Client Access to Records
Items of note from Robert H. Cohen, former NASW General Counsel
(September 1994)
Note: The observations that follow are addressed primarily to social workers in independent practice although many of the same considerations will apply to agency based practitioners. The latter will also be bound or guided, as the case may be, by agency policy and procedures and frequently by federal, state or local laws and regulations that specifically apply to their particular setting.
I frequently receive phone calls from members asking what their obligation is when a client (or former client) requests their "record". As straightforward and simple as such a request appears, a host of questions must be considered before useful guidance can be given to the member and before the latter can respond appropriately to the client.
First, what exactly is the client seeking? A copy of the "record"? The right to read the "record"? All of the social worker's or agency's notes concerning the client's case? Second, is there a "record" and of what does it consist? (Occasionally, I have learned, when responding to a member's anxious phone call, that no notes exist and that the member's real concern is not the client's request per se but the member's lack of any case "record".) Assuming however, that a record does exist, how should the social worker respond?
First, the member should be aware of ethical principles that apply. The NASW Code of Ethics provides in part:
"The social worker should afford clients reasonable access to any official social work records concerning them." (NASW Code of Ethics, II.H.3.)
"When providing clients with access to records, the social worker should take due care to protect the confidences of others contained in those records." (NASW Code of Ethics, II.H.4.)
The thrust of II.H.3. is that clients have a right of access to their records and that the social worker should accommodate this. However, the drafters of the Code of Ethics were mindful that many factors will determine what the nature and scope of such access should be. Among these factors are the content of the record (including information about third parties, information received from other sources designated as "confidential" or intended to be treated as such, etc.), the readiness of a client to understand and "deal" with the record, other therapeutic issues, and, at times, legal considerations. Therefore, the Code speaks of affording clients "reasonable" access to "official" records, not carte blanche to review, copy or remove anything the client may wish.
Ethically, then, the social worker has discretion in light of consideration specific to each case but within the spirit of providing clients with access to their records, to determine what access is reasonable.1 It is within the framework of the social workers' ethical obligation to provide "reasonable" access, coupled with the client's ability to resort to legal process to obtain their "record," that response to the client's request must be handled. And, as is so frequently the case, the appropriate response will be dictated by clinical considerations.
Most often clients' requests to "see" their "record" or, as some put it, "have a copy of my record" are driven by such things as anxiety, suspicion, fear, mistrust, obsessive curiosity, a test of will, a power struggle or other motivations integrally linked to the treatment process and to the therapeutic relationship. Sometimes it is the mystique of the "record" or its magical quality; sometimes the "record" is the object of fantasies or delusions. At times persistent, single-minded demands for the "record" may be symptomatic of deep pathology. Occasionally such demands are a precursor to other action contemplated by a client or former client - e.g., lodging a complaint with a licensing board or filing a lawsuit against the worker. In each instance, however, in which a client seeks access to his/her record, the social worker's response must be guided by the worker's clinical understanding and judgement. What is the client saying? What does the client seek specifically? What prompts the request? Why now? In a sense, the request poses a diagnostic challenge. Only when the social worker understands the request, can the appropriate response/treatment be rendered.
From a legal standpoint the social worker should keep several considerations in mind. First, long before a client or anyone else seeks access to the client's record, the social worker should be thoughtful about what is recorded and what is retained. What information and in what detail is really needed to provide proper service? Is there material which might better be summarized, information which is no longer relevant and may be discarded, information which serves no useful purpose but on the contrary could prove harmful emotionally or otherwise to a client or third party relationships and might unnecessarily create problems in the relationship between the client and the other party.
A third consideration when a client demands his/her case record is whether the client is seeking to lodge a complaint or initiate legal action against the social worker. If the worker has reason to believe this to be the case, for example, if the request/demand for the record has been accompanied by threat of suit or in the context of extreme anger by the client toward the worker, legal consultation may be indicated. Certainly before unrestricted access is granted, the social worker should scrutinize the record with an eye to the possibility that the client may be seeking to use it adversarially.
In summary, it is important to understand the ethical and legal context within which social workers need to respond to client requests for access to their records. The appropriate response will almost invariably be found through the application of sound clinical skill, attention to the rights and interests of any third party information contained in the record, and the exercise of sound professional judgement. The worker should consider obtaining legal consultation in those instances where the client's request appears to be a precursor to filing a complaint with the state licensing board or instituting legal action against the worker.
if it were to be accessed? What interventions should be fully documented in the event the social worker's adherence to proper standards of care is subsequently questioned?
Second, assuming the social worker has been attentive to the content of the record, consideration must be given to the rights and interests of third parties from whom or about whom information has been acquired. If more than one client is involved, and the case file also relates to them, informed consent of such other client(s) is, of course, a prerequisite to disclosure. Disclosure without consent not only violates ethical principles and proper practice, but might be grounds for legal action by the client whose confidences were breached. While unauthorized disclosure of information obtained from a non-client third party such as another mental health professional, a hospital, a teacher, etc., is