RECORD KEEPING FOR COUNSELLORS AND PSYCHOTHERAPISTS by Dr. Glenn Sheppard National Conference Canadian Counselling and Psychotherapy Association (CCPA) Victoria, BC May 7-9, 2014

billing and payment records copies of correspondence “Professional records are any physical “recording” made of information related to a counsellor’s professional practice.” Remley and Herlihy, 2001 billing and payment records copies of correspondence appointment records intake forms and other forms (e.g., informed consent)

third party information e-mail and telephone records audio and video recordings counselling records

Why Keep Counselling/ Psychotherapy Records? to keep track of your clinical work with a client to support your best professional practices by maintaining a record to assist with continuity of care should you refer a client to another mental health practitioner

to assist should a client return after a long absence from receiving your services to use as a resource should you experience an ethical or legal challenge regarding your work with a client because appropriate record keeping has now emerged as a standard of care for mental health professionals

Maintenance of Records Counsellors shall maintain counselling records with not less than the following information: Basic Information name, address, telephone number of client(s) name and phone number of person to contact in case of emergency name of referring agent/agency

Record of each professional contact: date of contact, length, name(s) of all present counselling information sufficient to keep track of counselling issues and progress correspondence, reports, third party information, informed consent forms

photos, artwork, poems, etc. record of consultations regarding client, including telephone calls, e-mails, and fees charged CCPA Standards of Practice for Counsellors, 2008 Plus: photos, artwork, poems, etc. any missed sessions and the reason(s) given

Guidelines for Record-Keeping Counsellors and psychotherapists should: record information in an objective, factual manner. identify clearly personal impressions, observations, and hypotheses as their view. note and sign any subsequent alterations or additions, leaving the original entry legible and intact, never erase, delete, whiteout, etc.

record information at the time service is provided. make their own signed entries for the services they provide. keep a more complete record of any critical events (e.g., threats to the counsellor or to 3rd parties, suicidal risk assessment, client disclosure of abuse, HIV). make a note if there is an issue to which they have not yet addressed (e.g., maybe a brief reference by the client during the previous session but not yet explored by the counsellor psychotherapist).

not delete or otherwise make changes to notes once they are recorded not delete or otherwise make changes to notes once they are recorded. However, additions, corrections may be made by making appropriate signed notations. be brief but remember brevity must contain substance. avoid cliches, and jargon. describe behaviour, avoiding the use of undefined and/or unnecessary adjectives.

record information sufficient to support continuity of counselling service. record information to enhance counselling and not as a process of ‘gathering evidence’. do not enter notes in a record for another person.

Counsellors countersign notes only when required to do so by policy or regulation. If you merely review another person’s note, then co-sign in the following way: “John Smith’s, student counsellor/entry reviewed by Jane Doe.” Counsellors should only co-sign notes, without qualifications, if they have fully participated in the activity being reported.

Counsellors working with a multi-disciplinary team where a common recording system is used, always exercise appropriate caution when placing information in such records. They take steps to ensure that their reports and recommendations are understood by colleagues of other disciplines. In particular, if there is a risk that professional observations, test scores and other personal information might be misunderstood, causing harm to clients, then such information should not be entered in the common record. Also, counsellors participate in such collaborative record keeping only when they are assured that the standards of confidentiality, security, and preservation are maintained.

Clients may be required by a third party, such as by a court order, to receive counselling and/or to be assessed by a counsellor or psychotherapist. Under such circumstances, counsellors, psychotherapists should clarify their obligations, inform clients of the type of information expected by the third party, and identify the consequences, if any, of non-compliance.

Maintaining Record Security Counsellors and psychotherapists keep all of their professional records (written documents, computer disks, and dedicated clinical practice computers) in a secure location that has limited access by others – typically in a locked cabinet in a room with a locked entrance.

If you put your notes on a computer it is essential that you have a time and date stamp so that entries cannot be changed or deleted at a later date. Counsellors and psychotherapists do not leave records on their desks, computer screens, in computer files, or in any area or medium where they can be read by others without appropriate permission to do so.

When counsellors dispose of records they shall do so in a manner which preserves confidentiality. However, counsellors never destroy records or counselling notes after they receive a subpoena or have reason to expect receiving one. This action could be judged to be an obstruction of justice and it could result in being held in contempt of court.

The Youth Criminal Justice Act requires a young offender’s file be kept separate from other records of the young person; that no other person has access to the information except as authorized under the Act and that record be destroyed when the information is not required for the purposes for which it was disclosed.

Delivery of Services by Telephone, Teleconferencing and Internet Counsellors recognize that their commitment to adhere to their CCA Code of Ethics is not diminished when they use electronic and other communication technologies to provide counselling and other professional services.

Counsellors recognize that all the communication technologies create, or can create, records or recordings that must be handled carefully to avoid breaches of confidentiality. These recordings may constitute a verbatim component of their confidential counselling record different from that generated for face-to-face counselling. From: CCPA Standards of Practice for Counsellors (2008) pp. 23-25 (see Handout)

The Information and Privacy Commissioner of Ontario has ruled that all electronic health information on portable devices must be encrypted. CCPA expects its members to keep counselling reports for 7 years.

Confidentiality belongs to the client not the counsellor.

HIPPOCRATIC OATH “Whatsoever things I see or hear concerning the life of man, in any attendance on the sick or even apart therefore, which might not to be voiced about I will keep silent thereon, counting such things to be as social secrets.”

“Society has come to realize that privacy is at the heart of liberty in a modern society…” Justice Le Forest (SCC)

The physician-patient relationship is fiduciary in nature and certain duties arise from that special relationship of trust and confidence. These include the duties of the doctor to act with utmost good faith and loyalty, to hold information received from or about a patient in confidence, and to make proper disclosure of information to the patient. The doctor also has an obligation to grant access to the information used in administering treatment. McInerney v MacDonald, SCC, 1992

This fiduciary duty is ultimately grounded in the nature of the patients’ interest in the medical records. Information about oneself revealed to a doctor acting in a professional capacity remains, in a fundamental sense, one’s own. McInerney v MacDonald, SCC, 1992

While the doctor is the owner of the actual record, the information is held in a fashion somewhat akin to a trust and is to be used by the physician for the benefit of the patient. McInerney v MacDonald, SCC, 1992

Access to Records Clients normally have a right of full access to their counselling records. However, the counsellor has the responsibility to ensure that any such access is managed in a timely and orderly manner.

There may be the following exceptions to clients’ full access to their records: when access to the information could be harmful to the client. For example, should the client’s mental status be such that there is significant doubt about the client’s ability to handle the full disclosure.

In any case, counsellors/psychotherapists: should be aware that any denial of a valid request for disclosure may be challenged and ultimately adjudicated in court and/or by an arbitrator whose authority could be established under a provincial freedom of information and privacy legislation. whenever possible, counsellors should retain the original counselling records, but, on request, clients, and others with informed consent, should receive a good quality copy of the relevant content.

Parents or other legal guardians have a right of access, upon formal request to their child’s (minor’s) counselling record. However, this is not an absolute right and any such request should be managed on a ‘need-to-know’ basis and on a judgment as to what is in the best interest of the child considering the nature of the information, the age of the minor, and his/her capacity to give informed consent. The parental right to give consent diminishes and may even terminate as the minor grows older and requires sufficient understanding and intelligence to fully comprehend the conditions of informed consent in a particular circumstance.

In cases of divorced or separated parents, the Divorce Act of Canada states that “Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information as to the health, education and welfare of the child”.

Typically under provincial family law provisions, unless a court has ordered otherwise, the non-custodial parent retains the same right as the parent granted custody to receive school, medical, psychological, dental and other reports affecting their child. (see Handout: Parent Denied Access to Counselling Notes)

Rights of children Children enjoy ‘constitutional personhood’. US Supreme Court, 1969 Children have a reasonable expectation of privacy. Charter, Section 8 No child should be subjected to arbitrary or unlawful interference with his or her privacy. UN Convention on the Rights of the Child, 1989

Many in this case spoke eloquently regarding counselling records Many in this case spoke eloquently regarding counselling records. The therapeutic relationship is one that is characterized by trust, an element of which is confidentiality. Therefore, the protection of the complainant’s reasonable expectation of privacy in her therapeutic records protects the therapeutic relationship. Madam Justice L’Heureux-Dube, SCC, 1999

“The right to privacy is of crucial importance in our society and should be ardently protected by the courts.” Madam Justice L’Heureux-Dube, R. v. Mills, SCC, 1999

“One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person”. Jones v. Tsige Court of Appeal, Ontario, 2012

“What happens to access when a counsellor/pschotherapist ceases practice or dies?” (see handout) “What happens to access when a client dies?”

DISCLOSURE TO LAW ENFORCEMENT OFFICERS “The natural impulse to cooperate with law enforcement officials must be resisted. The primary response to a law enforcement officer’s request for health information should be ‘show me your warrant’, generally law enforcement officials are not entitled to any health information without a warrant issued by a justice…” W. Reake, U. of A., Faculty of Law

DISCLOSURE TO DEFENCE COUNSEL “Requests from defence counsel should be treated in a manner similar to requests from law enforcement. Other than as part of the litigation process there are no requirements, either in legislation or common law, that defence counsel be granted access to health information. Therefore, all requests from defence counsel should be denied until the health professional is properly served.” Glen L.C. Noel, Lawyer, 2002

INFORMED CONSENT Voluntarily clients are not pressured or coerced to give consent. Knowingly the counsellor fully discloses to clients so that they are fully briefed as to what it is they are being asked to give consent. Intelligently clients have the ability to understand and to make an informed decision.

Should an informed consent accompany a request for records/information check with the client, if possible, before acceding to the request.

WIGMORE CONDITIONS Did the communication originate within a confidential relationship? Is the elements of confidence essential to the full and satisfactory maintenance of the relationship?

WIGMORE CONDITIONS (cont’d.) Is the relationship one which the community believes should be actively and constantly fostered? Will the injury done to the relationship by disclosure be of greater consequence than the benefit gained to the legal proceedings by disclosure?

CASE FROM NL RE WIGMORE APPLICATION R. v. G.M. (1992) School Board Claimed Privilege Re Permanent school record The coordinator’s file School counsellor’s file

CASE FROM NL RE WIGMORE APPLICATION R. v. G.M. (1992) (cont’d.) Permanent record/coordinator’s file were disclosed to the court. Disclosure of the counsellor record in this case would cause more harm than benefit. School personnel cannot expect protective privilege of confidentiality when public safety and personal freedom are at stake.

COUNSELLING NOTES WITHHELD FROM PARENT “There was reasonable expectation that disclosure of these records might threaten the safety or mental or physical health of the children and that disclosure would also be an unreasonable invasion of privacy.”

“A public body must be careful to distinguish between the right of a parent to access information on behalf of a child and a parent’s desire to access records at arm’s-length from the interest of the child, as in this case.”

DOCTRINE OF QUALIFIED IMMUNITY The action was taken in good faith. There was a demonstrative duty or interest to be fulfilled by the disclosure. The disclosure was limited in scope to this duty of interest.

DOCTRINE OF QUALIFIED IMMUNITY (cont’d.) It was done on a proper occasion. The disclosure was made in an appropriate manner and to the appropriate parties only.

SOME USEFUL WEBSITES www.canLII.org Approved by the Canadian Legal Information Institute and contains statutory case laws from federal and provincial jurisdictions. www.sml-law.com A site for the law firm Steinecke, Maciura LeBlanc that focuses on the regulation of the professions industries including related appeals and civil litigation. www.kspope.com A site maintained by Dr. Kenneth Pope, an American psychologist with a particular interest in professional ethics. It contains many articles, and other resources including references to his books on ethics.