AVOIDING LIABILITY BLOG

Treatment Records – Ownership

September 2005

… One of the common questions asked is who is the owner of treatment records kept by therapists or counselors? The question is asked for a variety of reasons and in a variety of contexts. For instance, suppose a former patient requests or demands that you destroy the treatment records because of her concerns about privacy and confidentiality. She explains that she is a public figure and that exposure of such embarrassing details will be very damaging. When you refuse to comply, the patient claims that these are her records and that you must comply. Is she correct? What is the answer in your state?

While state laws may vary, the general rule is that treatment records kept by the therapist or counselor in the ordinary course of his or her practice are owned by or belong to the therapist or counselor, not the patient. The patient usually has certain prescribed rights to inspect, copy or amend/addend the records under state law. It is generally not a good idea to agree to destroy records. Destruction might be prohibited by state law, and in any event, may later prove to be harmful to either the patient or the therapist, or both. Patients can simply be assured that privacy and confidentiality will be maintained, and where applicable, that the psychotherapist-patient privilege applies, which provides further privacy protections.

… Ownership of records may become an issue when a licensee or pre-licensed person leaves an agency or other place of employment, whether employed as a W-2 employee or as an independent contractor. If the patient were to decide to leave the prior place of treatment and to follow the departing therapist to a new location, the therapist who is leaving the agency may think that he or she has a right to take the original records with him/her. This is typically not so. The records belong to the agency where treatment was being rendered, and the departing therapist and the patient would be expected to request a copy of the records in order to assure continuity of care and appropriate treatment. If the agency balks, they could be setting themselves up for difficulties and liability.

Unfortunately, departing therapists sometimes act rashly and in the heat of the moment (terminations may be contentious) – and instead of requesting a copy, they simply take the treatment file (assuming it was “their patient”) and thereby improperly deprive their former employer of their rightful property. This can have negative consequences for the departing therapist. There is a right way to handle this situation and a wrong way. Be careful, and get help if you need it!

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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