Today’s guest blogger comes highly recommended by Armani. Sarah Isaacs (aka @Sheologian) is an excellent therapist and personal friend. Earlier this week, in the midst of coverage of a particular harassment case, news broke that the victim’s therapist had turned therapy notes over to her university. The university showed her private therapy notes to her abuser.
Outside of what is required in collecting payment and compliance with mandated reporting laws, what happens in your therapy sessions is supposed to remain confidential. There are circumstances where a therapist can be forced to turn over records. I do not know if this was the case or if the therapist could have done more to protect their client. I do know that I have been in situations where a judge ordered me to turn something over, and my choices were 1) listen to the judge, or 2) go to jail.
Sarah has a system to keep her notes legally and ethically compliant while doing the maximum to ensure her clients’ privacy is maintained. She was kind enough to share some tips.
Documentation is a huge part of our jobs as mental health providers. We write treatment plans, case conceptualizations, coordinate with other care providers/do case management, talk through issues and stuck points with our supervisors, and also maintain the file for our clients in a timely manner.
The official record is a very sensitive document. It is to be treated with the utmost care and there are rules for its contents, availability, and storage which each mental health professional learns in their very first semester of their education. In my ethics class, we talked about notes and confidentiality for weeks.
The most important thing to understand about the file is that it is the property of the client. They may ask to see it at any time, and it should be provided to them. It might take a few days to present it to them depending on your EHR and style of documentation (it would take longer if you, for example, still use paper charting as opposed to being able to download it with a click).
There are some who believe that sharing notes with the client can be harmful and in that instance the therapist does have the right to obfuscate or keep portions of the notes back. I philosophically do not believe in this myself. The client/therapist relationship is not meant to be a hierarchical one but a collaborative one, and whatever is said about them should be known by them. Otherwise it is a relationship where the therapist is doing to, not doing with.
There are two types of notes in mental health – progress notes and process notes. Progress notes are required, official, and in the record. These are the notes that could be subpoenaed at some point, and the notes that the client is able to see at any time. If you work with insurance companies, this is the note that they require. This note includes: date of service, time of service, mood/affect of client, whether or not there was any suicidal ideation, what interventions were used, an update on progress towards treatment goals, and next steps. That sounds like a lot, but it really doesn’t have to be long at all.
Brevity and ambiguity of notes is a way I protect my clients. Even if I received a subpoena signed by a judge (the only type of records request from anyone other than my client that I would ever respond to) and my lawyer that is part of my liability coverage determined I must turn them over, what they would receive from me would be completely unhelpful on purpose.
You always document assuming that someday your records will be read on the stand in a court of law. All of us will be subpoenaed at some point in our career, and some of us may ultimately have to provide the requested documentation. If you write your notes the way that I do, your client’s privacy will remain intact.
Here is the basic progress note, with very little deviation, that I write in the file:
Met with client on date/time
Client was on time for therapy.
Explored, confronted, clarified, and interpreted client’s thoughts and feelings
Mood was euthymic, affect was appropriate, and suicidal ideation was absent
Progress towards therapeutic goals is ongoing
Next session is scheduled for (date/time)
Even if I provided three years’ worth of progress notes, my client would have nothing revealed about them.
Part of your informed consent should be about your documentation. I go over this being my method as part of the confidentiality and exceptions thereof in our first meeting. I emphasize that at any time they are free to ask to see my notes as it is their record.
You may or may not take little notes for yourself (process notes). Unlike progress notes, there is no requirement to do so. I typically jot down names of partners or people important in their lives and things like that. While a lawyer may request these, as they are not part of the official record they will only in the rarest of circumstances win and force your hand. For myself, once I have written it down I remember it, and I could (and likely should) burn or shred all of my process notes so that none exist.
Though they are not part of the official record you of course must store these – if they exist – with the same care as the official notes.
For my ethical obligations, that means an additional lock behind a locked door. For extra safety, none of my process notes have the name or identifying info of the clients, and I choose to never type them even in an offline document.
The things shared in therapy are to be assumed private at all costs. If ever you get a records request not signed by a judge, you may choose to respond or not. I don’t. I will only respond to a subpoena signed by a judge and only after calling the lawyers that are available to me who specialize in this.
I am thankful not only for my clients who trust me with their stories but also my internship supervisor who would return to me any progress note over 100 words and make me redo it, shorter. I was taught well, and I hope this information is helpful to someone else.