Ethics and Paper Work in Therapy: Some Comments

A lot of outside people try to insert themselves into the therapy hour. The people I am talking about are NOT the projections of the client or therapist around the memories and issues of the client. The ones I am talking about today are the insurance companies, ethical boards, and Licensure boards which regulate the industry of Counseling. These groups always say that they are trying to get involved to create or maintain standards of professionalism in order to protect the public. They say all the right things, but I am suspicious or perhaps cynical. My very strong feeling is that much of what is done in the name of regulation, insurance coverage, or licensure, is done in order to control the flow of the cash and to limit or restrict the ability of people to provide the services and do the work of being a therapist.
When I first became a therapist over thirty years ago, years before it became a licensed profession in the state of Missouri, the group that I was with met with an attorney and asked about the legal issues of keeping therapy notes. We wanted to know what was in the best interest of our clients in terms of our keeping notes and we wanted to know what the level of legal risk and liability to us was if we did or did not keep notes. Should we do it? Why should we do it? What were the parameters that we were bound by if we wanted to serve the best interest of our clients and protect ourselves as well? These are the things we wanted to know. The attorney told us that if we could or would not remember significant facts of the case, we should write them down. If we could remember we should not. Written notes can always be subpoenaed and the notes can be taken out of context and challenged. These notes can be used in the service of damaging your client and it is your professional responsibility to see that your clinical notes do not damage the client.
Other than factual files, i.e. name, date, payment form, insurance company, diagnosis, etc., we were instructed not to keep written records. So, we did not. Over the years the rules changed and now the standard is to write summary notes within twenty- four hours of a session. The clinical case notes must be kept in separate files from those that hold the statistical and billing data of the client. Therapist must be at considerable pains to meet the ethical standards and to protect themselves from lawsuits in case their records are ever subpoenaed. To meet the standards of professional behavior that have been developed by the National Boards, the state licensure boards, and the ethical boards, and to protect themselves legally in case there are any issues or concerns, therapists are taught that their records must contain references which delineate that they have meet the “standards” of the profession in terms of obtaining “informed consent” to treatment, Clearly identified the limit and nature of the “confidentiality” to which the client is entitled, and in the case of suicidal ideation, that they have obtained safety contracts repeatedly from the client. All of this is in addition to writing whatever they write regarding the “story” of the client and the notes they have taken in order to substantiate their diagnostic decisions. The notes are used, when needed, to defend their professionalism and to prove that they have met the “standard of care” expected of practitioners with their level of training and licensure.
Students learning to be Counselors are taught at Universities that they must take notes, but that they must also be very careful about how and what they write. They are required to write “something” and that something can be dissected under a legal microscope. For example, if the therapist says in their notes :“Tom was depressed today” that is not a social observation, it is a clinical one. Therefore the lawyer will demand to know how many courses and what kind of training the therapist has had in being able to diagnose “depression”. They will be asked to identify the instruments they used to make the diagnosis (things like the Beck Depression Scale). If they did not use such items, why did they not? What did they use instead? How can this be professional? What is the required standard of care for making such a diagnosis? How are these things relevant to any treatment plan developed by the therapist and implemented by them, having obtained the informed consent of the client?
So, we teach them to quote the client. “Tom said he was depressed” instead of formulating and expressing their own opinion, based on their experience, their education and their interview with the client. When therapist are concentrating on the legalities of safe and good practice, I wonder when they concentrate on listening to the client. I am not contending here that notes don’t matter and that they should not be taken, I am contending that things are out of balance. Many therapist are so afraid of being wrong, being sued, being at risk that they cannot and do not focus on the most important thing, the client. They focus instead on the rules, the regulations, and records. Something in between needs to be the focus. Records matter, not because you may be sued for malpractice, but because they are relevant to the client and can be helpful in tracking the treatment and the experiences of the client. They should be created and treated with professional care and with respect for the confidentiality of the client. They should not be created with an eagle eye on the courts of law.
Another issue regarding notes and records kept by therapist is that insurance companies go on fishing expeditions through client records, looking for reasons to deny coverage and keep the money in their pockets instead of paying it out for services received by the client. Clients buy insurance in order to have coverage in times of need. Insurance companies work hard to make a profit. Their profit is not as high when they have to pay out for services rendered to a client. The insurance companies really put paper work obstacles in the way of treatment. Most “releases” of information are universal releases. Send us all your records regarding this client. They are not specific to a course of treatment or a diagnosis, they are specific to the entire history of the client, all causes, all courses of treatment, all times. I contend that they do not need to pour through my records to see that when I saw John when he was fifteen for developmental and learning issues while in school, that is in any way relevant to my seeing him today when he is thirty seven and has a phobia of snakes! John is having nightmares and anxiety attacks today. These are not relevant to issues he had when he was fifteen. Conceivably, they could be, if John had a severe childhood trauma abuse history, but that is not the case here. Why should they ask for and why should I send them detailed clinical notes from those visits seventeen years ago?
I tell my students that it is important to learn how to be a good therapist. That means that it is important to follow the rules and do the “right” things regarding paperwork. But it is more important to pay attention to the client, to listen to them, to work with them, and to create the safe holding environment so they can find a way to get better. I do not believe that you can be the kind of therapist I want to be if you are constantly worried about the legalities and about getting sued. There is always risk, you have to work within the professional boundaries, but first and foremost your goal has to be: “How do I help this client”? What is in his best interest?

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