The Duty to Record: Ethical, Legal, and Professional Considerations for California

The Duty to Record: Ethical, Legal, and Professional Considerations for California

The Duty to Record: Ethical, Legal, and Professional Considerations for California Psychologists


The American Psychological Association Practice Directorate has provided an excellent online presentation about electronic healthcare records (EHRs) and the basic terminology related to EHRs; the presentation dispels common myths about EHR systems and provides detail about their meaningful use in integrated health care settings.[1]

The Division 31 and 42 EHR working group’s[2] primary goal was to create a series of State specific templates that would work well for psychologists as they transition into the use of EHRs, particularly in integrated health care settings where shared information is clinically essential and specific laws or regulations may dictate at least some of what is included in those records. To achieve this goal, we conducted a review of the laws related to record keeping, and the relevant and recent literature (particularly the last decade) regarding EHRs, including variations across states. Further, we consulted with key psychologists that have been using EHRs on a day to day basis, who have developed experience establishing polices and processes within their own institutions and practices. They have effectively used this developing technology to improve clinical care while protecting patient rights. They have found that the EHR enables collaborating professionals within the integrated health care settings to understand the behavioral risk factors that exist in each case and to be kept informed about the health behavior changes that occur with psychological service interventions (HRSA, 2012).[3]

In order to digest the laws accurately, we examined the annotated codes and regulations available on Westlaw and Lexis for the 50 states and the District of

Columbia with reference to several relevant state-by-state surveys retrieved from Lexis

and Westlaw.[4]Our research answered the following questions for each jurisdiction: (a)

Do record keeping duties created by statutes or administrative rules exist? (b) Have court rulings created a common-law duty or interpreted the statutes or administrative rules? (c) What are the contents of the record that are mandated by law? (d) Are there laws related to the maintenance and security of records? (e) What are the laws related to retention of records? (f) What are the consequences of violating specific duties?

Readers should view the narrative summary of their jurisdiction’s law as a starting point for interpreting how to meet the law within their own jurisdiction as they construct their electronic records. As laws can change, please check the law with your state associations to see if more current interpretations for meeting the record keeping duties. Many state professional associations have ethics committees that can be consulted as part of their benefits. In addition, your association can refer psychologists for individual consultation to lawyers specializing in legal practices focused on mental health practice. The professional liability carriers also provide free legal and professional consultation.

California specific templates for the types and contents of the record are provided based upon a review of your jurisdiction’s law. The digest of your jurisdiction’s law should be read if you intend to use the templates.

State Specific Template for contents of a record

California law calls for an intake and evaluation note, and progress notes. The contents of the two templates for these documents comply with the law digested below. We believe that a termination note will likely reduce exposure to arguments about continued duty of care and reduce the risk of responsibility in a duty to protect/warn jurisdiction and recommend that psychologists use this template.[5]

Because the documents permit hovering over the underline fields with a cursor

to select an option or permit filling in the shaded text boxes, they cannot be inserted

into this document.[6] Please access each of the documents on this website, separately.

Our group also suggests that users of the templates consider how “behavior may be shaped by culture, the groups to which one belongs, and cultural stereotypes."[7] Whenever “Eurocentric therapeutic and interventions models”[8]may impair the consideration of multicultural factors among the integrated health care team members, we urge that psychologists note the factors within the appropriate template fields. In light of the World Health Organization’s demonstrated commitment to the formulation of a diagnostic system that moves beyond biological causation and integrates the contributions of psychological, cultural, and social factors, and APA’s participation in the development of the International Classification of Functioning, Disability and Health (World Health Organization, 2010), our group recommends using ICD-10 whenever diagnoses are being made.[9] The EHR templates permit drop down diagnoses using the ICD-10 functional diagnoses.

Statute or Rule

California has a number of state laws governing record keeping by psychologists and by health care providers generally. In addition, California has adopted the standards of the American Psychological Association’s Ethical Principles

of Psychologists and Code of Conduct (2003) (“APA Code of Ethics”).[10]

Common Law

There are a number of cases that interpret or refer to California statutes governing recordkeeping obligations for California psychologists:

Relevant Annotations to California Business and Professions Code § 2936 (adopting the APA Code of Ethics).

  • The provisions of the Psychology Licensing Law set forth in B & P C §§ 2900 et seq. are not unconstitutionally vague as to providing ascertainable standards for enactment of rules by the Psychology Examining Committee. Administrative agencies are better qualified to determine and set the standards of professional conduct in the specific area of their expertise.[11]

Relevant Annotations to California Health and Safety Code §§ 123100, et. seq. (related to patient access to health records).

  • (Unpublished) Plaintiff on his claim against the United States under the Federal Tort Claims Act for failure to maintain and produce medical records and failure to answer questions regarding treatment at a Veterans Administration facility, has not shown that the law establishes individual tort liability for emotional distress damages related to failure to produce medical records or failure to answer patient questions.[12]
  • A health care practitioner may not refuse inspection and copying or condition access to patient records. Furthermore, the health care provider may not avoid the mandate of court process by not preparing such a record when the raw data is available to do so. The health care provider must compile and provide the itemized statement in response to a proper discovery request. The burden is upon the health care provider to establish that the compilation would be

unduly burdensome or oppressive. The provider had refused to comply with the insured's request and subsequent deposition subpoena for these documents unless the insured signed a lien for the provider's fees. The provider had no basis for refusing the insured or his attorney access to those records to which the insured had a statutory right. The Legislature has made clear its intent that every person should have a right of access to complete medical information (H & S C former §§ 1795, 1795.12, now §§ 123100, 123110; Ev C § 1158). The discovery statutes also authorize punishment for refusal to produce documents requested in a subpoena (CCP § 2020).[13]

  • In a juvenile proceeding, the prosecutors were properly recused because they continued to oppose disclosure of the victim's medical and psychiatric records, even after her father consented. The apparent attempt to represent the victim's privacy interest exceeded the exercise of balanced discretion. The prosecutors' constantly shifting grounds of opposition included a motion under H & S C § 123115.[14]

Relevant Annotations to California Civil Code §§ 56, et. seq. (regarding the California Confidentiality of Medical Information Act):

  • Standards for disclosure of an employee's alcoholism to the employer were governed by the Confidentiality of Medical Information Act, CC §§ 56 et seq., which superseded the general privilege afforded under CC § 47(c). An employeehad sought a leave from work due to a disabling stress-related condition. The psychiatrist’s disclosure about the problems being related to alcoholism, without the consent of the employee, gave rise to a claim under the Confidentiality of Medical Information Act, CC §§ 56 et seq., and the Privacy

Clause of Cal Const Art I § 1.[15]

  • It is sound public policy to construe CC § 56.10(c)(14) in a way that will not impede voluntary reports of suspected misconduct or unfitness by police, reports whose importance is already recognized and immunized under CC § 47(b)(3).

Subdivision 56.10(c)(14)serves as the residuary clause in § 56.10 and legitimizes a

myriad of situations the Legislature may not have cared to spell out by establishing

the principle of permissive disclosure when specifically authorized by law.[16]

  • Plaintiffs, through their attorneys, received notice pursuant to CCP § 1985.3, that defendant's records of treatment of plaintiffs were being sought pursuant to a subpoena in the wrongful death action and of what they could do to protect against unwanted disclosure. Plaintiffs' failure to take any action whatsoever to claim the psychotherapist-patient privilege constituted a waiver of the privilege within the meaning of Ev C § 912(a). Such waiver left defendant in the position of being compelled under the provisions of CC § 56.10(b)(3), to disclose the medical records.[17]
  • The trial court did not err in sustaining defendants' demurrer to a medical malpractice plaintiff's complaint against a physician, in which plaintiff alleged that the physician's disclosure of plaintiff's medical information to an insurer during the course of the malpractice litigation violated the Confidentiality of Medical Information Act (CC §§ 56 et seq.). Under the act, a health care provider must hold confidential a patient's medical information unless the information falls within a statutory exception. The ex parte contact between the physician and the insurer was contemplated under the exception in CC § 56.10(c)(4), which allows a health care provider to disclose medical information without patient authorization to parties that insure or are responsible for defending professional liability. The physician was an associate of the malpractice defendant and was at risk of malpractice exposure, and the insurer insured both physicians. Thus, the physician

was entitled to discuss plaintiff's medical condition with his insurer.[18]

  • In a patient's suit against her doctor for allegedly disclosing personal and confidential medical information about the patient to the patient's employer, the trial court properly granted the doctor a directed verdict as the information was nonspecific, CC § 56.16 permitted the doctor to discuss nonspecific information about the patient without her consent, and the patient's oral request that the doctor refrain from conveying any information to her employer did not comply

with the statutory prerequisite to nondisclosure.[19]

  • A trial court properly found that the health plan's practices of transmitting to its attorneys medical information concerning plan patients who were either making or contemplating making medical malpractice claims against the plan were not unlawful and were, in fact, authorized by California's Confidentiality of Medical Information Act, CC §§ 56 et seq.Once a patient signals an intention to bring a malpractice claim against a health care provider, the patient cannot reasonably expect to keep the details of the professional relationship with the health care provider a confidential.[20]
  • Former Crim. Code § 56.11(c)(2), impliedly required a minor to authorize a release of medical information where the minor lawfully consented to the medical services. Nevertheless, the Child Abuse and Neglect Reporting Act (Pen C §§ 11164 et seq.) unquestionably calls for disclosure, pursuant to Pen C § 11166(a), where there is a reasonable suspicion child abuse has occurred. Thus, to the extent there may be a conflict between Pen C § 11166, and CC § 56.11(c)(2), Pen C § 11166, must prevail on the ground that it is the more specific statute, prescribing the disclosure of information only where there is a reasonable suspicion child abuse has occurred.[21]

Contents of the record are mandated by law

California has adopted the APA Code of Ethics[22] and the following ethical standards create specific record keeping obligations for California psychologists. In addition, some aspects of the Health Insurance Portability and Accountability Act

(HIPPA)[23] would apply to California psychological records when State law does not exist:

3.10 Informed Consent[24]
(a) When psychologists …provide assessment, therapy, counseling or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons… (See also Standards9.03, Informed Consent in Assessments; and10.01, Informed Consent to Therapy.)

(b) For persons who are legally incapable of giving informed consent,

psychologists nevertheless (1) provide an appropriate explanation, (2) seek the

individual's assent, (3) consider such persons' preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual's rights and welfare.

(c) When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding.

(d) Psychologists appropriately document written or oral consent, permission,

and assent. (See also Standards9.03, Informed Consent in Assessments; and10.01, Informed Consent to Therapy.)

Licensed psychologists are also subject to the provisions of the California Confidentiality of Medical Information Act (CCMIA)[25] in which disclosures of patient information must occur and the patient should be informed in advance of the limitations of the record being protected:

Authorization for disclosure; When disclosure compelled; When disclosure allowed; Prohibitions[26]

(a) No provider of health care…shall disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c).

(b) A provider of health care …shall disclose medical information if the disclosure is compelled by any of the following:

(1) By a court pursuant to an order of that court.

(2) By a board, commission, or administrative agency for purposes of adjudication pursuant to its lawful authority.

(3) By a party to a proceeding before a court or administrative agency pursuant to a subpoena, subpoena duces tecum, notice to appear served pursuant to Section 1987 of the Code of Civil Procedure, or any provision authorizing discovery in a proceeding before a court or administrative agency.

(4) By a board, commission, or administrative agency pursuant to an investigative subpoena issued under Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code.

(5) By an arbitrator or arbitration panel, when arbitration is lawfully requested by either party, pursuant to a subpoena duces tecum issued under Section 1282.6 of the Code of Civil Procedure, or another provision authorizing discovery in a proceeding before an arbitrator or arbitration panel.

(6) By a search warrant lawfully issued to a governmental law enforcement agency.

(7) By the patient or the patient's representative pursuant to Chapter 1

(commencing with Section 123100) of Part 1 of Division 106 of the Health and Safety Code.

(8) By a coroner, when requested in the course of an investigation by the coroner's office for the purpose of identifying the decedent or locating next of kin, or when investigating deaths that may involve public health concerns, organ or tissue donation, child abuse, elder abuse, suicides, poisonings, accidents, sudden infant deaths, suspicious deaths, unknown deaths, or criminal deaths, or when otherwise authorized by the decedent's representative. Medical information requested by the coroner under this paragraph shall be limited to information regarding the patient who is the decedent and who is the subject of the investigation and shall be disclosed to the coroner without delay upon request.

(9) When otherwise specifically required by law.

A HIPPA notice of privacy practices[27] that delineates the psychologist’s scope of and

limitations of confidentiality works in tandem with the disclosure document provided to the patient during the informed consent process specified by APA Standards 3.10, 9.03, and 10.01. California psychologists should provide specific disclosures about the mandatory reporting duties that apply:

Duty to report abuse or neglect of a child under age 18;[28]

Duty to report the abuse, neglect or exploitation of elder or dependent person;[29]

Duty to warn and protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency when a client makes a serious threat of physical violence against a reasonably identifiable victim.[30]

4.04 Minimizing Intrusions on Privacy[31]

(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.

The following standards set forth in the APA Code of Ethics create specific record keeping obligations for California psychologists:

6.06 Accuracy in Reports to Payors and Funding Sources[32]

In their reports to payors for services …psychologists take reasonable steps to ensure the accurate reporting of the nature of the service provided …the fees, charges, or payments, and where applicable, the identity of the provider, the findings, and the diagnosis. (See also Standards 4.01, Maintaining Confidentiality;4.04, Minimizing Intrusions on Privacy; and4.05, Disclosures.)

9.01 Bases for Assessments[33]
(a) Psychologists base the opinions contained in their recommendations, reports and diagnostic or evaluative statements,…on information and techniques sufficient to substantiate their findings. (See also Standard2.04, Bases for Scientific and Professional Judgments.)

(b) Except as noted in9.01c, psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions. When, despite reasonable efforts, such an examination is not practical, psychologists document the efforts they made and the result of those efforts, clarify the probable impact of their limited information on the reliability and validity of their opinions and appropriately limit the nature and extent of their conclusions or recommendations. (See also Standards2.01, Boundaries of Competence, and9.06, Interpreting Assessment Results.)