_____________________________ Ethics in Behavioral Health Documentation: Reasons, Risks, and Rewards
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 inter- personal 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 informa- tion regarding safety plans, mandated reporting processes, and monitoring of potential threats. Some providers might inten- tionally 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. 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. Could this ostensibly helpful action be a breach of confidenti- ality 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. MALPRACTICE AND STATE LICENSING Of course, providers owe an ethical duty of conscientious prac- tice 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 con- tents 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 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 unwit- tingly 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). 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? 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 practi- tioner 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. All records should be stored in a locked location that is acces- sible only to those with a need to know. Electronic records need additional security precautions. These security precautions include password-protected computers and, for added protec- tion, the storing of records on computer drives not linked to the Internet. Keeping records of deceased clients is important, as they could be helpful in potential litigation. It is prudent to be familiar with federal statutes regarding records, such as
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