The Portable Lawyer for Mental Health Professionals

An A-Z Guide to Protecting Your Clients, Your Practice, and Yourself

Thomas L. Hartsell, Jr., JD, Barton E. Bernstein, JD, LMSW

• Publisher: Wiley
• Year: 2013
• Print ISBN: 9781118341087
• eBook ISBN: 9781118416525
• Edition: 3
• Topic: Psychology
• Subtopic: Research & Methodology in Psychology
• Index: Psychology

Everything you need to legally safeguard your mental health practice

Fully revised, The Portable Lawyer for Mental Health Professionals, Third Edition identifies, explores, and presents solutions to both the simple and complex legal questions that mental health practices must deal with daily. Written by Thomas Hartsell Jr. and Barton Bernstein—attorneys and therapists specializing in legal issues concerning mental health—this essential guide arms professionals with the expert knowledge needed to avoid a legal violation, or to know how to handle a situation if a complaint is filed.

With downloadable sample forms and contracts—including the new Informed Consent for Psychological Testing and Professional Limited Liability Member Agreement forms—this complete resource features step-by-step guidance, helpful case studies, and "legal light bulbs" to alert clinicians to warning signs and help them steer clear of legally questionable situations.

New to the Third Edition:

• Coverage of how to conduct business in a digital world, including how to handle confidentiality issues surrounding electronic health records and cloud computing, distance therapy, and maintaining a professional client-therapist relationship in a Facebook world
• Vital information on a variety of associations' ethics guidelines
• A look at the Health Information Technology for Economic and Clinical Health (HITECH) Act
• Considerations for using or not using evidence-based treatments
• New information on working with minors and dealing with homicidal clients

Convenient and comprehensive, The Portable Lawyer for Mental Health Professionals, Third Edition is the quick-reference resource that mental health professionals, graduate students, attorneys, and clients alike can rely on to make informed legal decisions.

Section One

Clinical Records: Protected or Not

Chapter 1

Clinical Notes

Melody had been a client of Ms. Ford, MSSW and a licensed clinical social worker, for about five years, on and off. Melody called Ms. Ford during times of crisis but ignored her in between. There had been a 16-month lull between Melody's last visit, and Ms. Ford assumed Melody was doing all right. Melody had called once, indicating she was in love and had found the ideal man. Ms. Ford dutifully recorded the call in Melody's file. Within a few years Melody married and had a child. Then her marriage began falling apart. A contested divorce followed, in which custody or conservatorship was the issue. Both Melody and her husband petitioned the court to be designated as the primary parent of the child—the parent with whom the child would live, and who would receive child support. The other spouse would be allowed visitation only at certain specified times. As part of the custody battle, a process server shows up at Ms. Ford's door with a subpoena, seeking all the clinical records Ms. Ford has maintained in Melody's file.

Does Ms. Ford have to turn over the original records to the process server? If there is a deposition, does Ms. Ford have to appear and bring all Melody's clinical records to the deposition? If there is a court hearing and Ms. Ford receives a subpoena duces tecum (she is to come in person and bring all Melody's records), does she have to comply with the subpoena and testify, revealing every aspect of the records and commenting on each response given during cross-examination?

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Are the records of a mental health professional protected?

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The ultimate question is: Are the records of a mental health professional protected from the curious or meddling, information-seeking public or an investigative reporter or the attorney for the opposition in a contested suit? When therapists pick up a pen or sit at a computer, do they have to keep in mind that whatever they write down for purposes of therapy can and might become part of the public domain? Is the therapist presented with a personal and professional conflict when clinical notes created to assist in the therapeutic process become involved in the legal process in a manner that was never intended? Does every therapist need to keep notes with the withering cross fire of cross-examination in mind?

Clinical Records/Clinical Notes Must Be Maintained

Long gone are the days when therapists could keep clinical records in their heads. When a threat of malpractice arises, or when a complaint is filed with the licensing board, the clinical notes are often the first line of defense. The board or the attorney for the plaintiff requests all clinical notes as the initial procedure in the investigation. The most common way a therapist testifies in legal proceedings is through the client file that is introduced into evidence.

Whether we like it or not, clinical notes—including electronic records—cannot be fully protected from disclosure in legal proceedings.

Every therapist must keep and maintain clinical notes, preserving them for 5 to 10 years for adults, or 5 to 10 years past majority for clients who are minors. The Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules require a minimum 6-year retention period regardless of state law, for all documentation required by these rules.

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Every therapist must keep and maintain clinical notes.

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Customs of the profession indicate what records must be maintained. The operative issue is, What notes would a reasonable and prudent therapist keep under the same or similar circumstances? In addition, the ethical canons of many jurisdictions, usually stated in guidelines published by the various licensing boards, require that certain records be maintained on each client.

For example, in various states, the code of ethics and professional standards of practice might include these themes:

• Therapist shall base all services on an assessment, evaluation, or diagnosis of the clientThis standard would suggest that therapists must maintain notes that contain clinical information and the rationale for the assessment, evaluation, and diagnosis of the client. It also implies that the treatment plan should be supported by the same factors.
• Therapist shall evaluate a client's progress on a continuing basisThe notes on each client must be maintained and updated throughout the treatment process. All changes in the assessment, evaluation, prognosis, and diagnosis, as well as the treatment plan, are updated continuously, as long as the client is in treatment. When terminated, the record should record the reason for termination.
• For each client, therapist shall keep records of the dates of services, types of services, and billing informationRoutine, accurate billing records and third-party payment forms provide the means of fulfilling this requirement.
• Therapist shall not disclose any confidential information but will take reasonable action to inform medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the client to the client or others, or there is a probability of immediate mental or emotional injury to the client.

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Research the requirements of your state when confidentiality is at issue.

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Although the exact confidentiality requirements vary greatly from jurisdiction to jurisdiction, confidentiality canons should always raise a red flag. In general, confidentiality is to be maintained. But when the specter of homicide or suicide appears, the state statute must be consulted. In some jurisdictions, there is a duty to warn the identifiable, apparent intended victim; in others, the therapist must, or sometimes, may, alert the police or a medical treatment provider. In some instances, the therapist is required to call a client's family to prevent a possible suicide; in other states, such a call might be a breach of confidentiality and could have secondary consequences including personal liability. Research the requirements of your state carefully when confidentiality is at issue. HIPAA's Privacy Rule, discussed more thoroughly in Section Eleven, attempts to create a minimum floor for the protection of confidential health care information. Careful review reveals, however, that most preexisting state law exceptions to confidentiality survive HIPAA's bold intentions.

In light of a therapist's instincts and training to protect clients from harm the issue of what to document in the client's clinical record can certainly conflict with the therapist's duty to create and maintain records as required by licensing board and professional association dictates. When you overlay the fact that the clinical record is usually the first line of defense for the therapist in a malpractice case or board complaint the conflict becomes magnified. A helpful mind-set for the therapist to employ is to document the clinical record from the perspective of a subsequent therapist who is forced to take over treatment of the client in the event the original treatment provider suddenly dies. Document by answering the question: What would another therapist need to know to be able to step into my shoes and effectively resume treatment? If the therapist does this, the clinical file should be sufficient to meet the interests of all parties.

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When documenting think about what a subsequent therapist would need to know to resume therapy with the client.

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Can Clinical Records and Notes Be Protected?

Statutes granting the therapist–client privilege vary, so make sure to consult the statutes in your state and federal HIPAA law. In general, a client's mental health information is not subject to disclosure to third parties. But, in reality, a different maxim is operative: What the big print giveth, the small print taketh away. That is, the guarantee of privilege is made hollow by exceptions to the statute. For example, generally there is no mental health privilege when a parent–child relationship is involved and custody is an issue; or when a crime has been committed; or when the mental health of a party is an issue in litigation; or when there is child or elder abuse; or when a suit is filed against a therapist.

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There is no mental health privilege in parent–child custody situations.

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There are states that allow a therapist to maintain personal notes. Records kept only for personal use by a therapist that are not part of the clinical record and not subject to disclosure. Even in the states that allow for and protect personal notes they may be subject to in-camera inspections by a court to determine their qualification as protected personal notes and their admissibility into evidence. If you intend to rely on a state law that allows you to keep personal notes outside the clinical file, be sure to understand just how the law defines personal notes and what exceptions if any exist to their disclosure. Another point to remember is that once a therapist is called to testify, all the information stored in the therapist's brain and not reflected in the client's file may be drawn out by thorough questioning by the attorneys and the judge.

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Personal notes may still be subject to an in-camera review by a judge.

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When professionals discuss the confidentiality of mental health records, they have to inform clients of the limits of confidentiality, as mandated by the state and federal law. For the therapist's protection, the limits on confidentiality should be clearly spelled out in the original intake and consent form signed by the client before therapy begins as well as in the Notice of Privacy mandated by HIPAA's Privacy Rule. (See Chapter 6 and Appendix K for sample forms.)

Practitioners must also keep in mind that the privilege (i.e., the desire to protect the record) belongs to the client. If the client tells the therapist to make the record public, then the therapist must ordinarily do so. (The client's request should be written, signed, and dated. In some states, it may have to be notarized. HIPAA's Privacy Rule also requires specific language to be included in a client's authorization and in order to release psychotherapy notes a written, signed consent from the client is required. Psychotherapy notes are the recordings of the communications between a therapist and the client.) If a therapist feels, as a matter of professional judgment, that the file should not be made public, he or she may file a motion with the appropriate court to restrict publication of the file. This motion will lead to a hearing and a judicial determination. The therapist does not possess the right to refuse to disclose the file if the client and court determine it should be made public. The burden of proof is on the therapist. The court must be shown that revealing the file to the client would be harmful to the client, and that the best interest of the client would be served by keeping the file confidential, even from the cl...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Sample Forms
• Preface
• Acknowledgments
• Section One: Clinical Records: Protected or Not
• Section Two: Confidentiality
• Section Three: Contracts
• Section Four: Fees
• Section Five: Forensic Issues
• Section Six: Practice Models
• Section Seven: How to Avoid Malpractice Charges
• Section Eight: Managed Care
• Section Nine: Teamwork
• Section Ten: Unusual Practices
• Section Eleven: Federal Regulations, HIPAA, and HITECH
• Appendix A: Bylaws for an IPA
• Appendix B: Partnership Agreement
• Appendix C: Articles of Incorporation: Professional Corporation
• Appendix D: Articles of Incorporation: General Corporation
• Appendix E: Certificate of Formation of a Professional Limited Liability Company
• Appendix F: Professional Limited Liability Company Member Agreement
• Appendix G: Sample Business Associate Contract
• Appendix H: Business Associate Contract (Attorney Services)
• Appendix I: Authorization for the Use and Disclosure of Protected Health Information
• Appendix J: Client Information Amendment Form
• Appendix K: Notice of Privacy Practices of Susan A. Jones, LPC
• Appendix L: Accounting of Disclosures of Protected Health Information
• Appendix M: Request for Accounting of Protected Health Information Disclosures
• Appendix N: Authorization Revocation Form
• References and Reading Materials
• Author Index
• Subject Index