RECORD KEEPING FOR COUNSELLORS AND
PSYCHOTHERAPISTS
by
Dr. Glenn Sheppard
National Conference
Canadian Counselling and
Psychotherapy Association (CCPA)
Victoria, BC
May 7-9, 2014
“Professional records are any physical “recording”
made of information related to a counsellor’s
professional practice.”
Remley and Herlihy, 2001
 billing and payment records
 copies of correspondence
 appointment records
 intake forms and other forms (e.g.,
informed consent)
 third party information
 e-mail and telephone records
 audio and video recordings
 counselling records
WHY KEEP COUNSELLING/
PSYCHOTHERAPY RECORDS?
 to keep track of your clinical work with a
client
 to support your best professional
practices by maintaining a record
 to assist with continuity of care should
you refer a client to another mental health
practitioner
 to assist should a client return after a long
absence from receiving your services
 to use as a resource should you
experience an ethical or legal challenge
regarding your work with a client
 because appropriate record keeping has
now emerged as a standard of care for
mental health professionals
MAINTENANCE OF RECORDS
Counsellors shall maintain counselling records with
not less than the following information:
Basic Information
 name, address, telephone number of client(s)
 name and phone number of person to contact in
case of emergency
 name of referring agent/agency
Record of each professional contact:
 date of contact, length, name(s) of all present
 counselling information sufficient to keep track
of counselling issues and progress
 correspondence, reports, third party
information, informed consent forms
 record of consultations regarding client,
including telephone calls, e-mails, and fees
charged
CCPA Standards of Practice for Counsellors, 2008
Plus:
 photos, artwork, poems, etc.
 any missed sessions and the reason(s) given
GUIDELINES FOR RECORD-KEEPING
Counsellors and psychotherapists should:
 record information in an objective, factual
manner.
 identify clearly personal impressions,
observations, and hypotheses as their view.
 note and sign any subsequent alterations or
additions, leaving the original entry legible
and intact, never erase, delete, whiteout, etc.
 record information at the time service is provided.
 make their own signed entries for the services
they provide.
 keep a more complete record of any critical events
(e.g., threats to the counsellor or to 3rd parties,
suicidal risk assessment, client disclosure of
abuse, HIV).
 make a note if there is an issue to which they have
not yet addressed (e.g., maybe a brief reference
by the client during the previous session but not
yet explored by the counsellor psychotherapist).
 not delete or otherwise make changes to
notes once they are recorded. However,
additions, corrections may be made by making
appropriate signed notations.
 be brief but remember brevity must contain
substance.
 avoid cliches, and jargon.
 describe behaviour, avoiding the use of
undefined and/or unnecessary adjectives.
 record information sufficient to support
continuity of counselling service.
 record information to enhance
counselling and not as a process of
‘gathering evidence’.
 do not enter notes in a record for
another person.
 Counsellors countersign notes only when
required to do so by policy or regulation.
If you merely review another person’s
note, then co-sign in the following way:
“John Smith’s, student counsellor/entry
reviewed by Jane Doe.” Counsellors
should only co-sign notes, without
qualifications, if they have fully
participated in the activity being reported.
 Counsellors working with a multi-disciplinary team
where a common recording system is used, always
exercise appropriate caution when placing
information in such records. They take steps to
ensure that their reports and recommendations are
understood by colleagues of other disciplines. In
particular, if there is a risk that professional
observations, test scores and other personal
information might be misunderstood, causing harm
to clients, then such information should not be
entered in the common record. Also, counsellors
participate in such collaborative record keeping
only when they are assured that the standards of
confidentiality, security, and preservation are
maintained.
 Clients may be required by a third party, such as
by a court order, to receive counselling and/or to
be assessed by a counsellor or psychotherapist.
Under such circumstances, counsellors,
psychotherapists should clarify their obligations,
inform clients of the type of information expected
by the third party, and identify the
consequences, if any, of non-compliance.
MAINTAINING RECORD SECURITY
 Counsellors and psychotherapists keep all of
their professional records (written
documents, computer disks, and dedicated
clinical practice computers) in a secure
location that has limited access by others –
typically in a locked cabinet in a room with a
locked entrance.
 If you put your notes on a computer it is
essential that you have a time and date
stamp so that entries cannot be changed
or deleted at a later date.
 Counsellors and psychotherapists do not
leave records on their desks, computer
screens, in computer files, or in any area
or medium where they can be read by
others without appropriate permission to
do so.
 When counsellors dispose of records
they shall do so in a manner which
preserves confidentiality. However,
counsellors never destroy records or
counselling notes after they receive a
subpoena or have reason to expect
receiving one. This action could be
judged to be an obstruction of justice and
it could result in being held in contempt
of court.
 The Youth Criminal Justice Act requires
a young offender’s file be kept separate
from other records of the young person;
that no other person has access to the
information except as authorized under
the Act and that record be destroyed
when the information is not required for
the purposes for which it was disclosed.
DELIVERY OF SERVICES BY TELEPHONE,
TELECONFERENCING AND INTERNET
Counsellors recognize that their commitment
to adhere to their CCA Code of Ethics is not
diminished when they use electronic and
other communication technologies to provide
counselling and other professional services.
Counsellors recognize that all the
communication technologies create, or can
create, records or recordings that must be
handled carefully to avoid breaches of
confidentiality. These recordings may
constitute a verbatim component of their
confidential counselling record different from
that generated for face-to-face counselling.
From: CCPA Standards of Practice for Counsellors (2008) pp. 23-25
(see Handout)
The Information and Privacy Commissioner
of Ontario has ruled that all electronic
health information on portable devices must
be encrypted.
CCPA expects its members to keep
counselling reports for 7 years.
Confidentiality belongs to the
client not the counsellor.
HIPPOCRATIC OATH
“Whatsoever things I see or hear
concerning the life of man, in any
attendance on the sick or even apart
therefore, which might not to be voiced
about I will keep silent thereon, counting
such things to be as social secrets.”
“Society has come to realize that
privacy is at the heart of liberty in a
modern society…”
Justice Le Forest (SCC)
The physician-patient relationship is fiduciary in
nature and certain duties arise from that special
relationship of trust and confidence. These include
the duties of the doctor to act with utmost good faith
and loyalty, to hold information received from or
about a patient in confidence, and to make proper
disclosure of information to the patient. The doctor
also has an obligation to grant access to the
information used in administering treatment.
McInerney v MacDonald, SCC, 1992
This fiduciary duty is ultimately grounded in the
nature of the patients’ interest in the medical
records. Information about oneself revealed to a
doctor acting in a professional capacity remains,
in a fundamental sense, one’s own.
McInerney v MacDonald, SCC, 1992
While the doctor is the owner of the actual record,
the information is held in a fashion somewhat akin
to a trust and is to be used by the physician for
the benefit of the patient.
McInerney v MacDonald, SCC, 1992
ACCESS TO RECORDS
 Clients normally have a right of full
access to their counselling records.
However, the counsellor has the
responsibility to ensure that any such
access is managed in a timely and
orderly manner.
There may be the following exceptions to
clients’ full access to their records:
 when access to the information could be
harmful to the client. For example, should
the client’s mental status be such that there
is significant doubt about the client’s ability
to handle the full disclosure.
In any case, counsellors/psychotherapists:
 should be aware that any denial of a valid
request for disclosure may be challenged and
ultimately adjudicated in court and/or by an
arbitrator whose authority could be established
under a provincial freedom of information and
privacy legislation.
 whenever possible, counsellors should retain
the original counselling records, but, on
request, clients, and others with informed
consent, should receive a good quality copy of
the relevant content.
 Parents or other legal guardians have a right of
access, upon formal request to their child’s
(minor’s) counselling record. However, this is not
an absolute right and any such request should be
managed on a ‘need-to-know’ basis and on a
judgment as to what is in the best interest of the
child considering the nature of the information, the
age of the minor, and his/her capacity to give
informed consent.
 The parental right to give consent diminishes and
may even terminate as the minor grows older and
requires sufficient understanding and intelligence
to fully comprehend the conditions of informed
consent in a particular circumstance.
In cases of divorced or separated parents,
the Divorce Act of Canada states that
“Unless the court orders otherwise, a spouse
who is granted access to a child of the
marriage has the right to make inquiries, and
to be given information as to the health,
education and welfare of the child”.
Typically under provincial family law
provisions, unless a court has ordered
otherwise, the non-custodial parent retains
the same right as the parent granted
custody to receive school, medical,
psychological, dental and other reports
affecting their child.
(see Handout: Parent Denied Access to Counselling Notes)
RIGHTS OF CHILDREN
 Children enjoy ‘constitutional personhood’.
US Supreme Court, 1969
 Children have a reasonable expectation of
privacy.
Charter, Section 8
 No child should be subjected to arbitrary or
unlawful interference with his or her privacy.
UN Convention on the Rights of the Child, 1989
Many in this case spoke eloquently regarding
counselling records. The therapeutic
relationship is one that is characterized by
trust, an element of which is confidentiality.
Therefore, the protection of the complainant’s
reasonable expectation of privacy in her
therapeutic records protects the therapeutic
relationship.
Madam Justice L’Heureux-Dube, SCC, 1999
“The right to privacy is of crucial
importance in our society and should be
ardently protected by the courts.”
Madam Justice L’Heureux-Dube, R. v. Mills, SCC, 1999
“One who intentionally intrudes, physically
or otherwise, upon the seclusion of
another or his private affairs or concerns,
is subject to liability to the other for
invasion of his privacy, if the invasion
would be highly offensive to a reasonable
person”.
Jones v. Tsige Court of Appeal, Ontario, 2012
“What happens to access when a
counsellor/pschotherapist ceases
practice or dies?” (see handout)
“What happens to access when a
client dies?”
DISCLOSURE TO LAW
ENFORCEMENT OFFICERS
“The natural impulse to cooperate with law
enforcement officials must be resisted. The primary
response to a law enforcement officer’s request for
health information should be ‘show me your
warrant’, generally law enforcement officials are not
entitled to any health information without a warrant
issued by a justice…”
W. Reake, U. of A., Faculty of Law
DISCLOSURE TO DEFENCE
COUNSEL
“Requests from defence counsel should be treated
in a manner similar to requests from law
enforcement. Other than as part of the litigation
process there are no requirements, either in
legislation or common law, that defence counsel
be granted access to health information.
Therefore, all requests from defence counsel
should be denied until the health professional is
properly served.”
Glen L.C. Noel, Lawyer, 2002
INFORMED CONSENT
 Voluntarily clients are not pressured or coerced
to give consent.
 Knowingly the counsellor fully discloses to
clients so that they are fully briefed as to what it is
they are being asked to give consent.
 Intelligently clients have the ability to understand
and to make an informed decision.
Should an informed consent accompany a
request for records/information check with
the client, if possible, before acceding to the
request.
WIGMORE CONDITIONS
 Did the communication originate within a
confidential relationship?
 Is the elements of confidence essential to
the full and satisfactory maintenance of the
relationship?
WIGMORE CONDITIONS (cont’d.)
 Is the relationship one which the
community believes should be actively
and constantly fostered?
 Will the injury done to the relationship
by disclosure be of greater
consequence than the benefit gained to
the legal proceedings by disclosure?
CASE FROM NL RE WIGMORE
APPLICATION R. v. G.M.
(1992)
School Board Claimed Privilege Re
Permanent school record
The coordinator’s file
School counsellor’s file
CASE FROM NL RE WIGMORE
APPLICATION R. v. G.M.
(1992) (cont’d.)
 Permanent record/coordinator’s file were
disclosed to the court.
 Disclosure of the counsellor record in this case
would cause more harm than benefit.
 School personnel cannot expect protective
privilege of confidentiality when public safety and
personal freedom are at stake.
COUNSELLING NOTES WITHHELD
FROM PARENT
“There was reasonable expectation that
disclosure of these records might
threaten the safety or mental or physical
health of the children and that disclosure
would also be an unreasonable invasion
of privacy.”
“A public body must be careful to
distinguish between the right of a
parent to access information on behalf
of a child and a parent’s desire to
access records at arm’s-length from
the interest of the child, as in this
case.”
DOCTRINE OF QUALIFIED
IMMUNITY
 The action was taken in good faith.
 There was a demonstrative duty or
interest to be fulfilled by the
disclosure.
 The disclosure was limited in scope
to this duty of interest.
DOCTRINE OF QUALIFIED IMMUNITY
(cont’d.)
 It was done on a proper occasion.
 The disclosure was made in an
appropriate manner and to the
appropriate parties only.
SOME USEFUL WEBSITES
 www.canLII.org
Approved by the Canadian Legal Information Institute and
contains statutory case laws from federal and provincial
jurisdictions.
 www.sml-law.com
A site for the law firm Steinecke, Maciura LeBlanc that focuses
on the regulation of the professions industries including related
appeals and civil litigation.
 www.kspope.com
A site maintained by Dr. Kenneth Pope, an American
psychologist with a particular interest in professional ethics. It
contains many articles, and other resources including
references to his books on ethics.