In Treatment -- Issues, week 2

On the HBO forums there has been considerable discussion of the note-taking issue. And we saw this week that after seeing April, Paul sat down to write some notes. Which we know from what he said to Mia when they met to discuss the lawsuit taking session notes is not his usual practice. So why now?

The answer is simple -- anxiety. 

The whole issue of session notes is related more to risk management and insurance company requirements than it is to good care and the best interests of the patient. In fact. until fairly recently, it was up to the therapist what kind of notes if any notes would be taken. And, depending on licensing requirements and whether or not one accepts third party payment, it is still up to the therapist on this issue. Some therapists document via a short notation the occurrence of a session combined with  billing records. Others take notes during the session. There is nothing in these approaches or any other that correlates to skill or outcome.

In a paper presented to the APA, Martin Williams explains how what starts as a way to manage risk morphs into standard of care -- and sometimes into mandated requirement:

"Why wouldn’t you want to take notes about your session? ...

Some psychologists—many more, I think, back a few decades ago and fewer today—do not think of what we do as medical, or as a treatment, or as something for which written documentation is appropriate. We see our work as forming relationships with patients, relationships that are unlike that of doctor-patient, but more like teacher-student, consultant, clergy-parishioner, or simply peers. Some of us believe that medicalizing that relationship by writing notes about how “the patient is progressing” or even about what happened during the session creates a barrier between the two people who are engaged in a personal journey together. Along those same lines, some of us eschew diagnosis and treatment plans.

It doesn’t really matter whether you agree with this Humanistic approach to psychotherapy. It serves as a good example of how risk management evolves to become the standard of care. Somewhere along the line, psychologists thought it would be a good idea to document what you did in therapy as a way of protecting yourself from certain claims, especially claims that you failed to do something. If someone claims you failed to ask your patient if he or she was still feeling suicidal, and your notes show that you did ask that question, bingo, you’re protected. If the patient later suicided, but after the session you wrote a note documenting the reasons that you believed the patient was not suicidal, and those reasons make sense to a later adjudicator, you have a degree of protection that you wouldn’t have had you just reconstructed that session from memory—subject to the skeptic’s view that your memory had been conveniently altered and rearranged to diminish your liability.

So it makes sense that those of us who want more protection would minimize their risk by taking notes, taking notes to document that we did all those things that someone later might claim we failed to do—a fine risk management idea. Fast forward to 2002 and we find that record keeping is no longer about risk management. It has become the standard of care...

One no longer keeps records to protect oneself. Now, one keeps records because not doing so is considered unethical in and of itself. Risk management evolves to become the standard of care."

Ultimately each therapist has to decide where he or she stands on this issue. If one does not accept third party payment, it is a little easier because there are not then concerns about insurers demanding to inspect files, which they have the right to do for covered patients. The therapist must weigh duty to protect the patient's interests and confidentiality vs. risk management. Consider also that patient files can be subpoenaed in other legal actions such as divorce cases and the confidentiality issue can be quite significant.

So Paul, now anxious about the lawsuit filed by Alex's father, is taking notes after seeing April, not because it makes him a better therapist but because of his fears. It isn't clear whether he is also taking notes on other patients. 

This is a difficult issue. Before therapy was routinely covered or expected to be covered by insurance, risk management and these kinds of records requirements were rare for therapists. And given the low incidence of lawsuits against therapists, the fear generated by risk management folks is disproportionate. Years ago in response to someone asking how he felt about insurance coverage for analysis, a well-known Jungian analyst said that we must remember that he who pays the piper picks the tune. We do well to bear this in mind as third parties become more a part of what we do.

"Psychoanalysis cannot be considered a method of education if by education we mean the topiary art of clipping a tree into a beautiful artificial shape. But those who have a higher conception of education will prize most the method of cultivating a tree so that it fulfils to perfection its own natural conditions of growth." Jung C W, vol. 4, para. 442

© Cheryl Fuller, 2016. All  rights reserved.