The Impact of Electronic Storage on Mental Health Care Records

Laura Gerdes Long

By Laura Gerdes Long

The looming clash over the privacy of mental health care records as they are increasingly being stored electronically was revealed in “As Records Go Online, Clash over Mental Care Privacy,” an article in the June 21, 2012 issue of the Boston Globe.

The Globe article highlighted the case of a patient who attended weekly therapy sessions and, as is typical, revealed her most private secrets, including depression and childhood sexual abuse.  Her psychiatrist at Massachusetts General Hospital would then type a summary into her computerized medical record.  With that, more than 200 pages of sensitive notes became available to any doctor who cared for her within the sprawling Partners HealthCare system.  She discovered this only when a doctor later referenced the notes.

On one hand, Partners (the hospital system) argues that doctors must have a complete picture to make accurate diagnoses and having different rules for psychiatric records contributes to the stigma of mental illness.

On the other hand, this article highlights the delicate privacy issues that are surfacing as electronic medical records become widespread.  Providers in separate networks are preparing to share patients’ records more widely online — to better coordinate care and cut wasteful spending.  This will probably intensify the debate about what should and should not be shared, as well as fears about the unauthorized release of patient information.

As Dr. David Blumenthal, Partners’ chief health information and innovation officer and former national coordinator for health information technology for the Obama administration, said:

“It’s one thing to give your psychiatrist the right to share your information [with certain doctors], it’s another to enter your data into a system that makes it available with relative ease to an unknown number of physicians who may be involved in your care.  Most Americans see the benefits as much greater than the risks.  But there are groups who are very uncomfortable with their records being shared with people they have not specifically designated.’’

This article illuminates what I have been preaching to many mental health care providers in Missouri: although the regulations do not state that psychotherapy records must or should be separated from the rest of the medical record, it is plainly not prohibited. Because separation is allowed by HIPAA, such separation should become the regular practice of mental health care providers.

It is my understanding (from a listserve of which I am a member) that the patient mentioned in the Globe article filed a complaint with the Office of Civil Rights and received a response that HIPAA offered her no privacy protection and no recourse under the circumstances.  The special protections for psychotherapy notes (with all the exceptions) are extinguished if the therapist intentionally or unintentionally puts the notes in the patient’s general medical record.  (Apparently, many integrated delivery systems require this.) Thus, the extra protections that therapists want to provide as to psychotherapy notes may be waived by the therapist, not the patient, and many do.  Compare, the psychotherapist/physician-patient privilege, which can only be waived by the patient.  In contrast, here, the patient cannot unilaterally shield her psychotherapy notes.

In other words, it is highly important to differentiate between the following: “notes,” “progress notes,” “charts,” “records,” and “psychotherapy notes.” “Psychotherapy notes” is a defined term and is protected from the wide dissemination allowed to regular progress notes, so long as the therapist cloaks those records with that protection by separating them from the rest of the general medical records.  Even the patient is not routinely entitled to see or obtain such records, unless the therapist chooses to disclose them to the patient.

Posted by Attorney Laura Gerdes Long. Long practices in tort, insurance defense, legal malpractice, health care, and employment law. Well-versed in employment law policies and processes related to HIPAA, she serves as a trainer and advisor to health care providers, insurers, self-insured employers, and municipalities.


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