The Basics of Therapist Notes and Their Content
Therapist notes typically include clinical observations made by licensed counselors or therapists. These may include details regarding a client’s interactions with the therapist, their behavioral health assessments, and any relevant information that may be used to aid in their treatment. Therapist notes may also contain notes regarding a client’s history, identifying their mental status, psychological evaluation, therapeutic progress within the counseling process, and any other information they determine is pertinent to their treatment .
The content of therapist notes varies based on the individual client, but notes are typically written after every client interaction. These notes are intended to help the clinician evaluate whether the client’s treatment plan is providing the expected results. Notes are a clinical tool created for the sole purpose of evaluating progress and not intended to be shared with the client. In fact, it is standard procedure to advise clients that their notes will not be shared with them and that their therapist is the only individual who will have access to the record, unless there are a conflict of interest or potential risk of harm to the client.
Law Regarding Confidentiality in Therapy
Understanding the legal framework for therapist notes and confidentiality is essential for both therapists and clients. Confidentiality in therapy is supported by several key laws and regulations, most notably the Health Insurance Portability and Accountability Act (HIPAA) and various state "privilege" laws.
HIPAA
On a federal level, HIPAA reinforces the notion that mental health and substance abuse records are confidential. Although HIPAA generally has permissible disclosures that relate to treatment, payment, and other healthcare operations without client permission, several of these exceptions are limited in the context of mental health treatment. In this respect, HIPAA generally prohibits therapists and counselors from disclosing client records to health insurers and other third parties for purposes of reviewing "medical necessity" without the client’s permission. HIPAA also limits the disclosure of the substance use treatment records of clients, as described in more detail below.
State Therapist-Client Privilege
Twenty-six states and the District of Columbia recognize a statutory therapist-client privilege for communications between the therapist and the client. Even though 24 states currently do not have such a specific therapist-client privilege, many of these states still generally hold in abeyance a therapist’s testimony concerning a client’s communications on the grounds of either psychological well-being or other public policy-based exemptions. Moreover, even in those 24 states that do not have a specific statutory privilege for therapist-client communications, the common-law state law does provide a qualified privilege for communications made by patients to health professionals for purposes of diagnosis or treatment of mental and emotional conditions.
For almost all jurisdictions, the privilege continues after the client’s death, and courts have consistently held that third parties may not be allowed to present evidence of the facts related to the deceased client’s treatment. Nevertheless, the HIPAA privacy rules recognize exceptions to this general principle for either of the following situations: In such circumstances, the privilege does not apply to any health information related to treatment of a decedent that is relevant in response to the allegation involved.
When Therapist Notes May Be Used in Court
There are, however, certain circumstances in which therapist notes may be admissible in court. When a court issues an order for release of therapist notes, such orders are typically granted as long as they are specific as to the type of information requested. In such a case, HIPAA and state confidentiality statutes will not apply to prevent compliance with an order. Court orders can be issued upon motion or request of any party to the litigation, including clients, and are not necessarily limited to cases of child abuse or neglect. That is, even if the court order concerns the parties’ divorce or other matter that has nothing to do with any possible abuse, the confidentiality privilege may be waived.
Courts taking action to protect minor children may also find it worthwhile to pierce the therapist/client privilege. When a court taking such action appoints a guardian ad litem to represent the interests of the minor alleged victim, that guardian is generally granted "standing" to issue subpoenas and compel the therapist to provide testimony or records. In these cases, the guardian ad litem will seek the compelled disclosure of the minor’s confidential records. Courts may grant this in the best interests of the minor victim to monitor and control the circumstances which led to the abuse, such as to limit time with a parent, or to ensure that perpetrators – like pedophiles – are kept away from children.
Consent to disclosure from the client is another situation in which therapist notes may be admissible in court. Specifically, in such cases, the client would have to sign a release authorizing the disclosure of the notes. If the disclosure were on its face impermissible, a court could issue an order waiving the confidentiality privilege for the purposes of the litigation. In such a case, the therapist may be able to predict the likelihood of disclosure. Note that consent to disclosure is waivable and that a subpoena or court order may be necessary to by-pass confidentiality statutes.
Rights of Clients and Obligations of Therapists
When clients turn to therapists for help, they expect care, confidentiality, and privacy. Especially if a therapist has a specialization in a particular area, clients come in for some of the biggest problems in their life. These problems are often personal and sensitive in nature, so it’s no wonder that so many patients wonder, "can therapist notes be used in court?"
As a therapist, you have certain responsibilities when it comes to maintaining the privacy of patients. Violating this responsibility can open you up to legal risk, with each state having different rules when it comes to therapist’s notes in court. Additional challenges arise if the patient sues the therapist, in which case the therapist’s notes could be used to build a case against them.
Under the law, the therapist client privilege—and the protection of notes—extends to both verbal (in person or over the phone) and written communications, including emails, messages, and chat logs.
When communicating with their therapist, patients have the right to:
As with most laws, there are limitations, but in general, therapists must protect communication between client and counselor. In fact, going one step further, clients have the right to restrict the therapist from discussing any communication with any third parties. The exceptions to the law are:
Therapists have a legal duty to protect patient confidentiality within the law. However, there are times when the therapist has a duty to warn or protect the patient or someone else. This typically applies in situations where there is some sort of imminent threat, like a credible threat of harm. In such situations, notes can be used as evidence in a court of law. Examples of when notes could be used in court may include:
The scope of permitted disclosures by a therapist can vary by state, though there are limits:
The right to maintain communications between a therapist and client is well established by the law. It is important to follow all guidelines for what to do if you receive a subpoena—from your lawyer, or the patient’s lawyer. If you are ever unsure of what to do, consult with other counselors in your area, or talk to your HR department if you work for a larger mental health organization, or talk to a lawyer.
Use of Therapist Notes in Court Proceedings
The influence of therapist notes in legal proceedings is a growing concern among therapists and their patients. Given that therapist notes are a form of medical records, courts can issue subpoenas to obtain this information for use in various types of cases, from criminal to family law matters. These notes may contain sensitive information that the therapist has gathered during treatment, and case law regarding these records has not been consistent across the country.
In many states, the law that protects drug and alcohol abuse treatment records is more stringent than laws that cover other types of therapist records, but protections may not exist in all states or be completely effective. The law may not explicitly prohibit the release of these records. In some cases, such as those involving HIV-positive patients, more strict protections are included in the Affordable Care Act, but other types of records may fall under the Act’s limitations.
If subpoenaed , therapists are required to copy the relevant records or information and provide them to the court. Courts may also require the patient to sign a waiver or subpoena the therapist to give testimony before the judge. This can leave your therapist in a predicament and you vulnerable to exposure of information you would prefer to keep confidential.
A November 2012 law review article published by the University of Richmond cautions that "this situation of unintended consequences has arisen with respect to the Affordable Care Act, which generally prohibits health information disclosing without [a] patient’s permission." The article notes that many clients do not realize what information goes into their therapist notes, how those notes are used, or the possibility of their release in criminal and civil legal proceedings.
It is important to seek guidance from an experienced attorney if you are facing legal action and previous therapy sessions have been noted in the court documents or parties involved in the case are requesting access to those notes. Your attorney can help you determine how to protect your privacy interests and the sensitive data that may be contained in those records.
How Client and Therapist Can Protect Therapy Notes
Best practices for clients and therapists to protect the confidentiality of therapist notes are critical, both for protecting the therapeutic relationship and in the event that the courts are called upon to determine whether those notes should be disclosed or whether that therapist-client relationship remains confidential. Some specific practices include:
Clients
Therapists
These practices, as well as others not mentioned, will go a long way in helping protect the confidential nature of the therapy relationship. In the event that questions arise regarding whether therapist notes should be disclosed in litigation or other proceedings, one important step will involve carefully examining the actions taken by both the client and therapist to maintain the therapeutic confidentiality.
Expert Perspectives on Use of Therapy Notes in Court
Experts continue to provide a variety of opinions on the appropriate use of therapist notes in legal cases. Some see the notes as an essential part of a patient’s treatment and mental state, while others find their use by therapists in court and other legal proceedings less than acceptable.
David Caudill, Professor of Law at Villanova School of Law and author of "The Questionable Admissibility of Therapist Notes," Northeastern University Law Journal (2005), argues that therapy notes must be protected from disclosure in legal proceedings because otherwise, they can be easily misinterpreted by opposing lawyers and/or the courts to harm the patient. Caudill maintains that while case law prior to the APA Code made a distinction between therapist observations and assessments on the one hand and patient self-report on the other in determining whether or not records should be protected, therapeutic assessment is based on the careful handling of patient report. Therefore, disclosure of such records could result in misinterpretation of the patient’s condition and even re-traumatization.
In "Fixing ‘No Efficient Remedy’ In Child Sexual Abuse Litigation: An Ethical Approach To The Psychotherapist-Patient Privilege," Janet R. Johnston, PhD, Professor Emeritus of San Francisco State University, argued that courts have increasingly ignored the application of the psychotherapist-patient privilege in child custody cases involving child sexual abuse (CSA), and consequently, patients with a history of CSA are being exposed in court to clinical records inappropriately divulged. Johnston cites research showing that children with a history of CSA are at increased risk of experiencing significant psychological distress, and they are particularly vulnerable to re-traumatization when their treatment records are introduced in court during child custody proceedings . Despite this, Johnston found that courts routinely waive the privilege, often forcing children and their parents to choose between the benefits of psychotherapy and the risk of having their records used against them in custody proceedings.
Johnston maintains that several potential solutions to the problem exist, including incorporation of mandatory treatment protocols and time-limited psychometric testing; however, these approaches were rejected because they are too problematic. Instead, Johnston proposed a three-pronged ethical solution, which incorporates privilege protection consistent with the best practice treatment protocols.
In "Disclosure of Therapist Records for Clinical Purposes in Child Custody Evaluations," S. Richard Sauber, JD, PhD, and John Sargent, MD, maintain that doctor-patient confidentiality is sometimes breached during child custody evaluations, putting the patient at risk. The authors argue that lawyers and other professionals who evaluate child custody cases likely overestimate the amount of patient data that is admissible as evidence and undervalue the likelihood that patient confidentiality will be compromised when records are disclosed in court. As a result, in some cases, patient psychological data could be released without the patient’s consent to the detriment of the patient and/or to the benefit of an opposing party.
Robert’s Rules of Order states that all members of the legal process should be entitled to review relevant information, including records in any of the legal process. Such information should not be withheld unless its validity is challenged and the validly of its release has been proven.
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