The New Social Worker Vol. 19, No. 4, Fall 2012 | Page 6

Ethics

Clinicians in Court: Thwarting Disclosure
by Allan Barsky, JD, MSW, Ph.D.

Editor’s Note: This article is an excerpt from
Allan Barsky’s book, Clinicians in Court,
which addresses issues facing social workers when they are called on to testify. This
excerpt addresses the issue of disclosing records
in court. Look for more from Dr. Barsky in
upcoming issues of THE NEW SOCIAL
WORKER.

victim’s past sexual behavior or alleged
sexual predisposition, although there are
some exceptions (see Federal Rules of
Evidence, 2010, Rule 412, at http://www.
law.cornell.edu/rules/fre/rule_412). Also,
most states have laws granting privilege
to advocates, crisis counselors, and transition house staff working with victims
of domestic violence, according to the
American Bar Association.

Still, there are many other areas of
practice where clinical records could be
subpoenaed and the client could be embarrassed. Consider, for instance, a client
who has received vocational counseling.
The counselor’s records may include
information about the client’s problems,
including poor performance in school or
prior work settings, irresponsible behavior leading to dismissal, or ethically questionable behavior. If a clinician wants to
protect his client from disclosure of this
type of information in a public legal process, there are several options, described
below. Unfortunately, each option has
major drawbacks. Before adopting any of
these options, consult with your attorney,
professional association, or other expert
on law and professional ethics.

Minimal Records

T

reating clinicians often wish they
could prevent disclosure of records. Some reasons are ethically
justifiable, others not. Clinicians treating
victims of sexual assault, for example,
may be concerned that their clients will
be subjected to intense scrutiny before
and during the trial of the alleged perpetrator. Historically, defense attorneys
could subpoena complainants’ records
from clinicians, crisis services, and transition houses in order to discredit the complainant by saying that she is emotionally
unstable, tends to fabricate stories, or is
motivated to lie because she is trying to
hide having had sex with someone else.
For the most part, current evidentiary
rules prohibit use of evidence of the

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The New Social Worker

To protect their clients, some clinicians resort to maintaining minimal
records (e.g., limiting details to the name
of the client, the problem presented,
and the dates seen). They deliberately
exclude any information that could harm
the credibility of the complainant or embarrass her. Unfortunately, some of this
information may be clinically important,
legally relevant, and ethically necessary. Suicidal or homicidal thoughts,
alcohol or drug use, and high levels of
stress are just a few examples. Although
minimal records may thwart disclosure
in legal processes, they may not meet
the standards required for competent
clinical practice. Further, the clinician
may still be called to testify about client
information not included in case records.
If you want to keep minimal records,
ensure that these records are consistent

Fall 2012

with agency policy, laws regulating your
agency, and your professional code of
ethics.

Double Records

Some clinicians keep two sets of
records—an official set and a personal
set. The official set excludes potentially
damaging information. The personal set
includes all information, assessments,
and speculations that the clinician uses
for her own purposes. Although some
clinicians believe that a subpoena applies
only to the official records, all records
are subject to subpoena. Some clinicians hide the fact that they have a set of
unofficial records. However, if found out,
failure to disclose all records can result
in obstruction of justice or contempt of
court charges against the clinician. The
question raised by some clinicians is,
“How will anyone know?” The real question is, “What does your sense of ethics
and risk taking tell you?” Few agencies or
professional associations would officially
condone hiding a second set of records.
There is no ethical foundation for keeping two sets of records. Ethically as well
as statutorily, one set of records is what is
appropriate.

Coded Information

Some clinicians use secret coding
to make parts of their records indecipherable to people unfamiliar with the
coding. Some codes are so subtle that the
reader does not even know that coding
is being used (e.g., a double asterisk may
denote past suicide attempts; “FLK” for
funny looking kid). During a hearing,
you may be asked to explain your codes
or shorthand. Some codes may not be
directly significant to the case but may
indicate bias, lack of respect, or lack of
professionalism. If it appears that you
have deliberately tried to mislead the
reader, your credibility as a witness may
1
TTFO is sometimes used as slang for “told to f**k
oneself.” If asked what the initials mean, the practitioner
might say “to take fluids only.” Patients have sued agencies based on derogatory notations in their records.