Records – Stolen, Lost or Destroyed

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Avoiding Liability Bulletin – May 2006

… 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!

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Richard Leslie

"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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