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Chapter 6
Records and Subpoenas
FOCUS QUESTIONS
1. Why should counselors keep records?
Points instructors may want to make:
2. Why is it important to carefully document events in emergency situations?
Points instructors may want to make:
3. Why should counselors consult with an attorney if they receive a subpoena?
Points instructors may want to make:
IN-CLASS ACTIVITY
Title: Documenting for Self-Protection
Learning
Goal: Learning how to write detailed notes.
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Procedures: Ask a student to role play with you. The student role plays a clinical counselor
and you role play a parent who has come to see the counselor after his/her adult
son/daughter committed suicide. Their son/daughter had seen the counselor for 10
sessions a year ago. They tell the counselor that they believe their child would still be
alive if the counselor had done a better job. The parent also tells the counselor that
they have talked with their lawyer and they plan to file a lawsuit.
Point/Counterpoint (Debate) Topics
Title: Client audio/visual recordings of counseling sessions.
Learning
Goal: To consider the advantages and disadvantages of clients keeping recordings of
their therapy sessions.
Procedures: Assign (or allow students to volunteer) 2 groups of students (preferably 3-5
students per group) to each take one of the positions described below and
prepare a 5-minute argument in favor of that position. Have each group present
its argument. Next, allow the groups to confer for 2 minutes and then have each
group present its rebuttal to the other group’s argument. Lastly, have the class
members who served as the audience vote for which side was most persuasive.
Point: Clients should always have a right to create and keep recordings of their
counseling sessions for personal use.
vs.
Counterpoint: Clients should not have a right to keep recordings of their counseling
sessions due to the potential risks to their confidentiality and issues of counselor
liability.
Title: Client review of clinical case notes.
Learning
Goal: To consider the benefits and risks involved in disclosing clinical case notes to
clients.
Point: Counselors write clinical case notes with knowledge that clients can review
notes at any time and, thus, clients may review their clinical case notes upon request.
vs.
Counterpoint: Information in clinical case notes can be misinterpreted by clients and
harm the counseling relationship and, thus, should be released at the discretion of the
counselor.
OUTSIDE CLASS ACTIVITY
Title: Handling a Request for Transfer of a Client’s Records vs. Responding to a
Subpoena
Learning
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Goal: To be aware of the similarities and differences among the steps a counselor
should take in responding to a request for transfer of a client’s records and in
responding to a subpoena.
Procedures: List the considerations relevant to each of the two types of situations, and then
outline specifically the steps the counselor should take in responding to each.
Topic for Self-Reflection/Journaling
Topic: Imagine that a client with whom you have been working with for several months has
disclosed that he or she has been making audio recordings of your counseling
sessions together without your knowledge. Consider the ethical issues associated with
this situation, and how you might discuss these with your client. Also, consider the
reactions that you might have to this situation.
CASE STUDY
Sheila came to your office about eight months ago, seeking counseling and stating that she
“hoped to save her marriage.” After a few sessions with Sheila, you suggested that couples
counseling might be helpful, but her husband, Roy, refused to participate. Three months ago,
Sheila and Roy went through a very nasty breakup of their marriage, and now you have been
subpoenaed to produce all of your records pertaining to Sheila’s treatment. Sheila has told you to
comply with the subpoena, saying that she has nothing to hide. Despite your suggestion to Sheila
that it may not be in her best interest to disclose those records, she has refused to assert the
privilege. What should you do?
Case Study Discussion
You should tell Sheila that you respect her decision to waive confidentiality and that you
would like to discuss the matter with her in greater detail. It may be therapeutically advisable to
have this discussion with Sheila in your office, in order to explore the thoughts and feelings
behind her decision to release her counseling records. If her decision appears to have been driven
by irrational thoughts, fears, or painful emotions, perhaps a counseling session will prove helpful
to her. If, after discussing all aspects of her decision, she persists in her refusal to assert the
privilege, then you must comply with her decision. Before she leaves your office, you need to get
her to sign an authorization to release the records pursuant to the subpoena.
1. What types of issues might be related to Sheila’s decision to release her records?
2. How might Sheila be disadvantaged by releasing her records?
3. Describe the specific steps you would take in responding to the subpoena.
SHORT PAPER OR ORAL CLASS PRESENTATION TOPICS
1. Provisions of the Buckley Amendment (FERPA) and Its Implications for School Counselors
2. Counselors’ Responsibilities in Securing the Safety and Confidentiality of Client Records
3. Legal and Ethical Considerations for Writing Clinical Case Notes
4. Determining the Validity of Subpoenas