be.
The Clinical Executor's duties
The primary duty of your CEs in is relation to your clients (perhaps including trainees, supervisees etc.). You should prepare a client list and keep this updated immediately you take on anyone new or anyone leaves (NOT only when you have spare time or take a break). Your updated list must be shared with your CEs – perhaps by personally handing over a written list or more conveniently by keeping an encrypted list on line that updates your CEs as soon as you mark up changes.
Your client list should include client names, addresses, email, mobile or other contact numbers, where and when they see you, start date, significant risk factors if any and any other salient information. Remember that the risk of self-harm, relapse of eating disorders, suicidal ideation or worse may all be triggered by the loss of a therapist. This list will be the base information for your CEs to contact your clients if something happens to you and it must be correct and up to date as this will be an urgent task for the CEs, if only to stop people turning up for sessions. CEs may contact clients by telephone or offer a face to face or online session – this may be best left to their professional judgment but you may want to issue more detailed instructions to your CEs regarding support to your clients or certain of them.
Consider with your CEs what might be said to clients about your sudden absence. What if they want to attend your funeral or visit you in hospital? What if they want to know all the details? What if your cause of death is violent or traumatic – might it be in the press and will clients see that? What if you might return to work after an accident or illness? CEs will then have to manage your clients possibly a lot longer over a more uncertain period while you recover and decide if you can resume work. Of course you cannot be too prescriptive without knowing the future but it would be good to have these discussions with both CEs in advance and to consider your own wishes and the sensitivities of your family and others in your private life.
Consider if you want CEs to collect unpaid fees from clients. This may sound crass but if your practice is your main source of income and/or you have dependants or other significant debts and there are significant client fees outstanding it may be important. Clients may indeed want to pay fees out of respect, gratitude or some conscious or unconscious imperative. Discuss with your CEs how you might want to do this as sensitively as possible and how to find relevant financial records. Remember that, as non-legal actors, your CEs will not be able to manage your bank accounts or even have access to bank statements and may well need to work closely with the executors of your personal will in order to manage any fee collection or other financial affairs.
Who do I choose as my Clinical Executors?
Choose experienced therapists as your CEs, ideally who work in the same modality as you, have sufficient experience to manage distressed and traumatised clients and who work with comparable client groups (individuals, adolescents, families, couples etc.). It is advisable NOT to ask close friends who may be too distraught by their own grief at your loss to manage your clients well. Another guideline is that one therapist should probably not be acting as a CE for more than two or three others as the responsibilities – while perhaps seeming a remote possibility – can be very onerous and by definition cannot be planned for in advance.
Ensure CEs are in agreement with all the requirements of your clinical will and that they have sufficient capacity to take on the task. Check with them regularly that they are still up to the task and ask them to let you know immediately if personal or professional stresses mean that they feel they have to step aside temporarily or permanently.
Ensure that if CEs need access your consulting room they know who to contact and how to do this, that they can access keys for locked facilities and that they have computer, email and mobile passwords as necessary. It is very important that you keep your practice documents and records in good organisational order and give clear instructions to your CEs about where and how to find things, including when you have that annual clear out and rearrange everything. Remember that your next of kin or others close to you may be very distressed and feel that your CEs are intruding in trying to do the tasks they have undertaken.
Introduce your two CEs to each other and if they wish agree how they will divide the tasks.
Consider if you wish your CEs to be paid for their time – especially if you have a large client load and/or you are asking them to take on a lot of duties. How would they get paid and by whom and according to what scale?
If you work for an organisation, do ensure that you know what their procedures are in the event of your incapacity or death. If you feel that these are adequate it should only be necessary for your CEs to inform the organisation about what has happened to you. If you feel insecure about the organisation’s practices and procedures, now would be the time to see if these can be upgraded and made fit for purpose or provide additional guidance to your CEs as to how to handle communications with the organisation and with your clients there.
Finally always bear in mind the importance of self-care, both as a therapist drawing up a clinical will and as a CE if you agree to act as one. Thinking about your own death or incapacity, the consequent abandonment of your clients and loss of your Practice may raise a lot of very difficult feelings to work through. As a CE you will be coping with the loss of a colleague and friend and dealing with the distress of others alongside your own feelings. You will need to be aware of your own needs, those of your own clients and the clients you are called upon suddenly to support. It will be vital to take good care of yourself at this time and seek out the support you may need.