Are medical social workers violating confidentiality by writing notes in the general medical chart?

NO. Generally it is what you do not write that gets you into trouble in the courtroom, not what you do write. You do not need specific consent to write in the medical record. Whether it is a good idea in terms of the clinical relationship is another question. It probably is a good idea from an ethical and professional relationship standpoint to give sort of a "Miranda warning" about the limits of confidentiality, especially when you are approaching sensitive areas or areas where we are required to break confidentiality. The reality is that we do not have control of the medical record and whether it will be subpoenaed.

What if a patient specifically requests we not document something?

We are not legally bound by that request. Patients cannot tell us how to do our job and what to document. Judge Harms gave the analogy of a patient asking an MD not to document test results, or a client asking DSS not to document about their substance abuse. These requests would be inappropriate; "don't be confused about who is driving your car". It is up to the professional judgment of the clinician to determine what is the essential information to include. The note belongs to the clinician, it is our job, our professions that determines what we include. She is unaware of successful suits for wrongful inclusion of information in social work notes. However this is not the same as breaches of confidentiality where social workers give information inappropriately either verbally or by giving copies of the medical record without a release or court order.

What are patient's and family members rights regarding seeing the medical record, and are social work notes excluded?

Patients have access to their entire medical record and the right to copies. The same is true for a patient's parent (if the patient is a minor), and legal guardians. Legal guardianship, however, expires upon the death of the ward. In this case we would not release the records without a court order. That court order generally would be forthcoming. Hospitals can set some procedural rules such as how and when a chart can be viewed and turnaround time and costs for copies.

What about social worker's personal notes?

They are subject to subpoena. Whatever is your personal practice with regard to these notes (destroy them immediately, keep them for a month, etc.) be consistent.

Special Case: Domestic Violence.

Again, from a legal standpoint, what you include is not patient's decision. You may, however, want to defer to patient as she is in the best position to determine the risk to her of including the information. It is a reality that abusers in some cases see the medical record even if they have no legal access to it. And in child custody cases the record will be subpoenaed. Including the information might be very helpful to the victim in future court cases such as getting a restraining order or a civil suit or in a child custody case. But the appearance in the record of "recanting" or telling different stories to different people looks bad for the victim. If you are subpoenaed might be able to explain not including this information if you can explain that you didn't include it because it was not essential, you weighed the costs/benefits of including it and the client asked it not be included due to safety concerns. Judge Harms said that there are so many factors and possible future scenarios to consider that she recommends that you just make the best decision you can based on what you know at the time. Remind yourself that you don't have a crystal ball.

She did like the recommendation in the new documentation policy to document a HAVEN referral. It is vague enough to maybe not put her in danger, but it is clear to the court that the professional felt there was an issue here that deserved attention. She also felt this places the emphasis on the professional's judgment and takes the focus off of the patient's credibility, which seems a good thing.

Documenting Information about Family Members.

We can write down anything a patient tells us without fear of being sued for libel or slander. It doesn't matter whether or not it is true, we are just reporting what the patient told us. If we take steps to verify the information then we really have to back up what we write, and one phone call is not sufficient. In the specific case of what to write if we are concerned about safety risks posed by family members she recommended not including this in the record. If it is not related to the patient's treatment and we are primarily concerned with protecting other patients and staff, it doesn't belong in the record. There are other effective avenues to convey this information that should be employed here, such as talking directly with the staff. But she does not think this is a violation of privilege or that we'd be sued in such a case.

If we are concerned with the patient's safety or for example want a psychiatry consult to deal with some issue related to a family member, then the information is pertinent and can be included. If we witness someone being abusive to a patient then it is also OK to put it in the chart- it is something we witnessed.

Patient was involved in a MVA involving substance abuse. How likely is record to be subpoenaed? It will be.

What should we document about substance abuse?

In this case the patient had a positive toxicology screen. If it is already in the labs we don't need to worry about whether a patient's record will be used against him, because it is already a part of the medical record, and it will be. Insurers and the legal system won't miss that information.

What should we tell patients when they ask directly if what they tell us is confidential?

You may want to include various disclaimers such as for mandating reporting. Additionally, although there are protections built in to keep medical records private, and we do what we can not to volunteer the information, there are no guarantees that it will not end up in court. We are careful about what we write, but that in light of all of this, the patient may want to consider what he/she chooses to disclose.

Patients read their records, how should this color what we write?

Be aware that either through a formal process of requesting the record, or informally while ferrying their record to another office, patients may read records. This should always be in the back of your mind. So what you write needs to be based on weighing the benefits of communication with the team versus the potential cost to the therapeutic relationship.

A note on e-mail.

E-mail is dangerous. Just because you delete an e-mail doesn't mean it cannot be recovered. So think twice about using it to relay confidential information or information that might be embarrassing to you if made public. Judge Harms doubts one would be sued or lose a license over something like this, but it could prove very embarrassing. She would not be surprised if there is a court case in the future that makes e-mail correspondence part of the medical record.

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