Eye on Ethics: Protecting Client Records
By Frederic G. Reamer, PhD
Social Work Today
Vol. 23 No. 1 P. 30

Over the years, I‘ve been a formal ethics consultant or “expert witness” in many litigation and licensing board cases involving social workers. In litigation cases, plaintiffs (the party who filed the lawsuit) typically allege that the social worker was negligent by providing substandard services, violating professional boundaries, or disclosing confidential information without authorization, among other claims. In licensing board matters, complainants (the party who filed the complaint) allege that the social worker violated ethics standards adopted by the board. These may include standards drawn directly from the NASW Code of Ethics or standards established by the board.

Attorneys representing the social worker, the plaintiff, or the licensing board typically ask me to review relevant documents. The documents may be produced by the social worker or other parties voluntarily or in response to a subpoena or court order. Usually, these documents include some combination of clinical and progress notes, correspondence, billing records, supervision and consultation notes, and what has become known as electronically stored information, such as emails and their attachments, text and instant messages, voicemails, information stored in databases and electronic records, and electronic records of online activity, such as social media postings. Electronically stored information may be retrieved from many sources, including computer hard drives; agency or organization servers; thumb (USB) drives; databases; the cloud (servers that are accessed over the internet, and the software and databases that run on those servers); mobile devices, such as mobile phones and tablet computers; and social media websites, such as Facebook, Twitter, and LinkedIn.

Responding to Subpoenas
Social workers often receive records and document requests by subpoena. Responding to subpoenas in an ethical manner is critically important to protect clients and practitioners. The stakes are high when social workers respond to subpoenas, given the sensitive and adversarial nature of the information sought.

A subpoena is a written document issued by a court clerk or officer of the court (such as an attorney) that commands a person to appear in court at a specific place and time or produce specific documents. While it may appear to be a court order and looks official, it typically is not signed by a judge and is not the same as a court order. Social workers can be subpoenaed in two different ways. A subpoena ad testificandum, also known as an ordinary subpoena, literally means “to testify under penalty.” It commands a person to appear at a particular location to give testimony. The most common use of a subpoena is to require a witness to attend a deposition or trial.

A subpoena duces tecum, also known as a subpoena for production of evidence, literally means “bring with you under penalty.” It commands a person to appear at a particular location to bring a specified item, such as a client’s clinical record or copies of digital or electronic communications, for use or examination in a legal proceeding. A subpoena duces tecum is used most often in civil lawsuits when one party to a lawsuit seeks production of documents from a third party during the pretrial discovery process. If a court is convinced that the document request is legitimate, it can order the production and disclosure of documents.

Contrary to many social workers’ understanding, a legitimate response to a subpoena is to argue that the requested information should not be disclosed or can be obtained from some other source. A subpoena itself does not require a practitioner to disclose information. Instead, a subpoena is essentially a request for information, and it may be without merit. Social workers who are subpoenaed should immediately notify their clients and ask them whether they want to sign a release-of-information form or contest the subpoena in court.

If social workers believe that a subpoena is inappropriate (for example, because it requests information that state law considers privileged), they can arrange for a lawyer to file a motion to quash the subpoena, which is an attempt to have the court rule that the request contained in the subpoena is inappropriate. A judge may issue a protective order explicitly limiting the disclosure of specific privileged information during the discovery phase of the case. (Discovery is a pretrial procedure by which one party obtains information—facts and documents, for example—about the other). In addition, practitioners, perhaps through a lawyer, may request a review by the judge in camera (in the judge’s chambers) of records or documents that they believe should not be disclosed in open court. The judge can then decide whether the information should be revealed in open court and made a matter of public record. These various steps are clearly consistent with the NASW Code of Ethics:

“Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client’s consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection.” (standard 1.07[j])

Legal Protections
Social workers should be aware that federal and state laws may pertain to their management of records requests. At the federal level, HIPAA and Title 42 Code of Federal Regulations (CFR) Part 2—Confidentiality of Substance Use Disorder Patient Records—are particularly relevant. For example, HIPAA permits practitioners to disclose limited protected health information without client consent to comply with a court order or to identify or locate a fugitive, suspect, material witness, or missing person. HIPAA also features special protections for documentation considered “psychotherapy notes,” in contrast to ordinary progress notes. According to federal law, psychotherapy notes are those recorded by a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the client’s clinical record.

Social workers who are employed in substance use disorder treatment programs or agencies must be familiar with the implications of the strict federal regulation 42 CFR Part 2. Document disclosures that are permitted under HIPAA may not be permitted under 42 CFR Part 2. This strict regulation broadly protects the confidentiality of the records of substance use disorder treatment programs—with respect to the identity, diagnosis, prognosis, or treatment of any client—maintained in connection with any program or activity relating to substance use disorder treatment that is federally assisted. Disclosures by social workers are permitted only in a narrow range of circumstances that are set forth in this detailed federal regulation.

Social workers should also be aware that the federal 21st Century Cures Act obligates many practitioners and employers to provide clients with remote access to their electronic records. What this means is that clients may choose to share these records with third parties, perhaps without social workers’ knowledge. This may influence social workers’ decisions about the kinds of details they include in case notes.

Also, states typically have laws governing release of confidential records. Relevant guidelines with which social workers should be familiar may be embedded in state statutes or regulations, or both.

Privileged Information
Social workers must be particularly knowledgeable about the concept of privileged communication, especially the distinction between confidentiality and privilege. Confidentiality refers to the professional norm that information shared by or pertaining to clients will not be shared with third parties. Privilege refers to rules governing the disclosure of confidential information in court or legal proceedings. Various groups of professionals, including social workers, have argued that they and their clients need statutory protection from requests to reveal confidential information. Judges apply specific legal criteria to determine whether information should be treated as privileged, focusing especially on evidence that disclosure is in the public interest and the need for disclosure outweighs the potential harm to the practitioner-client relationship.

High-quality documentation is a key element of competent social work practice. Skillfully maintained records go a long way toward protecting clients and delivering quality care. Sound documentation is also an essential component of risk management in social work. It is vitally important that social workers adhere to ethics-based guidelines and protocols designed to protect client records.

— Frederic G. Reamer, PhD, is a professor in the graduate program of the School of Social Work at Rhode Island College. He’s the author of many books and articles, and his research has addressed mental health, health care, criminal justice, and professional ethics.