DOCUMENTATION IN MENTAL HEALTH PRACTICE: ETHICAL AND RISK-MANAGEMENT CHALLENGES
by Frederic G. Reamer, Ph.D..
Course content © Copyright 2010 - 2014 by Frederic G. Reamer, Ph.D.. All rights reserved.
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Contemporary Functions of Documentation
Assessment and Planning
Continuity and Coordination of Services
Evolution of Documentation Standards
Risk Management Standards
Content of Documentation
Documentation During a Crisis
Managing Personal Notes
Documentation Services to Families and Couples
Documenting Workplace Disputes
Language and Terminology
The Importance of Clarity
Being Careful with Conclusions
The Risk of Defamatory Language
Keeping the Audience in Mind
Documenting in a Timely Fashion
Paying Attention to Grammar and Legibility
Access to Records and Documents
Responding to Legal Requests for Confidential Documents
Know Relevant Statutes and Regulations
Malpractice Claims and Ethics Complaints
Behavioral health professionals' understanding of the relevance of documentation has evolved over time. For many years, professionals viewed documentation primarily as a mechanism to facilitate theory building, research, and teaching. This was followed by the development of detailed and sophisticated documentation standards for clinical settings. Most recently, professionals have begun to appreciate the relevance of documentation for risk-management purposes, particularly as a tool to protect clients and to protect practitioners in the event of an ethics complaint or lawsuit. This continuing education course is designed to provide a comprehensive overview of a wide range of ethical and risk-management challenges related to documentation, along with practical advice about the best ways to protect clients, practitioners, and employers. Portions of this course content draw on the author’s work found in the following:
Frederic G. Reamer, Ethics Education in Social Work (Alexandria, VA: Council on Social Work Education, 2001)
Imagine the following circumstances:
In the early 20th century, discussions among clinicians about documentation focused almost exclusively on theory building, research, and teaching (Eliot, 1928; Hamilton, 1936, 1946; Richmond, 1925; Sackheim, 1949; Sheffield, 1920; Sytz, 1949). By the 1920s and 1930s, professional literature emphasized the importance of record keeping when "personality influences, psychological goals, and psychiatric casework were involved" (Pinkus, 1977, p. 1162). By 1940, professional standards had evolved for three distinct types of case records: (1) chronological reports of services provided, (2) summary recordings of practitioners' relationships with clients, and (3) process recordings that provide moment-by-moment details of clients' behavior and interactions between practitioners and clients (Burgess, 1928). Over time practitioners refined their recording practices with respect to assessing clients' circumstances, statuses, and needs; documenting more subjective information about clients' circumstances (information provided by the client, family, and significant others); recording objective information based on tests or other independent sources, the practitioner's assessment, and plans; and completing standardized forms that summarize client information using short answers or checklists (Kagle, 2008; Kagle & Koples, 2008).
Throughout the history of the various behavioral health professions, practitioners have recognized and appreciated the usefulness of recording their encounters with clients (Aptekar, 1960; Frings, 1957; Kagle, 2008; Little, 1949; Timms, 1972; Urbanowski, 1974; Wilson, 1980). Case documentation not only supports the delivery of services to individuals, families, couples, and small groups, but it increasingly has new applications in keeping with the changing environment in which professionals operate. Traditionally, documentation helped practitioners coordinate and evaluate service needs and delivery. More recently, behavioral health professionals have begun to realize the significance of documentation as a liability shield and risk-management tool. Thus it is important for professionals to ensure that they have a solid grasp of proper documentation techniques, related ethical standards, and the potential pitfalls practitioners may face as they make documentation decisions.
Until fairly recently, discussions of case recording and documentation focused almost entirely on clinical relevance. That is, the field primarily saw documentation's function as a diagnostic, assessment, planning, and intervention instrument. In the mid-1990s, however, a burgeoning group of practitioners began to recognize the relevance of documentation for ethical and risk-management purposes. The shift was largely a result of growing awareness that case records were applicable in utilization review and managed care, as well as in defense against ethics complaints and lawsuits alleging unethical conduct and professional negligence (Houston-Vega, Nuehring, & Daguio, 1997; Kagle, 2008; Reamer, 2003). In addition, dramatic technological innovations — especially in the form of pervasive computerized records and the potential for problems concerning privacy and unauthorized access — fueled risk-management concerns. Together, these changes have resulted in a growing appreciation of how careful documentation and record keeping protect practitioners against allegations of ethical misconduct and professional negligence, guard clients' privacy, and facilitate the delivery of high-quality services.
In recent years, documentation-related standards have evolved to reflect these newer risk management functions. Many contemporary practitioners, however, graduated before the current standards were developed and incorporated into professional education in behavioral health professions (Berner, 1998; Luepker & Norton, 2002; Reamer, 2003).
Discussions of documentation in behavioral health are no longer limited to clinicians who need to record their interactions with clients to facilitate the delivery of services. The professions have come to recognize the usefulness of documentation for risk management purposes in supervision, management, and administration. Documentation in behavioral health — whether it concerns clinical, supervisory, management, or administrative duties — now serves six primary functions (Kagle & Koples, 2008; Luepker & Norton, 2002; Reamer, 2003):
In clinical contexts, clear and comprehensive documentation of all case-related facts and circumstances is essential. Careful and thoughtful information collection ensures that practitioners have an adequate foundation for their clinical reasoning and intervention plans. In addition, the data provide a reliable source of measuring performance and outcomes. Incomplete records may lead to inadequate planning and intervention, critical judgment errors, and poor outcomes for clients.
Comprehensive records are necessary for competent delivery of clinical, community-based, and agency-based services and interventions. Thorough documentation provides a solid foundation for practitioners' efforts to design and deliver high-quality services, whether they involve clinical intervention, supervision, or agency administrators' management and evaluation of personnel and programs.
Similarly, documentation facilitates professional and interdisciplinary collaboration and coordination of services. For example, behavioral health professionals employed in hospital, school, and correctional settings often need to share their observations and coordinate services with professionals in other disciplines, such as doctors, nurses, counselors, teachers, and administrators. In clinical settings, documentation ensures that staff members have up-to-date details concerning clients' needs. Administrative records facilitate coordination among supervisors, managers, and administrators in programs and agencies. Special challenges arise in multidisciplinary settings, particularly when members of different healthcare professions operate under documentation standards regarding documentation, access to confidential records, and release of confidential information.
Under the legal doctrines of vicarious liability and respondent superior (Latin for "let the master respond"), supervisors, as well as administrators and agencies, can be held liable for the errors and omissions of their staff if there is evidence of flawed supervision (Madden, 2003; Reamer, 2003, 2004). Thus, it behooves behavioral health supervisors to carefully document the supervision they provide.
In addition to facilitating clinical evaluation in individual cases (so-called single-case or N = 1 designs), records also provide essential data for broader program evaluations (Fitzpatrick & Sanders, 2003; Patton, 2002; Royse, Thyer, Padgett, & Logan, 2000). Measured outcomes and program effectiveness are central to clinical work. At their core lie data and information recorded throughout the case management process. Practitioners must strive to continually strengthen their record-keeping practices to maintain the integrity of their programs.
Client requests, insurance contracts, interagency collaboration, litigation, licensing board and ethics committee oversight, and utilization review bodies periodically require practitioners to share fine-grained details about the services they provide, the meetings they attend, the supervision they offer, and the consultation they obtain. These new demands clearly illustrate the importance of documentation for accountability purposes.
Evolution of Documentation Standards
When behavioral health pioneers began writing about case recording in the early 20th century, they could not have imagined the remarkable expansion of documentation functions and requirements that would emerge during the next century. Today's practitioners are held to vastly different ethical and legal standards that have serious implications for clinical and community practice, supervision, management, and administration.
A number of behavioral health professions have developed ethical standards related to documentation, although these did not exist during most professions’ early years. For example, social work's earliest national ethics standards made no mention of documentation. Neither the first National Association of Social Workers (NASW) Code of Ethics, adopted in 1960, nor the revised Code of Ethics, adopted in 1979, included guidelines concerning documentation. The current Code of Ethics, however, includes the first explicit documentation standards (Reamer, 2006). These ambitious additions to the Code reflect increased cognizance of the ethical implications of competent documentation during the mid-1990s.
In social work, the primary focus of the earliest standards centered on practitioners' ethical duty to document the services they provide, clients' right to view their records, and social workers' duty to protect clients' records from unauthorized access or use (Reamer, 2008). The current NASW Code of Ethics formally promulgates social workers' ethical duty to accurately document the services they provide and protect private information contained in records, thus establishing national standards enforced by NASW ethics committees and by state licensing boards that choose to adopt NASW Code of Ethics guidelines. Specifically, the measures state:
Several other prominent codes of ethics in behavioral health also address documentation issues. For example, the American Counseling Association Code of Ethics highlights the importance of timely, accurate documentation, along with the careful management of documentation errors:
The American Psychological Association Code of Ethics includes a separate section related to documentation and records:
The American Association for Marriage and Family Therapy Code of Ethics also includes several standards related to documentation:
Finally, the American Psychiatric Association’s ethics standards include one principal standard pertaining to records and documentation:
In addition to formulating new ethics standards related to documentation, behavioral health professionals have also recently developed elaborate risk-management standards designed to enhance the delivery of services to clients and protect practitioners in case they have to defend themselves against ethics complaints (filed with state licensing boards or professional associations) or lawsuits that allege professional negligence (Barker & Branson, 2000; Madden, 2003). The following section provides a summary of these guidelines, based on professional literature, prominent court decisions, and my experience as chair of a statewide ethics committee and as an "expert witness" (Gifis, 1991) in many court cases throughout the United States in which behavioral health professionals have been plaintiffs or defendants.
Risk-management guidelines related to documentation and case recording can be placed into four conceptually distinct categories: (1) the content of documentation, (2) language and terminology, (3) credibility, and (4) access to records and documents.
Too much content, too little content, or the wrong content can harm clients and expose practitioners to considerable risk of liability. The days when behavioral health professionals could proclaim, "I just don't keep detailed notes" are long gone. As Berner (1998), a lawyer and social worker, observed with respect to documentation in clinical settings:
Because the practice of clinical record-keeping is of such longstanding, and because courts in particular understand that the reason for clinical documentation is, in fact, not for the convenience of attorneys and judges, but to further the goal of good patient care, "everyone" expects that clinicians will keep records. "Everyone" means your patients, your professional society's ethics board, your professional discipline's licensing board, the newspapers, the general public, and perhaps most relevant for us … the courts. Courts know what everyone else knows, and courts expect clinicians to keep records documenting their work. (pp. 60-61)
Or, as many attorneys assert, "If you didn't write it down, it didn't happen." To ensure appropriate content in documentation, practitioners should consider several issues. A primary function of documentation is to serve and protect all parties. The content, however, must tread a careful line, striking a balance between too much and too little information. In a crisis situation, practitioners need to observe some precautions when recording case information. In addition, practitioners must understand the double-edged sword of keeping personal notes during case management. Furthermore, there are specific guidelines for documenting services to families and couples, and the extent to which individual members may be privy to that information. Finally, although in some instances it may appear prudent to document staffing issues and professional disagreements regarding service delivery, doing so may be akin to airing dirty laundry — and may make an agency ripe for litigation.
Client protection. Practitioners' first rule of thumb when documenting cases should be to include sufficient detail to facilitate the delivery of services and protect themselves in the event of an ethics complaint or lawsuit. In typical clinical settings, such details involve social histories, assessments, and treatment plans; informed consent procedures; contacts with clients (type, date, and time); contacts with third parties; consultation with other professionals; decisions made and services provided; critical incidents; instructions, recommendations, advice, and referrals to specialists; failed and cancelled appointments; previous or current psychological, psychiatric, and medical evaluations; information concerning fees, charges, and payments; termination of services; final assessment; and other relevant documents (Moline, Williams, & Austin, 1998; Reamer, 2001).
Clinical supervisors should document the date, time, and content of supervision sessions, including specific recommendations, critical incidents, and consultations. Also, program managers and administrators should document key discussions, consultations, and meetings that address ethical and legal issues. For example, they should note the steps taken to determine whether to disclose confidential information without a client's consent to protect a third party from harm, address an employee's impairment or unethical conduct, or develop conflict-of-interest guidelines for agency personnel (Barsky & Gould, 2002; Luepker & Norton, 2002). David Gould (1998), a veteran malpractice attorney who has defended several mental health practitioners wrote:
These types of cases, like almost all medical negligence cases, are won or lost by what is contained, or not contained, in the medical record. It has been my experience that mental health notes, particularly in the outpatient setting, are, more often than not, deficient …. Inadequate notes leave the clinician at the mercy of a plaintiff's attorney, especially when he is asked years later to recall an event that is poorly documented, if at all. (p. 345)
Competing duties. Documenting too much or too little can be perilous (Berner, 1998). For example, in clinical settings too little detail about a client's suicidal ideation may compromise the quality of services provided by an on-call colleague who reviews incomplete or vague entries in the client's chart. Furthermore, practitioners who do not include sufficient detail concerning the steps they took to address a client's crisis are likely to have difficulty defending their actions in the event of an ethics complaint or negligence lawsuit (Bergstresser, 1998).
In contrast, too much detail — a client's fantasies, for instance — could be used against the client if that client's spouse subpoenas the record as part of a child custody dispute. Admittedly, distinguishing between too much and too little detail can be difficult. It requires experience and reasoned decision-making. Practitioners should strive for a reasonable balance considering what information is clinically essential to properly assess clients' needs; plan, coordinate, deliver, supervise, and evaluate services; and be accountable to clients, insurers, agencies, other providers, courts, and utilization review bodies.
Documentation during a crisis. Practitioners also need to strive for balance during crises, avoiding the temptation to "over-document." Including excessive detail in a case record in the context of a crisis can serve as a "red flag" when records are reviewed during an ethics hearing or litigation (Bergstresser, 1998; Simon, 1998). A practitioner’s claim that she or he handled the matter in a manner that is consistent with prevailing standards in the profession may be challenged in the face of inordinate detail in the case record. Such detail may in fact suggest that the case was handled in an extraordinary or unusual way. As Berner (1998) asserts, it is far more important in a clinical crisis to "write smarter, not longer…. Writing smarter means being succinct" (p. 54).
Managing personal notes. Clinicians, supervisors, managers, and administrators sometimes maintain separate personal notes to keep track of details that do not belong in an official agency record. Clinicians, especially, sometimes assume — mistakenly — that such personal notes will always be treated as confidential and that adversarial parties cannot gain access to them, for example, in a malpractice lawsuit. In fact, in most court jurisdictions, lawyers can subpoena clinicians' personal notes during legal proceedings (Polowy & Gorenberg, 1997). Thus, practitioners who maintain personal notes assume some risk. Information in personal notes could be used against one's client. For example, information contained in the notes may become central during divorce, termination of parental rights, or child custody proceedings. Personal notes can also be used against the supervisor, manager, or administrator who documents potentially embarrassing details concerning inter-staff relationships. Practitioners who maintain personal notes should word entries without an expectation of privacy and with the assumption that someday the notes may be reviewed by third parties whose interests may be adversarial (Moline et al., 1998).
Documenting services to families and couples. Clinicians who counsel families and couples are often in an untenable position: If they maintain a single record for the family and couple, they risk exposing confidential information in the event the record is subpoenaed. Maintaining separate records for all parties, on the other hand, is cumbersome and inconsistent with clinicians' belief that the family or couple as a whole is the client. According to Barker and Branson (2000):
There are advantages and disadvantages to whichever choice this worker, or any worker, makes. The only virtue in having separate files — but it is a significant one — is in the event that members of the client-group have major disputes. When their disputes lead to legal action, one client or another may seek the worker's files. An individual may be able legally to have access to his or her own records, but what about when the information is intertwined with that of another person, especially another person who is now an opponent in a lawsuit? If the files are written separately, then every person can claim access only to their own files, and the worker's position is much less uncomfortable. (pp. 154-155)
Some clinicians compromise by maintaining separate records for sensitive information that must be protected and joint files for more routine assessments and summaries of services provided. For example, a practitioner who provides an individual counseling session to one member of a couple, as a supplement to counseling the couple, can create a separate file for that client in which private issues, such as a report of struggles with sexual orientation, family violence, or substance abuse, are recorded. In the couple's joint file, the clinician would record the fact that they sought marital counseling to address "relationship issues." Maintaining separate records in these circumstances may help the practitioner protect each individual client in the event that a dispute arises — a child custody dispute or divorce, for example (Barsky & Gould, 2002; Moline et al., 1998: Reamer, 2006). In such circumstances practitioners should consult standards in their respective codes of ethics concerning conflicts of interest that can arise when they provide services to two or more people who have a relationship with each other. It is the practitioner's duty to explain at the outset his or her role during the case and to anticipate and minimize potential conflicts of interest.
Documenting workplace disputes. Details concerning understaffed programs or personal opinions about the competence of a colleague do not belong in a client's record. Documentation of personnel and staffing problems should appear in administrative files. Including such detail in clients' records may expose agencies to considerable risk in the event of a negligence lawsuit (Simon, 1998).
Furthermore, line staffers, supervisors, managers, and administrators who become involved in disputes among staff members — a disagreement about an agency policy or administrative order, for example — should not include documentation about the dispute in clients' records. When there is reason to create a paper trail, relevant opinions, decisions, and actions can be documented in administrative memoranda or logs. Put simply, evidence of "jousting" among staff should not appear in clients' records (Berner, 1998; Simon, 1998).
Language and Terminology
Wording in documentation is just as important as the substance of the content. Loose and casual language and terminology can be catastrophic to the client, practitioner, supervisor, and agency. Practitioners must choose their words carefully, taking care to be clear, to fully support conclusions drawn, to avoid defamatory language, and to write knowing there is always an audience.
The importance of clarity. Practitioners should use clear, specific, unambiguous, and precise wording. Lack of clarity, specificity, and precision provides considerable opportunity for adversarial parties to raise doubts about practitioners' claims, observations, and interpretations. In addition, these shortcomings in a report may confuse colleagues who are depending on the notes to provide follow-up services to clients (Reamer, 2003; Simon, 1998). Conversely, clear, specific, unambiguous, and precise wording enhances the delivery of services and strengthens practitioners' ability to explain and defend prior decisions and actions.
In addition to using precise wording, practitioners should avoid the use of professional jargon, slang, or abbreviations that may be misunderstood. For example, the abbreviation "DD" could mean dual diagnosis or developmental disability. The abbreviation "BPD" could mean bipolar disorder or borderline personality disorder. "SA" could mean substance abuse or sexual assault. Such ambiguity could prove disastrous if the abbreviations are misinterpreted by a colleague or debated in an ethics hearing, licensing board inquiry, or litigation.
Being careful with conclusions. It is very risky to document conclusions with terms or phrases such as "the client was confused" or "the unit counselor behaved aggressively toward the client" without including supporting details. Today’s practitioner, therefore, needs to always include explanatory details that support a conclusion or assertion. Summary statements about the mental health status or behavior of a client, employee, or colleague should always be supported with sufficient details. Terms such as "hostile," "under the influence," or "incompetent" should always be reinforced and followed by the phrase "as evidenced by …" with appropriate details included (Bergstresser, 1998; Berner, 1998).
The risk of defamatory language. Practitioners should also take steps to avoid using language that might constitute libel or slander, the two forms of defamation of character (Moline et al., 1998; Reamer, 2003). Libel (the written form of defamation) and slander (the oral form of defamation) occur when practitioners write or say something about a client, colleague, or third party that is not true, the practitioner knew to be untrue or should have known was untrue, and harmed the individual who was the subject of the written or oral communication. Examples include untrue statements alleging mental illness, substance abuse, incompetence, or inappropriate behavior.
Keeping the audience in mind. Practitioners should expect documents and records to be reviewed by managed care authorities, utilization review personnel, and third-party payers. Poorly worded and inadequate documentation may affect the likelihood that payment will be authorized for services to clients. Also, practitioners should protect clients' privacy when they share records with such outside parties.
When disputes arise concerning the appropriateness of practitioners' actions — whether they conducted adequate assessments of clients, maintained proper boundaries, terminated services appropriately, obtained needed consultation, or provided proper supervision, for example — case records and administrative files provide essential evidence. Without thorough documentation, practitioners may have difficulty defending their actions. Thoroughness, however, is not sufficient. Even thorough documentation needs to be credible, and the credibility of practitioners' documentation can be enhanced or compromised in several ways. Time is of the essence when documenting cases, but practitioners must take care not to jump the gun and record events that are only anticipated. Likewise, one’s choice of words in documentation must always be professional. Finally, when a documentation mistake is made, a credible practitioner will be forthright and honest.
Documenting in a timely fashion. Few practitioners relish the task of documentation, whether for clinical, supervisory, management, or administrative purposes. Documentation takes time and often looms as an onerous task — a necessary evil associated with professional life. As a result, practitioners sometimes procrastinate and put off documenting their decisions and actions. Delayed documentation can compromise the credibility of practitioners' claims about what is reflected in the notes (Berner, 1998; Moline et al., 1998: Simon, 1998). Adversarial parties, especially opposing legal counsel, can use evidence of delayed documentation to challenge the credibility of practitioners' testimony. According to Barsky and Gould (2002):
The timing of note taking can have great legal significance. Ideally, notes should be made contemporaneously with the events being recorded (i.e., during a session with a client, immediately following, or within 24 hours). Evidentiary rules assume that information recorded contemporaneously with the events is more likely to be accurate. Behavioral science research supports the fact that notes contemporaneously taken are more accurate than those recorded at a later time, even if it is later the same day. (p. 135)
In an effort to save time and expedite documentation, practitioners may consider recording notes in advance of an intervention or event. Sometimes, however, the planned interventions or events do not occur or unfold differently than expected. The prematurely recorded notes would therefore not accurately reflect what happened and thus would undermine the practitioner’s credibility (Barsky & Gould, 2002; Berner, 1998).
Paying attention to grammar and legibility. Practitioners do not always pay close attention to the grammatical correctness of their documentation. Also, colleagues may have difficulty understanding, or may misinterpret, illegible entries and may miss important cues that are essential for proper intervention, supervision, management, or administration. It is imperative, therefore, that when recording case information, practitioners print or write entries legibly and use proper grammar. Copies of practitioners’ documentation typically become tangible evidence and exhibits during ethics hearings, licensing board inquiries, and courtroom proceedings. Photocopies and overhead transparencies may be displayed to peer-review or regulatory bodies, lawyers, expert witnesses, judges, and jurors. Illegible entries and a pattern of grammatical and spelling errors are a professional embarrassment to the practitioner and the agency represented. Such inattention to detail severely weakens credibility (Barsky & Gould, 2002; Moline et al., 1998; Simon, 1998).
Acknowledging errors. To err is human, and every practitioner is capable of inadvertently inserting incorrect facts into and omitting important facts from case documentation. Ethics committee members, licensing boards, lawyers, and judges recognize that any professional can make occasional errors.
To avoid undermining their credibility, practitioners should never attempt to "cover up" or camouflage their errors (Barsky & Could, 2002; Reamer, 2003). Such efforts can backfire. For example, opposing lawyers can access documents before practitioners attempt to conceal the errors. Practitioners who alter records in anticipation of legal proceedings, or after legal proceedings have been initiated, therefore, assume great risk and public humiliation if the inconsistencies are brought to light. As Barsky and Could (2002) observed, "if a clinician is aware of an impending legal process or has been subpoenaed, doctoring or destroying documents can result in such charges as contempt of court or obstruction of justice, malpractice suits, and professional disciplinary actions" (p. 145). Instead, practitioners should always acknowledge their errors, making clear that the new entry occurred after the error was discovered. In clinical settings, practitioners should enter a new note that acknowledges and corrects the error or draw a thin line through the error and insert the correction, along with the practitioner’s initials, the date, and the word "error." Clyde Bergstresser (1998), a seasoned malpractice attorney, emphasized:
Do not change or lose your records. Do not make "additions" or "corrections" to clarify what you meant. You would be amazed at how many people cannot resist the temptation to make sure that in hindsight the records say what was meant. When you get caught, your credibility will be destroyed, and it is very likely you will be caught. Copies of "lost" records have a habit of cropping up when you least expect it. Document experts are now very sophisticated in their ability to determine from writing patterns whether an entry was made all in one sitting, even from a copy. (p. 342)
Behavioral health professionals generally assume that case records and documents will remain confidential. In reality, there is no such thing as a truly confidential case record. An extraordinarily wide array of laws, regulations, contracts, and court rules require or permit disclosure of otherwise confidential documents.
Furthermore, practitioners need to be cognizant of security risks associated with the widespread use of computers to store confidential records and documents. Thus, practitioners should be very familiar with the various circumstances under which records and documents may be disclosed. This is especially true in multidisciplinary settings, where staffers operate under different standards of care pertaining to documentation. In a hospital, for example, physicians, nurses, and mental health professionals often make very different assumptions with regard to which staffers should have access to mental health notes, and under what circumstances. It is vitally important for staffers in these settings to have explicit guidelines regarding access to confidential documents and ways to protect sensitive information.
Responding to legal requests for confidential documents. Practitioners need to know how to respond to subpoenas, be familiar with applicable state and federal laws and regulations, and secure documentation for future access. Perhaps the most frequent trigger for the disclosure of documents is the subpoena. A subpoena duces tecum requires a party who is in control of relevant documents to bring them to a deposition or court hearing. Practitioners should not confuse subpoenas to appear with documents with an order to disclose the documents' contents. Subpoenas and court orders are entirely different phenomena. In fact, the NASW Code of Ethics, for example, obligates social workers to take steps to protect the confidentiality of relevant documents during legal proceedings:
Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client's consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection. (Standard 1.07[j])
Practitioners should not release any confidential information contained in documents unless they are sure they are authorized to do so — based on client consent or in response to a court order, for example (Polowy & Gorenberg, 1997).
Know relevant statutes and regulations. There are many federal and state statutes and regulations that govern the handling of confidential documents (Dickson, 1998). For example, the federal Health Insurance Portability and Accountability Act, or HIPAA (P.L. 104-91), and its regulations address the protection of personal health-related information. Clinicians should be especially familiar with explicit HIPAA provisions that are unique to psychotherapy notes. The regulations define these specifically as notes recorded in any medium by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session, and that are separated from the rest of the individual's medical record. According to HIPAA guidelines, a covered entity (e.g., behavioral health professional) must obtain a client’s authorization to use or disclose psychotherapy notes with the following exceptions:
• The covered entity who originated the notes may use them for treatment.
• A covered entity may use or disclose, without an individual’s authorization, the psychotherapy notes, for its own training, and to defend itself in legal proceedings brought by the individual, for the U.S. Department of Health and Human Services to investigate or determine the covered entity’s compliance with the Privacy Rules, to avert a serious and imminent threat to public health or safety, to a health oversight agency for lawful oversight of the originator of the psychotherapy notes, for the lawful activities of a coroner or medical examiner or as required by law.
Other key federal regulations govern the handling of confidential documents related to alcohol and substance abuse treatment (42 C.F.R. Part 2, Confidentiality of Alcohol and Drug Abuse Patient Records) and school records (34 C.F.R. Part 99, the Family Educational Rights and Privacy Act, or FERPA). 42 C.F.R. Part 2 was enacted to protect the privacy of people who seek treatment for drug- or alcohol-related issues. The strict regulations impose restrictions upon the disclosure and use of alcohol and drug abuse patient records which are maintained in connection with the performance of any federally assisted alcohol and drug abuse program. The regulations define “program” very broadly, which means they govern most behavioral health professionals. According to 42 C.F.R. Part 2, a program includes an individual or entity (other than a general medical care facility) who holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or an identified unit within a general medical facility which holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or medical personnel or other staff in a general medical care facility whose primary function is the provision of alcohol or drug abuse diagnosis, treatment or referral for treatment and who are identified as such providers. These regulations generally prohibit the release of confidential documents and set forth a number of narrow exceptions (e.g., release in conjunction with the investigation or prosecution of an extremely serious crime or when a clinician suspects child abuse or neglect).
FERPA is especially relevant to behavioral health professionals who are employed in school settings, for example, school social workers, psychologists, and counselors. FERPA includes strict guidelines concerning the management and disclosure of confidential school-based records and documents. FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students." According to FERPA:
Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.
States also have specific laws and regulations governing the release of confidential documents contained in health, mental health, school, and child welfare records (Dickson, 1998). Some public agencies, such as the Veterans Administration, operate under strict regulations governing documentation and confidentiality; behavioral health professionals employed by the VA would be expected to comply with relevant guidelines concerning the management and release of confidential documents.
Record storage. Behavioral health professionals should store records (clinical, personnel, supervisory, and administrative) in secure locations to prevent unauthorized access (Barsky & Gould, 2002). When using electronic media, practitioners should exercise caution to ensure that this information cannot be accessed by unauthorized. Practitioners should consult relevant federal and state statutes, regulations, codes of ethics, and contracts (for example, insurance company and managed care contracts) to determine the length of time that documents should be retained. If and when records are destroyed or disposed of, care must be taken so that the disposal still protects client confidentiality (Barsky & Gould, 2002).
Malpractice Claims and Ethics Complaints
Behavioral health professionals can be named in malpractice claims and ethics complaints filed with licensing boards and professional associations. Such claims and complaints may allege some kind of negligent care or service delivery, conflicts of interest, boundary violations, confidentiality breaches, and premature termination of services, among other issues. In my experience, the quality of practitioners’ documentation often affects the outcome of these claims and complaints.
Practitioners are held accountable for professional misconduct in three prominent ways. These include ethics complaints filed against members of professional organizations (such as the AAMFT, APA, ACA and NASW), ethics complaints filed with state licensing or regulatory boards, and lawsuits filed against practitioners.
In general, ethics complaints filed against mental health practitioners cite a wide variety of the professions’ ethical standards, including those related to confidentiality, privacy, privileged communication, informed consent, sexual misconduct, dual relationships, conflicts of interest, practitioners’ relationships with colleagues, and delivery of services. High-quality documentation can help practitioners protect themselves when such complaints are filed, for example, documentation that demonstrates careful handling of confidential information or boundary issues, consultation with colleagues, and termination of services.
Claims filed against behavioral health practitioners tend to fall into two broad groups. The first includes claims that allege that practitioners carried out their duties improperly or in a fashion inconsistent with their profession’s standards (often called acts of commission or of misfeasance or malfeasance). Examples include improper treatment of a client (for example, using an unorthodox treatment technique or one for which one has not received proper training), sexual misconduct, breach of client confidentiality, wrongful removal of a child from a home, assault and battery, improper peer review, and improper termination of services. With regard to documentation, an act of commission could include falsifying a client’s record with regard to services provided or consultation obtained, disclosing a confidential document without a client’s consent, or altering a client’s release-of-information form without the client’s consent.
The second broad category includes claims that allege that practitioners failed to perform a duty that they are ordinarily expected to perform, according to the profession’s standards (known as acts of omission or nonfeasance). Examples include failure to obtain a client’s informed consent before releasing a confidential document, prevent a client’s suicide, be available when needed, protect third parties from harm, supervise a client properly, and refer a client for consultation or treatment by a specialist. With regard to documentation, an act of omission could include failing to document a clinical intervention or consultation, failing to provide a client with legitimate access to her or his own record, or failing to obtain a client’s signed consent before releasing confidential information.
Of course, not all claims filed against mental health practitioners are substantiated. Some claims are frivolous, and others lack the evidence necessary to demonstrate malpractice and negligence. However, many claims are substantiated, ultimately costing practitioners considerable expense and emotional anguish (although malpractice insurance coverage helps to ease the financial burden). Competent documentation in these cases is key to preventing complaints and defending one’s self when they are filed.
Mental health practitioners must know what kinds of professional misconduct or unethical behavior constitute malpractice, particularly with respect to documentation. Malpractice is a form of negligence that occurs when a practitioner, or any other professional, acts in a manner inconsistent with the profession’s standard of care – the way an ordinary, reasonable, and prudent professional would act under the same or similar circumstances.
Lawsuits and liability claims that allege malpractice are civil suits, in contrast to criminal proceedings. Ordinarily, civil suits are based on tort or contract law, with plaintiffs (the individuals bringing the suit) seeking some sort of compensation for injuries they claim to have incurred. These injuries may be economic (for example, lost wages or medical expenses that resulted from a clinician’s unauthorized release of a confidential document concerning the client’s employment-related issues), physical (for instance, as a result of an assault by a person the practitioner was supposed to have been supervising), or emotional (for example, depression that may result from a practitioner’s sexual contact with a client). In general, malpractice occurs when evidence exists that (See Table 8):
As noted earlier, behavioral health professionals must be particularly careful when they receive subpoenas for confidential documents. Practitioners must understand the nature of subpoenas and specific strategies they can use in their effort to protect confidential documents. If the professional practices in a state in which laws grant clients the right of privileged communication, avoiding compliance with the subpoena may be easier because the legislature has acknowledged the importance of the privilege. Also, contrary to many practitioners’ understanding, a legitimate response to a subpoena is to argue that the requested information should not be disclosed or can be obtained from some other source. A subpoena itself does not require a practitioner to disclose information. Instead, a subpoena is essentially a request for information, and it may be without merit.
Resisting disclosure of confidential documents is appropriate, particularly when practitioners believe that the information is not essential or if they can argue that the information can be obtained from other sources. More specifically, practitioners can take several concrete steps to manage conflict-of-interest situations involving disclosure of confidential information (Polowy and Gorenberg, 1997):
Behavioral health professionals’ understanding of the relevance of documentation has matured significantly. Once a simple theory building, research, and teaching tool, documentation has transformed over time to incorporate detailed and sophisticated standards for clinical and other direct practice settings. As practitioners navigate a new landscape of practice, enhanced service delivery requirements, and fast-paced technological innovation, documentation for risk-management purposes has risen in importance.
To comply with current ethical and legal standards and to protect clients and themselves, behavioral health professionals should conduct thorough assessments of their documentation policies and procedures. Independent and private practitioners, who do not need administrative approval, are in a position to modify their own documentation policies and procedures to comply with prevailing standards. Practitioners who are employed by agencies may have less authority to make needed changes; they can share their concerns about documentation policies and procedures with administrators and advocate for change.
A list of documentation tips can be found in Table 9. Details related to these “tips” can be found throughout the course.
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