Professional Ethics and Law in California, 2nd Edition _ ____________________________________________
• Diagnoses • Functional status (activities of daily living [ADL], ability to work, interpersonal capacity) • Medical/physical problems • Community contacts, including phone calls, emails, or texts • Treatment plan and goals • Symptoms and prognosis • Progress in each session • Disclosure forms and informed consents signed by the licensed professional and client • Presenting problem(s) or purpose of visit • Referrals to and results of formal consultations • Progress notes sufficient to support responsible clinical practice for the type of orientation/therapy used All digital medical records should be backed up regu- larly and kept in encrypted format, with frequent changes in passwords. Although there can be both a medical record and psychotherapy notes, information cannot be put into psy- chotherapy notes to avoid putting it into the medical record (Groshong & Phillips, 2015). Obtaining informed consent is not a perfunctory and merely obligatory part of documentation. There are actually risks associated with it. Although it is a legal and ethical requirement in health care, true informed consent is difficult to obtain and substantiate. The level of understanding and decision-making capacity of the client can vary across time and situations. Although a client may give consent for disclosure of information, for example, that disclosure may inadvertently backfire, possibly causing the client harm. Clients may be harmed by released health information that is improperly disclosed by the third-party recipient or when the informa- tion is used against them in court proceedings. Even when properly released and disclosed, the information now made public may have residual effects for the client. In our digital world, informed consent should now include explanation for clients regarding the use of technology “to gather, manage and store protected health and other sensitive information” (Reamer, 2018). The Health Insurance Portability and Accountability Act regulations have affected how client records are organized and what may be included. Documentation is often considered synonymous with record keeping; however, documentation encompasses many aspects, formats, and types of record keep- ing. To distinguish among the various types of records, the following definitions are offered: • Mental health records: These are patient records related to the evaluation or treatment of a mental disorder. These records include, but are not limited to, substance abuse (drugs and/or alcohol) records.
Typically, behavioral health documentation is noted in a separate section of the electronic health record (EHR). • Patient medical records: These are records maintained in any form or medium, by or in the custody of a healthcare provider, which relate to a patient’s health history or diagnosis, or the treatment provided. Patient records do not include information given in confidence by a person other than another healthcare provider or the patient. • Psychotherapy notes: Psychotherapy notes, according to HIPAA regulations, are notes recorded in any medium by a healthcare provider who is a mental health professional that (a) document or analyze the content of conversations that took place during a private counseling session or a group, joint, or family counseling session and (b) are separated from the rest of the client record. Psychotherapy notes (as compared to medical records) do not include medication prescription and monitoring; counseling session start and stop times; the modalities and frequencies of treatment furnished; results of clinical tests; or any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date. Several mental health provider associations have debated this ruling. The Health Insurance Portability and Accountability Act specifies that “psychotherapy notes are held to a higher standard of protection because they are not part of the medical record and never intended to be shared with anyone else” (Bodek, 2010). If it were true that psychotherapy notes were not intended to be shared, there certainly would be less cause for concern. In addition to the client record, a HIPAA compliance folder for each client must be maintained. Furthermore, HIPAA specifies that psychotherapy notes are to be kept sepa- rate from the rest of the individual’s medical record, including the HIPAA compliance folder (Bodek, 2010). This regulation sets up a baffling conundrum in that healthcare facilities usu- ally maintain a single consolidated medical record for each client that includes all consultations, including behavioral health interventions. As a result, the therapist may maintain his or her own clinical or shadow notes, which may be consid- ered “personal” but are nevertheless subject to the same legal scrutiny as the official record. Some states protect personal notes from legal discovery, yet keeping such notes does pose a risk. Mitchell (2007) describes a case in which a practitioner naïvely kept the second set of notes in a foreign language as protection. Of course, those notes could be translated. Other practitioners may conclude that “what they don’t know won’t hurt me” and keep the personal notes a secret. If asked under oath if all records have been provided, however, the conse- quences of perjury and ethical misconduct may be worse than what was written in the notes.
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