Codes and Relevant Legislation
- Psychologists Code of Ethics (Australian Psychological Society (2007)
- Privacy Act 1988 including the Australian Privacy Principles and the Notifiable Data Breach Scheme
- Freedom of Information Act 1982
- Archives Act 1983
- In Victoria the Health Records Act 2001
- In NSW the Health Records and Information Privacy Act 2002
- In ACT The Health Records (Privacy and Access) Act 1997
- In the NT The Information Act 2002
- Informed Consent
- Health Legislation Amendment (eHealth Act) 2015
- In Qld the Information Privacy Act 2009
- My Health Records Act 2012
What Is The Purpose Of Your Notes?
Notes are essential to allow for accurate recall of client related information. There will be times in your career where you need to look back on information recorded about clients in order to provide the best possible care to the clients. There may also be times when the client file may need to be accessed by someone other than yourself (e.g. in the case of your being unable due to injury). Having a complete file allows for the client’s treatment to continue without interruption or the client needing to re-tell their story all over again. There is always the possibility of having your records subpoenaed by the courts in matters regarding your client. If you are required to give evidence about your client or your treatment, you will need an accurate record of your interactions with the client in order to ensure the accuracy of the information you impart. Good records also significantly increase the defensibility of a claim or complaint against you, especially when the clients recollection and yours differ significantly.
What is the minimum information that needs to be recorded?
The file should contain all the interactions you have had with your client. This includes text messages, records of phone conversations, emails etc. Some practices may have separate sections of the file available for administration and billing purposes only and a clinical file which cannot be accessed by anyone other than clinical workers.
The complete file should also contain;
- Documented informed consent signed by the client, outlining how their records are maintained Demographic information such as name, date of birth, address, contact details, emergency contact details
- Release of information forms signed by the client in order to give permission for you to communicate with others about their health information
- Clinical notes
- Dates and times of appointments
- Assessments that have been completed and their results
- Any reports that have been written
- Referral letters/reports from other professionals
- Client history
- Fees paid and outstanding
- Letters to other healthcare providers
- Provisional/differential diagnosis or diagnosis, case formulation Treatment plan response to treatment
- Risk management plans and actions taken when required to enact the management of risk
The file should be legible and contain sufficient information about the client and their treatment that another psychologist would be able to continue the treatment.
What should not be in the file?
- All entries must be accurate and factual. Leave out anything that would be considered unsubstantiated.
- Be mindful of the content and level of detail that you are including when recording into the client file. Take care to maintain the clients confidentiality and privacy when you are recording sensitive information and be aware who else can access the file.
- Do not use abbreviations that are not generally recognised in the field.
- Do not use language that would be perceived as derogatory by the client. Communicate respect for your client at all times. The client can request a copy of their record at any time so write it as if your client will be reading the file.
- Do not include any extra information that is not essential to the file.
Making sure your notes are up to date
It is important for psychologists to keep records that are complete, factual and accurate. This involves ensuring that records are up to date and there is no lag between service provision and note writing. There is also higher confidence that records will be accurate if they are completed as soon after an interaction as possible. If you need to go back and amend anything in your records you need to note the date that you make the amendment, if it is an electronic file you must save the original version and the amended version.
Storage of files
You need to ensure that the confidentiality of your client is protected and need to keep this in mind when arranging where client files are stored. You need to ensure their longevity as well as you will need to keep some records for a very long time. You need to ensure that there are safeguards in place so that others cannot change your records after you have made them.
When moving files from one location to another, care must be taken to ensure the confidentiality of the file. This may include storing the files in a locked bag or case.
Whenever there is a conflict between organisational requirements for the storage of records and the code of ethics or the legislation you are always required to abide by the law and the code of ethics. Seek legal advice or supervision if you are having difficulty negotiating with your workplace.
If you are in private practice you need to develop a protocol for if you are unable to access your records due to illness or disability etc. An agreement with another colleague who is qualified to access and store psychological records is recommended.
If your records have been compromised and your clients confidentiality has been breached you need to consider the consequences of this and take action to mitigate the impact on the welfare of the client and notify them that their data has been accessed. There is a requirement that you be in compliance with the Notifiable Data Breach Scheme. See https://www.oaic.gov.au/privacy/notifiable-data-breaches/ for more information.
Electronic records
With records overwhelmingly becoming digital, it is important to be mindful of the security of the records, ensuring that they cannot be accessed by those who are not authorised by the client to access them. If you are using cloud-based storage you need to ensure that the service you are using is compliant with Australian laws. Be mindful that in some cases you will need to retain the original copy of documents to be compliant with the law, Medicare and other government departments.
Who owns the file?
This is a difficult question to answer. Usually the practice or company where the file is created is the owner of the file. In some cases though it may be written into the employment or subcontractor contract that the author of the file is the owner. Be direct and clear when entering into work agreements who is responsible to keeping the record. If a client requests the transfer of their file to another psychologist you need to keep a record of the dates and duration of their sessions with you.
How long do I need to keep my records?
You have a legal obligation to keep client records for a period of time. How long you keep records depends on whether there is a risk of legal action arising from them and how long you want to allow in case the client wants to return to see you or someone else for treatment. If the client discloses being the victim of a crime you will be required to keep the records until the statutory limitation period is reached. This can be different in different states and territories and for different crimes. This may be tricky to determine as the courts generally have a discretion to extend it in certain circumstances and the limitations differ according to state and territory as well as the type of crime that was committed.
When a client has a current claim for damages or who is under a guardianship or other court/tribunal order the records should be kept indefinitely, or until seven years after the clients death. Where there has been a complaint about you by a client you should retain the records indefinitely. Otherwise, according to the Health Records Act, records should be kept for a minimum of 7 years from the time that you have last had contact with the client if the client is an adult. If the client is a minor when you last saw them you need to keep their records for 7 years after they turn 18. These requirements override any requests from your client to dispose of their files.
Records of Aboriginal & Torres Strait Islander peoples
There has been a lot of information lost regarding the backgrounds and past of Indigenous Australians. This has contributed to the inter-generational trauma and grief the community has experienced. Caution is recommended in the destruction of their files. Non-Government organisations in some states such as NSW and NT are required to keep the records of Aboriginal and Torres Strait Islander peoples indefinitely. Some states have no statutory obligation to retain their records or expend resources preserving and indexing them.
Organisations can show their care and support for our first people by choosing to keep the records of Aboriginal and Torres Strait Islander people, and making the records easily accessible.
Ascertain those who identify as of Aboriginal or Torres Strait Islander descent upon intake by directly asking all clients about whether they identify as such, and discuss their wishes for the storage of their files after the mandatory retention period. Note, this legislation is often changed and it is up to the psychologist to remain current regarding the requirement to retain records.
What if my client is a couple, family group or organisation?
Be considerate of the privacy and confidentiality of all parts of the client group when you are making your notes and keeping your records. You will need to explain to each client the limits of confidentiality before providing treatment and gain their consent. If the notes are subpoenaed or required for some other legal reason for one person there may be information about the other person/s in the notes and in that sense the other person's confidentiality is limited. They need to agree to participate in the group or couple session on that understanding.
Informed consent
When having your initial session with clients they need to be informed how their records are stored as well as what protections you have in place to ensure their confidentiality. If you have hard copy records, letting the client know where they are kept and who has access to them is essential. If you have digital notes you also need to outline the risks and measures you are taking to ensure that their personal information is protected from other parties being able to access it. This consent needs to be noted in their file at the outset of treatment. You also need to inform clients about how long you will keep their records for and how they will be destroyed. The client also needs to be informed of when you will have to breach their confidentiality e.g. if they are at risk to themselves or others or the file is subpoenaed.
Who can access my files?
Your client records can be obtained through privacy legislation, subpoena, or freedom of information. You cannot be exempt from disclosure in most cases, regardless of the wishes of the client or the psychologist. Oftentimes a psychologist is able to negotiate with the party requesting the files that a report be written instead so that the notes are not taken out of context and extraneous information is not viewed by the party making the request. The grounds for questioning a subpoena include; the scope of the demand is too broad, if the demand to collect and provide information is too great, the court does not have jurisdiction over the psychologist or the documentation, the information they request is not relevant to the issues being decided in court, there was insufficient time to collect the information, when it involves the release of test information such as manuals etc. that may affect the integrity of further testing of other clients, if the data is to be released to people who are unqualified to interpret the data or there are other state or federal laws that protect the confidentiality of the information. It is wise to seek legal advice if you have concerns about the release of information when you receive a subpoena or warrant. It is also wise to check the validity of the subpoena with the court in which it was issued. Any concerns should be provided in writing to the court.
If you wish to object to a subpoena you will need to look up the specific court that your subpoena came from and you will be able to can find out from their website how to object to producing the documents. There is a form that would usually be with the subpoena that you need to lodge and you will need to provide reasons for why you do not want to or cannot comply with the subpoena. Here is a link to one court that will provide you with some information http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reportsandpublications/publications/corporate-publications/br-served-with-a-subpoena.
If your records are going to be removed (usually by subpoena/warrant) it is also your responsibility to keep a copy of the client file. It is also important to get a written confirmation or sight the paperwork that permits them to take the file.
It is important that you get informed consent from your client at the outset of therapy and advise them that files can be accessed via subpoena or warrant or requested by other third parties who may be involved in their case (such as Workcover). Inform your client before files are released to other parties and inform them of what information has been requested and must be shared. A client can also ask for their information to be shared with others or ask for their file to be transferred to another psychologist. This should be noted on a signed release form that is current.
Psychologists need to write client records mindful of the likelihood that they may be read by the client. The client can be refused access to their file if allowing access would pose a serious threat to life or health of any person. See a list of exceptions to access via the Privacy and Health Records Act. If a client is wanting to see their file many psychologists would book a session to sit with the client to go through the record. If they ask for a copy and do not wish to view it with you it is important that you consider their welfare and ensure that they have support when viewing the file.
If you have any concerns about the legal obligations you have regarding the client file you should seek legal advice. Your professional indemnity insurer is often able to provide this assistance.
How do I actually dispose of the file?
You must dispose of the file in a way that still protects the confidentiality of your client. You must take reasonable steps to destroy or permanently de-identify the personal health information. You will also need to keep a register of the name of the person whose file was destroyed and the period of time over which the file covered as well as the date that it was deleted or destroyed. If you are using a file destruction company it is still your responsibility to ensure that they are certified to conform to confidential file destruction. Ensure you retain a certificate of destruction if you use one of these companies.
Disclaimer: The AAPi aims to ensure that this information is current and accurate at the time of publication. Changes after publication may affect the accuracy of this information. Readers are responsible for ascertaining the currency and completeness of information they rely on, which is particularly important for government initiatives, legislation or best-practice principles which are open to amendment. The information provided here does not replace obtaining appropriate professional and/or legal advice.