The Therapist
May/June 2015
Alain Montgomery, JD (Former CAMFT Paralegal)
Updated December 2022 by Bradley J. Muldrow (CAMFT Staff Attorney)

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Everyone has a story. As a therapist, you are a biographer of sorts. By recording what occurs during the course of the therapeutic relationship, you capture one’s hard fought journey of growth, empowerment, and self-discovery. You memorialize the intimate and significant moments in the arc of a patient’s life. Not only does the clinical documentation in a patient’s record note and archive these important milestones, the record serves a number of practical purposes. For example, a well-articulated and documented record could prove invaluable for purposes of consultation, provide the treating provider with information to inform—if not determine—a course of treatment, or serve as a defense tool in a legal or disciplinary proceeding

While the contents of a record may feel sacrosanct to both therapist and patient, the reality is that the record is not untouchable. As a clinician, it is important to understand how a patient’s record is engaged when a patient is a party in a lawsuit or asks to inspect or receive a copy of his or her record. This article will discuss recent developments in California law pertaining to an LMFTs duty to retain clinical records, ethical standards relevant to record keeping, and answer frequently asked questions about an adult patient’s right of access to his or her mental health record. For information about a patient’s right of access to records under federal law, please review CAMFT article, “A Patient’s Right to Access Mental Health Records under HIPAA,” by Ann Tran-Lien, JD [The Therapist (September/ October 2014)]. 

California’s New Record Retention Law for LMFTs
Under California law, it is unprofessional conduct to, “[fail] to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered."¹ Under California’s Business & Professions Code Section 4980.49, LMFTs are required to do the following:

1. Retain a patient’s health care service record for a minimum of seven (7) years from the date therapy terminates;
2. Retain a minor patient’s health care service record for a minimum of seven (7) years from the date the minor patient reaches eighteen (18) years of age; and,
3. Maintain the record in either electronic or written form.

The law applies only to the records of a patient whose therapy terminates on or after January 1, 2015.²

While the law prescribes the length of time a patient record must be retained, the law does not specify the format in which the record should be organized or written; or, provide information about how records should be stored. The CAMFT Code of Ethics provides important guidelines to address some of these practical issues. 

CAMFT Code of Ethics

The relevant sections of the CAMFT Code of Ethics regarding record keeping are as follows:

1. Section 5.3 Maintenance of Client/Patient Records-Confidentiality: Marriage and family therapists create and maintain client/patient records consistent with sound clinical judgment, standards of the profession, and the nature of the services being rendered.
2. Section 2.4 Employees-Confidentiality: Marriage and family therapists take appropriate steps to ensure, insofar as possible, that the confidentiality of clients/patients is maintained by their employees, supervisees4, assistants, volunteers, and business associates..
3. Section 3.12 Documenting Treatment Rationale/Changes: Marriage and family therapists document treatment in their client/patient records, such as major changes to a treatment plan, changes in the unit being treated and/or other significant decisions affecting treatment..
4. Section 12.7 Withholding Records/Non- Payment: Marriage and family therapists do not withhold patient records or information solely because the therapist has not been paid for prior professional services.

Definition of a Patient Record
Under the California Health and Safety Code a patient record is a document “in any form or medium maintained by, or in the custody or control of, a health care provider relating to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient.”³ A patient record includes the mental health record which is comprised of information specifically relating to the evaluation or treatment of a mental disorder.⁴ In the behavioral health care profession, the patient record includes, but is not limited to, the following: 1) the documents which indicate the nature of the services rendered, and 2) the clinical documentation (i.e., progress notes) created by the provider during the course of therapeutic treatment. 

Documentation Indicating the Nature of Services Rendered
Examples of the documents which relate to the nature of services rendered include, but are not limited to, intake forms completed by the patient; a copy of the informed consent; authorizations to release and/or exchange information; office policies; and, fee, payment, and billing information. Certainly, this list of documentation is not exhaustive and may vary depending on the practice setting. 

Clinical Documentation
TThe law neither prescribes the format in which progress notes should be written, nor specifies the level of detail that should be included in the content of the progress note. Being mindful of the ways in which a patient’s record is used to rationalize a course of treatment, justify a breach of confidentiality, document a patient’s progress, or demonstrate a clinician’s compliance with legal and ethical standards, informs the way in which a record may be written and what information to include. 

In the publication, “Standards for Clinical Documentation and Recordkeeping” Hillel Bodeck, MSW, LCSW, provides comprehensive guidelines and standards for recordkeeping. Bodeck recommends utilizing the “who, what, where, when, and why” formula as a method to gather the facts and record the events that occur during therapy.⁵ For example, Hillel suggests recording “what was done, by whom, with, to, for and or on behalf of whom, when, where, why, and with what results.”⁶ Accordingly, in many instances it would be appropriate to identify who the patient or treatment unit is; document what clinical issues are presented; articulate what the patient expresses as his or her therapeutic goals; detail what aspects of the patient’s history are relevant to the patient’s therapeutic treatment; explain what the treatment plan consists of; pinpoint when the patient reaches specified therapeutic goals; indicate where services are rendered; and, note when and why the therapeutic relationship terminates.⁷

While each of the fact gathering elements of the “who, what, where, when, and why” formula are of equal value, arguably, the “why” component may rise to the level of being the most important variable. Especially, in instances where a therapist breaches client confidentiality, a clinical record which contains the facts justifying a course of action will serve as the therapist’s best defense and tool in a legal or disciplinary proceeding. For example, when a therapist breaches client confidentiality based on the duty to make a report under California mandated reporting laws, it is generally prudent for the therapist to document the facts which give rise to the obligation to make the report and explain why the therapist made the report. Alternatively, if after assessing, the therapist believes a report is not warranted, it is typically prudent for the therapist to document the facts which serve as the basis and rationale for not making the report. A thorough documentation of the reasons for making a child abuse report is a sound way to ensure compliance with CAMFT Code of Ethics, Section 3.12 (see above) regarding documentation of treatment decisions. 

Clearly, the extent to how relevant facts are documented will vary depending on the nature of treatment and the issues that arise. Ultimately, the goal is for the record to contain enough information to demonstrate thoughtful and meaningful decision-making; reflect sound, reasoned, and logical judgment; evidence compliance with all applicable legal and ethical standards; and, document competent treatment. 

Responding to a Patient’s Request for Records
Under California law, a therapist has three (3) options to respond to a patient’s request to either inspect or receive a copy of his or her record. A provider shall do one of the following:

1. Allow the patient to inspect or receive a copy of his or her record;
2. Provide the patient with a treatment summary in lieu of providing a copy of the record; or,
3. Decline the patient’s request.

A patient’s right to inspect or receive a copy of their record
Under California Health and Safety Code any adult patient, a minor patient authorized by law to consent to his or her own treatment, or the patient’s legal representative, (i.e., a parent, guardian, conservator, or personal representative of a deceased patient) has a right to access the clinical record. As per Section 123110, if the patient or representative requests to inspect the record, the record must be made available during regular business hours within five (5) working days after the request is received. If the patient wants a copy of all or part of the record, copies must be provided within fifteen (15) calendar days after receiving the request.⁸ Under the code, providers may recover up to .25 cents per page for the cost of copying the record, as well as, the reasonable cost for locating the record and making the record available. 

A patient’s right to addend their record
Section 123130 of the California Health and Safety Code allows a mental health professional to provide a summary of treatment rather than the complete record. The summary must be provided within ten (10) working days from the date of the request. In certain instances⁹, more time may be taken to prepare the summary as long as the summary is provided no later than thirty (30) days from the request. The summary must contain the following information if applicable: 

Providing a treatment summary rather than a copy of the entire record
Section 123130 of the California Health and Safety Code allows a mental health professional to provide a summary of treatment rather than the complete record. The summary must be provided within ten (10) working days from the date of the request. More time may be taken to prepare the summary as long as the summary is provided no later than thirty (30) days from the request. The summary must contain the following information if applicable:

1. Chief complaint or complaints including pertinent history.
2. Findings from consultations and referrals to other health care providers.
3. Diagnosis, where determined.
4. Treatment plan and regimen including medications prescribed.
5. Progress of the treatment.
6. Prognosis including significant continuing problems or conditions.
7. Pertinent reports of diagnostic procedures and tests and all discharge summaries.
8. Objective findings from the most recent physical examination, such as blood pressure, weight, and actual values from routine laboratory tests.¹⁰

In preparing the summary, a therapist may confer with the patient to clarify what information is sought and the reason for wanting a treatment summary. The summary does not have to include information which is not contained in the original record.¹¹ Also, a reasonable fee may be charged for the cost and actual time spent in preparing the summary for the patient. In allowing a provider to be reimbursed for the time spent to prepare the summary, the express intent of the Legislature was to ensure that summaries be made available at the lowest possible cost to the patient.¹² 

Denying a patient’s request to inspect or receive a copy of his or her record
Under California Health and Safety Code, a mental health care provider may decline a patient’s request to inspect or receive a copy of his or her record. In making the declination, the health care provider must determine there is a “substantial risk of significant adverse or detrimental consequences to the patient in seeing or receiving” a copy of the record.12 To properly decline a patient’s request the health care provider must do the following:

1. State in the record a written explanation for refusing to permit inspection or provide copies of the record, including a description of the “specific adverse or detrimental consequences to the patient” the provider anticipates would occur if inspection or copying were permitted; 
2. Inform the patient of the right to require the provider to permit inspection by, or provide copies to, a licensed physician and surgeon, licensed psychologist, licensed marriage and family therapist, licensed clinical social worker, or licensed professional clinical counselor designated by written authorization of the patient; 
3. Permit inspection by, or provide copies of, the record to a licensed physician and surgeon, licensed psychologist, licensed marriage and family therapist, licensed clinical social worker, or licensed professional clinical counselor, designated by request of the patient;
4. Inform the patient of the provider’s refusal to permit him or her to inspect or obtain copies of the requested record; and
5. Record whether the patient requested that another health professional inspect or obtain the requested records.¹⁴

It is important to document in detail the reasons why there is a substantial risk of adverse or detrimental consequences to the patient. Under the Health and Safety Code, a marriage and family therapist who willfully withholds a patient’s record commits unprofessional conduct for which a license can be suspended or revoked.¹⁵ Withholding the record without cause, without a mandated or permissive legal or ethical justification, or disregarding the request of the patient due to the therapists own personal interest, are acts which constitute a willful withholding. 

The following CAMFT sample practice forms address the protocols for responding to records requests under California law: 1) Sample Response to Request for Records (Non-HIPAA Covered Entities); 2) Sample Request for Review of a Decision Denying Inspection and Copying of Patient Records (Non-HIPAA Covered Entities); and 3) Sample Notification of Designated Reviewer's Decision (Non-HIPAA Covered Entities). 

Denying a minor’s representative the right to inspect the minor patient’s record

Under California Health and Safety Code, there are circumstances that preclude the representative of a minor from inspecting or obtaining a copy of the minor patient’s record. First, the representative of a minor–whether a parent or legal guardian–is not entitled to inspect or obtain a copy of the minor patient’s record if the minor has inspection rights of his or her own. A minor has inspection rights of his or her own when the minor could have lawfully consented to their own treatment. For more information on California laws regarding minor consent, please review CAMFT article, “Blue Levis & White Tee-Shirts: When Treating Minors 12 Years of Age or Older, Consent Does Not Automatically Equal Authorization to Release Confidential Medical Information,” by David Jensen, JD [The Therapist (July/August 2002)]. Second, a provider may deny a representative’s request to inspect or receive a copy of the minor’s record if the provider determines that access to the minor’s record would either have a detrimental effect on the provider’s professional relationship with the minor or, be detrimental to the minor’s physical safety or wellbeing.¹⁶ 

FAQs
Are there any documents the patient should not be allowed to inspect or receive a copy of?

Yes. Child abuse reports and elder and/or dependent adult abuse reports are confidential documents and should not be released to the patient unless mandated by the Court.

Child Abuse Reports
While it is generally prudent for a provider to document the facts which give rise to a mandated child abuse report in the clinical record, the actual Suspected Child Abuse Report (SCAR), as a matter of law, is a confidential document. Under Penal Code section 11165.7 reports of child abuse or neglect are confidential and may be disclosed only as required by law.¹⁶ 

In Cuff v. Grossmont Union High School District, the California Court of Appeal held that a public school employee is not immune from absolute liability for disclosing a SCAR to someone other than those specifically listed in CANRA.¹⁸ In Cuff, Ms. Saunders, a school counselor and designated “mandated reporter,” made a suspected child abuse report involving the minor children of Tina Cuff and James Godfrey based on a suspicion Ms. Cuff abused her children. Ms. Saunders provided the SCAR to Child Welfare Services and also gave a copy of the SCAR to Mr. Godfrey. In response, Ms. Cuff sued Ms. Saunders and the Grossmont School District for invasion of privacy based on the disclosure of the SCAR to Mr. Godfrey. At trial, the Court held in favor of Ms. Saunders and the Grossmont School District. Ms. Cuff appealed. The Court of Appeals reversed the trial court’s decision. The Court held that a public entity and its employees are not absolutely immune from liability as mandated reporters and are liable for disclosing child abuse reports to persons or entities not specified in CANRA. 

Hence, a SCAR is confidential and can only be disclosed to certain statutorily identified entities and individuals. Mandated reporters do not have the discretion to share the SCAR with a person or entity not named in the statute, including parents and other caretakers of the minor who is the subject of the SCAR. Under the Penal Code, any violation of confidentiality with respect to the SCAR is a misdemeanor punishable by imprisonment in a county jail not to exceed six months, by a fine of five hundred dollars ($500), or both imprisonment and fine.¹⁹   Therefore, the SCAR should be earmarked as “confidential” and stored seperately and apart from the clinical record. If a patient, or patient’s legal representative, asks for a copy of the SCAR report, they should be informed to seek the counsel of an attorney. 

Elder and Dependent Adult Abuse Reports
Like child abuse reports, elder and dependent adult abuse reports are confidential and can only be released to statutorily defined individuals and entities. Under the California Welfare and Institutions Code, any violation or breach of confidentiality with respect to the report is a misdemeanor punishable by not more than six months in the county jail, by a fine of five hundred dollars ($500), or both imprisonment and fine.²⁰ Therefore, the report should be earmarked as “confidential” and kept in its own file separate and apart from the clinical record. 

If after a patient inspects his or her record and believes the record is incomplete or inaccurate, can the patient request that the record be amended?

Yes. Under California Health and Safety Code, a patient who inspects his or her patient records and believes part of the record is incomplete–or contains inaccuracies–has the right to provide to the health care provider a written addendum with respect to any item or statement in his or her record the patient believes to be incomplete or incorrect. The addendum shall only contain up to 250 words per alleged incomplete or incorrect item and clearly indicate the patient wishes the addendum to be made a part of his or her record. The health care provider is required to attach the addendum to the patient’s record and include the addendum whenever the health care provider makes a disclosure of the allegedly incomplete or incorrect portion of the patient’s record to a third party.²¹ 

Can I refuse a patient’s request if the patient owes an outstanding balance?
No. A mental health professional may not withhold a patient’s record or summary because the patient has not paid their bill. To withhold a record or summary because of an unpaid bill is considered unprofessional conduct.²² 

Conclusion
It is important for trainees, registered associates, and licensees to be familiar with the laws, regulations, and ethical standards pertaining to recordkeeping. Understanding how the record serves the interest of the therapeutic relationship informs what content is appropriate to include in the record. Also, knowing how the record can serve as a tool for purposes of consultation, or in a legal or disciplinary action, may determine what facts to document in crises response situations. Perhaps viewing the record as information to safeguard can help providers understand their relationship to the record as guardian or gatekeeper who releases the record only when authorized or ordered to do so. 

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Endnotes

¹ Cal. Bus & Prof. Code § 4982(v). 

² Cal Bus & Prof. Code § 4980.49(b). 

³ Cal. Health & Safety Code § 123105(d). 

⁴ Cal. Health & Safety Code § 123105(a)(10), (b) and (d). 

⁵ Bodek, Hillel. “Standards for Clinical Documentation and Recordkeeping” © 1992, 2003, 2006, 2007, 

2008, 2010, pp. 1-21 Available at https://www.nysscsw.org/assets/docs/100206_records.pdf. 

⁶ Id. 

⁷ Id. 

⁸ Cal. Health & Safety Code § 123110(a)-(b).9Per Health and Safety Code Section 123130(a), “if more time is needed [to prepare the summary] because the record is of extraordinary length or because the patient was discharged from a licensed health facility within the last 10 days, the health care provider shall notify the patient of this fact and the date that the summary will be completed, but in no case shall more than 30 days elapse between the request by the patient and the delivery of the summary. In preparing the summary of the record the health care provider shall not be obligated to include information that is not contained in the original record.” 

¹⁰ Cal. Health & Safety Code § 123130(b)(1)-(8). 

¹¹ Cal. Health & Safety Code § 123130(b). 

¹² Cal. Health & Safety Code § 123130(f). 

¹³ Cal. Health & Safety Code § 123115(b). 

¹⁴ Cal. Health & Safety Code § 123115(b)(1)-(4). 

¹⁵ Cal. Health & Safety Code § 123110(i). 

¹⁶ Cal. Health & Safety Code § 123115(a)(1)(2). 

¹⁷ Cal. Penal Code § 11167.5(a). 

¹⁸ Cuff v. Grossmont Union School Dist., et al., -- Cal.Rptr.3d ---, 2013 WL 6056612 (Cal. App. 4th Dist. Nov. 18, 2013). 

¹⁹ Cal. Penal Code § 11167.5(b). 

²⁰ Cal. Welfare & Inst. Code § 15633(a). 

²¹ Cal. Health & Safety Code § 123111(a)-(b). 

²² Cal. Health & Safety Code § 123110(i)-(j) and CAMFT Code of Ethics § 12.7.