As a result of technology, data to which individuals have long had a legal right of access are now easily accessible. The advent of secure online portals has converted what was once largely a hypothetical proposition – i.e., ready patient access to clinical records – into the increasing reality of open notes . Unsurprisingly, this movement toward greater transparency carries special implications and complexities for mental health professionals concerned with balancing patient autonomy and safety. 1
Lt. Col. Charles G. Kels
In setting clinician expectations for incorporating clinical note-sharing into patient care, it is important to clarify the already robust legal rights of patients to obtain copies of their treatment records, including in the mental health context. For example, the provision of access to one’s own health information is one of the rare circumstances in which the HIPAA Privacy Rule compels, rather than merely permits, health care organizations to disclose records to external parties. 2 This requirement accords with a prevailing principle of medical ethics that records should be furnished to patients or their designees upon request. 3
While HIPAA provides mechanisms for denying individuals access to their health records when a licensed health care professional determines that such access is “reasonably likely” to jeopardize someone’s life or physical safety, this standard sets a high bar of physical endangerment. A psychiatrist or other physician’s concern that sharing clinical notes would be therapeutically suboptimal, discomforting, emotionally harmful, confusing, or deleterious to the doctor-patient relationship would not constitute sufficient legal grounds for denial of access. 4
Moreover, because access is framed as a patient right, denial on the aforementioned safety grounds implicates due process requirements to include a written explanation and appellate review by a designated disinterested official. Importantly, this federally mandated right of access would preempt or override any contrary state law classified as less protective of patient prerogatives.
Contrary to popular misconception, mental health notes are not necessarily entitled to a greater degree of secrecy vis-à-vis patients than records pertaining to physical health. The HIPAA Privacy Rule, for example, generally does not distinguish between medical and mental health information, nor does it provide special rules for the latter.5 Specifically, patients’ access rights remain unchanged regardless of whether the requested record is classified as medical or psychiatric.
Dr. Lori H. Kels
One narrow exception involves “psychotherapy notes,” but the legal definition of this term is considerably more restrictive than in common psychiatric usage. Psychotherapy notes under health privacy law include therapists’ private, desk-drawer notes on counseling sessions intended for personal use as memory joggers. They explicitly exclude any discussion of treatment modalities, diagnosis, or clinical progress. To retain their protected status, psychotherapy notes must be kept separate and apart from the patient chart. Indeed, a primary reason why such notes are exempted from patient access is because they have so little legitimate use other than to their creator.
Integrating the proliferation of open notes into practice regimens will likely pose a continuing and growing challenge for mental health professionals. From a medicolegal perspective, however, even psychiatrists who are understandably hesitant about widespread note-sharing would do well to remember that patients’ underlying right of access is generally well established, and is merely being operationalized and automated via web portals. Ultimately, adapting clinical record-keeping to both anticipate patient access – and, where possible, leverage it to improve care – may prove the most effective path forward for practicing psychiatry in the digital age.