SECTION I: WHAT ARE MEDICAL ERRORS?
What is a Medical Error in a Behavioral Health Setting?
A medical error occurs when there is a failure to complete a planned action or the wrong plan
is used to achieve an aim. It is important to note that a bad outcome from an appropriate
treatment is not considered a medical error. Medical errors are more likely to occur in
vulnerable areas where the system in which you work is not well enough designed to
accommodate the diversity of clients being served. In learning to prevent these errors, it is best
not to attribute blame to an individual. Rather, it is more helpful in prevention to consider an
error that has occurred as a failure in the system. Everyone can, at times, have less than
favorable outcomes. The focus is on how to develop and carry out an appropriate assessment
and the treatment plan, especially in areas where it is known that there is high risk.
What is an Adverse Event?
An adverse event occurs when there is an injury that is caused by the assessment or treatment
and is not the result of an underlying problem or condition of the patient. Typical adverse
events in the mental health setting most often occur when there is a failure to adequately assess
for factors other than psychological causation. Examples include behaviors that may be due to
brain damage, injuries due to medication reactions, or suicide attempts and other selfdestructive
behaviors. We will spend time learning about adverse events that may be caused by
violence toward self and others because of its prevalence in society today and how trauma may
cause more serious medical and psychological injuries. The adverse event often comes when
the clinician fails to do an adequate assessment to look at these various possibilities.
What is a Sentinel Event?
A sentinel event is an unexpected outcome that involves serious physical or psychological
injury or death. Sentinel events occur after a medical error is made and an adverse event has
occurred. It is always important to assess the potential for a sentinel event to occur and take
appropriate steps to reduce the risk.
SECTION II – ROOT CAUSE ANALYSIS
Root cause analysis is an approach used by the Joint Commission on the Accreditation of
Health Care Organizations (JCAHO) to assist in reviewing any sentinel event. To do a root
cause analysis it is necessary to study errors retrospectively in a very specific way. Training in
root cause analysis includes the following:
Ways to Conduct a Root Cause Analysis
Mental health professionals can use different methodologies to conduct a root cause analysis.
This includes putting together a multidisciplinary team trained in qualitative analysis of data.
Once the data is compiled, it will be necessary to corroborate the results with others involved
with the case.
Collecting Root Cause Analysis Data
When conducting a root cause analysis it is necessary to compile different data sources and
create a timeline or sequence of events before and after the sentinel event occurred. It will be
important to review documents that are available. These will include any materials available to
the clinician. If necessary, the clinician may conduct structured interviews and field interviews.
Analysis of Root Cause Data
Once the data is compiled, the sequence of events that occurred leading up to the adverse event
should be reviewed. Although obtaining the data may be difficult, once they are obtained, they
should be assembled in a step-by-step sequential process. Underlying factors need to be
identified including active and latent errors. Finally, factors that have had no impact on the
sentinel event but still occurred should be understood.
What are Typical Root Causes?
Typical root causes include patient characteristics as well as systemic factors. These factors
include the way the team works together, the work environment itself, the management of the
entire organization and institutional regulations that may relate to the work required.
Is Root Cause Analysis Effective?
JCAHO research suggests that the closer to a ‘blame-free’ analysis, the more likely the system
will change to meet the needs of patients. In their review of 65 cases in which a sentinel event
of suicide occurred, JCAHO researchers found that 34 suicides occurred in psychiatric
hospitals, 27 in general hospitals with 14 on a psychiatric unit and 12 in a medical surgical unit,
and 1 in the Emergency Room. Interestingly, the method of suicide for 75% of these cases, no
matter where they occurred, was by hanging in the bathroom or closet while 20% jumped out
of the window or off the roof. Using this root cause analysis there is sufficient data to
understand that trying to prevent the ability to hang oneself in the bathroom or closet, in any of
these locations, will reduce the number of completed suicides. Root cause analysis would also
suggest that there would be a reduction in suicide events if access to windows and the roof was
more carefully monitored or barred.
SECTION III – PRINCIPLES OF ERROR REDUCTION
Errors can be prevented if it is assumed that they can be prevented. Very often, there is an
attitude that the error was inevitable. As we have been saying, prevention occurs more easily
when prior experiences are analyzed with the intention of learning from them. The goal is to
look in a non-accusatory manner at what was possibly overlooked in a previous experience that
may have contributed to the responsibility for the error. Claims of privacy, privilege and
confidentiality can be misused to cover up errors. Very often, when attempting to gain
information regarding these areas, people will hide under a veil that the material is private and
confidential and cannot be accessed. Be aware that this is a misuse of these laws. It is
important not to let those making such claims use them to prevent you from obtaining the
necessary data to do the root cause analysis.
Another important issue is creating the time and facilities to conduct discussion of clinical
practices with colleagues. The necessity for consultation, no matter how long you have been
practicing or how well trained you may be, is well documented and is known to increase
patient safety. It is important for each individual to take responsibility to establish a culture of
patient safety for the group. This is especially important when high risk and vulnerable clients
are being treated.
Reducing Errors in Diagnosis for Mental Health Professionals
Awareness of common errors that can occur when making a diagnosis is an important way to
help reduce medical errors. Most of these types of errors are cognitive in nature in that they
will require good thinking skills in order to reduce or prevent them from occurring. Here we
list some of the more common cognitive errors of diagnosis to help you become more aware of
the possibility that they can and will occur.
Cognitive Errors of Diagnosis
Aggregate Bias. Aggregate Bias may occur when aggregated data used to develop clinical
guidelines does not apply to individual patients. This often occurs when using a standardized
psychological test interpretation by itself, without incorporating other data. All computerized
psychological test scoring programs note that the computerized statements should not stand by
themselves, but should be integrated with other material that takes into account specific
individual factors, as well as specific situational factors. The increasing use of actuarial statistics
in order to make statements about a given individual is another example of this aggregate bias.
Anchoring is the tendency to focus on features in the patient's initial presentation that are most
compelling, without considering less obvious features. Frequently, in a busy practice or when
time is limited, a clinician will focus only on these most obvious features, without even
bothering to ask a client about other more subtle features.
Ascertainment Bias occurs when prior expectations, such as stereotyping and gender bias,
shape the thinking of the clinician. A common way this error occurs is when a woman has
complained about feeling ill to her primary care doctor who cannot find any medical cause for
her complaints. He refers her to the psychologist who labels her as hysterical or somatic and
does not explore what other symptoms and diagnoses might be present.
Confirmatory Bias is a tendency to look for evidence that confirms the diagnosis you first
considered, rather than also trying to refute it. Usually an initial diagnostic impression is formed
and then the clinician selectively attends only to material which confirms that original diagnosis,
rather than keeping an open mind and looking at other possibilities. This is often coupled with
another error called Diagnostic Momentum. This occurs once a diagnosis is given and the
clinician finds it difficult to change to a different diagnosis. This can occur even when a rule/out
diagnosis is given.
Feedback Sanction refers to a situation when colleagues are not asked to participate in the
diagnosis until it is made and then they are asked to give their feedback. The request for
feedback occurs so late in the process that it is clear any challenges to the diagnosis presented
are really unwanted. Then, approval by other colleagues may occur, but such approval may be
nothing more than a rubber stamp by colleagues.
Framing Effect occurs when healthcare professionals frame the risk of outcomes for different
diagnoses. If the clinician feels favorable towards someone on a subjective basis, he or she may
tend to give a diagnosis with a more potentially successful outcome. On the other hand, if the
clinician does not like or understand the client’s behavior, a more negative diagnosis might be
assigned. For instance, the misuse of the term, "Borderline Personality Disorder", often occurs
when a clinician has a negative reaction to a particular patient’s hostility, even when there may
be other explanations for that behavior, such as trauma.
Overconfidence Bias is a cognitive error of diagnosis when a clinician believes that he or she
knows more than he or she really does but is treated by others as having all the answers. The
clinician becomes overconfident and does not look as carefully as needed for all explanations of
Outcome Bias is a tendency to opt for diagnostic decisions that could lead to a good outcome.
In this case, the clinician will tend to ignore, or selectively omit, diagnoses that may involve
lengthier or more involved treatment. The patient will then be diagnosed with a condition that
is relatively simple to treat, especially within a limited number of sessions. This error is most
commonly made in situations where the clinician is limited to the treatment time, either by
system requirements like in managed care organizations, or by too many other cases leaving
little time to do long-term treatment when necessary.
Premature Closure is related to a number of others that we just discussed and essentially refers
to closing or terminating the decision-making process before all data is gathered and the
diagnosis can be fully verified. This may also be associated with what is sometimes referred to
as an Unpacking principle, which involves looking only at the surface rather than thoroughly
identifying all the symptoms. This results in not soliciting the necessary relevant data in
determining a differential diagnosis. This is clearly related to the biases that we have just
discussed with clinicians not going far enough to rule out alternative hypotheses or alternative
Psych Out Error is the term that may be used for the diagnostic error that occurs when medical
illnesses may be overlooked or not diagnosed properly. Clinicians who make this error may not
bother to ask or obtain a careful medical history or are unaware of medical conditions that can
lead to various forms of psychological distress. This can be particularly critical. If a medical
illness is not appropriately diagnosed and the symptoms are seen as perhaps psychosomatic or
even some form of Conversion Disorder, a serious medical condition that may be dangerous to
the patient could go untreated.
Preventing Diagnostic Errors
The most important principle in preventing diagnostic errors is to understand these common
cognitive errors that we have just delineated and adhere to appropriate Standards of Care. The
Standard of Care is defined as the level of practice of the average or relatively prudent
professional. It consists of adhering to validated techniques for comprehensive assessment
following the Code of Ethics of the mental health discipline the clinician is a member. For
example, the American Psychological Association ethical standards include basing diagnoses on
multiple data sources, avoiding innovative techniques unless there is no other option, and doing
a sufficiently comprehensive assessment to perform a differential diagnosis and to rule out
diagnoses. As noted earlier, sensitivity to physical illnesses that may cause symptoms similar to
certain psychological conditions is very important. In terms of recent developments, it should
be a part of the Standard of Care to include a careful assessment of the contribution of trauma
and utilization of appropriate trauma assessment instruments.
It is important to understand that a negligent diagnosis is not merely misdiagnosis. Anyone can
misdiagnose an individual. As noted above, the injuries that we are talking about do not refer to
unforeseen injuries that come from a diagnosis based on an appropriate assessment. When we
are talking about a negligent diagnosis, we are referring to diagnostic procedures that do not
adhere to the Standard of Care, involving a failure to follow a comprehensive assessment that
uses well-validated techniques. Often when a negligent diagnosis occurs, there is an innovative
use of testing that has not been validated. This is, as noted above, parallel to the Code of Ethics
of the American Psychological Association. A negligent diagnosis frequently occurs when there
is a lack of sensitivity to physical illness presenting as psychological problems. Some of the
most frequent examples of these are brain tumors that have various effects on cognition and
emotion, and Hodgkin's disease, which can mimic symptoms related to depression.
SECTION IV – HIGH-RISK CLIENTS
Who are high-risk clients? They are clients who have major psychiatric disorders or who have
co-morbid mental illnesses. Other high-risk clients are children, elderly persons, the homeless,
the hearing impaired, language or communication impaired, individuals with culture
differences, individuals with financial problems and individuals who lack medical insurance.
These special groups of clients are considered high risk because they are less able to
communicate their needs to clinicians or they are dangerous to themselves or others at the time
they are being evaluated or treated. When working with people in these special groups, it is
important to be aware of the potential for errors to occur that will cause an adverse or sentinel
Managed Care Clinical Culture
Some form of managed health care appears to be here to stay, at least at this time, even though
it can be difficult for this system to deliver appropriate mental health services given the
limitations posed by the very nature of the system itself. We call this the culture of managed
care and it is more likely for adverse and sentinel events to occur in this culture for the mentally
ill. People who are often not trained clinicians will make decisions regarding nature and length
of treatment for people with serious mental disorders. Managed health care organizations are
frequently very complex with multiple layers of bureaucracy, difficult enough for a mentally
intact individual to navigate. Mentally ill individuals are ill equipped to deal with such
bureaucratic roadblocks that are inherent in managed care organizations. Managed care
organizations are less willing to provide appropriate care for chronically mentally ill clients
whose appropriate treatment is often expensive. These bureaucracies pay more attention to
financial costs than to individual patient needs. Patient advocates are needed to obtain care for
the individuals who must obtain services through a managed health care organization.
Whether or not it is a managed health care organization, other areas within the clinical culture
that can lead to medical errors involve mental health providers who encourage patients to "take
responsibility for their own actions". When there are system errors and the problems are not
due to the individual's psychiatric disorder, such advice as "taking responsibility" may
inadvertently cause guilt feelings when the disorder does not go away. Rather than be seen as
‘inadequate’ or ‘bad’, some clients may not tell the clinician that they are still having the same
symptoms and therefore not get the help that they need. Clinicians must be responsible for
creating the culture of safety so the client will discuss what treatment may be working and what
may not. It is important not to dismiss system errors as a defense mechanism by clients but
rather study the clinical culture's role in perpetrating diagnostic errors. For example, when a
particular patient talks about difficulties that he or she is having getting financial coverage or
services, this should not be interpreted as part of the client's own pathology. The clinician needs
to be sensitive to the errors in the system that make the person's mental disorder more
Over the last ten years, there has been attention focused on the level of sensitivity of the
clinician to multicultural issues for clients. Research has shown that discrimination of any kind
can negatively impact a person’s mental health. It is important to be aware of the results of
discrimination for clients who are outside of the mainstream in their community. This often
includes members of diverse ethic and racial groups, those who may not look like others within
a more homogeneous culture, those whose behaviors are considered ‘different’ from the
mainstream, or even those who have a mental or physical disability. In communities where the
man is still considered the ‘head-of-the-household’, women continue to be discriminated
against, particularly those women who are stay-at-home moms without their own source of
income. Those who speak a different language or those whose religious beliefs are different
also may face discrimination that can cause or complicate mental health issues. Becoming
multi-culturally competent is a goal to strive to achieve so that medical errors are not made
because of lack of knowledge of a particular cultural practice.
For example, in some cultures, particularly those in the Caribbean, evil spirits are thought to
enter into people’s minds and cause them to behave in strange ways. Calling in members of the
community thought to have special powers to remove these evil spirits is considered an
important remedy. For people who have these beliefs, it may be necessary for the mental health
clinician to work together with the community healer, in order for the client to truly heal.
SECTION V – RISK ASSESSMENT
Risk Assessment: Suicide
Clinicians need to be familiar with the suicide assessment literature. This has changed over the
course of the years and now there is a body of literature that provides for the parameters of a
suicide assessment. A suicide assessment should be incorporated into all intake interviews, not
just to those of patients complaining of suicidal ideation or of severe depression. It is critical for
the clinician to take a careful history, avoiding the rationalization that the therapy approach
utilized deals only with the "here and now" and therefore does not involve history. Past
behavior is the best predictor of future behavior and, for this reason, a careful history-taking is
essential to making an appropriate diagnosis. If a patient expresses suicidal ideation at any point
in contact with the clinician or has at some point in their history, this is a matter that should be
continually assessed session-by-session and appropriate action taken when necessary.
The Standard of Care dictates that careful and comprehensive assessments should assess what
is also termed, reasonable foreseeability. The term, "reasonable foreseeability", is based on a
clinician having gathered a sufficiently comprehensive set of information to make an
appropriate decision as to whether or not the client will make a suicide attempt. Such
adherence to the Standard of Care will promote the sharing of best practices. In addition,
clinicians should encourage the development of protective registries and conferences to learn
from suicide. There should be a funding of research related to suicidal risk in minority, pediatric
and adolescent populations, as well as research on the impact of suicide on families and
Adolescent Suicide Prevention
Depression is not always a precipitant of suicide, especially with adolescent and pre-puberty
children. In this age group, suicidal thinking and behavior is more likely to be related to family
dysfunction, physical or sexual abuse, substance abuse or the onset of a psychotic disorder such
as schizophrenia. The clinician must become sensitized to these differences and not to
generalize the literature on adult suicides to children and adolescents. Adolescents and children
at high risk are those with suicidal ideation and disruptive behavior. Suicidal behavior during
childhood, of course, increases the risk of suicidal behavior during adolescence. Suicidal
ideation by itself is insufficient to determine risk. In one study, it was found that almost 60% of
teenagers who reported suicidal ideation or behavior were not identified by staff at schools.
Risk Assessment: Violence to Others
Within the past twenty years, there has been an extensive body of literature dealing with the
assessment of potential violence toward others. Performing a risk assessment is a very complex
assessment that goes far beyond the traditional clinical interview that had been the approach
used prior to this research. John Monahan, principle investigator for the MacArthur
Foundation studies, identified well over thirty domains pertinent to risk assessment for potential
violence. These domains are available in instruments called actuarial assessments. Most of the
domains are based on knowledge of the person’s history in addition to current behavior.
Clinicians should be aware of these different domains and incorporate them into their
Risk assessment is different from the prediction of dangerousness. The prediction of
dangerousness results in a dichotomous statement, indicating that the person is dangerous or
not. The recent research shows that it is clearly inadequate to assess in " yes, dangerous" or
"no, not dangerous" terms, especially with a minimum of thirty domains to assess for a more
accurate appraisal of risk for violence. With all of these different domains relevant to the
potential for violence, it is more relevant to speak of the number of dimensions on which a
person "loads" as being the appropriate methodology in risk assessment. We can then talk
about, based on the number of dimensions that are relevant, as to whether the risk of violence
is low, medium or high. Based on these different parameters, we can also design intervention
strategies and make probability statements of the likelihood of violence given a particular
There is an ongoing controversy in the mental health field between what is called clinical and
actuarial assessment. Clinical assessment is usually based on clinical interviews and, at times,
standardized psychological tests. It requires a good deal of subjective clinical judgment.
Actuarial assessment is based on assessment of factors that have already occurred. Actuarial
assessments do not require much clinical judgment as many of the events assessed either did or
did not occur. The actuarial assessment results rarely will change while the clinical assessment
may be different depending upon who completes it. To resolve this controversy, the structured
clinical assessment that may include some of the historical facts from the various risk
assessment domains is considered the most appropriate assessment based on the research
literature. The clinician is free to pursue his or her own hunches and diagnostic interviews, but
must do so within the context of the risk assessment domains identified. When there is an
extremely dangerous situation requiring physical restraints, it should be utilized by trained
personnel and rarely done with children.
Mandatory Reporting: Child Abuse, Elderly and Disabled
All states have child abuse reporting statutes but there is some variation in the nature of
reporting. Some states also have mandatory reporting of elder abuse and of those who are
disabled. The language in these statutes generally speaks about reasonable suspicion of abuse
or has reason to believe that abuse has occurred. Unfortunately, these terms are not well
defined in any state statute. In some states, the willful non-reporting of abuse is regarded as a
criminal offense. Initially, these abuse reporting laws allowed for clinical discretion. The laws
stated that the abuse had to be reported if there was reasonable suspicion based on an
individual's clinical judgment. This has changed in virtually all states, such that the clinical
discretion no longer exists. There needs to be a reporting of possible abuse even without a
careful clinical assessment. The reasoning behind this is that the clinical judgment is too variable
and it has to be weighed against the protection of the child, the elderly person or the disabled
The mandatory reporting requirements for abuse must be included in the "Informed Consent"
documents that the clinician utilizes. A potential psychotherapy client must be told about the
exceptions to confidentiality that occurs when there is a reasonable suspicion of child abuse.
The clinician should not make vague statements about exceptions to confidentiality being based
on "dangerousness" but rather must specify the specific mandatory reporting requirements. In
some states, a form must be given to the client that specifies this information, is signed by both
the therapist and client and is kept in the client’s file.
In forensic settings, this may be somewhat more complex because clinicians in such settings
may be acting under the umbrella of attorney-client privilege, which is different from
psychotherapist-patient privilege. It is clear that exceptions to psychotherapist-patient privilege
occur when there is mandatory reporting of child abuse. It is less clear whether or not a
clinician, doing an evaluation for an attorney, has a similar duty to report. Because of this
ambiguity, it is recommended that there be an informed consent statement at the outset of the
evaluation that the mental health professional is a mandated reporter and will have to make
such reports. This form would then also be shared with the referring attorney.
SECTION VI – RECORD KEEPING
Many medical errors have been found to occur because of poor record keeping. Mental health
professionals now have guidelines that can assist in avoiding medical errors that occur because
of such poor record keeping. Parenthetically, a well-documented record is also the best
protection against a malpractice complaint or a licensing board complaint filed against a
Why Keep Records?
Records provide a documentation of services that are rendered. A good record will document
the assessment and the treatment plan, dates and types of services rendered, how closely the
treatment follows the treatment plan and any changes to the treatment plan made. Also, a good
record will include notes of referrals made or follow up services for treatment that occur, as
well as the provision of information to third parties. When the case is closed, a termination
summary is entered in the record. Files are kept for a specified period of time in storage
according to the state law.
Keeping good records allows the therapist to review the patient's progress or lack of it. Many
therapists have been trained to keep narrative type of records called progress notes. Some
therapists who use theoretical orientations, such as psychodynamic treatment, believe that
progress notes may violate the patient’s privilege to confidentiality and do not wish to keep any
notes in the chart. This, however, can be a disadvantage to the client and the therapist should
there be questions about treatment. It is usually recommended that more transparency for
treatment be contained in the records.
All mental health professionals now have an ethical responsibility to keep proper records. For
example, the Ethical Standard 6.01 of the American Psychological Association’s Code of
Ethics describes psychologists as having an ethical and professional responsibility to develop
and maintain records. In compiling these records, there also needs to be compliance with
ethical and legal standards regarding confidentiality.
There is a new "player" in record keeping these days called HIPAA, the Health Information
Privacy and Accountability Act. This is a very complex law but in terms of recordkeeping it
does allow the clinician to keep two sets of records, one of which is general progress notes
and another which is called process notes or psychotherapy notes. This latter set of notes is for
the clinician's own use and need not be revealed to insurance companies. However, it is
questionable if clinicians who keep such process notes must turn them over should the client be
involved in a lawsuit.
What Is In the Basic Record?
The basic records contain identifying information, contact information, fees and billing
information, guardianship and conservator status, documentation of informed consent,
documentation of waivers of confidentiality and the documentation of any mandated
disclosures of confidential information. In addition, since the advent of HIPAA, there should be
forms in the chart dealing with the HIPAA Privacy Act. The basic record needs to have the
presenting complaint, the diagnosis, relevant history, a treatment plan and progress notes based
on the contact with the client. These should be dated, with type of treatment provided noted.
As was stated earlier, any changes to the treatment plan based on progress or lack of it,
referrals and collateral services should also be in the file. When services end, a termination
summary should be included.
Contacts with Clients
The records for contacts with the client can be highly variable but they should contain certain
basic information, such as the date of service, the duration of the session, the type of service
provided and the nature of the professional intervention (i.e., individual therapy, group
psychotherapy, medication consultation, and collateral visit with family members, etc.). It
should also provide session-by-session assessment of the client's status and the client's response
to professional interventions. There may be supplemental information related to a particular
case, as well. Risk factors to self or others need to be documented on a session-by-session basis
and the use of any adjunctive treatment modalities, such as medication or biofeedback, need to
be included in the chart. Emergency interventions need to be documented, along with plans for
future interventions and information describing the qualitative aspects of the professional and
client interaction. There should be assessment data, consultations and referrals, telephone, mail
or e-mail contacts, a prognosis, the cultural factors that are relevant in the treatment, and the
documentation of termination.
Health Information Privacy and Accountability Act (HIPAA)
As noted, HIPAA is a "new player" in the contact of mental health professionals with
individuals. There are some areas that are not well clarified regarding the inter-relationship
between HIPAA and state law. Generally, state law trumps HIPAA if it is more protective of
the patient's privacy and HIPAA trumps state law if it is more protective of privacy. The
problem, of course, is defining what "more protective" means. For instance, problems often
occur with mental health professionals regarding the release of raw psychological test data.
Traditionally, psychologists have been able to protect that data and withhold it from an
individual because of the ethical standard that states that such test data should be interpreted
only by another psychologist qualified to interpret it. This, of course, is seen as protective of
the patient's privacy since an unauthorized disclosure could well be misused and hurt the
patient. HIPAA, on the other hand, says the patient is entitled to the records, believing that the
patient's privacy is best protected by having access to all of his or her records. However, the
Code of Ethics of the American Psychological Association and, in fact, the Florida
Administrative Code for Psychologists, state that such records can be withheld if either they
would be harmful to the patient or there is the potential for substantial misuse of the data.
Further, states such as Florida actually have added limitations to disclosure of records into their
rules and regulations regarding conduct of some mental health professionals.
Types of Progress and Process Notes
As discussed, HIPAA rules currently allow for clinicians to keep a separate set of
psychotherapy or process notes. These notes may contain hypotheses, hunches, speculations
and dynamic formulations, as distinct from the progress notes which merely document the
patient's attendance at therapy, various medications and, in general terms, whether progress
towards the treatment goals have been made. It has never been legally tested as to whether
such process notes or psychotherapy notes as defined by HIPAA are legally discoverable when
the records are subpoenaed. Some states do have provisions (i.e., Illinois) for the keeping of a
separate set of records that are not subject to legal discovery. The State of Maryland indicates
that the records should be kept in separate locations, not just separate files, but is silent on
whether they are legally discoverable. The State of Florida has no provision for two sets of
records. This is therefore a rather unsettled area and the suggestion, once again, is if these
records are kept separate (this is discretionary rather than mandatory), then this be made clear
to patients in an informed consent document.
Other aspects of progress notes are what are called SOAP notes with the initials standing for
Subjective, Objective, Assessment and Plan. "Subjective" is defined as resulting from feelings,
thoughts or temperament of the subject, whereas "objective" is defined as real, actual, and
perceptible to others. These notes are always tied to the treatment goals. In some cases,
narrative notes will be required after each session, as well as monthly summaries.
Retention of Records
Mental health professionals are legally and ethically required to keep records for a specified
number of years. It is important to know how long you must keep these records. In some
cases, the basic file must be kept longer than the additional information in the records. For
example, the current guidelines published by the American Psychological Association indicate
that the psychologist must maintain records for seven years after the last date of service for
adults and three years after a minor reaches the age of majority. There needs to be a riskbenefit
analysis if the records are retained longer than what is required. To do this risk-benefit
analysis, you must consider weighing the risks of harm from outdated information against the
benefits of preserving the records for future assistance. There may be some situations in which
records need to be kept longer than the mandatory period of time, such as in criminal cases or
in custody evaluations. Keeping large record files can be cumbersome, especially in agencies
where there are many cases and little space for storage. Some state regulations understand
these issues and may require keeping certain information and permit discarding other data. For
example, the State of Florida requires keeping the full record for three years after termination.
For the next seven years, it is only necessary to keep a summary of the record. It is important
to remember to properly shred any documents that will be discarded or at least make sure the
records cannot be identified if found in the trash.
Responsibility for Security and Confidentiality of Records
The laws regarding protection of records place the responsibility on the mental health provider,
even in the event there are others in the office whose job is to maintain the records. It is
therefore necessary to train all office staff in appropriate confidentiality procedures. Many
private practitioners with limited practices do not have training in careful electronic record
procedures, including identification of what can and cannot be kept confidential when using
computers with instant chats or email.
Financial records must be carefully maintained and kept up-to-date. If collection procedures are
utilized, clients should be notified what will occur if they fail to meet their financial obligations.
If therapists do not accept payment directly from a third party provider, then a notation in the
record should indicate the client was so informed.
Provisions should be made in the event of disability or death of a therapist.
Waiver of Privilege in Legal Situations
Records may be released upon proper presentation of a waiver of privilege. A subpoena
demanding records signed by a lawyer is not sufficient to waive privilege. Rather, only a court
order signed by a judge must be obeyed. If a subpoena requesting records is received, the
clinician must respond to it; however, there are several different responses possible.
A first step may be to call the client to find out why you received the subpoena, as it is best not
even to disclose that someone is a client. If the client discloses that he or she is involved in a
lawsuit that has put the client’s mental health at issue, then the client may have waived
privilege. It is imperative to check this out with the client and not simply make an assumption
based on the subpoena received.
Even if that has occurred, it is possible for the clinician to call the client’s attorney and discuss
whether the release of records would be helpful or harmful to the client’s legal case.
If the therapist believes that the release of the records would be harmful to the client’s
treatment, then the therapist may request that the subpoena be quashed or voided. If that is not
possible, then a review of the records by the judge in camera, so that non-relevant information
be removed or redacted.
In some instances, it may be necessary for the therapist to hire an independent attorney who
will protect the therapist’s interests and not the client’s interests. Agencies often have an
attorney on retainer to deal directly with these types of issues. However, the agency attorney is
hired to protect the agency’s interests and not the individual clinician.
Responding to a Grievance or Malpractice Complaint
If a client files a grievance with the relevant licensing board or a malpractice complaint against
the mental health clinician, then the client has waived the privilege and the clinician is permitted
to disclose the client’s records. As this is a complex area, we recommend seeking advice from a
lawyer before responding to any complaints. There are also books written that help the clinician
get through this difficult process.
Confidentiality and Privilege when Treating Multiple Clients
Couples or Family Therapy
When the clinician is seeing multiple clients, the issues of confidentiality and privilege become
somewhat more complicated. In general, no one can waive privilege for anyone else, only for
one’s self. If a husband and wife are being seen in family psychotherapy and the husband later
seeks to obtain the records of the treatment, the clinician cannot reveal the records unless the
wife also gives her consent.
In a similar manner, if a member of a psychotherapy group wants records from the group
therapy sessions, the person could only get his or her own records and not the records of the
other members of the group. There had been some earlier laws that stated that the presence of
an additional person in group sessions essentially rendered confidentiality null and void but this
does not appear to be the case any longer according to case laws. When there are requests of
records that also involve other parties, the clinician needs to remind the clients that they can
only waive privilege for their own records and that the clinician must protect the other people's
records unless everyone has waived privilege. If they all refuse to waive privilege, then the
individual requesting the records will need to get a court order before it is released. In some
cases, other person’s records will have to be redacted in order for the person requesting the file
to obtain it.
Release of a child’s records
Parents do have the right to request the release of their minor child’s records in most but not all
situations. For example, if a teenager is in therapy, and the parents request the release of the
teen’s file, it may be incumbent upon the therapist to protect the teenager’s privacy by seeking
a court order prohibiting the release. The teen’s age and emotional maturity will be important
factors if the issue goes to court.
In a different scenario, during a divorce action one parent may demand a child’s records as a
weapon in a custody battle. In most states it would not be appropriate to release the records to
either parent, without both parents’ permission or a court order.
In other words, there is a need to resist efforts of one client to obtain other clients' records
where it will violate the other clients’ privilege. The only way the records may be released is
through a court order signed by a judge and placed in the other clients’ files.
Joint Commission on Accreditation of Health Care Organizations (JCAHO)
Sentinel Event Policy and Procedures
Updated: July 2007
Sentinel Event Forms and Tools
Alternatives for Sharing Sentinel Event-Related Information with the Joint Commission
Sentinel Event Alert; Behaviors that undermine a culture of safety, Issue 4
Sentinel Event Statistics - Updated through June 30, 2009
Facts about Speak Up™ Initiatives
History Tracking Report: 2009 to 2010 Requirements, Accreditation Program: Behavioral Health
Care, 2009 Chapter: Improving Organization Performance
http://www.jointcommission.org/ Once on the web site, search for "History Tracking Report".
Suicide Risk Assessment:
Jobes, David A. Managing Suicidal Risk: A Collaborative Approach, Guilford Press, 2006,
American Foundation for Suicide Prevention, http://www.afsp.org
American Association of Suicidology, http://www.suicidology.org
Risk Assessment for Potential Violence:
Monahan, John, Steadman, Henry J., Silver, Eric, Appelbaum, Paul S., Robbins, Pamela Clark,
Mulvey, Edward P., Roth, Loren H., Grisso, Thomas, and Banks, Steven, Rethinking Risk
Assessment: The MacArthur Study of Mental Disorder and Violence, Oxford University Press,
Inc., 2001 http://www.oup-usa.org
Department of Health and Human Services
Mandatory Abuse Reporting:
National Center on Elder Abuse
Child Welfare Information Gateway
Responding to a Grievance or Malpractice Complaints:
Shapiro, D.S., Walker, L.E.A., Manosevitz, M., Peterson, M., & Williams, M. (2008). Surviving
a Licensing Board Complaint. Zeig, Tucker, & Theissen: NY
Zuckerman, Edward L., The Paper Office, Fourth Edition, Forms, Guidelines and Resources to
Make Your Practice Work Ethically, Legally and Profitably, Guilford Press, 2008.
Barsky, Allan E., and Gould, Jonathan W., Clinicians in Court: A Guide to Subpoenas,
Depositions, CE Testifying and Everything Else You Need to Know, Guilford Press, 2002; 2004.
Reamer, Frederic G., Social Work Malpractice and Liability, Columbia University Press, 2003.
Sloan, Frank A., and Chepke, Lindsey M., Medical Malpractice, Massachusetts Institute of
Albers, L., Hahn, R., & Reist, C. (2004). Handbook of psychiatric drugs. Laguna Hills,
CA: Current Clinical Strategies Publishing.
American Iatrogenic Association. Retrieved from http://www.iatrogenic.org
American Psychological Association (2002). American Psychological Association
Code of Ethics. Washington, DC: Author.
American Psychological Association. (2007). Revised Record Keeping Guidelines.
AmericanPsychologist, 62 (9), 993-1004 or download from www.apa.org
Berman, A., Jobes, D., & Silverman, M. (2004). Adolescent suicide: Assessment and
intervention. Washington, DC: American Psychological Association.
Ferraro, G. Cultural anthropology: An applied perspective (2004, 5th ed.). Belmont, CA:
Food and Drug Administration (FDA). Retrieved from http://www.fda.gov
Health Information Privacy and Accountability Act (HIPAA). Retrieved from
Hunt, E. & Colander, D. (2008). Social science: An introduction to the study of society
(13th ed.). New York: Pearson.
Joint Commission (formerly JCAHO). Retrieved from http://www.jointcommission.org
Koocher, G. & Keith-Speigel, P. (2008). Ethics in Psychology & Mental Health
Professions. Oxford: NY
MacArthur Foundation. Retrieved from http://www.macfound.org/research
Matsumoto, D. & Juang, L. (2004, 3rd ed.). Culture and psychology. Belmont, CA:
Monaghan, J. & Just, P. (2000). Social and cultural anthropology. New York: Oxford
Myers, D. (2005). Social psychology (2008, 9th ed.) Boston: McGraw-Hill.
Health Information Privacy and Accountability Act (HIPAA). Retrieved from
Pope, K.S. & Vasquez, M. J. T. (2006). Ethics in Psychotherapy and Counseling. Third
Ed. Jossey-Bass, San Francisco, CA.
Schaefer, R. (2004). Sociology: A brief introduction (5th ed.). St. Louis: McGraw-
Shapiro, D.S., Walker, L.E.A., Manosevitz, M., Peterson, M., & Williams, M. (2008).
Surviving a Licensing Board Complaint. Zeig, Tucker, & Theissen: NY
Tesser, A. (1995). Advanced social psychology. Dubuque, IA: McGraw-Hill.
-Walker, Ed.D, Lenore . & David Shapiro, Ph.D. Medical Error Prevention for Mental Health Professionals, pages 1-24.
Peer-Reviewed Journal Article References:
Katz-Navon, T., Naveh, E., & Stern, Z. (2009). Active learning: When is more better? The case of resident physicians’ medical errors. Journal of Applied Psychology, 94(5), 1200–1209.
Park, J., Goode, J., Tompkins, K. A., & Swift, J. K. (2016). Clinical errors that can occur in the treatment decision-making process in psychotherapy. Psychotherapy, 53(3), 257–261.
Peters, E., Slovic, P., Hibbard, J. H., & Tusler, M. (2006). Why worry? Worry, risk perceptions, and willingness to act to reduce medical errors. Health Psychology, 25(2), 144–152.
To reduce medical errors for Mental Health Professionals, what are 10 Cognitive Errors related to Diagnosis? Record the letter of the correct answer the
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