Ask our attorney: Handling records of a deceased psychologist

Guidance on disposition of patient records in the absence of a professional will

By Legal & Regulatory Affairs and APA Ethics Office staff

Jan. 17, 2013—APA Practice’s Office of Legal and Regulatory Affairs often receives calls from family members, executors, colleagues or office staff of deceased psychologists, asking what to do about that psychologist’s patient records. This issue can be complicated, particularly if the practitioner had not planned for disposition of the records through a professional will (PDF, 657KB).

One source of difficulty is the fact that many laws and practices regarding record keeping and patient access to records were developed with the assumption that the psychologist would always be around to retain the records and to determine when it is appropriate for a patient to have access to his or her record.

Most of the tough issues discussed below are avoided when a practitioner has planned ahead for the disposition of records through a professional will. A professional will makes virtually every aspect of the transition process more efficient and helpful to those responsible for determining what to do with the psychologist’s records, and also to those who may be responsible for continued clinical care.

APA Record Keeping Guidelines and the Ethics Code offer relevant guidance. Section 6.02 of the Ethics Code provides: “Psychologists make plans in advance to facilitate the appropriate transfer and to protect the confidentiality of records and data in the event of psychologists' withdrawal from positions or practice.” (See also Standard 3.12, Interruption of Psychological Services.) Similarly, Guideline 13 of the APA Recordkeeping Guidelines recommends that psychologists plan for the transfer of records to ensure continuity of treatment and appropriate access to care when the psychologist is no longer in direct control.

The remainder of this article provides answers to questions frequently asked by callers when a deceased psychologist has not left a professional will.

To whom should records be transferred?

The matter is clear cut if the psychologist has a professional will that specifies arrangements for another mental health professional to take over the records. Absent a professional will, the individual handling this issue (for example, the executor of the deceased psychologist’s estate or a family member) must figure out what to do with records. State law may directly address who has control over the records — for example, the executor of the estate.

The person handling the issue can determine if the psychologist had a colleague who covered for the psychologist while on vacation, or who took referrals. If so, that psychologist might be asked to take over care of the records. One benefit of this approach is that another mental health professional should know the law, procedures and issues related to giving patients access to their records and retaining records. Another professional should already have a place and system for storing records, and may have staff familiar with responding to record requests.

This solution is particularly appropriate if any of the former patients are transitioning to this other psychologist.

As to patients for whom the other psychologist is not assuming care, it is important to note that this arrangement imposes some burdens on the other psychologist. First, there are potential HIPAA or other liability concerns for failure to secure records of another psychologist’s patients. And the arrangement entails additional expense and burden for the other psychologist, which is particularly problematic if they do not have spare storage space. These burdens may be balanced, however, by the possibility that patients will want to receive treatment from the psychologist who has assumed custody of their records.

What issues arise if records are retained by family members or the executor of the psychologist’s estate?

Family members and executors usually understand the importance of protecting patient confidentially and access to records. If they wind up with the records, however, some states’ record keeping laws will not apply to them because they are not mental health professionals. Even in those states, the family or executor should be aware of potential liability to the estate if the psychologist’s records are not properly maintained.

What if the family/estate cannot transfer records to another psychologist and has issues with retaining the records? Should records be transferred to the patients?

Sometimes a family or estate of the deceased psychologist cannot identify an appropriate psychologist to assume control of the records, and does not have the resources or capability to store the records for the retention period and assure their security. Particularly after the estate is closed, there may be no legal or liability reasons for retaining the records and the family may consider destroying the records.

In this situation, giving patients the opportunity to take their records before they are destroyed is preferable (see last question regarding notice to former patients). Yet it is difficult to predict how a patient will react to seeing his or her record. For this reason, directly providing records to a former patient should be done with caution. If records are being provided directly to former patients, it may be helpful to provide a cover letter stating that the patient should speak with a mental health professional if there is anything in the record he or she finds distressing.

If records are destroyed, it should be done in a manner that will protect the records’ privacy, such as by shredding. Guideline 13 in the APA Record Keeping Guidelines discusses safe disposal and the particular concerns associated with electronic records.

How long should records be retained?

How long records must be kept is governed by state record keeping law. In those few states that do not specify how long to keep psychology records, the suggested retention period in APA Record Keeping Guidelines should be considered. Guideline 7 of the record keeping guidelines recommends “retaining full records until 7 years after the last date of service delivery for adults or until 3 years after a minor reaches the age of majority, whichever is later.” (These Guidelines are also an excellent source of guidance on many record keeping issues beyond how long to retain records.)

If the person keeping the deceased psychologist’s records wishes to keep records for a longer period of time, he or she should weigh the benefits of longer retention against the risks associated with privacy loss or security breaches, and with obsolete or outdated information.

How should patients be alerted about accessing their records?

Some psychology patients have not told their spouses or family members that they are seeking care, which complicates the process of notifying former patients. Some psychologists have a file, or a place in their files, indicating how patients want to be contacted. If the psychologist had an administrative assistant or secretary, he or she may know how patients prefer to be contacted. Some alternatives for notifying patients without alerting their family members include posting a notice at the office of the deceased psychologist, on the office’s voicemail, on the practice’s website or in the local newspaper. The office-based solutions are particularly applicable if the psychologist had been practicing at or shortly before the time of his/her death.

Some state psychology boards, like the Florida Board of Psychology, keep track of who has records after a psychologist retires or dies. In such cases, the relevant psychology board should be given notice of who is assuming custody of the records.

Conclusion

The thorny issues discussed above are a good reminder that practitioners can spare their family members, executors, colleagues and/or office staff much heartache if they plan ahead and execute a professional will (PDF, 657KB).

Legal issues are complex and highly fact specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time and vary by jurisdiction. The information in this article does not constitute legal advice and should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.