Protecting Mental Health Records and Psychotherapy Notes

In order to identify the importance of protecting psychotherapy notes, it is necessary to understand the differences between the two types of healthcare provider notes. Healthcare professionals take detailed notes as an essential component of patient care to diagnose and treat patients. Any identifying medical information relevant to the patient falls under the umbrella of Protected Health Information (PHI) category under HIPAA and must remain confidential. Often, behavioral changes are red flags prior to an incident or episode, and these changes need to be closely monitored especially when there is a duty based on a special relationship by a mental healthcare provider. As such, a patient’s behavioral changes can occur due to medication regiment changes, stress, or neurochemical imbalances (induced naturally or by chemical substance).

Mental healthcare providers create two types of notes: clinical notes (also known as progress notes), and psychotherapy notes. Progress notes are like bedside management notes such as this individual takes Alprazolam (anti-anxiety medication) for anxiety, whereas; psychotherapy notes are a patient’s deep inner-most thoughts (sexual thoughts, fantasies, personal upbringing, etc.). Progress notes are meant to be shared with other healthcare workers to assist with the treatment and inform the medical staff of patient care, medical history, up-to-date progress, and other vital medical information. [1] Moreover, progress notes address four components abbreviated as “SOAP” (Subjective- patient’s current condition as explained by patient; Objective- findings from a physical examination; Assessment- summary of a patient’s diagnosis; and Plan- treatment, follow-ups, referrals, lab orders, and review of medication). These progress notes exhibit the chief complaint, history of present illness, review of systems, present medications, past history, mental and physical status, assessment and diagnosis, and treatment plan. [2]

Unlike progress notes, psychotherapy notes do not include medication records, test results, treatment plans, and summary of progress. Psychotherapy notes are notes taken by a mental health professional (psychologists, psychiatrists, physicians, social workers, nurses, counselors, forensic and legal specialists, occupational and rehabilitation therapists, and other healthcare providers), which usually include the mental healthcare providers hypothesis, diagnosis, observations, and any thoughts or feelings they have about the patient. [3] Psychotherapy notes require special protection because these notes are the therapist’s personal notes, which are meant to assist the therapist perform their job. According to the DSM-5, “approaches to validating diagnostic criteria for discrete categorical mental disorders have included the following types of evidence: antecedent validators (similar genetic markers, family traits, temperament, and environmental exposure), concurrent validators (similar neural substrates, biomarkers, emotional and cognitive processing, and symptom similarity), and predictive validators (similar clinical course and treatment response).” [4] The information obtained from patients during a psychotherapy session is sensitive and of value to all professionals associated with various aspects of mental healthcare. [5]

Patients do not have the right to access the mental healthcare provider’s psychotherapy notes.[6] A mental healthcare provider may document within the psychotherapy notes that the patient is psychotic and dangerous, or the mental healthcare provider may not want the patient to reread the notes because the information could regress the patients progress as the notes may cause the patient to re-live traumatic events. [7] Upon the mental healthcare provider’s discretion, the mental healthcare provider could create a document of the summary to the psychotherapy notes. [8] If the patient demands the mental healthcare provider deliver the psychotherapy notes, then the mental healthcare provider should insist the patient contact an attorney. Florida Evidence Code, Section 90.503, states that “communication between psychotherapist and the patient is ‘confidential’ if it is not intended to be disclosed to third persons.” In most instances, when a mental healthcare provider is issued a subpoena for psychotherapy notes, the court will approve a protective order that governs the confidential treatment of such documents. Additionally, a mental healthcare provider should timely respond to a subpoena in writing to inform the court that the mental healthcare provider is unable to comply with the subpoena or to assert privilege, and the Court may hold a hearing to decide what information or records are protected. [9]

Healthcare providers cannot share psychotherapy notes without a patient’s authorization. Psychotherapy notes are unrelated and separate from billing records. The HIPAA Privacy Rule does not require the healthcare provider or health plan to share a patient’s medical information with other providers. If a mental health professional seeks to share the psychotherapy notes, the mental health professional must first obtain written authorization from the patient. [10] Mental healthcare professionals must keep their notes secure and confidential at all times to avoid a HIPAA violation. Progress notes differ in that they may be disclosed when HIPAA Privacy Rule permits, the patient authorizes use, law enforcement requests the information, or if the patient is incapacitated in an emergency situation. Therefore, it is necessary that psychotherapy notes are strictly controlled because a patient’s access to the sensitive information may regress the psychotherapy treatment and be highly detrimental to the patient.

References:

[1] Sandy, Difference Between Psychotherapy notes and Progress Notes, https://www.icanotes.com/2018/06/08/the-differences-between-psychotherapy-notes-and-progress-notes/ (last accessed July 5, 2019).

[2] Ronald Kurlander M.D., Psychiatrist.

[3] Sandy, Difference Between Psychotherapy notes and Progress Notes, https://www.icanotes.com/2018/06/08/the-differences-between-psychotherapy-notes-and-progress-notes/ (last accessed July 5, 2019).

[4] Diagnostic and Statistical Manual of Mental Disorders, fifth edition, American Psychiatric Association, pg. 20.

[5] Diagnostic and Statistical Manual of Mental Disorders, fifth edition, American Psychiatric Association, Preface- pg. xli.

[6] https://www.hhs.gov/hipaa/for-individuals/medical-records/index.html (last accessed July 5, 2019).

[7] Ronald Kurlander M.D., Psychiatrist.

[8] Id.

[9] Ofer Zur, Subpoenas and how to Handle Them: Guidelines for Psychotherapists and Counselors, https://www.zurinstitute.com/subpoena/, (last accessed July 9, 2019).

[10] Sandy, Difference Between Psychotherapy notes and Progress Notes, https://www.icanotes.com/2018/06/08/the-differences-between-psychotherapy-notes-and-progress-notes/ (last accessed July 5, 2019).