Patient Confidentiality

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Patient Confidentiality Documentation

• Clinical and Legal Issues for Ethical
  Documentation
• By Michael G. Conner, Psy.D

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Presenter Background

• Community Crisis
• Residential Psychiatric
• Inpatient Medical
• Emergency Room
• Outpatient Mental Health (HMO)
• Primary Medical Care
• Health Education

• Private Group Practice
• Private Practice
• Airline Critical Incidents
• 911
• Police Department
• Educational Consulting
• Internet Mental Health

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The Purpose of Documentation

• Historical record for subsequent care
• Source of treatment orders, treatment
  directives and treatment activities
• Record of the quality of care
• Consultation support
• Supervision monitoring progress
• Training
• Involving the client

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Documentation Requirements Are Different Across
Professions

• Licensed
• Child, Marriage Family Therapists
• Professional Counselors
• Clinical Social Workers
• Psychologists
• Psychiatrists
• Psychiatric Nurse Practitioners

• Non-Licensed
• School psychologists
• Counselors
• Therapists
• Third party review
• Utilization review
• Quality assurance

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Documentation Requirements Are Different Across
Practices

• Specialized
• Addictions
• Sex Offenders
• Crisis Intervention
• High Risk
• Dangerousness
• Suicide Self-Harm
• Acute Emergent
• Borderline Narcissism

• Narrow Practice Focus
• Pain management
• Stress Symptom Reduction
• Broad Practice
• Psychotherapy
• Hypnosis
• Uncomplicated
• Health education

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Examine Your Resistance

• No time or place
• Unclear purpose
• No clear standard of care and behavior
• Not sure what to document
• Dont want to make a mistake (liability,
  complaints)
• Threatens confidence and self-esteem

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Arguments For Documentation

• Articulation and reflection can enhance skill and
  quality of service
• Effective liability and risk management
• Courts and licensing boards view failure to
  document as a failure to provide service

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Arguments Against Documentation

• Difficulty providing full informed consent
• Insurance Waiver
• Civil Actions (Defendant or Plaintiff)
• Criminal prosecution and defense
• Inability to control subsequent breaches
• Creates an artificial quality and pressure
• Emphasis on behavior and not the relationship
• Diminished dignity to the process and relationship

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Laws

• Federal Law
• Statutory Law
• Case Law
• Administrative Rules

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Standards of Care Behavior

• Mandatory behavior is established by federal,
  statutory law and case law as well as
  administrative rules.
• Standards of care and behavior are established by
  professionals
• Standards of care and behavior in a court are
  established by an expert
• The standard of care and behavior for an expert
  or specialist is higher than a general
  practitioner.

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Law Confidentiality

• Non-Disclosure. Cannot release unless there is an
  exception, limit reached or waived
• Privilege. Cannot reveal information in court
  without waiver or due process
• Duty. Must take steps to warn or protect that may
  include a limited breach of confidentiality

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Clinical Effectiveness

• Services from any school of thought can be
  documented in a measurable manner and behavioral
  terms
• Clinical effectiveness is defined as the
  alleviation of mental health impairments that may
  be affecting individual functioning in a
  reasonable period of time.

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Medical Necessity

• A term used primarily to exclude problems from
  treatment
• Definition. The need for professional services
  due to the existence of a mental disorder that
  results in a significant functional impairment
• Operational Definition. A DSM or ISCD diagnosis
  that is supported by functional impairments,
  behavioral evidence or physical evidence.

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Functional Impairments

• Problems in daily living including social,
  occupational, academic, marital.
• Behavior is the basis of documenting problems
• Behaviors are thoughts, emotions, cognitions,
  perceptions, events descriptions

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Malpractice

• 4 Ds (Dereliction of Duty Directly Led to
  Damage)
• The practitioner owed a duty to the client based
  on an established therapeutic relationship
• The quality of care fell below the expected
  standard of practice
• The patient suffered or caused harm
• Practitioner dereliction of duty was the direct
  cause of harm or injury

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Elements Of A Record

• Informed consent
• Contract
• Screening/Assessment
• Treatment Plan
• Progress Notes
• Termination Summary
• Ancillary Information

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Detail Extensiveness of Documentation

• 3 Approaches
• Document extensively and in great detail
• Document only that which is relevant to a
• Diagnosis
• Treatment
• Goals
• Document as little as possible

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Informed Consent

• Treatment is optional and not required
• Treatment methods Used
• Time commitments
• Risk of life changes
• Limits of confidentiality

• Fees and method of payment
• Record keeping
• Qualifications
• Consent of minors
• How you document
• Access to files by others

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Screening, Assessment, Treatment Plan Progress
Notes

• Your assessment of your screening should generate
  a treatment plan and a diagnosis
• Progress notes are based on the treatment plan
  and diagnosis
• Progress notes document further diagnostic
  information and reflect progress toward the goals
  of the treatment plan

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Diagnosis (Dx)

• When must a diagnosis be valid?
• Valid Diagnosis. After an intake, interviews or
  initial sessions that is timely and sufficiently
  comprehensive as well as consistent with a
  reasonable standard of care and behavior
• Valid Working Diagnosis (DSM Provisional or
  Reason for Visit). When a useful diagnosis can
  be made based on data in accordance with a
  reasonable standard of care and behavior.

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Diagnosis (Dx)

• When is a diagnosis potentially negligent?
• Experts would all agree on a different diagnosis
• The diagnosis could have been accurate or certain
  at the time the assessment and treatment plan was
  generated
• A reasonable standard of care and behavior was
  not followed

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Treatment Plan (TxPlan)

• The TxPlan is based on your assessment of your
  screening
• Intake
• Interview
• Initial sessions
• Most TxPlans can be generated in 1 to 3 sessions
  (1 to 3 hours)
• The TxPlan and changes in the TxPlan can be
  documented in the progress notes

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Elements Of A Treatment Plan

• Diagnosis
• Patient identified and described problems
• Practitioner identified and described problems
• Treatment modality
• Treatment activities

• Frequency and duration of treatment
• Anticipated time frame of treatment
• Measures of progress
• Criteria for completion

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Treatment (Tx)

• Modality
• Individual
• Group
• Family
• Couples
• Phone
• Con-joint
• Etc

• Therapeutic Activities
• Interpersonal therapy
• Hypnosis EMDR
• Education
• Stress inoculation
• Escape avoidance prevention
• Counseling Guidance

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Measures of Progress

• Self-assessment
• Opinion of others
• Assessment by others
• Subjective Units of
• Distress (SUDs)
• Improvement (SUIs)
• Progress (SUPs)

• Goal attainment
• Report of symptom (Sx) increase or reduction
• Task accomplished
• Questionnaire
• Standardized
• Non-Standardized

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Documentation Evidence

• Absence of evidence is not evidence of absence
• Documentation of what happened is evidence that
  it happened
• Documentation of what did not happen is evidence
  that is did not happen (up to a point)
• Absence of documentation is not evidence that it
  did not happen unless you routinely document at
  the level of information

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Soap Progress Notes

• S.O.A.P.
• Subjective
• Objective
• Assessment
• Plan
• Based on a medical model where patient reports
  symptoms, there are physical findings, a
  physicians diagnosis and a plan (Orders)

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SOAP Example

• Jim Doe
• Aug 30, 01 Ind 1430 to 1550
• S/O Im doing better but I was really ticked at
  my wife all week. Reports more arguments but
  fewer explosive episodes. SUD5. Discussed
  family of origin for patterns similar to this.
  Examined automatic thoughts. Taught thought
  detection and thought selection. Restless and
  interrupted me through out session.
• A Pt remaining focused on Tx Plan. Improvement
  over last session SUD2. Errors in thinking
  contribute to low frustration tolerance, over
  reaction and anger.
• P Remain on Tx plan issues with wife.

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Generic Progress Notes

• Generic
• Description of contact (when, who)
• Modality
• Treatment activities
• Progress or lack of progress
• Observable data (related to continued need or
  prognosis)
• Significant focus or events in therapy
• Based on a model of psychotherapy services

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Generic Example

• Jim Doe
• Aug 30, 01 Indiv office 1430 to 1550
• Cognitive therapy examining automatic self
  defeating thoughts.
• Education Taught and practiced thought
  detection and thought selection.
• Client successfully examined, selected and
  developed alternatives based on healthy
  alternative thoughts.
• Increased confidence evidenced by relaxation
  responses and self-assessment
• Focused on communication and interaction patterns
  with wife and children that lead to conflict and
  increased anger. Examined similar patterns in
  family of origin.

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Problem Oriented Progress Notes

• Problem Oriented
• Data (what is said, observed or happens)
• Problems (Issues reported, identified, dealt
  with)
• Treatment (Modality and activities)
• Evaluation (progress and evidence of progress)
• Follow-up (patient home work and further Tx)
• A charting procedure that is favored in the
  medical field.

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Problem Oriented Progress Note

• Jim Doe
• Aug 30, 01 Indiv office 1430 to 1550
• Data Im doing better but I was really ticked
  at my wife all week. Reports more arguments but
  fewer explosive episodes. Discussed family of
  origin for patterns similar to this. Pt.
• Problems Focused on communication and
  interaction patterns with wife and children that
  lead to conflict and increased anger. Examined
  automatic self defeating thoughts.
• Treatment Cognitive therapy. Education Taught
  thought detection and thought selection.
• Evaluation Self assessment SUD5 and 2 at end
  of session. Client successfully examined,
  selected and developed alternatives based on
  healthy alternative thoughts. Increased
  confidence evidenced by relaxation responses and
  self-assessment
• Follow-up Remain on Tx plan issues with wife.
  Practice what he learned outside Tx. Review
  progress next session

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Documentation

• Include
• Directives of supervisors superiors impacting
  Tx
• Content pertinent to Tx
• Consultations
• Evidence of failure to
• Comply or take action
• Follow through
• Pt complaints about Tx

• Possibly include
• Significant phone contacts
• Late, failed or canceled appointment
• Supervisors signature for students

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Documentation

• Exclude
• Information that can easily be misinterpreted
• Information that has no impact or is irrelevant
  to Dx or Tx
• Past criminal behavior if not relevant to Tx or
  risk
• Sexual behavior if not relevant to Tx or risk
• Your personal comments, opinions or process notes
• Remarks about 3rd parties unless important to Tx
• Client writings and journals

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Groups, Families Couples

• Problems
• Confidentiality is threatened by co-participants
• Divorces
• Child custody
• Law suites
• Blended records are difficult to separate
• Requests for records
• Court Orders
• Testimony in court

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Groups, Families Couples

• Recommendations
• Keep a separate file if you answer yes to any of
  the following
• Would I want a member of a group, family or
  couple to read this?
• Can I predict or be certain what will happen to
  these records?
• Exclude
• Names of people not treated
• Information that would allow a member to be
  identified

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Self-Harm, Suicide, Destructiveness and Violence

• There is a wide gap between the laws, ethics,
  standards of care and behavior and ethical and
  moral imperatives.
• Informed consent based on a professional ethic
  and personal moral position is a private practice
  option since a treatment relationship is based on
  a case by case agreement that is not a public
  right.
• Informed consent based on public or
  organizational policy may not allow for a
  professional and personal position since a
  contractual responsibility and public right to
  services already exists.

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Three Positions

• Individual Position The therapist may breach
  confidentiality as reasonably necessary to
  protect property, the health and life of an
  individual or the safety of society. (personal
  conscience)
• Professional Position The therapist may breach
  confidentiality as reasonably necessary in
  accordance with State law and professional
  standards of care and behavior.
  (social-professional responsibility)
• Organizational and Public Servant Position The
  therapist must follow explicit and implicit
  policy and procedures. (social-organizational
  responsibility)

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Danger To Self Or Self-Harm

• Direct statement of intent or consideration
• Self-harming or suicidal thought content, process
  behavior
• Hx of previous attempts
• Contributing risk factors
• Purpose
• Family Hx of attempts

• Therapeutic intervention to reduce risk
• No-harm agreement
• Acute risk plan
• Follow-up appointments
• Cooperation reaction to plan
• Consultation plan
• Contacts to prevent

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Risk Of Violence Or Destructiveness

• Direct statement of intent or consideration
• Aggressive and violent thought content, process
  behavior
• Hx of previous violence
• Contributing risk factors
• Purpose
• Therapeutic intervention to reduce risk

• No-harm agreement
• Acute risk plan
• Follow-up appointments
• Cooperation and reaction to plan
• Consultation plan
• Consultation
• Contacts to prevent

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Suicide Risk

• Duty
• Document attempts to involve appropriate others
  designated by the client to support, monitor and
  reduce the risk
• Document any failure or refusal to take steps to
  reduce the risk
• Release only that information necessary to
  protect the client and others

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Violence Risk

• Duty
• Laws and standards of practice in Oregon are not
  well established.
• Attempt to warn the victim with the client
  present (if safe)
• Document that you attempted to contact the victim
  at regular intervals
• Give the warning to necessary others if actions
  fail to protect the victim
• Release only that information necessary to
  protect the victim and the client
• Cannot hold or may not be able to admit a
  patient unless there is a causal disorder that
  requires treatment
• Take some reasonable action that could protect
  victims.

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Termination Note

• Is essentially a progress note.
• Should be a separate page that could be sent
  rather than entire record

• Involves
• Treatment dates
• Modalities
• Treatment Activities
• Diagnosis or Problem
• Tx Plan Overview
• Progress, problems, accomplished
• Prognosis
• Follow-up

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Patient Information Disclosures Under HIPPA

• Applies to all information whether oral, paper or
  electronic
• Applies to Private Practitioners, Hospitals,
  Health Insurer, Health Plans, and business
  associated
• Does not apply to Health Insurance or Workers
  Compensation companies

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Release of Information Under HIPPA

• Professionals must obtain a release from each
  patient for all communication with 3rd party
  payers
• One release may be used for all routine
  disclosures (treatment, payment, health plan
  operations)
• Minimum necessary medical information can be
  disclosed to another provider for purposes of
  treatment

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Psychotherapy Notes Under HIPPA

• So far, Psychotherapy Notes are not considered
  part of the patients chart/health record for
  purposes of routine disclosure (logical
  interpretation)
• Psychotherapists can release the following (read
  minimum necessary) without special authorization
  from the patient because they document only the
  analysis of content and conversations. The
  following are not considered psychotherapy notes
  (read minimum necessary).
• Diagnosis, functional status, Tx plan, symptoms,
  prognosis, progress, medical prescription
  monitoring, session start and stop times,
  modality, frequency of Tx, results of clinical
  tests
• Content, conversations and everything else are
  psychotherapy notes (read more than minimum
  necessary).

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Information Released to 3rd Party Payer Under
HIPPA

• Screening/Assessment
• Symptoms (DSM glossary of terms)
• Results of clinical tests (Standardized
  questionnaires/tests)
• Diagnosis DSM , /or Reason for coming
• Tx Plan
• Session start stop times (log of appointments)
• Frequency of Tx times per week , month and
  duration
• Modality (individual, group, couples, family,
  phone, etc..)
• Tx Activity (process, techniques, etc..)
• Medical prescription monitoring (Rx,
  evaluations, re-evaluations)
• Progress routine, nominal improvement
• Prognosis (Poor, fair, good, excellent, guarded)

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Information Released to 3rd Party Payer Under
HIPPA - Example

• Screening/Assessment
• Symptoms insomnia, loss of appetite, low energy,
  loss of usual interest, agitation, low
  self-esteem, guilt, worry
• Results of clinical tests Depression,
  internalizing, severe
• Functional Status DSM Axis IV GAF 60 (current)
• Diagnosis DSM Axis I 296.2, Axis II No diagnosis
  Axis III No reported problems
• Tx Plan
• Session start stop times (see log of
  appointments)
• Frequency of Tx one appointment weekly, 12
  sessions, re-evaluate monthly
• Modality Individual and referral to depression
  education class
• Tx Activity Interpersonal health education
• Medical prescription monitoring Medication
  evaluation if no progress by 8th session
• Progress routine, nominal improvement
• Prognosis Good with continued treatment