Most psychotherapists keep some sort of psychotherapy notes but many professionals do not know the definition, purpose, or legal protections behind what they are writing down. Here is everything you ever wanted to know about psychotherapy notes.
What is a Psychotherapy Note?
The definition of a psychotherapy note is largely legal in nature. According to the Department of Health and Human Services, the definition of psychotherapy notes are as follows: “notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual's medical record. Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: Diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date” (USDHSS HIPAA Administrative Simplification, 2013)
Unofficially, psychotherapy notes are the private notes kept by a therapist that are not meant for public consumption. Some people call them process notes. They are a therapist’s unofficial thoughts, feelings, and hypotheses regarding a client. They do not include identifying information or formal diagnostic information. Most often, they would be taken during a session or right after a session so the therapist accurately remembers what they wanted to say while the session is fresh in his or her mind.
Psychotherapy Notes vs Progress Notes
A progress note is the note of public record. Although there is no absolute rule of what should be included in it, many people follow the Subjective, Objective, Assessment and Plan (SOAP) note format (Lew & Ghassemzadeh, 2019). Generally, as a psychotherapist, you would want to include diagnosis, symptoms, interventions, and a summary of the client’s progress.
Despite the difference between progress notes and psychotherapy notes, many therapists use them interchangeably. While hospitals and large agencies may have specific rules to follow regarding notes, therapists in smaller agencies and private practice are not subject to those rules. They may only ever create one set of notes and not distinguish between a psychotherapy and progress note. This is a personal therapist decision but privacy concerns need to be considered.
HIPAA and Psychotherapy Notes
The Health Insurance Portability and Accountability Act (HIPAA) offers large protections for psychotherapy notes compared to progress notes. Generally, psychotherapy notes cannot be shared with others if the therapist does not wish to share the information in them. The client themselves (or the client’s parent if the client is a minor) is not even privy to what a therapist writes down in their psychotherapy notes. On the other hand, with a client’s permission, progress notes are allowed to be shared with others. In some states, client consent is not even necessary. For instance, office staff may be able to access the information in a progress note without client approval.
It is important to note that protections for psychotherapy notes include insurance companies. At times, insurance companies will want to audit your records to see if they want to pay for—or continue to cover—mental health services for particular clients. Under HIPAA, you may be required to give them your progress notes, but you are protected from having to share your psychotherapy notes.
Despite the protections afforded to psychotherapy notes, they can still be made public under certain situations. The court can order that the notes are necessary for a legal case or they can be divulged under the threat of public safety. Although it would take a more extreme case to have psychotherapy notes released against a therapist’s will, no psychotherapy note is truly private.
Important Consideration for Psychotherapy Notes
1) Even with psychotherapy notes, which have many HIPAA protections, you want to be careful with what you put into them. As mentioned above, no note is entirely confidential. You want to feel free to take down relevant notations but watch for incriminating information. A good rule is to never put down any information you would not want a judge or the police to be able to see.
2) Some therapists develop their own shorthand for psychotherapy notes so they do not have to worry as much about someone else getting a hold of their contents.
3) Psychotherapy notes should be kept separate from progress notes. If psychotherapy notes are kept in the official record, it is not possible to keep them private; it can be argued that they are part of the official record and they will not be protected under the same laws as psychotherapy notes.
4) State laws and HIPAA statutes may differ when it comes to privacy (Zur, 2019). In those cases, whichever is more protective of client privacy should be followed. For example, if HIPAA says that you can disclose subpoenaed records without client permission and the state law says you need client authorization, then you follow the state law.
5) If your psychotherapy notes are subpoenaed that does not necessarily mean you have to hand them over (APA, 2016). You can take the following actions to attempt to keep them from becoming public.
- Negotiate with the person requesting your notes. This is likely a lawyer. There is no rule that says you can’t contact the lawyer and negotiate with them. It may not always work but it is worth a try.
- File a motion to quash. This is a formal request you make to the court to prevent having to provide the requested information. You will state the reasons you feel the information should not be shared.
- File a protective order. This is somewhat of a compromise. You agree that you will provide the requested information but you want to define who is allowed access to it. It is basically an attempt to limit any negative consequences of having the information disclosed.
- Make sure the request for records has the weight of the court behind it. In certain states, a lawyer can write their own subpoena that might not hold up when challenged.
American Psychological Association Committee on Legal Issues (2016). Protecting patient privacy when the court calls. Monitor on Psychology, 47, 7. Retrieved from: https://www.apa.org/monitor/2016/07-08/ce-corner.
Zur, Ofer (2019) Subpoenas and How to Handle Them: Guidelines for Psychotherapists and Counselors. Retrieved from: https://www.zurinstitute.com/subpoena/.