Forensic Corner; Personal Notes

Lee H. Haller, M.D.

In the past, it was common practice for psychiatrists to keep what was termed "personal notes" which were not considered to be part of the patient's clinical record. I recently came across a case that raises some interesting legal and clinical questions concerning their use.

First, it is important to define what constitutes personal notes. Illinois, from whence this case comes, defines personal notes as being: a) information disclosed to the therapist by persons other than the patient, on the condition that such information not be disclosed to the patient or anyone else; b) information disclosed by the patient to the therapist which would be injurious to the patient's relationships to other persons; and c) the therapist's speculations and reminders. Historically, the last of these three is what has been considered personal notes. Illinois has expanded the scope of information that can be considered notes, provided that "such notes are kept in the therapist's sole possession for his own personal use and are not disclosed to any other person, except the therapist's supervisor, consulting therapist, or attorney." (693 N.E.2d at 403).

The issue in this particular case was that the psychiatrist, having been sued for malpractice by the estate of his patient (who had committed suicide), was refusing to turn over certain notes to the plaintiff's attorney, claiming that he was withholding them as his personal notes. The plaintiff's attorney did not challenge the right of the psychiatrist to keep such personal notes private. However, the plaintiff did object to the therapist being the one to make the determination as to what were or were not personal notes. The plaintiff sought to have all of the therapist's records and personal notes submitted to the court for an in camera (meaning by the judge in his chambers) inspection. It would then be up to the court to determine which of the documents were part of the patient record and which of them fell under the category of "personal notes." The former documents would be discoverable in the lawsuit whereas the latter would not be. The psychiatrist objected to anyone having access to what he determined to be personal notes.

The appellate court upheld the court's finding that the psychiatrist's personal notes were protected under a state statue. However, it further held that the court had the authority to view all documents, even those that the psychiatrist believed were personal notes. It was the court that would make the ruling as to which documents were to be part of the record versus which were to be deemed personal notes. (691 N.E.2d 401; 111 App. 2 Dist., 1998).

The points to be gleaned from this case are several. First of all, it is important to note that there is at least one state that still allows the keeping of personal notes. Since this practice may be beneficial to patient and psychiatrist, it behooves therapists to know whether their state allows such a practice. Secondly, in the event that personal notes are allowable, it is important to know what information can be kept in this way. This parameter will be dictated by each state statute. Third, the case highlights that if documents are to be considered personal notes, that they must be kept separate from the patient's records. Finally, and most important, the therapist must maintain an awareness that the keeping of such personal notes is not an absolute bar to their discovery, at least by the court. Therefore, it is possible that the psychiatrist could keep certain information in his personal notes file only to have the court determine that these notes should be part of the patient's record. This leaves at least one interesting, but unanswered question. What would be the effect of a psychiatrist inadvertently putting information into the patient's record that should be contained in personal notes, then releasing the record to a third party (consequent to a valid authorization from the adult patient), and the information so released subsequently causing harm to the patient? It would seem as though the patient could successfully sue the psychiatrist for maintaining that information in the patient's clinical record when it should have properly been kept separate in a personal notes file. The solution to the conundrum is to maintain vigilance about what you write and where you file it.

Dr. Haller is in private practice of forensic psychiatry in Potomac, Maryland.

AACAP News/November-December 1998