… A supervisee is receiving off-site supervision (assuming it is legal and appropriate in the jurisdiction) and brings the patient’s records with him or her to the supervisor’s office in order to allow the supervisor to review the treatment records being kept by the supervisee, who works for a non-profit organization. Before being able to return the files to the agency, they are lost, stolen or destroyed. The supervisee calls the supervisor and tells her what happened. The central question that is raised by this and similar scenarios is: Should the patient be told of the occurrence, and if so, when? Before answering this question, some comments are necessary. 

The primary fear of the therapist or counselor when records are lost or stolen is that confidential information will be seen by a third party, thus violating the patient’s right to privacy and confidentiality. Accurate and complete records are important for the current therapist, for future treatment providers, and for the patient (e.g., when the patient may be relying upon the records to support his or her position in pending litigation – a common occurrence). Thus, it is important for therapists, supervisors and agencies to develop and implement policies that control access to patient records and that control the location, at all times, of records.

Even were an agency to allow records to be removed from the premises (hopefully, on rare and compelling occasions), it would be wise to take copies of only those portions of the records that are needed, so that if something were to happen to the copies, the original and complete record will still be where it is supposed to be. Additionally, it may be easy to edit the copy so that no personal identifying information is discernable. Of course, if the supervision occurred at the agency, this problem would be avoided in its entirety. Even where the supervision occurs off-site, the supervisor might visit the agency whenever records need to be reviewed. If records are taken off premises, it is best to keep the records in one’s personal possession, rather than to leave them in a car or other location.

When records are lost, stolen or destroyed, the practitioner may want to reconstruct the records for treatment purposes. The ability to reconstruct will depend upon the complexity of the case and the length of time that the patient has been in treatment. Records from former providers can usually be obtained again. Dates of treatment might be retrievable from an appointment book or other records. If records are reconstructed, the date of the reconstruction should be apparent and the reason for the reconstruction should be provided. Remember, the therapist might not be at fault in many cases. For instance, an office or home can be burglarized even though reasonable safeguards have been put in place. A natural disaster, fire, or accident of some kind, not the fault of the therapist or agency, might have caused damage or destruction.

Depending upon the length and content of the records, some unintended disclosures can be seriously invasive of the patient’s privacy and cause significant harm or embarrassment to the patient. Other disclosures can be less harmful or damaging. Counselors and therapists who find themselves in this kind of difficulty are rightly afraid of liability, both civilly (lawsuit) and administratively (licensing board/disciplinary action), and usually want to minimize their liability and, if possible, mitigate harm to the patient. Because of the varying circumstances that occur and the different degrees of possible liability, therapists and counselors may need to consult with an attorney and perhaps others to help them navigate their way through a thorny situation.

Generally, the therapist or counselor is better off telling the patient of the missing records– and doing so promptly-rather than suppressing that information for a period of time. If prompt notice is given, the therapist will not later be found to have intentionally kept the information from the patient in an attempt to hide the occurrence. Delaying disclosure may increase the liability for the practitioner and perhaps bring the issue of “bad faith” into the fore. Prompt and full disclosure is easy when the therapist has not acted negligently with respect to the destruction, theft or disappearance of the records. If the loss, however, is the result of a supervisee’s negligence (leaving records in a car in a high crime area), and also the result of the negligence of the employer (who allowed the records to be taken and who had no written policy regarding this issue), the supervisee and employer may not be too anxious to reveal the full and true facts to the patient.

Those who find themselves in this situation may sometimes be reluctant to promptly tell the patient because they are hopeful that the records will be found, returned or recovered. If records are missing because of a theft or other crime, for example, the practitioner will likely make a police report, and will do so promptly. Recovery of the records could occur, for instance, if the stolen car is quickly recovered and the records that a supervisee negligently left in the trunk are still there. While misplaced or lost records may be found or returned, practitioners must carefully evaluate the pros and cons of delaying disclosure and must be certain that they act in good faith. If there is a delay, even if arguably justified, the patient can nevertheless allege that the delay was in bad faith or simply wrong.

Another reason why some are reluctant to promptly notify the patient is that they don’t want the patient to suffer serious emotional distress, especially where the patient is already under great stress. While there may be times when the patient is in such emotional condition as to warrant the therapist to delay disclosure of the loss of records for some period of time (the shorter the better), it is critical that such a reason not be a baseless excuse. Moreover, there must be sound clinical support (e.g., clinical consultation) for any such delay. While prompt notification may subject those involved to some liability for their negligent handling or maintenance of the records, the fact of prompt disclosure may help to mitigate the liability or to show that those involved “did the right thing” once the discovery was made. Again, consultation with an attorney or others may be necessary.

Do not put yourself or your employer in such situations. Think twice before taking records from the place where they regularly are kept!

… While I have previously written about record keeping issues (see Bulletin Archives, primarily under the topics entitled “Records” and “Treatment Records”), I have not directly addressed the issue of record retention. The often-asked question of mental health practitioners is: For how long should I keep patient treatment records before destroying them? Some ask whether the records should be kept indefinitely. The answers depend upon a number of factors, the primary one being what the applicable law, regulation, or ethical standards may require. As with many other topics that I have written about, state laws and regulations differ on this particular issue, and they may differ within a particular state from profession to profession.

In the event that there are no applicable requirements specifying the period of time that adult treatment records must be retained, it seems as though seven to ten years from the date of termination is a reasonable period of time. In those states that do have requirements applicable to physicians, health facilities or others, these retention times are often required. In California, for example, there is no law applicable to marriage and family therapists or clinical social workers. Many of those licensees follow the seven-year retention period applicable to licensed health facilities. Special care should be taken with respect to the records of a minor. It is my belief that the records of a minor should be kept for at least three years after the minor has reached the age of majority (adult), and, in any case, not less than seven to ten years (unless a longer time is specified in law or regulation).

… It is important for therapists and counselors to know the law with respect to parental access to a minor patient’s mental health records. Most state laws allow (or require) practitioners to deny access to the complete records under specified circumstances. Some states allow for preparation of a summary of the records in lieu of providing the actual records – again under specified circumstances. These laws vary widely and they must be thoroughly understood.

One controversial aspect of this topic involves the question of whether or not a parent can be denied access to the minor’s mental health records solely for the reason that the parent is not the “custodial parent” (the parent with whom the child resides). Non-custodial parents generally cannot be denied access solely because the child does not reside with them. A more troublesome question arises when the non-custodial parent also does not have legal custody of the child (e.g., the other parent has sole legal and physical custody).

I have recently done some research in this regard (in relation to proposed legislation I am involved with) and the only thing that is clear is that there exists great diversity in the way this issue is addressed in the various states.

Some states hold to the proposition that a parent who does not possess any form of legal custody (sole or joint) can be denied access to the child’s mental health records. Other states do not allow access by the parent only if the loss of legal custody was the result of child abuse, domestic violence, or other “bad” behavior. In other words, access to the minor’s records cannot be denied in those latter states solely because the demanding parent does not possess any form of physical or legal custody. It must always be remembered, however, that access to the records may be able to be denied for a variety of other appropriate reasons.

… Suppose that a patient or client makes a proper request to inspect or copy his or her records. Does the therapist or counselor ever (under any circumstances) have a right or is it ever permissible to remove documents or information from the file prior to complying with the request for records? The answer to this question would seem to be “no,” certainly in most circumstances, but there may be times when removal of information or documents is permitted. The law of each state is different, so therapists and counselors must be careful to check the law in their respective states.

One state’s law, for example, provides that psychotherapists and other health practitioners may remove material from the patient’s file if the information was given in confidence to the health care provider by a person other than another health care provider or the patient. Additionally, under HIPAA, the “Privacy Rule” provides that a covered entity (such as, a “covered” licensed health care provider) may deny an individual access to his or her protected health information if the protected health information was obtained from someone other than a health care provider under a promise of confidentiality – provided that the access requested would be reasonably likely to reveal the source of the information.

In addition to requests for records from patients, a therapist or counselor may receive a subpoena for the production of records. Much of the time, the subpoena is from the opposing party in a lawsuit involving the patient, such as a patient’s lawsuit against her former therapist, physician, or employer. While it is imperative that state law be followed with respect to the practitioner’s response to the subpoena, I have generally advised therapists to work closely with the patient’s attorney, and to generally take their marching orders from that attorney. Sometimes, that attorney will instruct (or request) a therapist to remove one or more documents from the file, or will instruct the therapist not to comply, at all, for one or more reasons.

Therapists who comply with the attorney’s direction must be certain that the attorney understands that should there be an inquiry as to why the therapist acted in a certain manner, the therapist will say that he or she was directed or asked to do this by the attorney and that the attorney assured the therapist that what was being asked of the therapist was lawful. The attorney should be willing to state the above in writing, if necessary, or to testify to that effect should there be a proceeding to determine whether the therapist should be held in contempt for removing or withholding certain documents.  These proceedings are relatively rare and the results for therapists who have relied upon the attorney  “taking the heat” have been positive.

Everyone in the process may need to be reminded that the psychotherapist - patient privilege is held by the patient - not the therapist - and that when the patient has an attorney, the therapist has a right to rely upon the representations of the attorney who represents the holder of the privilege. The therapist may be reasonable in believing that the attorney is an “officer of the court” who would not intentionally mislead the therapist into acting in a manner contrary to law.

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... A therapist or counselor must be prepared to testify in court or at a deposition, under oath. Although some therapists and counselors may not like to testify, and may find it disruptive to their practices, there is sometimes no choice. The patient may be pursuing a lawsuit where the mental or emotional condition of the patient is relevant, if not critical. There are numerous other ways that the practitioner can find herself/himself in court or at a deposition. The "success"of the practitioner often hinges on the degree of preparation of the practitioner. In many circumstances, the preparation may be done by and with the lawyer for the patient, although this is not always the case. Sometimes, the preparation will be done with the assistance of the practitioner's attorney. The practitioner may be considered "successful" if he or she emerges from the process with his/her integrity intact and with the patient not being surprised by, or disappointed with, the practitioner's testimony.

The therapist or counselor must be sure of what he or she knows, clear about what he or she doesn't know or should not say, and confident that his or her records will be helpful (to the practitioner). If the records are an accurate reflection of the treatment rendered, and the practitioner’s testimony is consistent with the records, the practitioner will be less vulnerable under cross-examination. One interesting scenario that sometimes arises is where the therapist or counselor determines that there is an error in his or her records. The therapist or counselor might first discover an error when reviewing the records after being served with a subpoena for records and for testimony at a deposition, or the error might be discovered before the receipt of a subpoena, such as when a request for the records comes from the attorney representing the patient. Often, the patient's attorney is going to be the first to receive a copy of the records in preparation for the practitioner’s later testimony. The records will usually be shared voluntarily with the patient's attorney, with the proper authorization of the patient.

If changes are made to the records, the practitioner would, of course, make it apparent in the records that changes were made on a specific date. Therapists and counselors sometimes make the "fatal" mistake of trying to change or alter the records without detection by others and without the intent to disclose that changes were made. If caught, this action can lead to significant negative consequences - not the least of which is a complaint to the licensing board - and eventually, the imposition of disciplinary action against a licensee. The decision for the practitioner is whether to make a change in the records upon discovery or to leave the records as they are – and inform the patient's attorney (and/or the practitioner's attorney) of the error.

Once the attorney for the other side discovers that a change in the records was made after the practitioner received the subpoena, he or she may try to exploit this knowledge, and try to make the practitioner look bad at the deposition, or look like the practitioner has done something wrong or unethical. The attorney for the patient, or perhaps the practitioner’s attorney, will typically be able to counter such tactics. The attorney will simply establish that the therapist reviewed the records in anticipation of litigation, which is a reasonable thing to do. When an error was found, the natural instinct was to fix the error. If the error was not fixed, but first disclosed in testimony, questions would be raised about the reason for not making corrections as soon as one or more errors were discovered. It is generally best to correct the error upon discovery. However, there are some errors that may be so small or inconsequential as to warrant no action on the part of the practitioner. Errors can, of course, be corrected well before the subpoena arrives if the practitioner periodically reviews records - but that is often an unrealistic expectation for most practitioners. Perhaps it is easier to simply take care when making entries. It is also important to remember that consultation with an attorney can assist in making a decision in a particular case.

What if the therapist is cross-examined and it is revealed that his or her advertisements or curriculum vitae contain false or misleading information and his or her truthfulness is thereby called into question. Suppose further that the jury comes back with a small verdict (award of monetary damages) for the plaintiff, and several jurors blame it on the therapist's lack of credibility. The lesson to be learned is simple - don't let an untruth, of any dimension, undermine your entire testimony and thus the patient's case. Attorneys may argue that if the practitioner would lie about something tangential or minor in nature, he or she might lie about something more meaningful to the client/patient. With respect to keeping “good” records, I remember one situation where several jurors told the plaintiff (the patient) that they awarded her less money than they otherwise would have because her therapist did not have records that supported the testimony given by the therapist. If the mental or emotional injuries were as substantial as the plaintiff alleged, surely the clinical records would have reflected that - but they did not. This kind of poor documentation can lead to a complaint or a lawsuit from the disgruntled patient. Careful documentation of records can be helpful to the therapist and to the patient alike - in litigation and otherwise.

One of the thorny issues that a therapist may face takes place when the patient is claiming injuries (both mental and physical) as a result of an auto accident, or the result of malpractice by a surgeon, or perhaps the result of a work related injury. What if the therapist or counselor is cross-examined about the fact that the patient was in treatment prior to the incident that is the subject of the lawsuit? Will the therapist be pressured to minimize the earlier treatment in order to help the patient establish significant harm from the defendant's negligence? What if the therapist is asked to apportion the percentage of harm that was caused (or the extent of aggravation) by the incident and the "pre-existing" mental or emotional condition that first brought the patient into therapy or counseling? These can be troubling and difficult issues and may require knowledge and testimony about the difference between an inactive pre-existing condition and an active or symptomatic pre-existing condition.

Usually, the opposing attorney will pursue a variety of strategies to make the plaintiff's (the patient) witness (the practitioner) look bad, or at least to impeach his or her credibility. Therapists and counselors are often warned, in preparation for testimony, that they should not attempt to verbally duel with the opposing attorney, While cross-examination of the practitioner may make it seem as though the practitioner may have done something wrong, the patient's attorney will often be able to offer a simple explanation (either in a closing statement or argument, or through examination of the practitioner on re-direct) for the therapist's conduct or testimony. The pressures on the practitioner can come from either attorney. The attorney for the patient may prefer a certain kind of testimony, and may push the practitioner in that direction. Practitioners must be clear on what they know and what they do not know, and must testify to the truth - as they see it (in their professional opinion). Practitioners should not guess at answers, and should consider saying that they do not know - if that is the best answer. If the practitioner wants to give more thought to the answer, he or she can ask the attorney to please repeat the question.

As mentioned above, preparation is important. Reviewing the records is an important part of the preparation. If preparation for testimony is thorough, the practitioner will likely discuss the contents of the records with the attorney for the patient. Depending upon the degree of preparation desired by the attorney for the patient, the therapist will usually speak or meet with the patient’s attorney before testimony is given. In addition to talking with the attorney, it is likely that there will be some conversation between the practitioner and the patient or client regarding the testimony. In all of these encounters, the practitioner has to be clear about what he or she is willing to say, must not be unduly influenced by the patient or the attorney for the patient, and must tell the truth. Sometimes, the truth may not be beneficial to the patient's case. It is usually better for the patient to know this in advance, rather than first discover it at the trial of the matter.

Representation of the practitioner at a deposition may be necessary. Under the CPH professional liability policy, there is coverage for the reasonable legal expenses incurred by the insured for an attorney's assistance in connection with a deposition and for the attorney's appearance at a deposition, if necessary, to represent the interests of the therapist or counselor who is compelled to testify at the deposition. While the coverage is limited, it is usually sufficient. I am aware that there are times when use of this coverage is not necessary and that the individual practitioner can make his or her decision regarding representation on a case by case basis. In complicated, bitter cases, where confrontation appears certain, representation will likely be necessary, and certainly wise. In other cases, the therapist or counselor may feel comfortable about testifying without representation after talking with the patient's attorney. Again, the patient's attorney will often help to prepare the practitioner, since the attorney wants the witness to do well and to adequately cope with cross-examination. The practitioner may, of course, consult with his or her own attorney at any time.

… A reader has asked me to “write a column discussing the difference between psychotherapy RECORDS and psychotherapy NOTES addressing the issue of privilege, subpoenas, confidentiality, content etc….”

The request necessarily involves a discussion about HIPAA regulations and about state law (in this article, California law). The term “psychotherapy notes” is defined in federal regulations (the Privacy Rule) implementing HIPAA, which generally deal with the privacy and confidentiality concerns of the patient. These two terms are not defined in California law, although California law does make reference to the federal regulation defining “psychotherapy notes.” The term “psychotherapy records” is generally understood to mean the mental health treatment records that a psychotherapist creates and maintains with respect to his or her patients or clients.

“Psychotherapy notes” means notes recorded in any medium (e.g., on paper or electronically) by a health care provider who is a mental health professional documenting or analyzing the content of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical (includes mental health) record. This is the definition in the federal regulation, and it is significant to those mental health providers who are “covered entities” (also referred to herein as “covered providers”). If not a covered provider under HIPAA, then the mental health practitioner will usually be governed by state law.

While the term “psychotherapy records” is not defined in the federal regulations implementing HIPAA (the Privacy Rule) or in California law, it is generally understood to mean, among other things, those records kept by a mental health practitioner which include such matters as counseling session dates, including start and stop times, the modalities and frequencies of treatment furnished, and any summary of diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date (in other words, the general treatment record). The federal regulations provide an added degree of protection to “psychotherapy notes,” generally requiring the practitioner to obtain a written and signed authorization from the patient before releasing these “notes” to an insurer. Under HIPAA regulations, psychotherapy records (the treatment records) can be released by the covered provider to the insurer without the patient’s written authorization. The patient is informed of this exception to privacy and confidentiality by the covered provider in the required Notice of Privacy Practices form that is given to the patient.

Another interesting aspect of “psychotherapy notes” under HIPAA is that when the patient demands to inspect his or her records, the mental health practitioner (covered provider) is not required to produce the “psychotherapy notes” for inspection by the patient. It must be remembered that these notes must be kept separate from the rest of the patient’s treatment records. If they are not, then it would likely mean that the patient would be entitled to inspection of all. 

With respect to privilege and subpoenas, HIPAA regulations (the Privacy Rule) provide, in part, that before the covered entity responds to the subpoena, it must either receive a court order to release the records, or it must receive a written authorization from the patient to release the records, or it must receive documentation that reasonable efforts were made to notify the patient about the legal proceeding, providing the patient with an opportunity to raise an objection (re: the subpoena) to the court. This may be similar to state law requirements, which will usually be applicable to those who are not covered providers. Reference to the psychotherapist-patient privilege statutes of the state will become necessary. In California, the therapist is duty bound to assert the privilege on behalf of the patient when served with a subpoena for treatment records. The patient and the patient’s attorney will usually be contacted to ascertain whether they are claiming the privilege or waiving it. Usually, the practitioner will take his or her “marching orders” from the attorney for the patient. It is always important to make sure that the patient and the patient’s attorney are on the same page before releasing records pursuant to a subpoena.

Sometimes, patients are unaware of the times when the psychotherapist-patient privilege is waived by the actions of the patient or by the operation of law. When records are subpoenaed, and assuming that the privilege has been waived, the “other side” will generally be entitled to all of the records, including those that would be considered “psychotherapy notes” under the federal regulation mentioned above. The distinction between psychotherapy records and psychotherapy notes is therefore generally not of significance in state litigation. However, a state may treat this aspect of the law somewhat differently. For example, a state may have amended its laws to include provisions that mirror the HIPAA Privacy Rule provisions, including those related to “psychotherapy notes.” In most states, the patient’s attorney may seek a protective order, where the records, or certain portions of the records, may be protected from discovery – such as where the probative value of the evidence is outweighed by its prejudicial effect.