Imagine, if you will, the following scenario. Sarah is currently a patient in your practice. In her early thirties with a toddler, she and her husband have been having marital problems for a long time. In fact, it was her depression and marital issues that brought her for treatment to your practice in the first place.
One random morning you come into the office only to be told that an attorney has contacted your office, representing Sarah, and she wants, with Sarah’s permission, to have a copy of Sarah’s medical record. No problem, you think. As the owner of the practice, you also just happen to be Sarah’s therapist too. You call the attorney back and confirm that as long as Sarah signs a record release form, you will release the records to Sarah. And then the attorney says, “Oh and we want all your psychotherapy notes too.” Does your stomach drop at this point? Perhaps this is a scenario that has happened in your practice, or perhaps it’s one that keeps you up at night? If this were to happen to you, do you know what your rights and your obligations are as the therapist for this client? Fortunately, the answer is not as complicated as you may think, and in fact, you have certain protections afforded to you!
First, let’s address the obvious. Under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and most state laws, patients generally have a right to their file. 45 CFR 164.524(a)(1) (HIPAA) states that “…an individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set, for as long as the protected health information is maintained in the designated record set…”. In other words, for as long as you keep their file, a patient—former or current—always has a right to their medical file. Maryland is no exception. Per Maryland Annotated Code, Health-General § 4-303(a), a health care provider is also required to provide similar access for a patient to their medical file.
So, okay, we’ve stated the obvious: a patient has a right to their medical file. What about the psychotherapy notes? Just so there is no confusion, let’s quickly differentiate between the notes that go in a medical file (also known as “progress notes”), and your own personal notes, often referred to as “psychotherapy notes”. Progress notes will often document what happened or is happening with the treatment of the patient, including session start and stop times, any medications prescribed, as an example. They may also detail any diagnoses, the mental status of the patient as well as the prognosis, any symptoms, and progress to date. These should be placed in the patient’s file.
Psychotherapy notes are your personal notes and observations. They may detail your thoughts or impressions on any conversations or personal observations of patients during counseling and therapy sessions. You are not obligated to take or even keep these notes, but if you do, they should never be placed in a patient’s file, for both legal and ethical reasons. For example, if in your personal notes, you question whether a potentially suicidal patient is actually malingering, and then the patient gets access to your notes (because they were in their medical file) — it could be disastrous, including causing the patient to self-harm. Clearly, not something we want to have happen. You also have a legal right to separate your psychotherapy notes from the medical file under both federal and state law, including Maryland.
Under HIPAA, you are allowed to keep psychotherapy notes separate (45 CFR 164.524(a)(1)(i)). Maryland law also allows a similar exclusion, defining a “Personal note” as: “The work product and personal property of a mental health provider; and…not discover-able or admissible as evidence in any criminal, civil, or administrative action.” It should be noted that there are specific exceptions to this rule to be aware of that will not be expanded upon here. For more information, please see Maryland Annotated Code Health-General § 4-307(a)(6)(i). Thus, as long as you follow the laws regarding your notes, including ensuring they are kept separate from the patient’s file, they are protected, much like attorney work product notes (for example). You even have the Supreme Court on your side!
In a precedent-setting case, in Jaffee v. Redmond (518 US 1 (1996)), the Supreme Court ruled that a therapist’s psychotherapy notes are subject to the same protection under the Federal Rules of Evidence 501 as attorney-client privilege and attorney work-product. You can partially thank the American Psychological Association for this. They filed a brief arguing varying reasons why this privilege should be afforded across the board, rather than on a case-by-case basis. Writing for the majority, Justice Stevens largely accepted the arguments presented by the APA.
Under both Maryland and federal law, you, therefore have a right to deny a request for your notes, unless you want to give them up. Further, if a patient or an attorney should ask for or seek your personal notes, and you deny the request, the denial isn’t subject to a review process, as it is with other records.
Going back to our example, then, hopefully, the next time you have a patient like Sarah or her attorney contact you about your personal notes, if you are not inclined to give them up, you can take a deep sigh of relief and know, you don’t have to.
For more information regarding your legal rights as a mental health practitioner, or to set up a free consultation, contact Mayer Law, LLC today at (443) 595-M-Law!
This article is legal information and is not provided as a source for legal advice. It is made available by Mayer Law, LLC firm for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog, you understand that there is no attorney-client relationship established between you and Mayer Law, LLC. This blog should not be used as a substitute for competent legal advice and you should consult with an attorney before you rely on this information.