Clinicians in Court: Thwarting Disclosure

By: Allan Barsky, JD, MSW, Ph.D.

Editor’s Note: This article is an excerpt from Allan Barsky’s book, Clinicians in Court, which addresses issues facing social workers when they are called on to testify. This excerpt addresses the issue of disclosing records in court. Look for more from Dr. Barsky in upcoming issues of THE NEW SOCIAL WORKER.

Treating clinicians often wish they could prevent disclosure of records. Some reasons are ethically justifiable, others not. Clinicians treating victims of sexual assault, for example, may be concerned that their clients will be subjected to intense scrutiny before and during the trial of the alleged perpetrator. Historically, defense attorneys could subpoena complainants’ records from clinicians, crisis services, and transition houses in order to discredit the complainant by saying that she is emotionally unstable, tends to fabricate stories, or is motivated to lie because she is trying to hide having had sex with someone else. For the most part, current evidentiary rules prohibit use of evidence of the victim’s past sexual behavior or alleged sexual predisposition, although there are some exceptions (see Federal Rules of Evidence, 2010, Rule 412, at http://www.law.cornell.edu/rules/fre/rule_412). Also, most states have laws granting privilege to advocates, crisis counselors, and transition house staff working with victims of domestic violence, according to the American Bar Association.

Still, there are many other areas of practice where clinical records could be subpoenaed and the client could be embarrassed. Consider, for instance, a client who has received vocational counseling. The counselor’s records may include information about the client’s problems, including poor performance in school or prior work settings, irresponsible behavior leading to dismissal, or ethically questionable behavior. If a clinician wants to protect his client from disclosure of this type of information in a public legal process, there are several options, described below. Unfortunately, each option has major drawbacks. Before adopting any of these options, consult with your attorney, professional association, or other expert on law and professional ethics.

Minimal Records

To protect their clients, some clinicians resort to maintaining minimal records (e.g., limiting details to the name of the client, the problem presented, and the dates seen). They deliberately exclude any information that could harm the credibility of the complainant or embarrass her. Unfortunately, some of this information may be clinically important, legally relevant, and ethically necessary. Suicidal or homicidal thoughts, alcohol or drug use, and high levels of stress are just a few examples. Although minimal records may thwart disclosure in legal processes, they may not meet the standards required for competent clinical practice. Further, the clinician may still be called to testify about client information not included in case records. If you want to keep minimal records, ensure that these records are consistent with agency policy, laws regulating your agency, and your professional code of ethics.

Double Records

Some clinicians keep two sets of records—an official set and a personal set. The official set excludes potentially damaging information. The personal set includes all information, assessments, and speculations that the clinician uses for her own purposes. Although some clinicians believe that a subpoena applies only to the official records, all records are subject to subpoena. Some clinicians hide the fact that they have a set of unofficial records. However, if found out, failure to disclose all records can result in obstruction of justice or contempt of court charges against the clinician. The question raised by some clinicians is, “How will anyone know?” The real question is, “What does your sense of ethics and risk taking tell you?” Few agencies or professional associations would officially condone hiding a second set of records. There is no ethical foundation for keeping two sets of records. Ethically as well as statutorily, one set of records is what is appropriate.

Coded Information

Some clinicians use secret coding to make parts of their records indecipherable to people unfamiliar with the coding. Some codes are so subtle that the reader does not even know that coding is being used (e.g., a double asterisk may denote past suicide attempts; “FLK” for funny looking kid). During a hearing, you may be asked to explain your codes or shorthand. Some codes may not be directly significant to the case but may indicate bias, lack of respect, or lack of professionalism. If it appears that you have deliberately tried to mislead the reader, your credibility as a witness may be called into question.1 Further, if someone else in your agency needs to refer to your records, will she understand what you have written? As indicated earlier, if you know in advance that your case may be involved in a legal proceeding, you may have an ethical obligation to maintain clear notes without the use of code or shorthand. This will ensure that others reviewing your work—in court or otherwise—can understand the meaning of your records. If you want to use acronyms or abbreviations in records, the professional approach is to include a key that accurately explains the meanings of these terms.

Doctoring or Disposing of Documents

If there is no impending legal process, clinicians are free to amend their records. In many agencies, supervisors or agency attorneys periodically review case records and suggest changes to avoid future problems (e.g., to remove judgmental language, bias, or speculation). Clinicians are also free to dispose of records, within the policies of the agency and the standards of the profession. Michael’s mediation association, for example, suggests that mediators maintain records for at least six months after mediation has been terminated. However, if a clinician is aware of an impending legal process or has been subpoenaed, doctoring or destroying documents can result in such charges as contempt of court or obstruction of justice, malpractice suits, and professional disciplinary actions. Once again, the question may arise, “How will anyone know?” Before shredding your files, you might want to explore the frequency with which fraudulently motivated shredding has been unearthed and exposed.

Even if you have no records, you may still be called as a witness. You may have limited value as a witness, particularly if you have no current recollection of the events in question. However, keeping records might actually help your client, since premature disposal of records can hurt your credibility as a witness. Finally, a clinician without records may be more vulnerable to malpractice suits (e.g., where a client later alleges that the clinician induced a false memory of abuse) or complaints before a licensing board for failure to comply with ethical standards of record keeping.

Lying

When clinicians are involved in legal processes, they are expected to tell the truth. Depending on their priority of values, some clinicians may be tempted to intentionally lie to protect clients or themselves. Frieda believes her records will embarrass Paula, so Frieda considers telling Alice that she has already destroyed them. Sam does not want to be called as a witness, so he wonders whether to tell the court he has no current recollection of any of his notes (a convenient memory lapse). These types of tactics can thwart disclosure. However, you risk charges of perjury and professional misconduct, as well as a negative perception for both you and your profession. Professional organizations, agencies, and judges will rarely condone lying, even if the witness honestly believe she has good intentions.2

Given the forgoing dilemmas, how does a clinician balance these risks and conflicting interests? If a significant part of your mandate is to collect evidence, this takes precedence in the way that you gather and store information. If your primary role is that of a helping professional, then your records should be designed primarily to meet your needs as a treating clinician. Bear in mind the potential legal pitfalls. In many fields of practice there are few conflicts between the clinical and legal requirements for proper record keeping. In areas where conflicts arise, there may be no ideal solution.

Footnotes

1TTFO is sometimes used as slang for “told to f**k oneself.” If asked what the initials mean, the practitioner might say “to take fluids only.” Patients have sued agencies based on derogatory notations in their records.

2The types of rare examples include necessity (e.g., lying in order to prevent a person from being killed when there is no other alternative) or to escape pernicious treatment by a rogue state (e.g., Jews and other persecuted people who lied to escape Nazi Germany).

Dr. Allan Barsky is Professor of Social Work at Florida Atlantic University School of Social Work and Chair of the National Ethics Committee of the National Association of Social Workers (NASW). He is the author of Ethics and Values in Social Work (Oxford University Press), Conflict Resolution for the Helping Professions (Brooks/Cole), and Clinicians in Court (Guilford Press). The views expressed in this article do not necessarily reflect the views of any organizations with which Dr. Barsky is affiliated.