Ethics in Behavioral Health Documentation: Reasons, Risks, and Rewards _____________________________
Ultimately, the client has the right to see the record, yet clini- cally they may be seeking only feedback and reassurance, which can be provided without reviewing specific documentation. Patient access is a controversial issue. Not without opposi- tion, OpenNotes (n.d.) is a national initiative working to give patients better access to the clinical visit notes written by their doctors, nurses, or other clinicians. Medical clinics and primary care offices increasingly are installing patient portals to allow patients to view their entire medical chart online. Fol- lowing that trend, some medical centers, as part of an ongoing effort to make care more transparent, have begun posting the mental health notes in patients’ electronic medical records, giving patients immediate access to the summaries at home (Kowalczyk, 2014). Legally and ethically, in general, practitioners are bound to release records to clients. HIPAA stipulates access rights for patients to (U.S. Department of Health & Human Services, Office for Civil Rights, n.d.):
• Reasonable suspicion of abuse or neglect • Danger of substantial harm as a result of records disclosure • Separate psychotherapy (shadow) notes • Voluntary parental agreement In such cases, documenting justification of the denial is paramount. In addition, the clinician must have another licensed health- care professional, who is not directly involved in the denial, review the decision to deny access. Documentation of consul- tation with colleagues or an ethics committee regarding the denial is advised. PUBLICATION A unique aspect of clinical documentation concerns clinical writing and publishing case material. Bennett (2011) illumi- nates the ethical dilemmas that emerge when the clinician’s responsibility to respect the client’s right to privacy competes “with the societal good of educating other professionals about the process of social work practice” (p. 11). Histori- cally, publishing case material was an accepted practice, even without permission from the client, if the material was heavily disguised. However, with the enactment of HIPAA regulations and effortless Internet searching, clients could easily find their therapists’ publications, recognize themselves in the published writing, and perceive that their rights had been violated. No matter how many safeguards are put in place, such as using disguised information or obtaining a client’s permission, ethi- cal dilemmas still can exist. The utilitarian approach to ethics (the greater good prevails) would opt for benefitting the profes- sional community, which conflicts with a more teleological viewpoint that would argue that publication might compromise the individual’s well-being. The request for permission inevitably will alter the therapeutic relationship and may pose undue influence. The client may feel coerced to agree in order to receive services. Thus, informed consent is not always perceived by the client as totally voluntary. Yet the effect of clinical writing on the treatment relationship may also be positive, particularly if the client feels their experi- ence is noteworthy and could help others.
• View records in a timely manner • Request changes to their records • Know who else has seen the records
There are some caveats to these requirements, such as cir- cumstances when records can be withheld. Withholding or not releasing records in a timely manner or releasing records when not permitted can subject the provider to a licensing complaint, HIPAA complaint, sanctions, or lawsuits. A particularly challenging issue is parental access to records. Often parents feel entitled to know the course and progress of treatment. Practitioners must abide by the laws of the state in which they practice when, for example, needing to obtain a signed release from the child client after a certain age. Balancing the parental demands, clinical desire for parental involvement, and therapeutic alliance with the client poses a risk for ethical breach. The Legal Defense Fund of the National Association of Social Workers states: “It is important that providers have a foundational understand- ing that parents generally have the right to access the medical and mental health records of their minor children. This is considered a parental right and interfering with this right should only be considered after assessing the child’s emotional condition and relationship to each parent and based on suf- ficient knowledge of the applicable legal standards for denying parental access to records as well as the appropriate procedures to follow. State health privacy laws may also provide procedures and/or standards for providing and denying parental access.” (NASW, 2017b) Legally, providers ordinarily covered by HIPAA may deny par- ents access to children’s treatment under certain circumstances.
SUPERVISION Supervising Documentation
Proper supervision points to the need for recording on two lev- els: The provider’s need to record services and the supervisor’s need to record addressing the performance deficiency. While there are many areas of professionalism for the supervisor to address with this clinician, the supervisor can begin by explain- ing to the clinician that by not providing timely documentation of her work, they are failing to hold themselves accountable and are also placing the clients, the agency, funding streams, and
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