In April 2021, the federal rule of the bipartisan 21st Century Cures Act (2016) was implemented, mandating rapid, full access to test results, medication lists, referral information, and clinical notes in electronic formats, on request (so-called “open notes”).1,2
This new open notes regulation “constitutes a substantial culture change for both patients and physicians.”3 Does this mandate benefit or harm patients — or both? What impact does it have on physicians in general, and psychiatrists in particular? What are its potential medicolegal implications? To shed light on these complex questions, we spoke to John Torous MD, MBI, director of the digital psychiatry division, Department of Psychiatry, Beth Israel Deaconess Medical Center, a Harvard Medical School-affiliated teaching hospital, where he also serves as a staff psychiatrist and assistant professor.
Is patient access to chart notes something dramatically new?
Dr Torous: Open notes is not a revolutionary concept. Even before this new mandate, patients had a right to request and receive copies of their records — a legal right that was mandated by the Health Insurance Portability and Accountability Act (HIPAA) in 1996.4 But to do so was cumbersome and often expensive.5 What open notes did was to make it easier and facilitate access for patients. And in the VA [Veterans Affairs], patients have been able to access their notes for outpatient primary care and specialty visits, inpatient care, emergency department visits, and even for mental and behavioral health visits since 2013 through a site launched in 2003 called My Healthevet.6
Is the United States the only country where patients can have access to their notes?
Dr Torous: Other countries, not only the US, provide patients with full online access to their electronic medical records. For example, Sweden, has been offering this access as far back as 2012-2018, and Estonian patients have had full access since 2005.7 Australia and Canada also allow patients access to their medical records8 and Germany is in the midst of a digitization project that will pave the way for patient access to medical records.9
Are psychotherapy notes included in mental health notes?
Dr Torous: Psychotherapy notes are exempt, and the clinician can engage in “information blocking” if he or she feels that denying access to the information will “substantially reduce the risk of harm” — meaning, physical harm to the patient or another person or if there is a privacy exception.1 All licensed health care professionals, not only mental health professionals, can decide what constitutes a “substantial risk” when they are working “in the context of a current or prior clinician-patient relationship.”1 Examples of this might be domestic violence, child abuse, or elder abuse situations.
Although physicians and mental health professionals are mandated reporters, they may not want patients they suspect of engaging in abusive acts to have access to notes that alert them to the fact that the clinician has concerns about their abusive behavior. Or perhaps if a patient is delusional and could potentially misinterpret notes during an episode of acute psychosis, it may be better to wait until the episode has resolved. Of course, this concern has to be balanced against the concern that the patient might become suspicious when access to the notes is denied.