Avoiding Liability Bulletin – December 2012
… What right, if any, does a mental health practitioner in your state have to provide the patient with a summary of the treatment records in lieu of allowing the patient to obtain a copy of the records or to inspect the records? In California, a psychotherapist may elect to provide the patient with a summary, and may do so for any reason. For those who are HIPAA –covered providers, summaries can only be provided where the patient agrees to receive the summary as an alternative to the actual record. HIPAA regulations do provide that the patient is not entitled to inspect or obtain copies of the “psychotherapy notes” (not the same as psychotherapy records) of the HIPAA-covered practitioner.
Under California law, the summary must contain specified information, such as, but not limited to, chief complaints and pertinent history, diagnosis, treatment plan, progress of treatment, and prognosis. If the mental health practitioner was not allowed the discretion to provide a summary in lieu of the actual records, this might increase the likelihood that the practitioner will deny access to the patient under other provisions of applicable state law. Some states allow a denial of access to occur where, for example, there is a substantial risk of significant adverse or detrimental consequences to a patient in seeing or receiving a copy of the mental health records.
Each state’s law must be consulted in order to determine when denials may properly occur and when or whether a summary may be provided. Where access to the records may lawfully be denied by the therapist, the option to provide a summary may help the patient to obtain substantial and relevant information pertaining to his or her treatment. In some circumstances, receiving a summary of the records may provide the patient with more information than he or she might receive from a review of a copy of the records.
ABOUT THE AUTHOR
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.
