Avoiding Liability Bulletin – October 2006
… 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).
Some health practitioners keep records indefinitely, as long as storage does not become a problem. Generally, state laws do not require destruction of records after a given number of years. One reason to keep records indefinitely would be to assure that if the patient was later involved in therapy or in litigation, the records may prove helpful. A reason to destroy the records after a period of years (within the dictates of law, regulation or ethics) is to protect the privacy of the patient. It is important to remember that the records are to be destroyed in a manner and by a means which will assure that the patients’ privacy and confidentiality will in no way be compromised. Therapists should, at a minimum, keep a written account of which records are destroyed and the date of destruction.
ABOUT THE AUTHOR
"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.