Australian Association of Psychologists Inc.

ETHICAL NOTE TAKING AND

RECORD KEEPING GUIDE
Codes and Relevent Legislation
1. Psychologists Code of Ethics (Australian Psychological Society (2007)
2. Privacy Act 1988 including the Australian Privacy Principles and the Notifiable Data Breach Scheme
3. Freedom of Information Act 1982
4. Archives Act 1983
5. In Victoria the Health Records Act 2001
6. In NSW the Health Records and Information Privacy Act 2002
7. In ACT The Health Records (Privacy and Access) Act 1997
8. In the NT The Information Act 2002
9. Informed Consent
10. Health Legislation Amendment (eHealth Act) 2015
11. In Qld the Information Privacy Act 2009
12. My Health Records Act 2012

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What Is The Purpose Of Your Notes?

Notes are essential to allow for accurate recall of client related information. There will be times in your career
where you need to look back on information recorded about clients in order to provide the best possible care to
the clients. There may also be times when the client file may need to be accessed by someone other than
yourself (e.g. in the case of your being unable due to injury). Having a complete file allows for the client’s
treatment to continue without interruption or the client needing to re-tell their story all over again. There is
always the possibility of having your records subpoenaed by the courts in matters regarding your client. If you
are required to give evidence about your client or your treatment, you will need an accurate record of your
interactions with the client in order to ensure the accuracy of the information you impart. Good records also
significantly increase the defensibility of a claim or complaint against you, especially when the clients recollection
and yours differ significantly.

What is the minimum information that needs to be recorded?

The file should contain all the interactions you have had with your client. This includes text messages, records of
phone conversations, emails etc. Some practices may have separate sections of the file available for
administration and billing purposes only and a clinical file which cannot be accessed by anyone other than clinical
workers.

The complete file should also contain;

Documented informed consent signed by the client, outlining how their records are maintained
Demographic information such as name, date of birth, address, contact details, emergency contact
details
Release of information forms signed by the client in order to give permission for you to communicate
with others about their health information
Clinical notes
Dates and times of appointments
Assessments that have been completed and their results
Any reports that have been written
Referral letters/reports from other professionals
Client history
Fees paid and outstanding
Letters to other healthcare providers
Provisional/differential diagnosis or diagnosis, case formulation
Treatment plan
response to treatment
Risk management plans and actions taken when required to enact the management of risk

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The file should be legible and contain sufficient information about the client and their treatment that another
psychologist would be able to continue the treatment.

What should not be in the file?

All entries must be accurate and factual. Leave out anything that would be considered unsubstantiated.
Be mindful of the content and level of detail that you are including when recording into the client file.
Take care to maintain the clients confidentiality and privacy when you are recording sensitive
information and be aware who else can access the file.
Do not use abbreviations that are not generally recognised in the field.
Do not use language that would be perceived as derogatory by the client. Communicate respect for your
client at all times. The client can request a copy of their record at any time so write it as if your client will
be reading the file.
Do not include any extra information that is not essential to the file.

Making sure your notes are up to date

It is important for psychologists to keep records that are complete, factual and accurate. This involves ensuring
that records are up to date and there is no lag between service provision and note writing. There is also higher
confidence that records will be accurate if they are completed as soon after an interaction as possible. If you
need to go back and amend anything in your records you need to note the date that you make the amendment,
if it is an electronic file you must save the original version and the amended version.

Storage of files

You need to ensure that the confidentiality of your client is protected and need to keep this in mind when
arranging where client files are stored. You need to ensure their longevity as well as you will need to keep some
records for a very long time. You need to ensure that there are safeguards in place so that others cannot change
your records after you have made them.

When moving files from one location to another, care must be taken to ensure the confidentiality of the file. This
may include storing the files in a locked bag or case.

Whenever there is a conflict between organisational requirements for the storage of records and the code of
ethics or the legislation you are always required to abide by the law and the code of ethics. Seek legal advice or
supervision if you are having difficulty negotiating with your workplace.

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If you are in private practice you need to develop a protocol for if you are unable to access your records due to
illness or disability etc. An agreement with another colleague who is qualified to access and store psychological
records is recommended.

If your records have been compromised and your clients confidentiality has been breached you need to consider
the consequences of this and take action to mitigate the impact on the welfare of the client and notify them that
their data has been accessed. There is a requirement that you be in compliance with the Notifiable Data Breach
Scheme. See https://www.oaic.gov.au/privacy/notifiable-data-breaches/ for more information.

Electronic records
With records overwhelmingly becoming digital, it is important to be mindful of the security of the records,
ensuring that they cannot be accessed by those who are not authorised by the client to access them. If you are
using cloud-based storage you need to ensure that the service you are using is compliant with Australian laws.
Be mindful that in some cases you will need to retain the original copy of documents to be compliant with the
law, Medicare and other government departments.

Who owns the file?

This is a difficult question to answer. Usually the practice or company where the file is created is the owner of the
file. In some cases though it may be written into the employment or subcontractor contract that the author of
the file is the owner. Be direct and clear when entering into work agreements who is responsible to keeping the
record. If a client requests the transfer of their file to another psychologist you need to keep a record of the
dates and duration of their sessions with you.
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How long do I need to keep my records?

You have a legal obligation to keep client records for a period of time. How long you keep records depends on
whether there is a risk of legal action arising from them and how long you want to allow in case the client wants
to return to see you or someone else for treatment. If the client discloses being the victim of a crime you will be
required to keep the records until the statutory limitation period is reached. This can be different in different
states and territories and for different crimes. This may be tricky to determine as the courts generally have a
discretion to extend it in certain circumstances and the limitations differ according to state and territory as well
as the type of crime that was committed.

When a client has a current claim for damages or who is under a guardianship or other court/tribunal order the
records should be kept indefinitely, or until seven years after the clients death. Where there has been a
complaint about you by a client you should retain the records indefinitely. Otherwise, according to the Health
Records Act, records should be kept for a minimum of 7 years from the time that you have last had contact with
the client if the client is an adult. If the client is a minor when you last saw them you need to keep their records
for 7 years after they turn 18. These requirements override any requests from your client to dispose of their files.

Records of Aboriginal & Torres Strait Islander peoples

There has been a lot of information lost regarding the backgrounds and past of Indigenous Australians. This has
contributed to the inter-generational trauma and grief the community has experienced.  Caution is
recommended in the destruction of their files. Non-Government organisations in some states such as NSW and
NT are required to keep the records of Aboriginal and Torres Strait Islander peoples indefinitely. Some states
have no statutory obligation to retain their records or expend resources preserving and indexing them.
Organisations can show their care and support for our first people by choosing to keep the records of Aboriginal
and Torres Strait Islander people, and making the records easily accessible.

Ascertain those who identify as of Aboriginal or Torres Strait Islander descent upon intake by directly asking all
clients about whether they identify as such, and discuss their wishes for the storage of their files after the
mandatory retention period. Note, this legislation is often changed and it is up to the psychologist to remain
current regarding the requirement to retain records.

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What if my client is a couple, family group or organisation?

Be considerate of the privacy and confidentiality of all parts of the client group when you are making your notes
and keeping your records. You will need to explain to each client the limits of confidentiality before providing
treatment and gain their consent. If the notes are subpoenaed or required for some other legal reason for one
person there may be information about the other person/s in the notes and in that sense the other person's
confidentiality is limited. They need to agree to participate in the group or couple session on that understanding.

Informed consent

When having your initial session with clients they need to be informed how their records are stored as well as
what protections you have in place to ensure their confidentiality. If you have hard copy records, letting the client
know where they are kept and who has access to them is essential. If you have digital notes you also need to
outline the risks and measures you are taking to ensure that their personal information is protected from other
parties being able to access it. This consent needs to be noted in their file at the outset of treatment. You also
need to inform clients about how long you will keep their records for and how they will be destroyed. The client
also needs to be informed of when you will have to breach their confidentiality e.g. if they are at risk to
themselves or others or the file is subpoenaed.

Who can access my files?

Your client records can be obtained through privacy legislation, subpoena, or freedom of information. You
cannot be exempt from disclosure in most cases, regardless of the wishes of the client or the psychologist.
Oftentimes a psychologist is able to negotiate with the party requesting the files that a report be written instead
so that the notes are not taken out of context and extraneous information is not viewed by the party making the
request. The grounds for questioning a subpoena include; the scope of the demand is too broad, if the demand
to collect and provide information is too great, the court does not have jurisdiction over the psychologist or the
documentation, the information they request is not relevant to the issues being decided in court, there was
insufficient time to collect the information, when it involves the release of test information such as manuals etc.
that may affect the integrity of further testing of other clients, if the data is to be released to people who are
unqualified to interpret the data or there are other state or federal laws that protect the confidentiality of the
information. It is wise to seek legal advice if you have concerns about the release of information when you
receive a subpoena or warrant. It is also wise to check the validity of the subpoena with the court in which it was
issued. Any concerns should be provided in writing to the court.

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If you wish to object to a subpoena you will need to look up the specific court that your subpoena came from
and you will be able to can find out from their website how to object to producing the documents. There is a
form that would usually be with the subpoena that you need to lodge and you will need to provide reasons for
why you do not want to or cannot comply with the subpoena. Here is a link to one court that will provide you
with some information http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-
andpublications/publications/corporate-publications/br-served-with-a-subpoena.

If your records are going to be removed (usually by subpoena/warrant) it is also your responsibility to keep a
copy of the client file. It is also important to get a written confirmation or sight the paperwork that permits them
to take the file.

It is important that you get informed consent from your client at the outset of therapy and advise them that files
can be accessed via subpoena or warrant or requested by other third parties who may be involved in their case
(such as Workcover). Inform your client before files are released to other parties and inform them of what
information has been requested and must be shared. A client can also ask for their information to be shared
with others or ask for their file to be transferred to another psychologist. This should be noted on a signed
release form that is current.

Psychologists need to write client records mindful of the likelihood that they may be read by the client. The client
can be refused access to their file if allowing access would pose a serious threat to life or health of any person.
See a list of exceptions to access via the Privacy and Health Records Act. If a client is wanting to see their file
many psychologists would book a session to sit with the client to go through the record. If they ask for a copy
and do not wish to view it with you it is important that you consider their welfare and ensure that they have
support when viewing the file.

If you have any concerns about the legal obligations you have regarding the client file you should seek legal
advice. Your professional indemnity insurer is often able to provide this assistance.

How do I actually dispose of the file?

You must dispose of the file in a way that still protects the confidentiality of your client. You must take
reasonable steps to destroy or permanently de-identify the personal health information. You will also need to
keep a register of the name of the person whose file was destroyed and the period of time over which the file
covered as well as the date that it was deleted or destroyed. If you are using a file destruction company it is still
your responsibility to ensure that they are certified to conform to confidential file destruction. Ensure you retain
a certificate of destruction if you use one of these companies.

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