Access to client records is one of those issues that prompts members of AAMFT to seek a legal/ethics consultation with AAMFT’s legal and ethics staff. When MFTs receive a request from a client to access the client record, MFTs can look to applicable laws and the AAMFT Code of Ethics for guidance.
With regard to the AAMFT Code of Ethics, MFTs can refer to Standard 2.3 for guidance. Standard 2.3 is a new addition to the Code of Ethics that came into effect in January 2015. Standard 2.3 states:
Marriage and family therapists provide clients with reasonable access to records concerning the clients. When providing couple, family, or group treatment, the therapist does not provide access to records without a written authorization from each individual competent to execute a waiver. Marriage and family therapists limit client’s access to their records only in exceptional circumstances when they are concerned, based on compelling evidence, that such access could cause serious harm to the client. The client’s request and the rationale for withholding some or all of the record should be documented in the client’s file. Marriage and family therapists take steps to protect the confidentiality of other individuals identified in client records.
You’ll notice an important aspect of Standard 2.3 that applies in the context of couple, family, or group treatment. Standard 2.3 states that in the context of couple, family, or group treatment, the therapist does not provide access to records without a written authorization from each individual competent to execute a waiver. This provision is consistent with Standard 2.2’s requirement that MFTs, in the context of couple, family, or group treatment, not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual. This provision also echoes Standard 2.2’s requirement that when providing couple, family, or group treatment, MFTs obtain the written authorization from each individual competent to execute a waiver prior to releasing information outside the treatment context.
Standard 2.3 also discusses situations in which therapists can limit client access to records. Standard 2.3 states that MFTs limit client access to records only in exceptional circumstances when they are concerned, based on compelling evidence, that such access could cause serious harm to the client. Standard 2.3 requires MFTs to document, in the client record, the client’s request and the therapist’s rationale for withholding some or all of the record.
Client access to records is also governed by applicable laws, potentially both federal and local laws. Under many laws (e.g. US federal and state laws), there is a recognized right of access to the record. In some situations providers may be able to withhold access to some or all of the record or they may be able to provide a summary in lieu of the record. Depending on applicable laws and the facts of a given situation, the therapist’s decision to withhold access to some or all of the record may be subject to review.
For those therapists practicing in the United States, “psychotherapy notes,” as defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), are a frequent topic of discussion. Generally speaking, when a client makes a request to access the treatment record, under HIPAA the therapist is permitted to exclude access to psychotherapy notes.
The section of HIPAA’s Privacy Rule that excludes psychotherapy notes can be found at 45 Code of Federal Regulations Section 164.524. It says that an individual is entitled to a copy of protected health information (essentially anything with a name or identifying number on it) except psychotherapy notes.
Psychotherapy notes are very specifically defined, but can be understood to be any recording by a therapist of the content of a therapy session. Psychotherapy notes exclude medication prescription and monitoring, counseling session start and stop times, modalities and frequencies of treatment, the results of clinical tests, and any summary of diagnosis, functional status, treatment plan, symptoms, prognosis, and progress (see 45 CFR 164.501). If you are thinking in terms of progress note vs. process note, psychotherapy notes are similar to process notes.
Psychotherapy notes must be separated from the rest of the record to be classified and protected as psychotherapy notes.
Generally speaking, in order to release psychotherapy notes under HIPAA, specific client authorization is required.
It is also important for therapists to understand that in the context of litigation, psychotherapy notes may be discoverable (e.g. subject to subpoena, produced by order of the court).
Some jurisdictions may have similar laws discussing psychotherapy notes or a therapist’s personal notes.
To find out what the requirements on these issues are in your jurisdiction, you can contact your licensing board or other applicable regulatory body, or a local attorney.
