LawSense Law for Mental Health Practitioners – Cases, Notes, AI, Subpoenas, Privacy

Benefit from Key Case Updates and Insight, Practical Perspectives and Senior Lawyers & Practitioners

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Program

10.00    LawSense Welcome

10.05    Chairperson’s Introduction

Dr Gary Banks, Principal Clinical Psychologist and Managing Director, Sydney Counselling Centre; Authorised Clinician, NSW Children’s Court; Approved Clinician (Family Reports and Single Expert Reports); Accredited Family Dispute Resolution Provider

10.10    Case Studies Panel: Note-Taking, Assessments, Treatment Plans, Patient/Client Communications, Informed Consent, Scope of Practice, Dual Relationships: Reviewing Recent Cases and Examining Learnings for Treating Practitioners

This session examines recent cases where findings were made against practitioners and seeks to discuss key learnings to assist practitioners implement best practice. The cases give some insight into the expectations of the Psychology Board and/or Tribunals with respect to some different aspects of treating practitioner work including note-taking, assessments, client communications and consent and when the Board is inclined to make adverse findings. Some cases have been de-identified:

Cases Review

• Psychology Board of Australia v Practitioner [2023] VCAT 110 – practitioner failed to recognise he was ‘professionally out of his depth’.
• Psychology Board of Australia v Practitioner [2023] QCAT 242 – using non-evidence-based treatments, failing to conduct risk assessments, consider differential diagnosis and/or document treatment plans, failure to properly document, inadequate consent, inappropriate communications regarding self-harm/suicide
• Coronial Inquest 2023 – Delay in identifying condition, failure to set appropriate boundaries, adequacy of records
• Psychology Board of Australia and Practitioner [2022] VR 27 – inappropriately managing multiple relationships, not acting within scope of practice, communication during client interactions, adequacy of psychological services, failure to obtain informed consent.
• Psychology Board of Australia v Practitioner [2023] VCAT 1395 – relevance and assessment of insight of practitioner regarding their offending and impact this can have on sanction given
• Recent AHPRA Panel Cautions/Reprimands:
  • Panel hearing 2022.0918: psychologist delayed completion of assessment reports, failed to provide assessment reports to clients, had poor communication with clients
  • Panel hearing 2019.0881: psychologist inadequate or inappropriate treatment, inappropriate fees or billing practices, inappropriate communication, failure to provide adequate or accurate information, health record inadequate
  • Panel hearing 2019.0875: assessment and case formulation, suicide risk assessment, evidence based psychological intervention

* Case titles have been de-identified

Learnings from Cases – Panel Discussion, Including:

• Managing documentation / recording of diagnosis, treatment and treatment plans
• Navigating informed consent
• Dealing with complaints and regulator communications, investigations or action
• Managing scope of practice and multiple relationships

Edward Smith, Partner, Wotton & Kearney

Dr Gary Banks, Principal Clinical Psychologist and Managing Director, Sydney Counselling Centre

11.20    Break

11.30    Optimising Note-Taking and Record Keeping in the Digital and AI Age

Key Principles and How Notes Have Been Used in Legal Proceedings

• Outlining key principles to apply in note-taking and record keeping by mental health professionals

Understanding how note/lack of notes has been used against practitioners in proceedings – case studies

• Examining key aspects of notetaking to meet legal risk and avoid criticism by Courts:
  • level of detail or clarity
  • ensuring you cover key aspects
  • “loaded” words from which inferences could be drawn about the writer
  • recording conversations and dealing with hearsay
  • communications with external professionals
  • recording your hypotheses, investigations, conclusions and setting out the basis of opinions
  • making changes to notes after they were originally written

• Understanding the extent of notes that should be taken in different circumstances including:
  • summary of problems and record of planned intervention
  • summary of each session
  • deteriorating condition
  • suspicions / allegations of domestic violence or unlawful activity
  • recording comments statements from the client/patient and your observations

Emerging Options – Using AI to Generate Session Notes, Records and Plans

• Identifying risks and pitfalls associated with using AI in psychology practice
• Implementing measures to deal with current legal and risk issues in using AI

Optimising Digital Record Keeping and Understanding Pitfalls

• Reviewing the different types of records to assess, integrate or manage in record keeping systems:
  • paper records
  • records on electronic note-taking systems
  • notes or calendar entries on work or personal devices
  • other communication media including texts other electronic messages between staff and reports from external experts
• Understanding the legal rights and obligations regarding messages on personal devices or apps or personal note-taking
• Managing areas of potential legal exposure:
  • cutting and pasting from previous records
  • lack of integrated records/disparate records
  • records on personal devices
  • access permissions and protocols
  • storage and retention of records

• Effectively managing storage or records and navigating obligations with online storage with third parties

Audrey Lacey, Partner, HWL Ebsworth Lawyers

12.30    Break

12.45    Disclosure of Information in Files and Records: Examining the Limits of Disclosure, Contractor Rights and Obligations and Objecting to Information Requests and Subpoenas

Key Privacy and Confidentiality Laws and Potential Reforms

• Outlining key laws applying to privacy, confidentiality and information sharing in mental health practice
• Examining potential privacy reforms and impacts on practices

Access Within a Practice

• Examining the elements to consider, including operational issues, in deciding what information different staff or contractors within a practice should be able to access
• Exploring some of the pitfalls with privacy and confidentiality when using electronic systems within a practice

Independent Contractors and Rights to Information

• Dealing with notes, files and records of the independent contractor:
  • who ‘owns’ the files?
  • who can access the files and in what circumstances? Can a former contractor or employee access the files?
  • dealing with a subpoena for files in possession of a former contractor

Requests for Information from the Client / Patient

• Examining the limits of information or records you must provide the client/patient – when is it reasonable to decline a request? Should “internal” documents be provided?

Reports to GP, and Requests from Other Professionals or Insurance Organisations

• Navigating confidentiality in reporting to GPs
• Exploring requests practitioners receive from other professionals or insurance organisations for information
• Informing the client or seeking consent before releasing documents:
  • ensuring you obtain a valid consent – what consent should be obtained and how should it be documented – is a “blanket” consent previously provided enough?
  • what are your options where capacity to consent is doubtful or you suspect coercion?

Options in Responding to a Subpoena

• How can documents be produced – can you produce copies and can they be produced electronically?
• Responding to subpoenas addressed to the practice where the relevant practitioner no longer works there
• Extending the time for compliance with a subpoena
• Subpoenas to give evidence – can you appear by video link?
• Obtaining payment for time spent and photocopying to deal with a subpoena

Reducing the Scope, Redacting or Objecting to Subpoenas

• Examining key considerations in deciding to object to production of subpoenaed documents
• What do you do when the whole file patient file is requested, rather than particular reports or documents – dealing with the subpoenaing party lawyers to reduce the scope of documents caught by the subpoena
• Understanding options to legally object to a subpoena
• What should be contained in your communication to the Court regarding your objection?
• Managing confidentiality concerns in producing documents

Dealing with Other Information Requests – Regulators, Child Protection agencies

• Responding to requests from:
  • AHPRA or other regulators
  • Child Protection agencies

Nevena Brown, Principal, Meridian Lawyers

1.45      Chairperson’s Closing remarks

1.45      Event Close

Presenters / panelists include:

	Dr Gary Banks is a Clinical and Forensic Psychologist, in practice for more than 25 years. In addition to a number of other clinical positions, he has been appointed to the NSW Children’s’ Court Clinic since its inception and as a Family Consultant to the Family Law Court. He has been a provider to the NSW Legal Aid Commission and the NSW Office of the Director of Public Prosecutions for more than 20 years.
	Audrey Lacey has a long history of working as a health lawyer since admission in 2001 both here and in Ireland. She specialises in Medical Negligence and Health Law. Audrey assists Professionals in relation to Civil Claims, and investigations before the Office of the Health Ombudsman, the Australian Health Practitioner Agency and the Queensland Civil and Administrative Tribunal and during Coronial Inquests.
	Nevena Brown has over 25 years’ experience as a health and insurance lawyer. Her experience with medical and allied health professional negligence claims began in 2000 when she advised Avant and Guild Insurance Ltd regarding civil claims against its members. Nevena now acts nationally for allied health and medical indemnity insurers, assisting a range of health practitioners.

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