nota bene

I don't know about you, but the reason I often make notes after psychotherapy sessions is because I need aides-memoires. I've about 18 patients - in my private psychotherapy practice - at any one time; most of them attend just once a week. And sometimes they'll say something, or I'll think of something during or after the session, that I want to make sure I hold onto for later lest it should then prove relevant. ... Or they'll share the first name of their new girlfriend or pet tortoise or arch enemy, and I'll think it a good idea to jot that down since, truth be told, I'm not always very clever with names. ... What's more, I suffer from migraines, and these impact my memory formation and recall - so if I've a migraine I'll tend to write down a little more of what we talked about in the session. ... Occasionally I'll jot down something which, it seems to me after the session, is rather important - yet which keeps evading both my patient's, and my own, consciousness when we meet. And if, on a rare occasion, I feel I have to contact another professional - perhaps my patient is becoming psychotic or suicidal, say - I'll make a note of doing that too. ... Oh: early on in therapy I'll sometimes use the notes to sketch out a tentative 'formulation' - i.e. I sketch out something of my sense of what might be going on for the patient. This can, I think, help me organise my thoughts, although I confess I've not tried comparing times when I've written this out with times when I've not to see which came out best. (I mean, how could one even set about doing that in a scientific manner?) ... As well as documenting these things - which can take two or three sentences, yet may range between three words and a page of A5 - the only other things I ever document about my patients are: when they attend, whether I've invoiced them, whether they've paid - and of course I'll somewhere note their contact details.

These notes are locked in a drawer in my consulting room (which, naturally, is also locked). Nobody gets to see them except me. Or, well: I might on occasion share something in them with the patient - if, say, I've sketched a formulation in a diagrammatic manner. But really they'd not be of use to anyone else, including the patient, since what they're designed for, their whole purpose, is, as I said, to function as aide-memoires for me - and so they're replete with the requisite shorthand and clinical terminology to effectively support that end. 

Not only must nobody else ever look at them, since they contain information disclosed in the privacy of the consulting room, but nobody else even need be able to read or understand them - since, like I said, the sole function for which I make notes is to support the therapeutic process. Further, nobody pays me to write them: the patient pays for, and receives, the 50 minute sessions; what they take away with them is what obtains during the session. Yet it seems to me that making them occasionally, sometimes, supports the therapeutic process, and probably doesn't interfere with it too often (I don't think I get too fond of my own ideas in that way, and so am not too worried about overly-organising my thinking about the patient - although to be fair this may sometimes happen: the dangers of not 'eschewing memory or desire' as Bion had it are never too far away)... and so I make them.

Now all of that seems to me rather straightforward. And yet when we turn to the advice, instructions, rhetoric and rules of the bodies and bureaucracies which govern psychologists' practices, something rather different sometimes shows its face. The British Psychological Society - a professional body which no longer regulates psychologists' practice, but which many UK psychologists still belong to - tells us that the notes must only be 'of the highest standard required'. Given the actual requirements I have of my notes, that seems fair enough. But it then says that, even for private practitioners, these notes must be 'auditable', and must be 'accessible and useable by clients who have requested copies'. They should also 'serve their primary purpose...', which in my case I've documented above, ' recording the care of individuals through the work of the clinician.' The impression one rather gets is that it's somehow assumed that the reason why you make notes is to record what takes place in the sessions in a way that's auditable by others and accessible to the patient. Yet, well: why?! And what if that's not your reason?! I can report that ... wait a moment while I screw my 'reflective scientist practitioner' head on... this just makes little sense. As I'll shortly describe, what in psychology we call the 'primary' or 'work' task - the actual legitimate and legitimating point of the notes - here risks drifting from view, and something else seems to take its place. Oh, I forgot to note that, according to the BPS, both 'supervisees and supervisors should record information discussed in supervision.' And all notes 'should always be signed and dated'. (I can't imagine why I'd sign my notes, nor why I'd want to document all the 'information' my supervisees provide me with during supervision.)

Or take the Health and Care Professions Council's (...these guys actually do regulate practitioner psychologists these days...) instructions that 'you have a professional responsibility to keep full ['comprehensive'], clear ['comprehensible'] and accurate records for everyone you care for, treat or provide other services to.' Why? Well, the reasons given include to 'ensure service users receive appropriate treatment that is in their best interests' (I don't see how documenting the rubbish treatment you provide makes that treatment any less rubbish); 'meet legal requirements or respond to Freedom of Information or Subject Access Requests' (I don't see how you can comply better with FoI requests if your notes are fuller; in fact it'd be rather easier to comply if you had hardly any at all); and 'evidence your decision-making processes if later queried or investigated' (decision: to provide psychotherapy? to make a joke ten minutes into the session?). They do at least tell us that 'what records you need to keep, in what format and for how long, varies depending on the setting you are working in and the subject matter of those records.' So, good: there is that! But even so, what I understand to be the actual purpose of psychotherapy notes, and the reasons the HCPC offers for making them, rather seem to here be pulling apart one from the other. The spectre haunting these recommendations seems, to me, to be one of defensive practice, of documenting what's said and done in the clinic so that later you could justify yourself before another, or so that someone else could reconstruct what you said or did from these notes. And, again: this really isn't how notes function for a - or at least, for this - private psychotherapy practitioner. How many acts which are naturally and properly described as resulting from 'decision making processes' do you actually engage in, for example - other than that of taking on the patient for psychotherapy in the first place? Or, if we expand the grammar of 'decision' to include any intentional act such as a speech act, then how could anyone begin to note down the vast panoply of 'decisions' they make in any one session? (For what it's worth I'd submit that if you're engaging in decision processes properly so called, then you probably aren't actually engaging your self as the therapeutic tool, and so may not even be providing genuine psychotherapy in the first place. You're probably instead in something like an 'intervention'-providing business.)

Now perhaps we shouldn't make too much of the above-described recommendations. Maybe they're only really apt for institutional settings, for example, so can be safely ignored. (If so, it'd be helpful if the organisations in question would say as much, and acknowledge that a requirement for notes that are both comprehensive descriptions of session contents, and comprehensible-to-non-psychologists, is hardly going to be legitimate in much of the private practice context.) Furthermore, the Information Commissioner's Office (ICO) is explicit that records must only ever be 'limited to what is necessary in relation to the purposes for which they are processed' (this they call ‘data minimisation’). And my purpose in making my notes is, as I said, to help me hold in mind certain details from session to session, especially those which I'm likely to forget, lest they should later be relevant. To record anything else from the session rather risks going against the ICO's legal guidance, given the actual purposes I have.

Rather worse failures of fit between the actual clinical purpose of psychotherapy notes, and the kinds of expectations which outsiders seem to want to impose on them, can be found when we consider the legal context. Take, for example, the instructions provided by the aforementioned quango, the ICO, which organisation aims to implement the law contained in the data protection and freedom of information acts and regulations, the ambition being to 'uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals'. That all sounds good in principle (although psychologists of all people shouldn't underestimate the psychologically, socially, and economically toxic effects of bureaucratisation). We do, after all, want to make sure that we don't get rogue practitioners who fail to respect their patients by failing to keep their therapy notes utterly private. But when we look at their guidelines, what we soon find is something rather different. In particular we find a rhetoric of 'data' and of its 'processing' which, according to the definitions they give, makes 'data controllers' of private practitioners. 

And what is this 'processing'? Well, processing means, inter alia, 'collecting, recording, organising, storing, using, retrieving, altering, erasing, disclosing'. And 'data' means 'any detail [sic] about a living individual that can be used on its own, or with other data [sic!], to identify them.' (This rather reminds me of the hopeless Nazi answer to 'Q: What is a Jew? A: A Jew is someone whose grandmother is a Jew...' Or, for that matter, of the equally absurd: 'Q: What is a woman? A: A woman is someone who identifies as... a woman'.) One might think: phew, all this only applies to 'data' which is 'processed' on a computer... so my hand-written notes are exempt. But, no, even an email from a patient counts as 'data', and emails are obviously constituted and accessed electronically. Furthermore, if you plan to put your paper records 'on a computer (or other digital device)' or if you 'file them in an organised way' then they too count as 'data'. Here, I think, may be a relevant out: after all, can they really mean that if I just stuffed my patient notes in a jumbled sack, I'm not subject to the law in the way that someone who had each patient's notes in a singular file would be? In other words, perhaps 'organised way' here means something like: 'supports searches across records'. But well, who's to say? One thing is clear: the ICO website doesn't say what it means by 'organised'. (I suspect that 'organised' here means 'enables identification', so that it's here rather an empty concept.)

One might think: phew, the ICO only governs the activities of organisations, and being a 'sole trader' one is, by definition, not an organisation (since that term refers to an 'organised group of people with a particular purpose'). But no, the ICO (mis)use this term to 'include all data controllers, including sole traders'. So, well, fellow controllers, that's you and me.

OK, so let's imagine that I and my peripatetic violin-teaching friend (who communicates with her pupils by email to arrange sessions; has records of their addresses and session times; makes notes of what pieces and techniques they're practicing at the moment) are indeed data controllers. (A difference between she and I, though, is that as a psychologist I also 'process' 'special category [i.e. more personal, more sensitive] data' which is (in some way I confess I don't understand) more protected than ordinary data.) What of it? Well, the first thing to note is that, if one is indeed a fat controller, then one has to pay the ICO a fat fee of £40 a year. What's this fee for? What does one get for it? What do one's patients get for it? ... Well, all I'll say is that I could find nothing approaching an answer to these questions when browsing their extensive website. And what resources do they have for me, a psychologist, on their website? Well, type in 'psychologist', 'psychology' or 'psychotherapy' in their search function, and you get nothing back that's relevant to private practitioners. There's plenty of information there that might be useful to bona fide organisations that are in the business of actually, you know, collecting data. But nothing for the private psychological practitioner. Again, as with the suggestions and instructions from the BPS and HCPC, the problem here seems to be that the guidelines have not been constructed with the private practitioner therapist in mind. Given this I'd say it's questionable whether one should register with them. And yet, they nevertheless appear to command a near universal agreement from professional bodies that psychologists and other mental health professionals delivering psychotherapy in individual private practice should register with the ICO and pay the annual fee. (The BACP tells its members they should do both; the UKCP tells its members they should just do the latter.)

I want to say a little more about this 'data' that the ICO tells me I 'control'. So a patient may, during or after treatment, make the request to see their data or have it erased. Data, recall, include the information about when they attended, their contact details (... don't delete these before replying to the request...), the contents of the notes, etc. Now, one reason you might choose to document what you say and do in psychotherapy sessions has to do with a patient who later decides to sue you for bad treatment; you could then say 'well look, I did and said this, as I've written down here, and this is surely all well and good'. (I mean, if that's the way you roll, clinically, then, well, knock yourself out. I'll just note here that defensive practice of this sort may well come with psychological and professional costs which should not be underestimated - and which, it seems to me, may even impact the development of truly valuable psychotherapy relationships and thereby the work - and thereby be unethical from a clinical standpoint.) The ICO claims that you can refuse to comply with a data erasure request if you are establishing, exercising or defending legal claims. This doesn't specify whether you can keep it lest there be future such legal issues. However the example they then give is of a healthcare provider who they claim is legally proper to refuse a request to erase personal data from a previous patient because their liability insurance requires them to retain such records in case of complaints or legal claims. So it seems you can legitimately refuse to erase the 'data'.

It's also worth noting that, again according to the UK legislation, you must ask the patient's permission (see 6.1.a here) to 'process' any of this data. 'Processing', remember, includes writing and reading the notes. I submit that this could legitimately be taken to provide a reason to take the text of the law with a pinch of salt, and to question whether it really can meaningfully be said to apply to the clinical situation. Here we're in the bizarre situation of being advised both to take comprehensive notes but also to first ask the patient's permission - which they may of course withhold.

Here's an interesting thing about the ICO take on 'data': it tells us that 'personal data only includes information relating to natural persons who: can be identified or who are identifiable, directly from the information in question; or who can be indirectly identified from that information in combination with other information.' What that means, in fact, is that if you don't have your patient's actual identifying details (i.e. name, address, phone number etc.) on the notes, then the notes don't count as data. Why not? you ask. For surely, if I've got a page of identifying details, and we can work out who my notes refer to by cross-referencing with that page of details, then the notes count as data? Well, no, read it carefully: it says that, in order for the notes to count as data, you must be able to use them (by themselves or along with something else) to identify the person, not that you must be able to figure out who the notes refer to (by looking at the notes or looking at them in conjunction with something else). However I wonder whether the ICO isn't misrepresenting the law on this point. For what the regulations say is that 'personal data' means 'any information relating to an identified or identifiable natural person', and an 'identifiable natural person' is 'one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person'. (I take it that 'identify' here means 'work out who the person actually is - i.e. which individual human animal we're talking about'. And that 'directly identified' here means 'identified in the information in question'. And that 'indirectly identified' means: 'by consulting some other information'. And that these EU-derived regulations are post-Brexit now a part of UK law.) There's still something missing in the law here; the phrase which contains  'information relating to an identified or identifiable natural person...' presumably ought to be filled out with '...who can be identified as the subject of this information'. But that's just a quibble and so, perhaps regrettably, clinical notes do after all seem to typically constitute 'data' since, except when they consist of clinical hypotheses (which, qua hypotheses, constitute information about the clinician's rather than the patient's mind), they consist of information about someone who can typically be identified as their subject. 

I want to end with an observation. Having talked with a lot of psychologists, psychotherapists and counsellors over the years, I've noticed that 'the notes' get caught up in a variety of superego-invoking, negative-transference-engaging, problematics of their own. They become the place where what one did and said is visible to an imagined judge (a judging figure, that is, not necessarily a member of the judiciary!), and so become fraught with issues of accountability. They become a locus of lost self-possession, and an attitude prevails in which one stops understanding that, to be a good psychologist, one must do one's spontaneous best, or stops understanding that we ought to model for the patient a form of self-acceptance in which one lives out of a trust that one is, in one's basic world-orientation, acceptable and valuable as a person, but instead thinks one ought to be 'following protocols' set down by some other psychologist or organisation. Now I know of no empirical data suggesting it's in any way better to engage in a hidebound litigation-wary practice. And since it rather stands to reason that it simply isn't better to engage one's patients thus - that it could in fact inculcate a counter-therapeutic 'anality' in the practitioner - I suggest it's an ethical duty to do otherwise. But the principle part of all of this that I want to stress takes us back to where I started: If you start to worry about your notes, and find that your mind is getting colonised by oppressive and debilitating shoulds and oughts around them, then first bring to mind their actual purpose. The purpose to which you actually put them in your clinic; the end to which you write them. Why you so much as make them when your making of them is guided by the clinical task rather than by a self-possession-sapping negative transference to psychological, governmental, and legal systems. The purpose in relation to the clinical task, that is, which task is, presumably, hopefully: the recovery and growth of the patient.


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