Retaining Clinical Records . . . Problems and Considerations
(March/April 1994)

Richard S. Leslie, J.D.
Of Counsel

Previous editions of The California Therapist have dealt with several issues concerning records, such as patient access to records, responding to subpoenas for records, and the general issue of the need to/advisability of keeping records. This article will explore areas of record-keeping that have generated questions from members which have previously received scant attention in the professional literature. With respect to several questions, there are no definitive answers. It is important, however, for the questions to be raised so that they can be discussed and considered by mental health practitioners of all license categories. Hopefully, this article will bring clarity to some of these difficult questions and provide useful information and suggestions.

For How Long Should Records be Maintained?

This is one of the most commonly asked questions concerning record-keeping responsibilities. The MFCC licensing law, like the psychology licensing law, the medical practice act and other health care practitioner licensing laws, is silent with respect to this issue. CAMFT’s Ethical Standards for Marriage and Family Therapists also do not address the issue. As a result, it is not unusual to find a variety of approaches among health care providers in general, and mental health practitioners in particular. If one wants to refer to a regulatory standard applicable to another health care provider (albeit, an institutional provider), there is something to rely upon. Section 70751 of Title 22 of the California Code of Regulations sets record maintenance standards for general acute care hospitals licensed by the Department of Health Services. The regulation requires that records be kept on all patients admitted or accepted for treatment in such hospitals. The regulation states that the medical record is the property of the hospital (just as the mental health record belongs to the treating psychotherapist in a private practice setting) and is maintained for the benefit of the patient, the medical staff and the hospital. The regulation further specifies that the hospital shall safeguard the information in the record against loss, defacement, tampering or use by unauthorized persons.

With respect to the length of time the records must be kept, the regulation specifies that the records shall be preserved safely for a minimum of seven years following discharge of the patient. With respect to the records of unemancipated minors, however, the regulation requires that the records shall be kept at least one year after such minor has reached the age of 18 years and, in any case, not less than seven years. If a hospital ceases operation, the Department of Health Services must be informed within 48 hours of the arrangements made for the safe preservation of patient records as specified above. Thus, by analogy, licensed health care practitioners might want to adopt the above-referenced standards for their own practice.

I recently spoke with representatives of the California Medical Board (the licensing agency for physicians) and asked about the standards, if any, utilized by physicians. I was told that while practices vary, physicians have generally adopted the seven year standard applicable to general acute care hospitals. In further support of a seven-year standard, it should be noted that Section 123145 of the Health and Safety Code (this state law applies to specified health facilities —i.e., licensed clinics, licensed health facilities, licensed adult day health care facilities and licensed home health agencies) requires these facilities, if they cease operations, to preserve records for a minimum of seven years following discharge of the patient. With respect to unemancipated minors, the law requires that the records by kept for one year after the minor has reached the age of 18 years, and in any case, not less than seven years.

This statute, which became law on January 1, 1989 (amended 1995), further provides for a legal remedy against any of the licensed facilities specified above which do not comply with its requirements. The statute provides that the Department of Health Services, or any person injured as a result of the facility’s abandonment of health records, may bring an action in a proper court for the amount of damage suffered as a result of such abandonment. In the event that the facility is a corporation or partnership which is dissolved, the person injured may take action against the corporation’s or partnership’s principle officers of record at the time of dissolution. The word "abandonment" is defined as the violation of the seven year standard leaving patients treated by the facility without access to medical information to which they are entitled pursuant to Section 123100 of the Health and Safety Code (the patient access to records statute—also applicable to MFCCs).

It is interesting to note that the lawsuit authorized by Section 123145 of the Health and Safety Code applies to the licensed facilities specified. This does not necessarily mean that a patient of a private practitioner would not be permitted to bring a lawsuit against such practitioner for damages caused by an early destruction of the records. If records are destroyed soon after the patient terminates treatment, for instance, a patient may be deprived of valuable evidence that could have been used in litigation. In litigation initiated by the patient, it is often important for patients to prove that they suffered mental or emotional harm as a result of the defendant’s negligent or intentional acts. If the testifying therapist is not able to support his/her testimony by reference to the clinical records, a judge or jury may give less credibility to the therapist’s testimony, thus possibly damaging the patient’s ultimate monetary recovery. While the therapist’s attorney would likely advance some theories of defense (i.e., no statute requires the practitioner in question to retain records for a specified period of time), most therapists seek to avoid litigation in the first instance.

Based upon the above, it is my opinion that records of individual therapists should be kept for no less than seven years following a termination of the therapist-patient relationship. With respect to unemancipated minors, records should be kept for no less that seven years and at least for one year after such minor has reached the age of 18 years. For another approach, the American Psychological Association recommends (although there is no requirement in their ethical standards that specifies a period of time), in the absence of a specific legal requirement, that the full record be retained intact for three years after completion of service, and that the full record or a summary be retained for twelve additional years. The record may be finally disposed of after fifteen years. In this writer’s opinion, most therapists are unwilling to write summaries to replace the full record, and would find it easier to retain the full record for the entire fifteen year period.

Record Destruction

Just as records must be kept in a manner which safeguards the information in the records against loss, defacement, tampering or use by unauthorized persons, care must also be taken when disposing of records. It would be inappropriate, and arguably negligent, for a therapist to dispose of records by placing them in a trash bag or other receptacle. Disposition in this manner could result in a breach of confidentiality when the trash collector or other person retrieves and/or reads the records—even if such reading or retrieval is unauthorized. The best approach would be to shred the records, or otherwise cause their total destruction.

On occasion, patients will ask therapists to destroy records shortly after therapy ends. The patient usually asks for the destruction of records because of his/her concern about the contents of the records—confidentiality and privacy concerns. Therapists should remember that the records belong to the therapist and that a patient cannot direct or order the destruction of records. Patients should be informed about the laws of confidentiality and psychotherapist-patient privilege, which protect the records from discovery or release. These laws provide substantial protection for the privacy concerns of the patient, although records could be obtained by subpoena in circumstances where the patient puts his/her mental or emotional condition into issue in a lawsuit. In rare circumstances, records can be seized by law enforcement authorities pursuant to a search warrant.

On occasion, a prospective patient may ask that no records be kept. While some may argue that the patient could be treated under those circumstances (an "informed consent" statement should be prepared by the therapist and signed by the patient), it is my belief that therapists should not agree to treat patients under these circumstances. It should be remembered that records are kept for the benefit of patients and the therapist. Patient benefit in several ways. They may need to prove their mental or emotional distress in litigation of some kind, or they may need to prove some fact that is contained in the record. If patients have mental health coverage, their right to reimbursement would be compromised if the therapist kept no records. Good record-keeping protects the therapist from claims that he/she engaged in negligent or inappropriate conduct. Patients may say that they don’t want records to be kept, but circumstances may later change. Would a hospital agree to not keep records if requested by a patient? I think not.

Closing, Selling or Transferring a Practice

During a therapist’s career, there will come a time when the practice will be closed (e.g., retirement), sold or transferred. What should the therapist do under any of these circumstances? There is nothing in state law or regulation which pertains to physicians, marriage, family and child counselors, psychologists, or clinical social workers, which gives any direction or guidance. Section 123145 of the Health and Safety Code (mentioned above) does provide some guidance by analogy. The specified health facilities, if they cease operation, must maintain patient records for a minimum of seven years following discharge of the patient (see above for the rule re: unemancipated minors). When a private practice is closed, sold or transferred, that is the practical equivalent of a cessation of operations.

It is interesting to note that Governor Wilson vetoed a bill in 1993 that pertained to this topic. Assembly Bill 2316 provided that physicians who provide primary care to a patient, who sell, close or transfer their medical practice, must, at least 30 days prior to that sale, closure, or transfer, notify each patient in writing at the last known address of the patient of the intended sale, closure or transfer, and of the intended disposition of the patient’s medical records. As per the bill, each patient must be advised that he or she has 30 days in which to respond to the licensee to direct that his or her records be transferred or sent only to the licensee of his or her choice. The bill provided that the licensee shall not charge or bill a patient for any costs to transfer or direct his or her records to another licensee of his or her choice. The bill also provided that a licensee was not required to notify any patient whom the licensee knows is deceased, or any patient whom the licensee has not treated in any way within the past five years.

This bill was opposed by the California Medical Association and was, as mentioned above, vetoed by the Governor. In his veto message, the Governor stated:

To mandate notice as envisioned in this bill is overly prescriptive and limits the flexibility of a physician to provide notice in any other form. This bill would preclude a simplified and expedient process to notify patients of a pending sale, closure or transfer of a physician’s practice. The notice of this action could be accommodated by providing the patient with the name and address of the purchasing physician. There may, however, be a legitimate concern in those cases in which physicians close a practice and destroy the medical records in their possession. In these situations it is appropriate to require a notification as provided in this bill.

It is interesting to note that the Governor’s veto message recognizes that primary care physicians (and presumably other health care providers) should have some flexibility with regard to the manner in which they notify patients of a pending sale, closure or transfer of their practice. He gives an example of a simple and expedient process to notify of a sale (and arguably, a closure/transfer) of a practice—i.e., provide the patient with the name and address of the purchasing physician. The Governor does recognize, however, in the last sentence, that it would be bad public policy to allow a physician to close his/her practice and simultaneously destroy the records. He indicates a willingness to sign a bill that would specify a notice requirement, as contained in the bill, if it applied to an early destruction of records.

Although none of the language in the bill or the veto message is controlling, it does point out, when read in conjunction with the analogous statutes discussed above, that early destruction is the essential problem to be avoided. As long as a patient can get or access his/her records when needed, and as long as the records are available to other health care providers that may need them, the patient’s essential rights are protected. But if the records are destroyed or unavailable because the patient is unable to locate them through reasonable inquiry, the patient may be unnecessarily harmed.

The American Psychological Association has no specific ethical principle that mandates a particular procedure upon retirement from practice. Some have recommended that the psychologist send each patient whose address is known a letter giving them the option of having their records 1) transferred to a designated successor therapist (to whom the psychologist may be selling the practice) 2) transferred to a practitioner chosen by the patient or 3) transferred to a depository where the records can be stored until the legally appropriate period expires. While the above suggestion contains no time frames (e.g., 30 days advanced written notice), any notice given, in the absence of a specific law, rule or regulation, must be reasonable under the circumstances.

Death of the Therapist

What happens or should happen to records when a therapist dies? This question is without a clear answer in the literature or in the statutes, regulations or ethical standards of the psychotherapy professions. I recently spoke with a therapist who said that he has put a provision in his will which directs that in the event of his death, patient records be destroyed. His rationale was that he wanted to protect the confidentiality of the patient and that this was the best way to do so. He also reasoned that destruction of records would create less problems for his survivors vis a vis maintenance issues—i.e., where to keep records and how to respond to subpoenas or other requests. In my view, destruction upon death is generally not a good idea. Of course, if the records are more than seven years old at the time of death, it could easily be argued that destruction is reasonable.

In many circumstances, however, death may occur suddenly or without much advance warning. Destruction of records pertaining to current patients or recently terminated patients could easily compromise their rights to use the records for litigation purposes, or to provide subsequent health care providers with copies of records relevant to treatment issues. This destruction may subject the estate of the therapist to possible liability. It seems to this writer that the records should be maintained for at least seven years (and possibly longer when the patient is an unemancipated minor) from the date of termination of treatment. What, then, are the options?

There exists no legal duty which would require a psychotherapist to provide for a disposition of the records in his/her will or trust. Some therapists, of course, may not have a will or a trust. In the event of death without a will or a trust, the duty or responsibility to act usually falls upon a spouse, the spouse’s attorney, a partner or associate of the deceased, or the practice administrator. If several therapists are practicing as employees/shareholders in a professional corporation or nonprofit corporation, the records technically belong to the corporation. The corporation or other business entity (i.e., partnership, association), through its agents/employees, will safeguard the records in accordance with their policy and will notify patients and ex-patients in such manner and under such circumstances as they deem appropriate and reasonable.

The logistics are a bit more difficult when the deceased therapist is a solo practitioner. The surviving spouse will probably have to consult with his/her attorney, or may ask a licensed colleague of the deceased to help with the gathering of the records, their future safeguarding and destruction, and/or the notification of existing patients and perhaps some ex-patients (i.e., those who have terminated treatment within the past year or more). Therapists who think about this issue in advance may be able to make mutual arrangements with colleagues in order to protect and preserve the records following death. The issue of notification must be dealt with by whomever handles the records. It is probably best, for confidentiality purposes, that licensed colleagues assist in any notification process that may occur.

If the therapist has a will or a trust, they can speak with their attorney about inserting a provision in the document that will direct the executor or trustee(s), as the case may be, to gather and safeguard the records for a specified period of time (perhaps in accordance with some of the ideas expressed in this article). The direction may also cover the area of notification—i.e., which ex-patients, if any, are to be notified of the death and the location of the records? The trustee(s) or executor(s) will likely have to consult with an attorney (usually the one who represents the estate of the deceased) regarding legal issues that may arise.

There is considerable latitude in most of these situations, and one must exercise reasonable judgment in carrying out any strategy. Confidentiality should be protected as much as possible (especially with regard to the clinical content of the records). While it may be disconcerting to some that there are no clear guidelines, the other view is that not every situation needs to be covered by a law, rule or regulation. Some flexibility and room for judgment allows therapists to employ a range of strategies regarding record maintenance and disposition.

This article appeared in the March/April 1994 issue of The California Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.

Updated 9/98

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