Ethical Issues in Record Keeping and Documentation Using case examples, this section will present specific dilemmas in record keeping and documentation. Issues unique to private Case Study 4 A long-term client reveals in detail to her practitioner that decades ago she committed a capital crime. Of course, the practitioner is concerned about her duty to report this incident that she believes is credible. She is assured by her supervisor that to honor confidentiality she is under no obligation to report the crime. However, the issue of documenting the discussion is a cause for disagreement. The practitioner believes she should document something about it . . . the supervisor advises her to "pretend you never heard it." What should the practitioner do? In this case, determining the purpose of the documentation is paramount. Yes, the revelation is a legal issue, but it is also a clinical issue. Pretending it didn’t happen does a disservice to the client. Documenting that it occurred without identifying details might be the most judicious decision. Attending to the process of the revelation in the present without concentrating on details of the past would be sufficient for current and subsequent evidence of clinical discussion. Suggested example: “Client revealed seriously regretful behavior from decades past. Client was visibly shaking while discussing it. The reason for the current Case Study 5 A counselor working in a women’s prison reentry program was assisting her client with dressing appropriately for job interviews. She arranged for the client to get a haircut. Since the client had a type of haircut in mind, the therapist sent a magazine picture of the hairdo and a picture of the client to the hairdresser via email. Malpractice and State Licensing Of course, providers owe an ethical duty of conscientious practice and care toward patients (Beauchamp & Childress, 2019). However, malpractice suits are a real possibility, and clinicians need to protect their professional career, especially because clinicians are typically not adequately trained to enter the legal arena (Foote et al., 2020). In the event that a practitioner is sued for malpractice, several concerns are important to keep in mind, namely that the clinical record is the only objective data about the case (Harris et al., 2009). Practitioners will need to bear in mind that protecting themselves from unwarranted legal action is among several key reasons for conscientious and professional record keeping. Researchers have claimed that practitioners are often unclear about the proper contents of an appropriate case record. Legal professionals assert that expert testimony is usually held in high regard by jurors (Simpson & Reid, 2019). However, should a practitioner be sued for malpractice, this confusion may cause them to appear unprofessional or incompetent in the eyes of a jury. Moreover, jury members are unlikely to have specialized training in the practice of psychotherapy, including the practical demands of proper clinical documentation, which may result in bias or negative assumptions during the trial discussion of Storage, Release, and Disposal of Records Whereas most codes of ethics address documentation and record keeping, some ethical codes extend their coverage to include topics such as the storage, disposal, and release of records. Appendix A outlines the relevant standards and principles covered by several professions’ codes of ethics. There are four basic questions that clinicians have: 1. How long should clinicians keep records? 2. Where should records be stored? 3. What are guidelines for electronic records? 4. What are the consequences if records are prematurely destroyed?
practice, clients’ access to records, and electronic records and use of technology will be explored.
focus and need for future exploration and resolution will have to be determined.” The note indicates the seriousness of the discussion and its clinical importance while still protecting the client. Subsequent therapists could pick up on this note and know there is current distress over a past incident. The importance of content and the security of records becomes more obvious with certain clientele such as in cases of interpersonal violence (Bradshaw et al., 2014). Systems designed to protect clients, particularly women and children, rely on accurate and secure information. Cases involving homicidal or suicidal intent, abuse, or violence require detailed information regarding safety plans, mandated reporting processes, and monitoring of potential threats. Some providers might intentionally avoid documenting—or even reporting—criminal “duty to report” behavior. Omitting such important information is not only a liability risk for the agency but indicates negligent practice on the part of the provider, which could harm the client or family. Could this ostensibly helpful action be a breach of confidentiality using technology? Of course it is. Even if the client were aware of it, the client’s safety is primarily the practitioner’s responsibility. The client’s status as a former inmate receiving adjustment services is now available to anyone with whom the hairdresser opts to share. the case record, leading to unwarranted legal harm for the practitioner. (Harris et al., 2009). While a number of state licensing bodies have eased certain professional requirements because of the COVID-19 pandemic (Clay, 2021), practitioners still face complex and often unclear state regulations. Typically, state-level requirements reflected in law are often unclear in language, causing the requirements to be difficult to interpret and apply in clinical settings (Harris et al., 2009; Younggren et al., 2022). Practitioners can unwittingly be in violation of state law without a clear and immediate understanding of their exact professional responsibilities in connection with case documentation. Practitioners will need to take extra time, seeking official clarification to understand vague language found in any state law that applies to properly documenting cases, thereby avoiding any unnecessary legal risks (Reamer, 2022). While professional training in these topics may be available, it is likely the clinician will need to take individual initiative to educate themselves properly. As Harris and colleagues (2009) write, when practitioners “ignore or improperly apply the regulations set up by their state or licensing board they are at risk for disciplinary actions” (Harris et al., 2009, p. 3). The NASW Insurance Trust recommends indefinite retention of records, although state laws may stipulate differently. Since an injured party can file suit decades after alleged malpractice, there is potential fallout from disposing of records too soon; in some instances such claims may stem from the moment an aggrieved party first recognizes harm, not necessarily from when the harm happened. Although the APA record-keeping guidelines (2017) no longer distinguish between “full” and “summary” records, it is recommended that even if a practitioner destroys records at the legally permissible time, keeping discharge summaries or reports is advised. It is also advised that clinicians review insurance contracts to meet contractual deadlines for record retention.
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