Avoiding Liability Bulletin – October 2006
… While I have previously written about record keeping issues (see Bulletin Archives, primarily under the topics entitled “Records” and “Treatment Records”), I have not directly addressed the issue of record retention. The often-asked question of mental health practitioners is: For how long should I keep patient treatment records before destroying them? Some ask whether the records should be kept indefinitely. The answers depend upon a number of factors, the primary one being what the applicable law, regulation, or ethical standards may require. As with many other topics that I have written about, state laws and regulations differ on this particular issue, and they may differ within a particular state from profession to profession.
In the event that there are no applicable requirements specifying the period of time that adult treatment records must be retained, it seems as though seven to ten years from the date of termination is a reasonable period of time. In those states that do have requirements applicable to physicians, health facilities or others, these retention times are often required. In California, for example, there is no law applicable to marriage and family therapists or clinical social workers. Many of those licensees follow the seven-year retention period applicable to licensed health facilities. Special care should be taken with respect to the records of a minor. It is my belief that the records of a minor should be kept for at least three years after the minor has reached the age of majority (adult), and, in any case, not less than seven to ten years (unless a longer time is specified in law or regulation).
Some health practitioners keep records indefinitely, as long as storage does not become a problem. Generally, state laws do not require destruction of records after a given number of years. One reason to keep records indefinitely would be to assure that if the patient was later involved in therapy or in litigation, the records may prove helpful. A reason to destroy the records after a period of years (within the dictates of law, regulation or ethics) is to protect the privacy of the patient. It is important to remember that the records are to be destroyed in a manner and by a means which will assure that the patients’ privacy and confidentiality will in no way be compromised. Therapists should, at a minimum, keep a written account of which records are destroyed and the date of destruction.
