A Licensed Counselor is An Agent of the State
Let's say you're a counselor without a license. You decide to keep notes because it is helpful in the therapeutic process to do so. Keeping a journal, diary, log, notes of anything for any reason is not illegal or unlawful.
When one becomes a counselor though, your notes no longer belong to you, they belong to your client.
Why?
Who knows?
Maybe it has something to do with medical insurance paying for it and wanting to know that the client is being helped. Most of my notes are in code or shorthand because a) I value confidentiality, b) using shorthand/code is much easier to type in session than is typing out the whole word. Time is valuable.
Anyways, an unlicensed (aka free agent) counselor, psychologist, therapist, social worker can keep his or her notes as he or she sees fit, and for as long as is useful.
But licensed counselors are required to keep their notes for however long the state says they must be kept.
Why?
Who knows?
What's the purpose of the board requiring a licensee to hold onto counseling notes for 7 years after ending session work? What's the benefit for imposing this burden of money, time, and space upon counselors? (And it does cost money even if you don't keep physical copies somewhere. Counseling software like Therapynotes and SimplePractice can cost upwards of $100+ for a solo practitioner.)
For whatever reason, the state boards have lost the plot, and are cannibalizing the mental health profession. It's like they give licenses, but they don't trust the people they license. Kinda sus.
The big "aha" moment for me was when using SimplePractice, and realizing that I was paying for access to their software, but they built in a backdoor to help the government examine clinic records in case a clinician was audited. Who does SimplePractice work for? Who do we work for as as mental health professionals? (Side note: once discovering this backdoor, I canceled my SimplePractice subscription and chose another, more private and secure method, for keeping notes.)
In effect, my records didn't belong to me or the client, they belonged to the government, but I was paying to store it for the government in case the government wanted access, and the client could have access whenever he or she wanted (which doesn't seem problematic) usually for insurance purposes or in divorce cases. Or did they belong to the client, but the government could get access without the client's permission? Or do the client and the government share ownership without ever having expressed that co-ownership in a contract of any kind?
Hard to tell.
Boyd v United States, 116 US 616
Now, the seizure or compulsory production of a man's private papers to be used in evidence against him is equivalent to compelling him to be a witness against himself. That‟s a violation of the Fifth Amendment, and in a prosecution for a crime, penalty or forfeiture is equally within the prohibition of the Fifth Amendment. It is a violation of the Fourth Amendment for a man (or woman) is the subject of a search and seizure of his or her private papers.
The opinion in Boyd also states that even if the state isn't searching and seizing, the state compelling a person to provide certain records "is tantamount to compelling their production, for the prosecuting attorney will always be sure to state the evidence expected to be derived from them as strongly as the case will admit of."
From Boyd:
The clauses of the Constitution to which it is contended that these laws are repugnant are the Fourth and Fifth Amendments. The Fourth declares,
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fifth Article, amongst other things, declares that no person "shall be compelled in any criminal case to be a witness against himself."
Also from Boyd:
The assumption that the owner may be cited as a witness in a proceeding to forfeit his property seems to us gratuitous. It begs the question at issue. A witness, as well as a party, is protected by the law from being compelled to give evidence that tends to criminate him or to subject his property to forfeiture. But, as before said, although the owner of goods, sought to be forfeited by a proceeding in rem is not the nominal party, he is, nevertheless, the substantial party to the suit; he certainly is so after making claim and defence, and, in a case like the present, he is entitled to all the privileges which appertain to a person who is prosecuted for a forfeiture of his property by reason of committing a criminal offence.
We find nothing in the decisions to change our views in relation to the principal question at issue.
We think that the notice to produce the invoice in this case, the order by virtue of which it was issued, and the law which authorized the order were unconstitutional and void, and that the inspection by the district attorney of said invoice, when produced in obedience to said notice, and its admission in evidence by the court, were erroneous and unconstitutional proceedings.
Do you remember that earlier post about having to first get the courts to rule in your favor in order to practice without a license? The SCOTUS case in that post was Shuttlesworth v. City of Birmingham, 373 U.S. 262 (1963). In that case, the local government passed an unconstitutional ordinance requiring a license in order to peaceably assemble. The Supreme Court ruled that such a law which violates the Constitution may be ignored and treated as if it were no law at all, and your constitutional right may be practiced with impunity, meaning without fear of punishment. Go back and read the post for a more complete explanation.
But by opting in to the administrative law framework by virtue of having a license, you agreed to let them have access to, and even to produce your private papers to be used in evidence against you if the desire or alleged interest ever arises.
"But we're only required to let them see our records under a court order."
Is an audit a thing that is mandated by the court? Or is it mandated by the board? IIRC, an audit is a thing initiated by the board, without a judge's signature, to which a licensee is required to adhere under threat of sanction by the board. Is this not a violation of the 4th and 5th Amendments as stated above?
Do you see the complication?
So by getting a license, a mental health professional is agreeing to waive his or her Fifth Amendment protection as well, and subjecting himself or herself to the pursuits of a bureaucrat with little governmental oversight.
All of these points of rights and protections of men and women, professional or otherwise, under the Constitution could be argued in court by a licensee, maybe even successfully, but it will drag on for decades, and those cases would likely have to reach the Supreme Court of the United States in order to get a solid ruling. Odds are slim.
What's the remedy?
Opting out of the administrative law framework, canceling the agreements you made with the state to abrogate your rights and protections secured under the Constitution of the United States. It's scary, I know, but it is a viable option, that mental health professionals have taken and many more are considering.
So far, we've covered the following cases that can be applied to the practice of the various mental health professions:
Marbury v. Madison states that the Constitution of the United States is the supreme law of the land.
Murdock v. Pennsylvania states that the state (or city) does not have the power to license or tax a right secured under the Constitution.
Shuttlesworth v. City of Birmingham states that if the state (or city) does create any unconstitutional "law" that the person may ignore the law and exercise their right "with impunity".
Boyd v. United States states that being compelled to produce papers, etc. is tantamount to unlawful search and seizure (violation of the 4th Amendment), and that doing so makes a man a witness against himself (violation of the 5th Amendment).
National Institute of Family and Life Advocates v. Becerra (aka Nifla v Becerra) states that the Supreme Court has never recognized any such thing as "professional speech" and that men and women with certain education, knowledge, and expertise are subject to the same rights and freedoms under the Constitution of the United States as anyone else, regardless of whether it is commercial speech or not.
