A reply to Mills. Record keeping: Practical implications of ethical and legal issues.

This article was written in response to a commentary (Mills, 2012) on our recently published article on record keeping (Bemister & Dobson, 2011). In Mills' commentary, he argues that psychologists, particularly those working in the private sector, should not implement the recommendations presented in our original article. This article responds to these arguments. In particular, the current article emphasizes the distinction between privilege and confidentiality, clarifies client rights to personal in psychologists' records, and discusses the need to improve current record keeping practices. The purpose of this article is to elicit further discussion regarding best practices in record keeping, a discussion that has been relatively static in scientific journals throughout the preceding decades. Keywords: record keeping, client files, access to client records, best practices, Code of Ethics In response to our recently published article on record keeping (Bemister & Dobson, 2011), Mills has argued that some of our recommendations either are inconsistent or that do not apply to psychologists in certain settings (2012; this issue). The differences in opinion between this point of view and our earlier article appear to stem, at least in part, from different perspectives on record keeping. Whereas our recommendations were written from a broad professional standpoint, Mills' criticisms appear to emphasise practical considerations, especially as apply to psychologists in independent practice. All perspectives are worth considering as psychologists reflect on their record keeping practices. For these reasons, we diank Dr. Jon Mills for his comments, which serve to perpetuate an intellectual debate regarding best practices for record keeping. While Mills' commentary has some value, we believe diat there are several issues in his response that warrant further consideration. A critical issue we wish to discuss is that of privilege. Mills refers to psychologists' case notes as forms of information (pp. XX), and implies diat these documents need be shared with no one. Unfortunately for this position, common law suggests that he is mistaken: in a psychologistclient relationship, except when the psychologist is the agent of a lawyer or during negotiations to settle litigation such as divorce mediation, are not (Truscott & Crook, 2004, pp. 69, italics in original). As a consequence, we argue that communicated to psychologists and stored in case notes (or any other record, for that matter) should not be considered privileged, but rather ought to be considered confidential. Truscott and Crook note how the terms are often confused. Privilege refers to communications that occur in specific relationships that are legally protected from disclosure, while confidentiality refers to an implied or explicit contract not to disclose private client (Evans, 201 1; Truscott & Cook, 2004). Several instances exist in which the confidentiality of psychologists' records can be breached and which differentiates these records as not being privileged. Such issues include mandatory child abuse reporting, the duty to protect clients and others from harm, third-party access to records, group and family dierapy, investigations by professional regulatory authorities, and court orders, to list a few. Thus, case notes are not inoculated from the risk of disclosure. To claim otherwise is inaccurate and could lead to significant problems with clients if promises are made that their case notes will not be disclosed. In addition to the above point. Mills' assumption that psychologists' case notes are privileged leads him to conclude that [case notes] are the psychologist's intellectual property (pp. XX, italics in original). As he argues, they are not . . . to be shown to anyone or given away, and no one is entitled to view them (pp. XX). In contrast, privacy legislation in several provinces and territories makes it clear that this assertion is invalid. …

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