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Boundaries and Confidentiality of Coaching
Contracts
A contract
is an important document in coaching, as it is in any business,
and is very often overlooked or misunderstood. There appears
to be a preconception that a contract is a complicated instrument
that only lawyers can fully understand, but it doesn't have
to be. Many people will either not use a contract at all or
will sign a contract having not read and understood it, the
latter can be fatal because ignorance is no defence in law.
In essence,
a contract is simply a story of two parties who want to come
to an agreement. The story includes the coach and client's
expectations, responsibilities, fears, what happens if the
worst fears materialise, as well as the practical terms and
general housekeeping.
The most
complicated part of a contract is foreseeing the unforeseeable
or, in other words, trying to imagine what might go wrong.
Although it may seem abit like a prenuptial agreement and
sully the waters of the otherwise blissful union, in reality
it makes good business sense to discuss these issues beforehand.
It is not possible to cover every eventuality that is unknown
at the time of drafting, although this is where experience
in the industry is crucial.
The parties
then have to agree on who is responsible for what. Outside
of agreeing on the possible ramifications of working together,
the coach and client have to agree on what the practical terms
are: for example, the fees, the services to be provided, the
schedule of the sessions, the re-scheduling of sessions and
cancellations, etc. And also what the expectations are: for
example, confidentiality and boundaries.
Although
a verbal agreement is a valid contract, there is the obvious
difficulty of proving what the terms were, if not written
down. So a written document is essential, it can also be referred
back to in the event of a dispute. Also if the contract is
drawn up by one party, usually the coach, it is necessary
to include terms that will represent the client's position.
A balanced contract shows a reasonable mind and exhibits consideration
for the client.
This maze
that is the legal document, is a necessary evil. It may take
time to draft and agree terms but, once agreed, both parties
know exactly where they stand. The benefit of going through
this rather uncomfortable process is that it lays strong foundations
of certainty for both parties and shows a degree of professionalism.
It is of great comfort to know that the other party knows
what is expected of them and what they are liable for in default.
It can, in fact, be seen as a type of business insurance,
the cost of which can be minor in comparison to a claim where
the contract is breached.
As well
as laying down the legal necessities, the psychological contract
is a crucial element. Whereas the coach may be concerned with
practical issues such as payment terms and contract length,
the client may be more concerned with issues of confidentiality,
boundaries and professional and ethical conduct.
Confidentiality
It is crucial that the client is assured that any information
that is revealed within the coaching relationship is confidential
and kept that way. Dealing with this issue in the contract
goes a long way to satisfying this concern and allaying the
client's fears. This, in turn, promotes trust and confidence
in the relationship and if the client is fully satisfied that
their confidences are kept, will promote openness.
The terms
of a confidentiality clause within a coaching contract should
extend to non-disclosure of information and to the method
of storage and filing of such data. It is not just the fear
that information will be revealed in conversation but it also
extends to the secure storage of information, especially on
a computer. As has been the curse of the public authorities
of late, data storage of personal files are notoriously unsecure.
It is wise, at the bare minimum, to store client contact details
separately from their files, so their file notes cannot be
identified.
When the
coaching involves the employer as the sponsor and the employee
as the client, it is particularly important to establish the
boundaries between confidentiality and feedback. The employee
will want to be assured that everything within the coaching
relationship, within reason, is kept confidential. The employer,
however, may want to have feedback from the coach regarding
the employee. This is where confidentialities can be breached.
A clear understanding must be reached contractually, so both
parties know exactly where they stand.
Practising
Conduct
When considering boundaries, confidentiality and feedback
is one issue, as is the issue of impropriety and the boundaries
of professional conduct. Another issue which both coach and
client should be aware of is the boundaries arising from the
coach's practising conduct. Coaching has been defined by many
but, there are still grey area's concerning overlapping practices
with, for example, counselling and therapy.
The coach
must be particularly careful not to wander into another practising
area and recognise when a client needs to be referred. There
are both psychological and legal reasons for this. If the
client needs therapy, it could be damaging to the client if
not delivered by a professional. It could, however, be damaging
to the coach if the client decides they have been damaged
by the coach and decide to sue. In this case a well drafted
limitation of liability clause needs to be in place and the
coach should invest in some Professional Indemnity or PI insurance.
In the
event that the coach is dual qualified, the purpose of the
sessions must be very clearly stated. The coach should notify
the client and request permission to change from one practising
discipline to another or, better still, refer the client to
another practitioner.
Professional
and Ethical Conduct
This area is often covered by a Code of Practice, the coach
may use one from an organisation that they are affiliated
to, or draft one of their own. This, again, gives the client
solace that as a coach you are a professional and agree to
abide by and maintain certain professional and ethical standards.
The Code
would usually be split into professional and ethical conduct
and cover such items in Ethical Conduct as: the duty of care,
fitness to practice, supervisor or mentor coaching, managing
conflicts; and in Professional Conduct: the Data Protection
Act, intellectual property, professional indemnity and disciplinary
procedures.
Whether
the Code of Practice becomes part of the contractual agreement
and thereby can be relied upon by the client in the event
of a dispute, depends on how it is incorporated into the contract
itself. Care must be taken by the coach to establish exactly
what is expected of them and that they can abide by and maintain
these standards through the entire term of the contract.
Being
Bound
A contractual document is binding on both parties and even
where it hasn't been signed, one party could seek to rely
upon it if acceptance of the terms can be inferred by conduct.
It is, therefore, essential that proper attention is paid
to such a document. In the UK, we are not as litigious as,
for example the USA, but it is getting that way.
Rebecca
Seeley Harris
LLB (Hons) LLM MSc
First Published: 2 April 2008
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