Annotated Bibliography Week 2 IN

COMMENTARY / COMMENTAIRE

Record-Keeping Controversies: Ethical, Legal, and Clinical Challenges

Kenneth S. Pope Norwalk, Connecticut

The growing array of record-keeping laws, ethical standards, and professional guidelines has created controversy and confusion. Clinicians struggle with what to leave in, what to leave out, how to handle records securely, when to respond to requests for records versus when to refuse, and so on. This article focuses on 5 challenging areas: confidentiality; informed consent; the state, the law, and legal require- ments; third-parties; and the implications of research findings for record keeping. It discusses published claims, critiques, proposals for change, and research reports, particularly those of Bemister and Dobson (2011, 2012); Castonguay (2013); Christie, Bemister, and Dobson (2014); Furlong (2013); and Mills (2012). It emphasizes the potential problems with any “1 size fits all” approach and the difficulties in creating sensible regulations that do justice to the diversity of values, contexts, cultures, and theoretical orientations.

Keywords: record keeping, ethics, confidentiality, electronic health records, clinical records

Clinical records hold life-changing power. A record’s facts, inferences, conclusions, gaps, inaccuracies, wording, and tone can affect whether a person keeps custody of a child, gets a security clearance, receives life-saving help in a crisis, or secures needed accommodations at work for a disability. When a record’s security is breached, the content— diagnosis, medications, clinical history, and a patient’s most sensitive and private information—may find its way to an array of people and organizations, perhaps exposing the patient to gossip, ridicule, identity theft, exposure of private information on social media, and worse. For example, after learn- ing that an employee hates her job and boss, a company may “reorganize” so that the employee’s position is no longer needed. If records of a clinical psychologist’s own therapy leak out, it might damage the psychologist’s alliance with his or her own therapist and could influence current and future patients’ decisions to consult another therapist. A battered woman’s husband may discover that she was seeing a therapist, despite his threat that he would kill everyone in their family if she did so.

The field owes a debt of gratitude to Drs. Taryn Bemister, Suzanne Castonguay, Chelsea Christie, Keith Dobson, Allannah Furlong, and Jon Mills for bringing their expertise to bear on the diverse, sometimes conflicting demands, values, contexts, theoret- ical orientations, and other factors that make clinical records such a difficult area (Bemister & Dobson, 2011, 2012; Castonguay, 2013; Christie et al., 2014; Furlong, 2013; Mills, 2012). Their thoughtful presentations and exchange of views advance our un- derstanding of the complex challenge record keeping poses and why this puzzle defies simple, easy solutions.

This article comments on five uneasy pieces of the puzzle that those authors have identified— confidentiality; informed consent; the state, the law, and legal requirements; third parties; and re- search—and the difficulties we face fitting them together into a workable pattern that does justice to the diversity of values, con- texts, cultures, and theoretical orientations.

Confidentiality

The authors have voiced concerns, though from starkly different perspectives, about threats to confidentiality. For instance, Bemis- ter and Dobson (2011) suggested record-keeping guidelines and described the ways in which “maintaining and protecting the confidentiality of client records has become far more complex in recent years” (p. 302). Mills maintained (2012) that the Bemister and Dobson guidelines would fail to “protect the primacy of strict privacy the patient expects when seeking out a psychologist” (p. 140). Furlong (2013), citing The New Informants: The Betrayal of Confidentiality in Psychoanalysis and Psychotherapy (Bollas & Sundelson, 1996), argued that the guidelines would contribute to the “erosion of confidentiality in psychotherapy” (p. 81).

To create a sound approach to clinical records, professionals must do a better job of recognizing and responding proactively to threats to confidentiality. These threats may come from the rapidly evolving technologies used to record, store, and communicate clinical information. They may come from industries, advertisers, credit companies, governmental agencies, and thieves seeking access to confidential information to use for their own purposes. They may come from the steps we fail to take to safeguard clinical records.

It is hard to believe that we have done enough to ensure confidentiality or that current and prospective patients can be reassured when reading media reports such as the following:

• “The Information and Privacy Commissioner of Ontario is investigating after a Sarnia woman was contacted by a private

Special thanks to Raymond Arsenault, Loralie Lawson, and Karen Olio who provided helpful comments on a previous draft of this article.

Correspondence concerning this article should be addressed to Kenneth S. Pope, P.O. Box 777, Norwalk, CT 06856-0777. E-mail: [email protected]

Canadian Psychology / Psychologie canadienne © 2015 Canadian Psychological Association 2015, Vol. 56, No. 3, 348 –356 0708-5591/15/$12.00 http://dx.doi.org/10.1037/cap0000021

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cosmetic surgery clinic that offered to perform a procedure she had already booked at a public hospital” (“Ontario’s Privacy Watchdog Probing Leak of Woman’s Medical Information,” 2014)

• “More than 700 patients of the Roseway Hospital in Shelbu- rne are receiving letters of apology after a privacy breach” (“707 Patient Records Breached at Roseway Hospital,” 2012)

• “A nurse . . . was found to have been improperly accessing the protected health information of some 1,300 patients . . . . A former patient . . . expressed concern that their protected health informa- tion was known in the community, population of some 14,700. The individual was ‘basically hearing from other neighbors and friends and people in the community things that would be on their medical file’” (McCann, 2013)

• “A gaffe by Health Canada has outed thousands of medical marijuana users” (“Health Canada Gaffe Outs Up to 40,000 Med- ical Marijuana Users in Letters,” 2013)

• “Alberta Health Minister Fred Horne said Wednesday he is ‘outraged’ a laptop containing key information on 620,000 patients was stolen four months ago but only now brought to his depart- ment’s attention. The information includes unencrypted names, birthdates, health card numbers, billing codes, billing amounts and diagnostic codes for patients” (Bennett, 2014)

• “The personal-health data of millions of British Columbians has been accessed without proper authorization, and in the most serious cases, the provincial government says it will notify 38,486 individuals of the breaches by letter” (“B.C. Privacy Breach Shows Millions Affected,” 2013)

• “This latest breach of privacy is the fifth to come to light at Eastern Health since 2012. In July 2012, Eastern Health dealt with the largest privacy breach in the province’s history . . . . [Beverley Clarke, vice-president of privacy for Eastern Health] indicated that some in the workforce don’t get how significant the issue is. ‘All 13,000 employees, I guess, truly do not understand yet that in fact this is inappropriate,’ Clarke said” (“Insider Tipped Eastern Health to Latest Privacy Breach,” 2014)

Sometimes confidential information spreads widely, not through carelessness or theft but through legally authorized exceptions to current privacy laws. In their excellent review of privacy laws, Bemister and Dobson (2011) noted that “provided that the clients consent to the use of their information and that their identity is kept anonymous, researchers may examine client databases and utilize the obtained information to advance therapeutic techniques and evidence-based practices” (p. 298). They noted that sometimes consent is not required: “Laws in the individual provinces and territories require that research ethics or data stewardship committees oversee research with personal health information and determine whether individual consent is needed. The Personal Information Pro- tection and Electronic Documents Act of 2004 (PIPEDA) is more liberal, allowing the use of personal information for research or scholarly purposes without the consent of the individual, as long as the organization informs the Privacy Commissioner before any dis- closure” (Bemister & Dobson, 2011, p. 305). These research data usually undergo a process of scrubbing that de-identifies individual patients. However, there are questions about whether individual pa- tients may be re-identified, making them vulnerable to exploitation by large corporations, credit companies, advertisers, and other groups. In a Scientific American interview, Latanya Sweeney, Director of Har- vard’s Data Privacy Lab, noted that she was able to re-identify an array of people with Huntington’s disease after all identifying infor-

mation about the patients had been scrubbed. She noted that a banker used cross-referencing technique on publicly available de-identified data “to see if any of his clients had cancer. If they did, he called in their loans” (Walter, 2007, p. 92; see also Benitez & Malin, 2010; Loukides, Denny, & Malin, 2010; Rothstein, 2010). As the Presi- dent’s Council of Advisors on Science and Technology wrote in “Big Data and Privacy: A Technological Perspective”:

Long used in health care research and other research areas involving human subjects, anonymization (also termed de-identification) applies when the data, standing alone and without an association to a specific person, do not violate privacy norms . . . . Unfortunately, it is increasingly easy to defeat. (2014, p. 38; see also Daries et al., 2014)

In some instances, what might seem protected or confidential health information may spread out to agencies of other countries. For example, CBC News reported that

more than a dozen Canadians have told the Psychiatric Patient Ad- vocate Office in Toronto within the past year that they were blocked from entering the United States after their records of mental illness were shared with the U.S. Department of Homeland Security. Ac- cording to diplomatic cables released earlier this year by WikiLeaks, any information entered into the national Canadian Police Information Centre (CPIC) database is accessible to American authorities. “Local police officers take notes whenever they apprehend an individual or respond to a 911 call, and some of this information is then entered into the CPIC database,” says Stylianos. [RCMP Insp. Denis St. Pierre says the CPIC] “also can contain individuals’ history of mental illness, including suicide attempts.” (Bridge, 2011; see also “Canadians’ mental health info routinely shared with FBI, U.S. customs,” 2014)

Bemister and Dobson (2011) note that “Canada has been re- garded as one of the best countries in the world with respect to safeguarding privacy” (p. 305). The safeguarding is monitored by the Office of the Privacy Commissioner of Canada, whose mission is “to protect and promote the privacy rights of individuals,” which includes “overseeing compliance with both the Privacy Act, which covers the personal information-handling practices of federal gov- ernment departments and agencies, and the PIPEDA, Canada’s private sector privacy law” (Office of the Privacy Commissioner of Canada, n.d.).

It is, however, less than reassuring that in 2014 the Office of the Privacy Commissioner lost its own unencrypted hard drive con- taining sensitive data on hundreds of people (Chung, 2014). In addition, it appeared that the Office of the Privacy Commissioner had been ignoring government-wide policy regarding disposing of private information after a certain period of time: “The information on the hard drive dates back 12 years, even though a government- wide policy says records of this kind aren’t supposed to be kept for more than seven” (Chung, 2014).

Thinking through the best possible approach to clinical re- cords— one that is not only clinically, ethically, and legally sound but also practical—requires taking into account this current con- text of remarkable threats to confidentiality.

Informed Consent

Bemister and Dobson (2011) and Mills (2012) also discuss informed consent pitfalls. Bemister and Dobson emphasized the questionable adequacy of forms, noting that “the extent to which these consent forms are true indicators of consent is debatable” (p.

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303). This point is well-taken. Putting a form between you and the patient—particularly a form filled with dense prose and multisyl- labic legalese—and telling the patient to read the form, ask any questions, and sign it can, under the right circumstances, present a wonderful opportunity to sabotage the therapist-patient alliance, provide the patient with a Kafkaesque experience, and neglect the therapist’s actual responsibilities. We therapists are in a better position—and have better training, awareness, and clinical man- ner—than a form does for assessing whether a patient has the capacity, freedom, relevant information, and understanding to give or withhold meaningful informed consent.

Akkad and her colleagues (2006) reported a study of patient perceptions revealing that “many patients did not see written consent as functioning primarily in their interests nor as a way of making their wishes known.” The authors noted that, as previous work by others had suggested, many patients believed that the primary purpose of the form was to protect others from patients (e.g., formal complaints) instead of serving the patients’ interests.

Mills raises concerns far more extensive, stating that “introduc- ing legal rights to a client who is not focused on that information in the session is unwarranted and potentially countertherapeutic” (Mills, 2012, pp. 141–142). I believe that Mills has drawn our attention to two crucial aspects of informed consent. The first aspect is the way in which a focus on informed consent may be “countertherapeutic.” He stated that Bemister and Dobson’s “spe- cific recommendations analysed here do not engender trust, com- fort, security, or protection from intrusion the patient expects” (p. 142). However, if patients expect “protection from intrusion,” as Mills describes, do we bear any ethical responsibility to tell them about exceptions to this protection (see, e.g., Ontario Child and Family Services Act, 1990)? As a specific example, if a patient in psychoanalysis is invited to say whatever comes to mind without censoring it and expects protection from intrusion, what is the possible impact on the patient if the therapist then informs the patient, “On the basis of what you’ve said, I have a legal obligation to report you to the authorities”?

Beyond other consequences that the report itself may trigger for the patient (e.g., perhaps needing to hire an attorney, be subjected to a police interview, testify in legal or administrative proceedings, serve as a focus of media coverage, lose current employment and future employment opportunities), does springing such a surprise intrusion on the patient have the potential to undermine the therapy and therapeutic relationship, cause iatrogenic harm, and lead to other countertherapeutic consequences? If the patient’s transfer- ence is a part of the therapy—and though the concept of transfer- ence developed within the psychoanalytic tradition, there is some empirical work suggesting that it may be relevant in nonpsychody- namic therapies (see, e.g., Beach & Power, 1996; Gelso & Bhatia, 2012; Hoglend, 2014; Tellides et al., 2008)—the therapist’s be- trayal of the patient’s expectation of protection from intrusion may have a devastating effect on the patient. Emphasizing the cata- strophic effects that mishandling the transference could cause, Freud (1924/1952) wrote that the newly developed “talking ther- apy” was “comparable to a surgical operation” (p. 467) and rec- ognized that “the transference especially . . . is a dangerous instrument . . . . If a knife will not cut, neither will it serve a surgeon” (p. 471). Awareness of this potential was, in Freud’s (1915/1963) view, essential: “It is grossly . . . [wrong to believe that treatment occurs] by pottering about with a few harmless

remedies . . . . Psychoanalysis . . . is not afraid to handle the most dangerous forces in the mind and set them to work for the benefit of the patient” (p. 179). As therapists, we must remain aware of the potentially harmful consequences not only of our actions but also of our failures to act. If we believe, as Mills suggested, that our patients expect “protection from intrusion” in regard to what they say in therapy and their clinical records, what are the ethical and practical implications of remaining silent and not disclosing the exceptions?

The second aspect is letting concerns about legal issues drown out the patient’s clinical needs and actual well-being. Beahrs and Gutheil (2001) described

the creation of a legalistic climate within which health care providers are caught in a web of competing procedural regulations. These regulations usually arise from well-intended attempts to prevent bad outcomes, but instead, taken en masse, often stifle constructive action altogether . . . . A misuse of informed consent doctrine could tighten this legalism. (p. 6)

It is hard to imagine that a focus on purely legalistic concerns to the exclusion of client needs would be helpful in any way. Perhaps it would be useful to set aside the view of informed consent as simply the patient’s legal right and therapist’s legal responsibility, and consider it the therapist’s ethical responsibility— one with potential clinical and therapeutic value—reflecting respect for the patient’s freedom, autonomy, and dignity. That would dispel the idea of informed consent as consisting of set presentations about legal issues, forms to be signed, and so on, and view it as a process of dialogue and negotiation that helps both therapist and patient make informed decisions. As former Canadian Psychological As- sociation president Patrick O’Neill (1998) wrote in his excellent book, Negotiating Consent,

[w]hile most therapists recognize that negotiation can clear up clients’ misconceptions, fewer recognize that negotiation is also a vehicle for clearing up the therapist’s misconceptions. An open dialogue can make the therapist aware of features of the case that depart from both the therapist’s model and his or her previous experience, and thus it serves as a corrective to the representativeness and availability biases. (p. 176)

Chong Wang (2009; see also Ho, 2006; Palmer & Kaufman, 2003; Pope & Vasquez, 2011) described how important this kind of open dialogue can be when addressing informed consent in multicultural contexts and offers specific suggestions that may be helpful.

Among other excellent points made in her article, Castonguay (2013) emphasized the implication of third-party payment sources for informed consent:

. . . more and more people are consulting psychologists through Employee Assistant Programs, treatment organized by government agencies, or through insurers. These programs and agencies regularly request reports from the professional or a copy of the file . . . . I believe that the psychologist must confirm with the client, from the outset, that he or she is aware that there will be requests for clinical reports and, therefore, transmission of information to third-party pay- ers.” (p. 139; see also Bemister & Dobson, 2011)

If the consent to transmit clinical records is to be informed consent, patients must understand what this means in practical

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terms. As the patient’s clinical records are submitted on a regular basis to an Employment Assistance Program (EAP), a government agency, an insurer, or other third party payment source, and make their way through different channels handled by various employ- ees for logging in, routing, review, processing, filing, audits, and so forth, the number of people seeing the record multiplies as does the chance that the record will wind up in the hands of someone whom the patient would not knowingly grant access to.

The State, the Law, and Legal Requirements

In her thoughtful article, Furlong (2013) took issue with some aspects of Bemister and Dobson’s (2011) proposed guidelines and the reasoning behind them. She wrote that they insist on the importance of legal obligations and described how

. . . the psychoanalytic community was led to the recognition that professional autonomy required an optimal distance from the law. That the Soviet psychiatrist’s first pledge was to the Communist Party illustrates the danger of excessive allegiance to the state . . . . As a consequence, the decision was made to delete all legal caveats (such as “unless required by law” or “in accordance with legal require- ments”) from the ethical codes of the International Psychoanalytical Association and the Canadian Psychoanalytic Society. (Furlong, 2013, p. 80)

Examples of mental health professionals defaulting on their ethical responsibilities while serving the state—and deluding themselves that they are not doing so—are not hard to find. In a painstakingly documented book, The Professionalization of Psy- chology in Nazi Germany, Geuter (1992) revealed how “psychol- ogists cooperated with the army, state, party, and industry, and yet still seemed to believe that they were acting as reformers” (p. 284) and described the ways in which they “worked to rationalize” (p. 285) what they were doing (see also Cocks, 1985; Gallagher, 1990).

Pope and Vasquez (2011) noted secret research undertaken by the U.S. government for national security purposes in which doc- tors subjected people—including pregnant and lactating women, nursing infants, children, the poor and needy, people with psycho- logical disorders, hospital patients, and U.S. soldiers—to various forms of radiation, generally without their knowledge or consent. (For similar studies undertaken in secret in which doctors and other health care professionals, acting under governmental author- ity, gave people, sometimes including Canadian citizens, “treat- ments” such as auditory assaults, intense repetitive electric shocks, infectious diseases, and high-dose sedatives without obtaining informed consent, see Briggs, 2014; Collins, 1988; Jones, 1981; Masterson, 2014; Risen, 2014; Rivers et al., 1953; U.S. Public Health Service, 1973.)

However, moves to allow ethical responsibilities to give way to governmental power, authority, and laws need not be undertaken in secret. In 2002, the American Psychological Association (APA), for the first time in its 109 year history, formally changed its ethics code to allow psychologists to set aside ethical responsibilities in favor of laws, regulations, or other governing legal authority that were in irreconcilable conflict with those ethical responsibilities:

If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict.

If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority. (p. 1063)

One of the draft revisions included the restriction “in keeping with basic principles of human rights” both in the introduction and in the code’s enforceable section. However, APA deleted that restriction from the code’s enforceable section and left it only in the introduction, which contains “aspirational” ideals rather than the enforceable stands, prior to adoption (Pope, 2011a). The U.S. government highlighted this change in the U.S. military’s formal policy for psychologists involved in “detention operations, intel- ligence interrogations, and detainee debriefings” (U.S. Department of the Army, 2006, p. 152).

This fundamental change was not without controversy. Writing in the British Psychological Society’s Psychologist, Burton and Kagan (2007) stated that

Most concerning of all, the APA allows its members the “Nuremberg defense” that “I was only following orders.” . . . The implication is that psychologists are permitted to assist in torture and abuse if they can claim that they first tried to resolve the conflict between their ethical responsibility and the law, regulations or government legal authority. Otherwise they can invoke the Nuremberg defense. (p. 485)

An issue of British Medical Journal showing a photograph from Abu Ghraib prison on the cover included a special statement from the editor, which included the following passage:

Just obeying the rules has long been insufficient for doctors. The judges at Nuremberg made clear that obeying commands from supe- riors didn’t remove personal accountability. Doctors couldn’t deviate from their ethical obligations even if a country’s laws allowed or demanded otherwise . . . . So deeply ingrained is this ethic in health care that it’s surprising, even shocking, to find that the same code isn’t shared by psychologists, at least in the United States. (Godlee, 2009, p. 7704)

Eight years later, APA deleted this change and no longer en- abled psychologists to set aside their ethical responsibilities when ethics stood in irreconcilable conflict with governmental laws, regulations, or other legal authorities (APA, 2010). (For additional information and documentation about the background, rationales, consequences, and implications of this change in APA’s ethical standards, see Pope, 2011a, 2011c.)

It is possible, however, to accept that an array of examples— from subtle to blatant, from trivial to catastrophic, from the past to the present—illustrate the dangers of excessive allegiance to the state without concluding that to maintain complete professional independence it is necessary for practitioners to distance them- selves from the law. One alternate approach would be to assess which governmental policies, laws, or regulations serve the inter- ests of patients and professionals (without undue costs, risks, and unintended consequences) and which do not. For example, a diverse set of administrative, civil, and criminal rules limit pro- fessional independence. The rules set and enforce the criteria for obtaining a license to practice as a clinical psychologist. They determine which professionals can prescribe psychotropic medi- cations. They prohibit psychologists from surreptitiously filming therapy sessions without patient consent; from engaging in sex with patients, while justifying the act as an innovative experimen-

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tal treatment; and from giving cocaine to patients, while justifying it as a time-honored treatment dating back to Freud. The rules limit the conditions under which a therapy patient may be hospitalized involuntarily and guarantee certain legal rights to involuntarily hospitalized patients, rather than leaving all such decisions up to the independent and unchecked judgment of clinicians.

For this particular alternate approach to work best would likely involve a far greater number of us:

1) actively evaluating which current or potential govern- mental laws, regulations, and policies would be most helpful to those who need psychological and related services, to the work we do (or could do) as profession- als, and to the profession, and which are ineffective, misguided, risky, needlessly burdensome, out of touch, counterproductive, or harmful; and

2) actively working to enact new governmental policies and legislation; amend faulty policies, laws, and regulations; and repeal that which is hopeless.

Third-Party Payers

Bemister and Dobson (2011), Castonguay (2013), and Fur- long (2013) called attention to the influences of third-party payment sources. Bemister and Dobson (2011), for example, noted that third party payer contracts may significantly shape what psychologists put into their clinical records: “These con- tracts often require psychologists to provide evidence of client contacts, diagnoses, treatment, and progress” (p. 298). Caston- guay (2013), in a previously quoted passage, stressed the sig- nificance of third party contexts such as EAPs, governmental programs, and insurance for informed consent for release of clinical records. Furlong (2013) emphasized the impact of third- party payers not only on how clinical record keeping is ap- proached but also on wider themes of autonomy and integrity: “As it stands, the collective weakness in professional autonomy implicitly assumed by Bemister and Dobson’s guidelines will continue to allow the many instances—such as psychotherapy funded under various public and private programmes: the mil- itary, public automobile insurance, redress to victims of crime, work-related disability—where we psychologists are not mas- ters of our professional integrity.” (p. 81)

It may be impossible to overstate the importance and com- plexity of third-party issues in discussions of clinical records’ nature, purposes, content, uses and misuses, risks, and unin- tended effects. If, as Bemister and Dobson (2011) rightly state, third parties often require that psychologists include certain kinds of content, does this ever create issues of divided loyal- ties, conflicts of interest, and questions of “who is the client?” If records have been viewed as serving the interests of the patient, what are the therapeutic and practical effects when records are now written to serve also the interests of third parties who may have different agendas, such as holding down costs, mandating or encouraging certain types of interventions, excluding treatment for certain disorders or problems, eliminat- ing fraud and abuse, using the records to assess the competence and effectiveness of the therapist, compiling stats to make their agency look good, measuring “progress” in a way that is not meaningful or realistic for a particular patient, not allowing

“preventive” interventions even when they might head off a foreseeable crisis, and so on?

Research

Christie et al.’s (2014) study providesd three valuable services to the field. First, it yielded empirical data addressing whether “[i]nforming clients of their right to access their records and taking notes during session . . . may impact the client’s perceptions of the therapist.” In the study, college students rated the perceived effec- tiveness of a therapist after watching one of four 9-min videos. The videos, showing two female actors playing a therapist and patient during an intake interview, followed a two-by-two experimental design: therapist takes notes; therapist informs patient of rights regarding clinical records; both note-taking and informing; neither note-taking nor informing. The study found no statistically signif- icant between-groups differences in student ratings of the per- ceived effectiveness of the therapist.

Second, Christie and her colleagues serve as excellent role models for the rest of us in actively gathering research data to inform our discussions and understanding of this area.

Third, their study stands out for its uniqueness as an experimen- tal study of whether a therapist taking notes or informing a patient of rights regarding clinical records affects perceptions of the therapist. It makes us starkly aware of how few studies there have been on this aspect of psychotherapy and of the degree to which we view the issues through a glass darkly—without the illumina- tion that empirical data can bring.

The work by Christie and her colleagues (2014) has helped draw our attention to the potential that research can bring to bear on these issues and what questions might be explored in future re- search. Some possibilities include the following:

• Is there any way to assess the perceptions of actual patients about their therapist taking (vs. not taking) notes or mentioning (vs. remaining silent about) legal issues during an initial session? The perceptions of a very anxious new patient during an initial session may or may not be similar to the perceptions of a college student who watches a brief video of actors playing therapist and patient and who has no stake in the therapy.

• Does either note-taking or mentioning legal issues affect the likelihood that an actual patient will continue after the intake session?

• Does note-taking or mentioning legal issues affect the ten- dency of an actual patient to disclose or withhold certain kinds of information?

• What significant effects, if any, does taking or not taking notes have on subsequent sessions? (Some patients my expect psychologists to take notes, ask more questions, and be more directive in asking questions to cover “basic” information during intake interviews.)

Psychotherapy and medical appointments differ so significantly that it is possible that none of the studies of nonpsychiatrist physicians and their patients can be meaningfully generalized to psychotherapy and the issues at hand. However, those studies may suggest some interesting aspects of psychotherapy to examine. Physician use of iPads, laptops, notebooks, and other forms of computers to maintain electronic health records (EHRs) in the consulting room has become common and the research in this area turns up a few red flags that might be worth exploring to determine

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whether some versions occur in psychotherapy. Margalit, Roter, Dunevant, Larson, and Reis (2006), for example, found that “key- boarding activity was inversely related to both physician and patient contribution to the medical dialogue” and that “screen gaze appears particularly disruptive to psychosocial inquiry and emo- tional responsiveness, suggesting that visual attentiveness to the monitor rather than eye contact with the patient may inhibit sen- sitive or full patient disclosure” (p. 134).

Noordman, Verhaak, van Beljouw, and van Dulmen (2010) found that for physicians who are general practitioners (GP), “computer use is negatively related to some communication as- pects: the patient-directed gaze of the GP and the amount of information given by GPs. There is also a negative association between computer use and the body posture of the GP” (p. 644). Kazmi (2013), in a systematic review of studies with physicians and their patients, found that “EHR-related behaviours such as keyboarding and screen gaze impaired relationships with patients, by reducing eye contact, rapport, and provision of emotional support” (p. 31). In a study of physicians in a primary care clinic, Montague and Asan (2014) found that patients as well as doctors “gaze at the EHR; doctors spent 30.70% . . . of the visit length gazing at the EHR . . ., [while] patients gazed at the EHR 11.52% . . . of the visit length” (p. 229).

In thinking through such potential research, it will be important to keep in mind the amazing diversity of psychotherapy, the different cultures of the people who come to therapists for help (as well as the diverse cultures among us therapists), the arrays of problems and concerns people bring to therapy, and the different approaches that we therapists take in responding to those people, their problems, and their concerns. In the early era of psychother- apy research, many investigators looked to answer the question “which therapies are effective?” Psychologist Gordon Paul (1967) helped move us toward more difficult but also more realistic and productive research by suggesting a different question: “What treatment, by whom, is most effective for this individual with that specific problem, and under which set of circumstances?” (p. 111).

Working With the Uneasy Pieces

The pieces of this puzzle do not fit together in a way that does justice to the diversity of relevant values, needs, requirements, approaches, and stakeholders. Bemister and Dobson (2011, 2012); Castonguay (2013); Christie et al. (2014); Furlong (2013); and Mills (2012) have expertly discussed the uneasy interplay of the current ethical, legal, clinical, professional, and practical issues; the major fault lines; and some major challenges that confront individual clinicians and the profession. Their work should spark increased discussion among psychologists and other stakeholders in both formal and informal settings.

The many challenges in this area defy easy or immediate an- swers, but the following five thoughts, adapted from another source (Pope & Vasquez, 2011), may be useful as we think through not only whether changes in the legal requirements, ethical standards, and professional guidelines may make sense (and if so, what those specific changes are and how to make them happen) but also how each of us handles our daily record keeping as clinical psychologists.

1. Maintaining mindfulness about clinical records is a con- tinuous, active process that requires a constant alertness, awareness, thoughtfulness, and engagement.

We often find ourselves in situations that dull the attention needed to maintain good clinical records. Has any reader, hungry and eager to meet a friend for dinner, not been tempted to cut corners on the last patient’s chart notes? Fatigue, worry, distrac- tion, and pressure can foster records that are minimally helpful and marred by mistakes. Carelessness can lead not only to records containing errors but also to paper charts, billing records, comput- ers, passwords, and encryption keys left unguarded. Maintaining records electronically creates additional barriers to recording in- formation about the patient and therapy in a thoughtful way, particularly when it includes using a supposed time-saver, the copy-and-paste function (see, e.g., Foote, 2013; Nelson, 2011; O’Reilly, 2013; Siegler & Adelman, 2009; Thielke, Hammond, & Helbig, 2007; Thornton, Schold, Venkateshaiah, & Lander, 2013).

To rely on a standardized way to keep records, one that is a familiar and comfortable habit, can keep us organized and on track, save time, and serve many other valuable purposes. But it can also lull us into a routine that lacks wakeful attention. When we can follow a familiar set routine on autopilot and jot down standard chart notes almost without thinking, we can end up without thoughtful records. Each of the patients who comes to us for help is unique and is constantly changing. None of us is an exact copy of who we were last week. The therapeutic situation is complex and ever-changing. To adapt Heraclitus, over the course of therapy with a patient, we never step into the identical thera- peutic situation twice. Each time we add something to a patient’s record, nothing can spare us the responsibility of asking: What format and content best fit this unique patient and the current therapeutic situation?

2. Awareness of ethics codes is crucial to record keeping, but formal codes cannot take the place of an active, thoughtful, creative approach to our responsibilities.

An informed approach to record keeping requires knowing the relevant ethics codes and codes of professional practice, but we cannot hand off responsibility for our decisions and actions to these codes. (For research studies showing significant limitations on the ability of ethics codes to influence behavior, see Pope, 2015.) Codes inform, enhance, challenge, and sometimes compli- cate our thinking; they never replace it. Even though the pioneer- ing Canadian Psychological Association code—with its conceptual clarity, its attention to conflicting values, and its emphasis on process—“continues to shape ethical thinking around the world” (Pope, 2011b, p. 234; see also Pope, 1991; Pope & Vasquez, 2011), it may not guide us toward an approach that is right for a particular patient or situation. We enrich our thinking through these complex issues by taking into account the diverse formal codes that may be relevant to a specific situation (e.g., see Pope, 2014).

3. Staying abreast of current relevant legislation, case law, and other legal standards is crucial to record keeping, but legal standards should not be confused with clinical, ethical, or moral responsibilities.

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Overemphasis on legal standards has emerged as a troubling social trend. One form involves adhering to minimal legal stan- dards, which may mean looking for loopholes, as if that were our sole responsibility. Politicians fine-tuned this approach. Caught betraying the public trust or engaging in some other egregious behavior and lacking other defenses, politicians often concede that perhaps mistakes were made but emphasize that no law was broken. (Any illegal activities undergo artful transformation into a “technical violation of the law.”) Maintaining mindfulness helps us avoid aiming low and equating getting by without breaking the law with fulfilling our clinical and ethical responsibilities to each patient.

Another form involves anxious attempts to flee any risk of legal entanglements, malpractice suits, licensing board complaints, and so on. Practicing “defensive record keeping”—making risk man- agement our main focus in this and other areas of practice— can cause practitioners to lose sight of ethical and clinical responsibil- ities. When we practice defensive record keeping, our work be- comes managing risks instead of creating records that serve the patient and legitimate purposes.

Psychologists who respect the law, value living in a society governed by a system of laws, and believe that no person is above the law may confront a law they cannot reconcile with their fundamental ethical or moral responsibilities in a specific situation. Civil disobedience offers a framework to honor, affirm, and ad- dress these conflicting values (Gandhi, 1948; King, 1958, 1964; Plato, 1956a,1956b; Thoreau, 1849/1960; Tolstoy, 1894/1951). The person breaks the law that would, according to the individual’s conscience, bring about an unjust consequence, but does so openly and invites the legal penalty both to affirm and demonstrate respect for the belief that a society should be governed by laws applying equally to all and to call society’s attention to the supposedly unjust law. In some circumstances, however, civil disobedience may not be available to psychologists. They may confront situa- tions in which to break the law openly and to seek and welcome accountability and penalty would risk revealing a patient’s identity or confidential communications. These dilemmas come with no easy answers.

4. Laws, regulations, ethical standards, and professional guidelines relevant to this area should recognize and respect issues of diversity to every extent reasonably possible.

Vast diversity of cultures, religions, and other factors continues to enrich our society and our work. This diversity deserves recog- nition and respect not only as we go about our daily charting but also as we think through what kinds of legal and organizational requirements should govern clinical records. What may seem undeniable to any one of us, for example, may seem highly questionable or even objectionable or intolerable to those from another culture, religion, and so forth.

This vast diversity includes a multitude of varied forms of psychotherapy, many of which differ radically from each other. A very small sampling suggests a scope of therapeutic approaches: dialectical behavioral therapy (DBT); intersubjective psychoana- lytic therapy; feminist decolonization therapy; hypnotherapy; ac- ceptance and commitment therapy (ACT); family systems therapy; therapy based on the psychotherapy and social action model;

existential therapy; solution-focused one-session therapy; multi- cultural therapy; Jungian therapy; Gestalt therapy; liberation ther- apy; and positive therapy.

As mentioned in a previous section, the greater the number of psychologists and other stakeholders who actively explore these issues, share their own views, listen openly and respectfully to the views of others, and work to bring about needed changes, the more likely that constructive changes will arrive.

5. Mindfulness about clinical records involves constant questioning, particularly of our own behavior, beliefs, and assumptions.

No one is infallible. Everyone makes mistakes sometimes, is beset by biases and blind spots, and possesses what are tactfully termed “areas for further improvement.” As we set about updating each of our clinical records, asking ourselves questions like “Is there a better way to do this that I’m overlooking?”; “Would rewording what I’m about to write head off misinterpretations?”; and “Are there unintended consequences I could address?” can help sweep away the cobwebs, spot trouble, and open our eyes to new possibilities.

Questioning ourselves can be at least as valuable as questioning others—sometimes more so—as we consider how we might im- prove the legal and other requirements governing record keeping; the privacy, confidentiality, privilege, and security relating to records; issues of possession—i.e., questions of ownership, stew- ardship, guardianship, custodianship, or control of clinical records by each person or organization who handles those records; and the maintenance, transmission, or disposal of records. Long-cherished assumptions and deeply held certainties can be agonizingly hard to question, let alone to give up, but this can be an essential part of rethinking issues. Nothing should be considered off-limits. Prac- titioners need to follow this questioning wherever it leads, even into uncomfortable territory. This may lead us to consider posi- tions that put us at odds with employers, most of our colleagues, professional organizations, or the society at large. It may lead us toward conclusions that some might criticize as “politically incorrect” or–more taboo for many of us in this profession–“psychologically incorrect” (Pope, Sonne, & Greene, 2006).

Answers to some of these questions may elude our best efforts to find them. But as therapists, we are accustomed to the messiness of real life and to struggling with questions that lack tidy answers. That struggle is part of our professional responsibilities. It comes with the work we have chosen and is central to that work.

Résumé

La variété croissante des lois, des normes déontologiques et des lignes directrices professionnelles a suscité controverse et confu- sion. Les cliniciens cherchent tant bien que mal à définir ce qui doit être gardé ou pas, à trouver la façon de tenir des dossiers de façon sécuritaire, à savoir quand acquiescer aux demandes con- cernant des dossiers ou quand refuser, ainsi de suite. Cet article porte sur 5 domaines difficiles à gérer : la confidentialité, le consentement éclairé, les exigences de l’État, de la loi et les exigences légales, les tierces parties et les implications des résul- tats de recherche en ce qui a trait à la conservation des dossiers. Sont discutés les allégations publiées, les critiques, les change-

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ments proposés et les rapport de recherches, en particulier les articles de Bemister et Dobson (2011, 2012), de Castonguay (2013), de Christie, Bemister et Dobson (2014), de Furlong (2013) et de Mills (2012). L’article met aussi en relief les éventuels problèmes des solutions dites universelles et la difficulté d’établir une réglementation sensée qui tient compte de la diversité des valeurs, des contextes, des culture et des approches théoriques.

Mots-clés : tenue de dossiers, éthique, confidentialité, dossier de santé électronique, dossiers cliniques.

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Received December 17, 2014 Accepted December 19, 2014 �

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