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  • Limiting Legal Risk: Session Notes- Another Opportunity to Protect Your Practice, by Frances Schopick, JD, MSW

Limiting Legal Risk: Session Notes- Another Opportunity to Protect Your Practice, by Frances Schopick, JD, MSW

May 09, 2019 1:47 PM | Anonymous

One of the questions I hear a lot from counselors is: Is it really necessary to write a progress note? And if so, how much do I have to write?

The answer to the first question is simple and straightforward: Yes. Counselors in Washington State do, by law, have to keep a progress note on every client session. The answer to the second question is less clear, and depends on circumstances.

Both federal and Washington State laws are quite clear about the fact that a progress note must be maintained; and to some extent, the law even says what must be included. In addition, the Washington Administrative Code (WAC) states that the licensed counselor must maintain a progress note that is “… sufficient to support responsible clinical practice for the type of theoretical orientation/therapy the licensed counselor uses.”  (WAC 246-809-035)

What is “sufficient”? What will sufficiently “support” clinical practice? What is “responsible”? These terms are subjective. So the good news is that, at least to some extent, it is up to you to decide what you believe is sufficient, supportive, and responsible to your clinical practice.

I have spoken to counselors who freely admit that they purposefully write notes that are illegible, even to them, stating that doing so protects them from intrusion. They explain that they do this to ensure and preserve ultimate confidentiality of the record. They assert that if they were ever called upon to disclose their notes, the notes would be impossible to read and would therefore be insulated. Needless to say, this is a bad idea.

In my experience, this rationale is wrong-minded for three reasons. First, it is unwise because it is not true. You will not be insulated. You will simply look inept. The lack of legible notes will only show that you are oblivious to your legal obligation to communicate what transpired. Second, it is reckless. It is reckless because you are taking a chance that could put your entire livelihood at risk. The note does, by law, have to be sufficient to support responsible clinical practice for the type of theoretical orientation/therapy the licensed counselor or associate uses; and if it can’t be read, it could likely be deemed insufficient. And third, if you fail to keep a legible note, you squander the opportunity to demonstrate your ability to conceptualize a case, form and address treatment goals, conduct therapy, and provide clear evidence of client progress.

Progress notes have a purpose, and that purpose serves you as well as your client. As with the informed consent and disclosure, the progress note serves a legal, clinical, and ethical function. Legally, as stated above, notes are required. In the law, a contemporaneous note written as part of the normal course of business (a note recorded during or directly after the session) has special value and is generally given greater weight than either a spoken account by memory or a written report made long after an event occurs. The closer to the time of services the record is written, the more likely its accuracy and veracity will be accepted. It can be reinforcing of your skills, conduct and, generally, your version of events, should your actions ever be challenged.  Notes also provide evidence that you observed your professional standard of care.

Occasionally, a client may request that no record be kept of their sessions. The WAC acknowledges that a client may request that no record be kept, and you may agree to the request. Even so, there are some data that you still have to retain, including the client’s written request that you not keep a record. However, as we consider the benefits of the progress note, as well as its value to you should anything go wrong, I generally encourage counselors to think twice before they forego the opportunity to preserve a written record that demonstrates competency.

The clinical function of the progress note is also important and serves many functions. The note demonstrates your clinical proficiency. It supports continuity of care to other healthcare providers. It creates a springboard for further work if the therapy gets “stuck” and you want to review. It shows that you conducted serious, purposeful treatment with professional treatment goals in mind. Further, notes show when you comply with your responsibility to identify and/or report concerns of client harm to self, others, or the public, or abuse of vulnerable populations. Notes show that services occurred. They may provide a written rationale for your decisions, notice of termination, and referrals made.

In addition to the progress note, you may wish to keep a “psychotherapy note.” This is a note that, by definition, is stored separate from the progress note, and is solely for you. HIPAA states that a client’s legal right to access the record does not extend to the psychotherapy note. However, you may not share the psychotherapy note without the client’s consent, except to defend yourself as, for example, from a DOH complaint.

The ethical function is articulated in Codes of Ethics. The NASW Code of Ethics states that social workers “… should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided“ and should be able to  “ensure continuity of services provided to clients in the future.” (NASW COE 3.04) Thus, a timely and accurate note serves our ethical duty.

Whether a progress or a psychotherapy note, it is important to keep in mind that it is possible that these notes may be read by other providers, as well as by lawyers, judges and, importantly, your client. Counseling is challenging work, and you may be tempted to vent. Remember always to write the note with care. Your client may read it one day.

What about method and length? Method is up to you. You can keep a problem-oriented medical record or a solution-focused note, as you please, as long as it is “sufficient to support responsible clinical practice of the type of theoretical orientation/therapy” that you use.

There’s more information involved in the topic of clinical notes than I can cover in this article. In my trainings on this subject, I discuss length, content, types of notes to use, and how long to hold onto them.

But what about you? Is there another function that serves you? I believe that session notes are key to risk management of your practice. Your notes serve as an opportunity for you to produce a body of evidence to support your practice. When you write a timely note that truthfully records responsible clinical interventions, progress and psychotherapy notes may be all that stand between you and a successful complaint lodged by an angry complainant. The progress note can create a foundation for your self-defense, should the need ever arise. This is no small thing. Why in the world would you want to deprive yourself of such a rich resource?

In short: Inadequate records can sink your practice, and thorough records can save it. Complainants can make all sorts of claims; but if you adequately document your sessions, you can refute with a reliable version of events. Incidents of touch, a client’s wish for a personal relationship, a request for a legal opinion that is out of your scope, or a client’s frustration that you have not successfully alleviated existential pain, can all be addressed with solid session notes that show you performed professionally.

My goal is to help you stay safe as you help your clients get better. Responsible record keeping is entirely do-able. Learning to write notes that manage risk can be invigorating and empowering. Maintaining sufficient records can protect your license, preserve your livelihood, and help you breathe easy. With proper guidance, you can understand best practices to handle awkward moments with clear boundaries that reinforce scope of practice within the standard of care.

Frances Schopick, JD, MSW is an attorney with an extensive background in clinical Social Work and psychiatric research. She represents counselors who have DOH complaints against them, receive subpoenas, need to attend depositions, or are called to testify in court. She also provides consultation for ethics, risk management, and setting up disclosure forms for your practice. If you have any questions, you may feel free to contact her at fschopick@comcast.net or 425-891-3411. She provides initial consultations at no charge, and is happy to respond to your questions.

Disclaimer: Nothing in this article should be construed as legal or clinical advice, consultation, or supervision. Every situation is fact-specific, and must be considered individually.


Washington State Society for Clinical Social Work
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