Client privacy is significantly compromised in a range of situations where third parties have access to sensitive information in client files – for example, compliance officers in the event of a WorkCover audit; lawyers and the legal system through subpoenas; or school principals and members of multidisciplinary teams where services are provided within organisations. Concerns about this have been further heightened by the prospect of the electronic health record which is being introduced as part of the Australian health reforms.
In response to these concerns, the APS has recommended the policy of maintenance of a two-part client file for psychology practitioners providing services in both the private and public sectors. This article describes the policy and outlines developments in APS advocacy for its adoption where psychological services are paid for by a third party funding body rather than the client.
The two-part client record
The APS recommends that practitioners maintain client records in two distinct parts:
- ‘Confidential client record’ (or ‘practitioner notes’)
- ‘Client service record’ (or ‘client/patient record’).
The confidential client record contains confidential, and sometimes very sensitive, information about the client and may also include material which is private to the practitioner. This part of the file may also contain test records, assessments, treatment plans or formal medico-legal reports. Practitioners need to be aware that under some State Acts a client may have qualified access to this part of the record or file.
The second part of the file, the client service record, is the less sensitive section and contains largely administrative material, including basic client demographics and contact details, the record of service provision (dates and nature of each service), accounts and standard administrative forms. This section of the record may also contain formal correspondence with third parties and reports for the treating team or referrer, as such reports are often already shared with other professionals and ideally with client consent.
Rationale for the two-part file policy
The psychology profession’s commitment to client confidentiality forms the basis for the recommendation to create a distinction between parts of the client file, even though this may present some administrative difficulties. Psychology practitioners are faced with a serious dilemma in maintaining client files: either promise and deliver privacy to the client, or severely limit the openness, quality and effectiveness of the professional relationship. This is compounded by the requirement for psychologists to keep comprehensive notes in sufficient detail to inform appropriate assessments and interventions. Again practitioners are faced with a dilemma: either keep detailed notes and fight to protect confidentiality, or keep sketchy records that protect client privacy but leave practitioners open to a charge of inadequate record keeping.
Application in organisations
The two-part file policy faces serious challenge in some hospitals and service organisations where all information is requested to be centralised in one client file. Most consultations with psychologists, whether in mental health or general health settings, usually deal with very private client matters that deserve protection from other health professionals who don’t necessarily need to know about them. Health administrators are often reluctant to allow psychology departments to have their own sub-files or quarantined password-protected psychology areas of an electronic records system, but there are strong grounds for this to be requested nevertheless.
Advocacy for the policy with third party funders
The APS has been in long negotiations with the WorkSafe Authority and Transport Accident Commission in Victoria seeking agreement for psychologists to follow the two-part file policy to better protect their clients’ privacy. The compliance units of both organisations have recently become far more vigilant about practitioner accountability, with consequent threats to client confidentiality. Under respective legislation, these organisations are entitled to access the client files of treatment providers, as clients had consented to such a process at the time of first seeking compensation through the organisations. However, the APS has argued that blanket consent of this type given prior to commencing treatment does not represent informed consent. More importantly, the APS has raised concerns that the compliance audit officers, who are not psychologists, are able to peruse confidential client notes as part of conducting the audit.
In June 2010, the APS commenced negotiations with the compliance personnel from both the WorkSafe Authority and the Transport Accident Commission on behalf of psychologist members. To their credit, both organisations have finally heeded APS concerns and have now agreed to a compromise position: the compliance audit will only involve accessing the client service record part of the file in order to establish that clients have received the services that the organisation has paid for. If for some reason there is a need to access further information, a copy of the confidential client record may be requested. The psychologist, in complying with the request, may place the confidential part in a sealed envelope with a clear instruction on the outside: “To be opened only by a psychologist”. Both organisations have agreed to have consultant psychologists on staff to peruse the confidential files in the case of these specific requests.
The APS is confident that having established a precedent with these two major third party funders in Victoria, that other bodies around Australia will consider adopting this procedure and thereby protect the issues of client confidentiality and privacy that are so central to psychology service provision.