AVOIDING LIABILITY BLOG

Records – Removal of Information From File

January 2008

… 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.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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