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ELECTRONIC PSYCHOLOGICAL RECORD
KEEPING: MEETING THE ETHICAL AND
LEGAL STANDARD OF CARE
Jeffrey N. Younggren, Ph.D.
Clinical Professor
UCLA David Geffen School of Medicine
EHR’s or THE PURSUIT OF
EFFICIENCY
CONFLICTS WITH ECONOMICS,
ETHICS AND THE LAW
ECONOMICS
…evidence of significant savings is scant, and
there is increasing concern that electronic
records have actually added to costs by making
it easier to bill more for some services.
 The recent analysis was sharply critical of the
commercial systems now in place, many of
which are hard to use and do not allow doctors
and patients to share medical information
across systems.

PBS REPORT
The Office of the Inspector General found "a lack
of general [information technology] security
controls during prior audits at Medicare
contractors, State Medicaid agencies, and
hospitals.“
 The investigation audited computer security at
seven large hospitals in different states, and found
151 major vulnerabilities, including unencrypted
wireless connections, easy passwords, and even a
taped-over door lock on a room used for data
storage.
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ETHICS
2010 ETHICAL PRINCIPLES OF PSYCHOLOGISTS

4.01 Maintaining Confidentiality
Psychologists have a primary obligation and
take reasonable precautions to protect
confidential information obtained through or
stored in any medium, recognizing that the
extent and limits of confidentiality may be
regulated by law or established by institutional
rules or professional or scientific relationship.
2010 ETHICAL PRINCIPLES OF PSYCHOLOGISTS
4.04 Minimizing Intrusions on Privacy
(a) Psychologists include in written and oral reports
and consultations, only information germane to the
purpose for which the communication is made.

Standard 4.04(a) suggests that psychologists focus the
documentation in a manner that is very protective of
their client’s privacy rights.
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AMICUS BRIEF
AMERICAN PSYCHOLOGICAL ASSOCIATION

Confidentiality is essential to the
psychotherapist-patient relationship because
the effectiveness of psychotherapy depends on
the client's willingness and ability to talk freely
and candidly about his or her most intimate
thoughts and feelings. The absence of
confidentiality is likely to deter people from
seeking therapy and to cause clients already in
therapy to withhold information or to terminate
the relationship prematurely
THE PRINCIPLES OF MEDICAL ETHICS

1. Psychiatric records, including even the identification of a
person as a patient, must be protected with extreme care.
Confidentiality is essential to psychiatric treatment. This is
based in part on the special nature of psychiatric therapy as
well as on the traditional ethical relationship between
physician and patient. Growing concern regarding the civil
rights of patients and the possible adverse effects of
computerization, duplication equipment, and data banks
makes the dissemination of confidential information an
increasing hazard. Because of the sensitive and private
nature of the information with which the psychiatrist deals,
he or she must be circumspect in the information that he or
she chooses to disclose to others about a patient. The
welfare of the patient must be a continuing consideration.
REPORT NO. 45, GROUP FOR THE
ADVANCEMENT OF PSYCHIATRY 92 (1960)":

"Among physicians, the psychiatrist has a special need to
maintain confidentiality. His capacity to help his patients is
completely dependent upon their willingness and ability to
talk freely. This makes it difficult if not impossible for him to
function without being able to assure his patients of
confidentiality and, indeed, privileged communication.
Where there may be exceptions to this general rule ..., there
is wide agreement that confidentiality is a sine qua non for
successful psychiatric treatment. The relationship may well
be likened to that of the priest-penitent or the lawyer- client.
Psychiatrists not only explore the very depths of their
patients' conscious, but their unconscious feelings and
attitudes as well. Therapeutic effectiveness necessitates
going beyond a patient's awareness and, in order to do this,
it must be possible to communicate freely. A threat to
secrecy blocks successful treatment."
LAW
JAFFEE V. REDOMOND (1996)
Like the spousal and attorney-client privileges, the
psychotherapist-patient privilege is “rooted in the imperative
need for confidence and trust. Treatment by a physician for
physical ailments can often proceed successfully on the
basis of a physical examination, objective information
supplied by the patient, and the results of diagnostic tests.
Effective psychotherapy, by contrast, depends upon an
atmosphere of confidence and trust in which the patient is
willing to make a frank and complete disclosure of facts,
emotions, memories, and fears. Because of the sensitive
nature of the problems for which individuals consult
psychotherapists, disclosure of confidential communications
made during counseling sessions may cause embarrassment
or disgrace. For this reason, the mere possibility of
disclosure may impede development of the confidential
relationship necessary for successful treatment.”
JAFFEE V. REDMOND (1996)
Significant private interests support recognition of a
psychotherapist privilege. Effective psychotherapy
depends upon an atmosphere of confidence and trust,
and therefore the mere possibility of disclosure of
confidential communications may impede development
of the relationship necessary for successful treatment.
The privilege also serves the public interest, since the
mental health of the Nation's citizenry, no less than its
physical health, is a public good of transcendent
importance.
FINAL HIPAA PRIVACY RULES

PHI for psychotherapists is separated into two
types of records:
 The
Clinical Record
 Psychotherapy Note
HIPAA

The Clinical Records Includes:



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
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

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
1.
2.
3.
4.
5.
a.
b.
c.
d.
e.
f.
medication prescription and monitoring
counseling session start and stop times
the modalities and frequencies of treatment
results of clinical tests (including raw test data)
summaries of:
diagnosis
functional status
treatment plan
symptoms
prognosis
progress to date
PSYCHOTHERAPY NOTE

Psychotherapy notes means notes recorded (in
any medium) by a health care provider who is a
mental health professional documenting or
analyzing the contents of conversation during a
private counseling session or a group, joint, or
family counseling session and that are
separated from the rest of the individual’s
medical record.
PSYCHOTHERAPY NOTE

Psychotherapy notes excludes medication
prescription and monitoring, counseling
session start and stop times, the modalities
and frequencies of treatment furnished, results
of clinical tests, and any summary of the
following items: diagnosis, functional status,
the treatment plan, symptoms, prognosis, and
progress to date.
Heller Ehrman LLP.
GALVIN V STANFORD HOSPITAL

In a written statement, Lee Wills, Stanford Hospital's chief
marketing and communications officer, denied that any records
had been sent improperly. He declined to comment further. A
Unum spokesman said: "We believe that for our part, the proper
procedures were followed, and that Ms. Galvin's lawsuit is without
merit."

A year after she sued, says Ms. Galvin, she learned from a lawyer
representing Stanford that the hospital had scanned at least some
of Dr. Manber's notes about her into its computer records system,
effectively making them part of her basic medical record. Stanford
then had sent this file to her insurer and to the lawyer for the
driver who hit her car. Later, UnumProvident sent Ms. Galvin's
records to a lawyer for an auto club that insured Ms. Galvin against
uninsured motorists. Unum says it did nothing improper
GALVIN V STANFORD HOSPITAL

In court papers, Stanford said that "psychotherapy notes that are
kept together with the patient's other medical records are not defined
as 'psychotherapy notes' under HIPAA." The hospital is not required to
keep them separate, the court papers said, and it would be
"impracticable" to do so. In a separate filing, Dr. Manber asserted
that the notes "do not constitute psychotherapy notes" as defined by
the federal rules and that it was appropriate for her to send them to
Stanford's medical-records department. Dr. Manber declined to
comment, as did a lawyer representing her and Stanford.

The U.S. Department of Health and Human Services last summer
rejected an administrative complaint by Ms. Galvin against Stanford,
saying the hospital hadn't broken any rules because it "did not
separate Ms. Galvin's Sleep Center Records from her general medical
records.
CA PSYCHOTHERAPIST—PATIENT PRIVILEGE

§ 1014. Subject to Section 912 and except as
otherwise provided in this article, the patient,
whether or not a party, has a privilege to refuse
to disclose, and to prevent another from
disclosing, a confidential communication
between patient and psychotherapist…
CA CONFIDENTIAL COMMUNICATION BETWEEN
PATIENT AND PSYCHOTHERAPIST

§ 1012. As used in this article, “confidential
communication between patient and psychotherapist”
means information, including information obtained by
an examination of the patient, transmitted between a
patient and his psychotherapist in the course of that
relationship and in confidence by a means which, so
far as the patient is aware, discloses the information to
no third persons other than those who are present to
further the interest of the patient in the consultation, or
those to whom disclosure is reasonably necessary for
the transmission of the information or the
accomplishment of the purpose for which the
psychotherapist is consulted…
CONCLUSIONS
TENTATIVE CONCLUSIONS
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The rush to create EHR’s has the placed the
confidentiality of psychotherapy at risk.
The individual error rates related to security errors have
dropped but the scope of errors has increased.
Some current EHR policies regarding psychotherapy
records are inconsistent with ethics.
Some current EHR policies are inconsistent with the law.
Confidentiality laws are inconsistent across jurisdictions.
Record keeping requirements for psychologists differ
from state to state placing a generic policy at risk.
THE SOLUTION
Respect the need to separate highly sensitive
personal information from the information that
NEEDS to be in the clinical record.
 Establish hospital policy that reflects the
findings of Jaffee v Redmond regarding the
need for therapy to be a safe and confidential
setting.
 Second record sets already exist in many
psychology departments for testing materials
