Post Practice Obligations For Psychologists

It’s essential that psychologists are legally compliant whilst practising, both for the protection of their practice and to safeguard clients. However, many are unsure of their obligations post-practice, in the case of practitioner death or incapacitation. We know this because some of our psychology clients have inquired about this and, whilst we have responded individually, we decided to produce this guide on Post-Practice Obligations For Psychologists, so we can address some common questions.

Yes, we recognise this is a somewhat bleak subject, but as professionals with client care at the forefront, it’s essential that psychologists know how to plan for such unforeseen circumstances to ensure ethical and responsible professional practice. Clear arrangements can protect clients, support families and colleagues, and ensure compliance with legal, regulatory, and confidentiality requirements.

This guide provides a practical overview of key legal considerations, including the management of client records, continuity of care, privacy obligations, and the role of nominated representatives. It is intended to support you in making informed decisions and to encourage proactive planning.

Who is authorised to act on my behalf if I die or become incapacitated?

If a Private Practice psychologist becomes incapacitated or passes away, their Clinical Plan (sometimes known as Clinical Will) will come into effect. This document serves to instruct who should be formally tasked with managing the practice’s clients and their personal information, as well as the ongoing management or closure of the practice.

This person is known as the Professional Executor. They will be responsible for notifying clients of their psychologist’s passing or incapacitation, ensuring client data is secured, and taking care of administrative tasks. If the practice is to close this may also include helping clients to find new therapists and transitioning their records securely.

In the event that the Professional Executor is to take over or sell the practice, then new consent forms may be required to give clients the ability to choose their care and be informed as to who will now have access to their data.

Having a Clinical Plan is highly advisable and avoids leaving family members with the responsibility of managing professional tasks they may not be qualified or legally informed enough to undertake. Especially since they may also be dealing with personal loss.

Furthermore, there is likely to be an impact on clients, practically and emotionally. So, in order to minimise anxiety amongst patients, it’s advisable to have a plan for informing them and ensuring the timely transition or continuation of clinical care.

It is also your professional obligation to ensure client data is properly handled and that their information is kept secure and available for the data owner (the client), should they request access to it.

What happens when a psychologist does not have a clinical continuity plan?

 

When a psychologist passes away or becomes incapacitated, clients can be left suddenly and distressingly unsupported. Therapy may end without warning and, with no guidance on alternative care provision, clients may experience shock and/or feelings of abandonment. This can result in a setback in treatment.

Another problem with not having a clinical continuity plan is that critical professional responsibilities are left in the hands of the next of kin or family. Not only does this put additional pressure on those who are often grieving, but it also places your clients in the care of those with no clinical or regulatory background. Family members may be required to locate records, notify clients, manage data protection duties, and ultimately close the practice, creating significant ethical, legal, and emotional strain.

Furthermore, the lack of a continuity plan puts client records and confidentiality at risk. Without clear instructions on where files are stored, how to access them, or how long to retain them, GDPR compliance can be compromised and sensitive information mishandled.

If a psychologist dies or becomes incapacitated, how much client data should be retained, and for how long?

Psychologists continue to have legal and ethical obligations for client records after they cease practice. Obviously though, these obligations cannot be carried out by the psychologist in the event of death or incapacitation, so, in private practice, responsibility typically transfers to the psychologist’s estate or appointed Professional Executor.

As mentioned above, appointing a Professional Executor, by order of a Clinical/Professional Will, is highly advisable. This enables a Professional Executor to lawfully manage client records, respond to enquiries, and support continuity of care where appropriate.

Under the UK GDPR, the Data Protection Act 2018, and relevant professional guidance, the following minimum retention periods generally apply:

• Adult clients: At least 7 years from the end of treatment.

• Children and young people: Until the client’s 25th birthday (or 26 if they were 17 at the end of treatment), or 8 years after death, whichever is longer.

• Following the psychologist’s death: Records should usually be retained for 10 years to allow for legal claims or client access requests.

  
  

Following death, the estate or Professional Executor becomes the data controller and must continue to comply with data protection law. Clients retain the right to request access to their records, and executors must balance legal obligations (e.g. court orders) with confidentiality and client consent.

For more guidance on data retention, please see my Data Retention Period Guide for Psychologists, Psychiatrists and Physiotherapists.

What happens if a client contests a psychologist’s report or diagnosis after the psychologist has died or become incapacitated?

Once a psychologist has died, Fitness to Practise (FtP) proceedings no longer apply. Therefore, regulatory processes, such as those operated by the HCPC, cannot continue or be initiated, since they serve as a disciplinary process.

Instead, any challenge to a psychologist’s work post-practice would need to be treated as a civil negligence issue and pursued through the civil courts, typically as a claim for professional negligence. Under the Law Reform (Miscellaneous Provisions) Act 1934, civil claims (including professional negligence) may be brought against the estate of a deceased person for acts carried out during their lifetime.

Typically, the Limitation Act 1980 allows up to six years from the date of the alleged negligence to bring a claim, although this period may be extended in certain circumstances, such as where harm only becomes apparent at a later date.

If a claim is made, the psychologist’s estate, acting through the executor or administrator, becomes the legal entity against which the claim is pursued. If it is then established that the psychologist breached their duty of care, for example, through a flawed report or diagnosis, then the estate may be liable for damages.Psychologists can seek to protect themselves against post-practice claims by:

• Maintaining clear, accurate, and well-reasoned clinical records

• Retaining records in line with legal requirements

• Ensuring appropriate professional indemnity arrangements

• Appointing a knowledgeable Professional Executor who can respond to legal correspondence if needed

  
  

Advance planning cannot prevent claims from being made, but it can significantly increase the ability to fight claims, and ensure disputes, should they arise, are handled lawfully and professionally.

What happens if a psychologist is alive but incapacitated and a report or diagnosis is contested?

In the event that a psychologist is still alive but incapacitated, Fitness to Practise (FtP) proceedings can continue. Illness or incapacity does not automatically pause or prevent regulatory action.

Where the psychologist remains registered with a regulator such as the HCPC, the client may raise concerns directly with the regulator. The regulator can then proceed with an FtP investigation even if the psychologist is unwell or unable to fully participate in the process.

Depending on the claim and the circumstances, the investigation may take the psychologist’s health into account if a health-related impairment might be related to the claim. However, this consideration does not necessarily halt proceedings.

The FtP, despite the incapacitation of the psychologist, are still able to impose interim measures, such as temporary suspension or conditions of practice. Final outcomes can include conditions, suspension, or removal from the register, even where the psychologist’s capacity to engage in the process is limited.

Therefore, it’s essential that clear arrangements for managing practice responsibilities in the event of illness or incapacity are made as early as possible, and kept updated accordingly. Meticulous records, regular risk assessments and full compliance can help mitigate risk in the event of a report or diagnosis being contested, but it is worth having a plan for who might fight this battle for you in the event you are unable to.

Your Clinical Continuity Plan

As this guide makes clear, having a Clinical Plan in place is important for the safety and wellbeing of your clients. It will let the right people know what should happen to your business if you were to suffer a serious illness or pass away. Most importantly, it provides the continuity of service to your clients, so they are not left vulnerable to further trauma.

Our Clinical Continuity Plan pack is available in Aubergine Legal’s online shop and includes the following:

• Template Clinical Continuity Plan

• Template clause inserts for client therapy terms and privacy policy

• Guidance on how to implement a clinical continuity plan.

This helpful guide and template pack will show you what to include, and where, so you can fill in all the details needed for your business.