Notes on notes: Note-taking and record-

keeping in psychotherapy

Keith Tudor
Professor of Psychotherapy, Auckland University of Technology, Auckland

Kris Gledhill
Professor of Law, Auckland University of Technology, Auckland

Abstract
This article offers information and views about note-taking and record-keeping in the
practice of psychotherapy in this country, in the context of the limited literature on the
topic. It provides a brief review of what principal figures wrote about taking notes and
making records, specifically Sigmund Freud and Eric Berne. It considers the purpose of
making notes and keeping records, and presents key terms and conditions on the subject.
Finally, it reviews relevant declarations and legislation regarding notes and records
pertinent to the practice of psychotherapy in Aotearoa New Zealand.

Whakarāpopotonga
Ko tā tēnei tuhinga he whakatau koha mātauranga me ngā tirohanga whakapā ki te tuhi
kōrero me te pupuri hopu puoro i roto i te haratau whakaora hinengaro i tēnei motu i runga
i te tirohanga o te torutoru o ngā pukapuka mō tēnei kaupapa. Ka horaina he aromatawai
poto a ngā kaituhi matua mō te kaupapa nei, inarā ā Hirimana Whereuta rāua ko Ērika
Peene. Ka āta whakamātauhia te take o te tuhi kōrero me te pupuri puoro, ka whakaatu ake i
nga whakaarohanga matua me ngā āhuatanga kai runga i te kaupapa. I te mutunga, ka
tātarihia ngā whakataunga e hāngai ana me ngā ture whakapā atu ki te tuhi me te hopu
kōrero e ai ki tā te haratau whakaora hinengaro i Aotearoa Niu Tīreni nei.

Keywords: notes; note-taking; records; record-keeping; privacy.

Tudor, K., & Gledhill, K., (2022). Notes on notes: Note-taking and record-keeping in psychotherapy. Ata: Journal
of Psychotherapy Aotearoa New Zealand, 26(2), 123–144. https://doi.org/10.9791/ajpanz.2022.12

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 Notes on notes: Note-taking and record-keeping in psychotherapy

Introduction
There are different perspectives on, as well as some confusion about, the nature and purpose
of client (or patient) notes; the status of the practitioners’ own notes, which may take the
form of a private, reflective journal; and, more broadly, the nature and status of health
records (and the extent to which all notes are part of health records). This is further
complicated by the fact that different associations and accrediting bodies have different
views and requirements, such that practitioners, who may be members of a number of such
associations and bodies, are often confused about what is mandated and what is permitted.
A final layer of complexity concerns the context in which practitioners work with regard to
sector (public and/or private); organisation (commercial, education, health, justice,
voluntary, etc.); third parties, e.g., when working for the Accident Compensation Corporation
(ACC); and location (i.e., different jurisdictions): each of which may have specific policies
and procedures about notes and records.
Somewhat surprisingly, there is very little clear guidance as to precisely what
psychotherapists must do with regard to note-taking and record-keeping. In her book on
Record Keeping in Psychotherapy and Counseling, and writing in the context of the United
States of America (USA), Luepker (2022) comments that:

… few mental health professional organizations or states define and describe the
characteristics involved in competent clinical recording keeping. There is little
written about the therapeutic process of record keeping. This leaves practitioners
to use what little they can learn in graduate schools or internships or to devise their
own policies and methods in a virtual vacuum. (p. 19)

There is also very little literature as to what practitioners actually do. One survey of the
record-keeping practices of clinical psychologists working in one region of the UK’s National
Health Service found:

… much individual diversity and uncertainty as to what constitutes good practice …

[and that] despite [then] recent guidance from the Division of Clinical Psychology
and the Department of Health, many issues with regard to note-keeping are
unresolved, ambiguous and subject to individual and local decision-making. (Scaife
& Pomerantz, 1999, p. 210)

Accordingly, we have sought to adopt an interdisciplinary and collaborative approach to

seek to identify whether relevant legal sources provide guidance. Based on a review of the
literature, and of the law and relevant health policies as they stand in this country, this article
clarifies the current situation with regard to notes, note-keeping, records and record-keeping
in psychotherapy. We introduce this with a brief history of the place and purpose of notes
and records in psychotherapy, following which we identify a number of purposes for taking
notes and keeping records. In the third part of the article, we clarify various terms and
conditions used in requirements and policies about this aspect of practice; and, in the fourth
and final part, discuss the implications of this for practitioners and health care providers
working in this field.

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A brief review of the literature on notes and records in

psychotherapy
Freud was an assiduous note-maker, an inveterate letter-writer, and the originator of the
psychoanalytic case study. It is clear from a comment in a letter (written in 1896) to Wilhelm
Fleiss, an early collaborator and friend, that this derived from Freud’s personal habit or
discipline: “I have booked lodgings in Obertressen near Aussee. I make daily notes about my
health, so that they can be used to check special dates” (Freud, 1985a, p. 180). With reference
to his clinical work, he wrote (in another letter to Fleiss, written in 1899) about “making
notes on the results of my four analyses every evening” (Freud, 1985b, p. 384). An aside in The
interpretation of dreams — “The dream — it is the only one of which I possess no careful
notes” (Freud, 1900/2009, p. 599) — suggests that he usually made careful notes; though, in
a letter to Carl Gustav Jung (written in 1907), Freud (1974) writes that “I am again taking
notes on my analyses” (p. 58), which suggests that he didn’t always make notes on patients,
or had periods in which he didn’t. In a letter to Karl Abraham (written in 1910), Freud (2002)
refers to having the results of a case but not the notes, which suggest that he destroyed his
case notes after a certain time. With regard to the nature of notes, in a letter to Sándor
Ferenczi (also written in 1910) he refers to his notes having “intimations and confusions”
(Freud, 1993, p. 147), which is why he says he couldn’t show them to anyone, though he also
refers to reading other analysts’ notes (notably Fliess’, Jung’s and Ferenczi’s) and to sharing
his own case notes with them.
Interestingly, in his “Recommendations to physicians practising psycho-analysis”, Freud
(1912/1924) discusses the problem of keeping in mind all the details of patients and their
lives and suggests the technique of “evenly-suspended attention” (p. 110). “In this way”, he
suggests, “we spare ourselves a strain on our attention which could not in any case be kept
up for several hours daily, and we avoid a danger which is inseparable from the exercise of
deliberate attention” (p. 110). He continues:

deliberately concentrates his attention to a certain degree, he begins to select from

the material before him; one point will be fixed in his mind with particular clearness
and some other will be correspondingly disregarded, and in making this selection he
will be following his expectations or inclinations. (pp. 110-111)

Berne (1966) echoes this in his comment on note-taking: “notes taken during the session
are apt to recount in the most detailed way the least important aspects of the meeting, while
the substance is only sketchily outlined” (p. 51).
Freud acknowledges that this technique suits his individuality. Elsewhere, Freud
(1932/1973) refers to the fact that he “still possessed the gift of a phonographic memory” (p.
33) — and that others who are “quite differently constituted” (Freud, 1912/1924, p. 110) will
adopt different attitudes and methods. Nevertheless, for him, this technique “rejects the use
of any special expedient (even that of taking notes)” (Freud, 1912/1924, p. 110).
Writing in the same paper about taking notes, he advises against doing this in the session,
not only because of “the unfavourable impression which this makes on some patients” (p.
112) but also because it would compromise the nature and quality of his attention, a point he
had made in an earlier paper in commenting on the difficulties the physician has conducting:

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 Notes on notes: Note-taking and record-keeping in psychotherapy

… six or eight psychotherapeutic treatments of the sort in a day, and [who] cannot
make notes during the actual session with the patient for fear of shaking the patient’s
confidence and of disturbing his own view of the material under observation. (Freud,
1905/1977 p. 38)

Berne (1966) makes a similar point about not taking notes during the session and extends
Freud’s point about attention, arguing that:

Notes written after the meeting are subject to the same criticism in a diluted form.
If the therapist is distracted during the meeting by trying to remember what he is
going to put in his notes, to that extent his therapeutic efficiency is diminished, and
probably his effectiveness also. (p. 51)

For Freud, the exceptions to this rule are “in the case of dates, the text of dreams, or
particular noteworthy events which can easily be detached from their context and are
suitable for independent use as instances” (Freud, 1912/1924, p. 112), though he also says that
he is not in the habit of doing this. Finally, he acknowledges that taking notes during a
session “might be justified by an intention of publishing a scientific study of the case” (pp.
112-113), though he goes on to argue that “exact reports of analytic case histories are of less
value than might be expected” (p. 113). Rogers (1942) took a different view when he published
the first complete and unedited transcript of work with a client, Herbert Bryan, over eight
sessions, together with his accompanying notes.
Writing about the supervision of group treatment, Berne (1966) suggests certain
advantages to recordings of sessions, noting that: “Tape recordings are useful for beginners
because the proceedings can be analysed transaction by transaction, and the therapist can
develop his skill in observing and interpreting vocabularies, inflections, and nonverbal
phenomena such as coughs, laughs, and grunts” (p. 52). He develops the link between
supervision and the development of theoretically-informed practice of the transactional
analyst in his next point:

For more advanced students, notes taken after the session are most helpful because
it is possible within the supervisory hour to get a quick view of the whole meeting so
that games and other ongoing forms of social action can be picked out. (p. 52)

Also, writing in the context of supervision and promoting theoretical integrity, Mearns
(1995), a person-centred counsellor, expresses his concern about the flight on the part of
both therapist and supervisor into analysing the missing client, and asserts that “supervision
as it is normally practised tells us absolutely nothing about the client” (p. 422). In order to
prevent this flight, Mearns suggests:

... conduct[ing] supervision sessions under a strict policy of relating all statements
about the client back to the counsellor. This not only serves to minimise the dangers
of early closure on judgements about the client, but also increases the questions
which the counsellor asks about himself or herself in relation to the work. (p. 423)

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Mearns notes three ways in which the supervisor can have direct awareness of the client:
through live supervision, which is rare, and usually only takes place in the context of
training; by means of written verbatim, which used to be common in social work training,
but is rare in therapy training; and through the use of recordings, which is more common
but again, predominantly in the context of training.
With regard to the nature of notes, their confidentiality (or otherwise), storage, disposal,
etc., in these brief references about notes, note-taking, recordings, and record-keeping, with
their implications for method, we see the origins of current practices and concerns, at least
as they are expressed in some of the current guidelines. In the next part of the article, we
attempt to broaden and deepen these references by offering an overview of the purpose of
making notes and keeping records.

The purpose of making notes and keeping records

In two articles on practical approaches to note-taking, McMahon (1994a, 1994b) suggests a
number of specific purposes to this, including: as a memory aid; to monitor the client’s
progress; to aid the process of referral; for training and/or accreditation purposes; to assist
therapeutic audits; for internal complaints procedures; and as a tool for reflection. Based on
a study of clinical psychologists’ note-taking practices, and writing from a more critical
perspective, Newnes (1995) identifies three covert reasons for taking notes:

yy as part of monitoring, that is “observing others and writing it down [which] become
a prelude to observing ourselves or being observed, as if such observation is good for
people” (p. 33);
yy as a means to contain the anxiety of inexperienced practitioners and give the illusion
that no harm results when “cases” are passed between practitioners; and
yy as access to notes is seen as a consumer right.

Most recently, Luepker (2022) views systematic clinical records as “essential” (p. 20) as
they:

yy facilitate communication between therapists and clients;

yy form the basis of sound diagnoses and appropriate treatment plans;
yy provide for continuity of care;
yy are necessary for clinical supervision;
yy satisfy contractual obligations (she cites third-party payers or funders); and
yy are best protection against allegations of unethical and harmful treatment.

From our reading of the literature, it appears that there are four main purposes for notes
and records: accurate recall, planning treatment, professional development, and defending
practice. There is also an underpinning value of acting so as to respect rights and dignity.

Accurate recall
Having adequate notes on a client enables the practitioner to recall information about them

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 Notes on notes: Note-taking and record-keeping in psychotherapy

accurately. This encompasses practical information (such as contact details), personal

information (such as names of their significant others, other health practitioners with whom
they are working, personal history, etc.), as well as other details of the sessions. In this sense,
notes as an aide-mémoire may help refresh the practitioner’s memory of relevant details
about the client. Though, of course, this raises the question of what is relevant — and why?
Whilst such information (as above) may appear innocuous, at least while it remains under the
practitioner’s lock and key, it becomes more problematic in the context of court proceedings
in which context, as Jenkins (2002) observes: “the client cannot restrict or limit the disclosure
of sensitive personal information …. This choice rests ultimately solely with the authority of
the court itself” (pp. 6-7). The lack of legal protection for therapy records against an order for
their disclosure (Cristofoli, 2002; Jakobi & Pratt, 2002), and clients’ rights of access to therapists’
notes under data protection legislation (Pollecoff, 2002) might suggest that practitioners —
and clients — are better off relying on memory than on written record.

Planning treatment
Depending on the practitioner’s approach to therapy, some plan their work with, or
treatment of, the client more than others. For instance, transactional analysis, originally
heavily influenced by the medical training of its founder, Eric Berne MD, has a number of
treatment planning sequences (see Clarkson, 1992). In this context, having notes helps to
plan “What next?” (Stewart, 1989, 1996). Other therapeutic modalities or theoretical
orientations take different approaches to therapy and, therefore, note-taking and recording-
keeping. Indeed, in its Code of Ethics and Professional Practice, and its only reference to notes,
the United Kingdom Council for Psychotherapy (UKCP) (2019) privileges this when it states:
“Make notes appropriate to the modality of therapy being practised” (p. 3). At the same time,
UKCP acknowledges that clients’ confidential information should be kept “subject to legal
and ethical requirements” (p. 3). In the New Zealand context, the Psychotherapists Board of
Aotearoa New Zealand (PBANZ) (n.d.b) is clear that “Legal precedence [sic] implies an
obligation on all health professionals including psychotherapists to have health records
relating to identifiable individuals” (p. 1). We outline the core legal obligations below.

Professional development
Notes are used at all stages of professional practice and development, from initial training
to professional wills. Luepker (2022) writes positively about the benefit of competent record-
keeping: “It becomes a dynamic aide in developing a framework for supporting the
therapeutic relationship from the outset and through various stages of our collaborative
clinical work with clients” (p. 19). Notes and records — and, indeed, recordings of sessions
— are generally viewed as helpful, even essential for supervision, especially for students/
trainees; and recordings of clinical work are required for examination (e.g., International
Transactional Analysis Association International Board of Certification, 2022; New Zealand
Association of Psychotherapists [NZAP], 2022).

Defending practice
We see this both in the positive sense, akin to the academic concept of defending a thesis, as
well as the defensive sense of having to cover oneself in anticipation of criticism and,

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potentially, litigation — which, Clarkson (2003) argues, leads to “defensive psychotherapy”

(p. 60). The former is captured in the following: “All psychotherapists will be … able to
articulate, and provide a substantive rationale for, their own professional opinion through
verbal and written communications in clear, concise and accurate form, for example, in
report writing and client records” (PBANZ, 2019, Section A.6d, pp. 4-5). The latter is captured
in the guidelines of the New Zealand Psychologists’ Board (NZPB) on the subject. Of the ten
purposes of record-keeping identified by the NZPB (2017), only two relate to the process of
the (clinical) practice, i.e., “to aid appropriate ongoing intervention … [and] As an aid to
memory for the psychologist.”(p. 1). One is “for the client’s personal use” (p. 1). The other
seven are for external or, we would suggest, defensive purposes, i.e.,

yy … for any legal process, and to provide documented evidence in the event of any
subsequent complaint or competence concern…
yy To provide a record of contact for the client’s use for insurance reimbursement and
other health-related claims.
yy To enable the transfer of care to another psychologist should that be desirable.
yy To assist in the comparison of similar cases and assessing treatment approaches.
yy To comply with relevant legislation.
yy To support accounting processes and keeping statistical data. (p. 1)

Given the concerns that there might be legal pitfalls with regard to records of therapy,
Cristofoli (2002) considers that therapists might adopt “a minimalist approach to note
taking [which] would serve both an efficient record of the therapy provided to the client and
would reduce the risk of detailed notes being used in later court proceedings” (p. 32).
However, he also offers the alternative view, that:

Detailed record keeping, particularly where the contractual and therapeutic

relationships with the client become problematic and conflicted, may well be a
necessary safeguard to provide evidence of the therapist’s level of professional
service, and of attempts to resolve points of contention that may have arisen. (p. 32)

There are a number of formulations and templates for record-keeping, of which

Luepker’s (2022) essential contents of “good records” (p. 40) is the most comprehensive as
she includes: demographics (18 items), evaluation (13 items), treatment progress notes,
termination or closing summary, other essentials (11 items), and preventative action taken
(9 items).

Terms and conditions with regard to notes and records in

psychotherapy
In this part, we identify and summarise key terms used in this field (see Table 1), following
which we consider the conditions under which these terms may be understood.

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 Notes on notes: Note-taking and record-keeping in psychotherapy

Table 1. Key terms used with regard to notes and records in

psychotherapy, their definitions and descriptions

Term Definition(s) and descriptions

In terms of access to personal information, the PBANZ (n.d.b) notes that:

The Health Information Privacy Code 2020 (Privacy Commissioner, 2020)

states that an individual is entitled to receive from a health agency …upon
request:
Access yy confirmation of whether the health agency holds any health
information about them; and
yy access to their health information.
When an individual is given access to personal information in response
to such a request, that person shall be advised that they may request
correction of the information. (p. 1)

The PBANZ also adds a note to the word “agency” (throughout), that this would
Agency
include practitioners working in private practice.

A key ethical principle by which the taking, maintenance, and storage of notes
Beneficence and records may — and, arguably, should — be assessed (see Layman, 2020;
Tudor & Grinter, 2014).

The PBANZ (n.d.a) states that these are health records and that they include “a
Clinical notes record of the therapeutic process and clinical thinking” (p. 1), and thus does
not distinguish between health records/clinical notes and psychotherapy notes.

In terms of the disposal of health information, PBANZ (n.d.b) notes that:

“Health agencies … [including] practitioners working in private practice]
Destruction or
need to be careful to dispose of patient records securely, either by shredding
disposal
or otherwise destroying records themselves or by hiring a secure destruction
contractor” (p. 2).

Luepker (2022) defines these as being “a clear ‘picture’ or ‘mirror’ of a patient”

(p. 42) and discusses a number of characteristics of such records, i.e., that they
Good records
are: legible, germane, reliable, logical, prompt (made soon after the session),
and chronological.

In its Information Sheet on the subject, and based largely on the Health
Health Information Privacy Code 1994, the PBANZ (n.d.b) considers health records
information
in terms of access, protection, retention, and disposal. While this is a useful
processes
description of part of the process, it misses out the first stage, collection.

The concept and movement that patients and clients (should) have complete
Open notes
access to all records about them.

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Practitioner Reflective notes, which are still subject to a process of discovery in a civil
notes action.

Protection In terms of the protection of health records, the PBANZ (n.d.b) notes that:

The Health Information Privacy Code 1994 states that an agency … that holds
personal information shall ensure that the information is protected, by
such security safeguards as it is reasonable in the circumstances to take,
against:
yy loss;
yy access, use, modification, or disclosure, except with the authority of
the agency that holds the information; and
yy other misuse.

Psychotherapy Those usually more detailed notes made about a session which often
notes
include the practitioner’s own reflections and feelings, and for the purpose
of supervision and/or education/training. They may be distinct from an
official or regular record, and kept separately. In the United States of America,
the Privacy Rule in 45 CFR §164.501 defines psychotherapy notes as “notes
recorded by a mental health professional that document or analyze the
contents of a counseling session and that are separated from the rest of a medical
record” (Department of Health & Human Services, 2005, our emphasis). In the
New Zealand context, the PBANZ (n.d.a). does not distinguish between clinical
notes and psychotherapy notes.

Retention With regard to the retention of health records, the PBANZ (n.d.b) refers to the
Health (Retention of Health Information) Regulations 1996 which states that:
yy All providers must retain records of health services for a minimum of 10
years, starting from the day after the most recent treatment.
yy If the records are transferred to another provider or organisation, this
obligation transfers with the records.
yy If the medium in which the records are held is likely to deteriorate to
an extent that it places in doubt that the records will be able to be read
or retrieved during the 10 year time period, it is sufficient to keep an
accurate summary or interpretation of the original records. (p. 2; original
emphasis)

Storage The Health Information Privacy Code 2020 (Privacy Commissioner, 2020)
states that a health agency (and, therefore, a practitioner) that holds health
information must “ensure (a) that the information is protected, by such
security safeguards as are reasonable in the circumstances to take, against— (i)
loss; (ii) access, use, modification, or disclosure that is not authorised by the
agency; and (iii) other misuse” (p. 8). Even if the practitioner keeps separate
health records/clinical notes and psychotherapy notes, the spirit, if not the
letter of the Code, suggests that both are subject to the same rule.

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 Notes on notes: Note-taking and record-keeping in psychotherapy

By conditions, we refer to the various obligations, requirements, and guidelines as far as

client notes and health records are concerned. These range from legal requirements
contained in statutes, to requirements and guidelines for best practice of professional
associations and organisations. In Table 2 we present them from the general and broad to
the particular and specific, i.e., from those which encompass everyone, through those that
apply to health care providers, to those that cover health practitioners.

Table 2. Conditions with regard to notes and records in psychotherapy

in Aotearoa New Zealand

Framework Application Notes

Code of Rights under the Health To the whole This is of significance to the
and Disability Commissioner Act population making and keeping of notes and
1994 records.
Privacy Act 2020

Health Information Privacy Code To all health care This is of significance to the
2020 (Privacy Commissioner, providers, making and keeping of notes and
2020) including health records.
Pae Ora (Healthy Futures) Act 2022 practitioners

Health Practitioners Competence To all registered The HPCA Act refers to but does
Assurance (HPCA) Act 2003 health not define “clinical records” or
Health Practitioners Competence practitioners, “records”.
Assurance Amendment Act 2019 including The PBANZ provides certain
Psychotherapist Standards of Ethical psychotherapists standards with regards to notes
Conduct (PBANZ, 2022) (see below), as well as relevant
Clinical notes information sheet information sheets about notes
(PBANZ, n.d.a) and records.
Health records information sheet
(PBANZ, n.d.b)

Code of Ethics (NZAP, 2018) To members of the There are no references to notes or
NZAP records in this Code; there are
references to the management of
electronic communication, digital
records (and record-keeping) as
one of the criteria for assessment
for its Advanced Clinical Practice
Pathway and membership (NZAP,
2022) — and to the recording of
clinical work to present for this
assessment.

Code of Ethics (New Zealand To members of the There are no references to notes or
Association of Child & Adolescent NZACAP records in this Code.
Psychotherapists [NZACAP], 2018)

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In addition to this, health care providers, psychotherapists, and psychotherapy students/

trainees may be members of other professional associations and, with regard to our current
interest, specifically accrediting bodies. Ones that represent the different therapeutic
modalities in which it is possible to study currently in this country are: the Australia New
Zealand Association of Psychotherapy, the Australia New Zealand Psychodrama Association,
the Australia New Zealand Society of Jungian Analysts, the International Association for
Analytic Psychology, the International Hakomi Institute (USA), the International
Psychoanalytical Association, the International Transactional Analysis Association, the
New Zealand Institute of Psychoanalytic Psychotherapy, the New Zealand Society for
Bioenergetic Analysis, and Psychosynthesis South Pacific. Each of these also have terms and
conditions for membership and accreditation, some of which may indicate what a member
may or has to do with regard to notes, note-taking, records, and/or record-keeping.
Here we take the principal frameworks (noted in Table 2) and discuss their conditions
with regard to notes and records.

Privacy Act 2020 and the Health Information Privacy Code 2020
The right to privacy is a key feature of the international human rights regime, which in turn
informs domestic laws. The Universal Declaration of Human Rights (“the UDHR”, United
Nations [UN], 1948) was part of an attempt to reset the world not only after the atrocities of
World War II and the Shoah (Holocaust) but also following decades of eugenics which
proposes that, on the basis of genetics, some people are inherently superior to others. The
UDHR indicates that people should be protected by law against “arbitrary interference with
… privacy, family, home or correspondence,” and against “attacks on honour and reputation”
(Article 10). This informed Article 17 in the International Covenant on Civil and Political Rights
(UN, 1966), which was designed to be a treaty with standards enforceable in international
law and requiring states to modify their own laws to be compliant.
It should be noted that privacy rights are not absolute: “arbitrary” interference with
privacy is precluded. Arbitrariness is not defined in the Covenant, but has become associated
with needing to have a balance which requires the state (the government) that has breached,
or allowed the breach of privacy, to show that there was a valid countervailing aim for
breaching privacy, that the breach of privacy supported this aim, and that the fact of the
breach was justified and a proportionate way of meeting the aim. The latter may lead to grey
areas where reasonable people can differ, and where states can decide to draw slightly
different boundaries. The need for the law to protect privacy means that the topic must be
regulated in an adequately clear way, and in a way that draws a boundary that meets the
relevant test for a breach of privacy.
So, in this context, what is “privacy”? It clearly covers matters relating to a person’s health,
both physical and psychological. For example, considering the “right to respect for his private
life” in Article 8 of the European Convention on Human Rights (Council of Europe, 1963) (which
is structured differently to Article 17 of the International Covenant on Civil and Political Rights
[ICCPR] (UN, 1966) but, substantively, has the same effect), the European Court of Human
Rights has noted that it is an undefinable but broad concept that covers a person’s identity and
autonomy. It also includes some aspects of interactions with others (such that, for example,
the criminalisation of begging breached the right to contact others to seek help) (Registry of

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 “The unconscious is a shy beast: don’t pounce!” The making of psychotherapy

the European Court of Human Rights, 2021). It has also been recognised that the right to
privacy extends to the protection of data that is being generated in such a fulsome manner in
modern society (Registry of the European Court of Human Rights, 2022).
The substantive test of arbitrariness means that not all information about a person is
treated in the same way. Accordingly, some types of material are more deserving of protection
than others and so require much stronger reasons for a breach of privacy. In the data
protection context, this gives rise to the idea that there is data that is “sensitive”, which
includes health-related data. This has higher levels of confidentiality attached to it, not only
because of its centrality to the sense of privacy of the person, but also because of the societal
value attached to people having the confidence to discuss matters with health professionals.
To illustrate, take the following facts: the image of a person carrying a knife in public is
captured on CCTV, the police are called, and the person is detained and referred for medical
assessment because they are suicidal; the images from the CCTV are subsequently used in
press releases and also in a reality television programme, thereby allowing the person to be
identified. Although the original incident took place in public, it was determined that, without
adequate steps to cover the identity of the person, the recording and its release was a breach of
their right to privacy because it revealed their distress and state of mental health at the time.
This case (Peck v UK, 2003) makes it clear that the recording and use of the record of something
that occurs in public can be covered by the concept of privacy, since the use of the recording
goes to a much wider audience. It could have been manipulated (by removing identifying
details) to allow the story to be told without revealing that Mr Peck was the person involved.
This background explains the need for the New Zealand Privacy Act 2020 (which has
replaced the Privacy Act 1993 with additional provisions) and the regime that is in place,
through the Privacy Commissioner, to take privacy seriously. However, a caveat should be
noted: the New Zealand Bill of Rights Act 1990 does not fully replicate Article 17 of the ICCPR
as it limits the main aspect of privacy to covering protection against unreasonable search
and seizure (in Section 21). Thus, the principal statutory protection of privacy derives from
the Privacy Act 2020, which is a dedicated regime, rather than through legislation setting
out the broad requirement to protect fundamental rights.
Central provisions of the Privacy Act 2020 are those setting out the “information privacy
principles” (“IPP”, in Section 22); allowing codes of practice to be issued in relation to them
(Section 32), such as professional codes of ethics and practice; and allowing the Privacy
Commissioner to investigate complaints about a breach of privacy (sections 70 and
following), which may end up at the Human Rights Review Tribunal, to issue compliance
notices in relation to breaches of the principles or a code (Section 123), and to enforce those
notices through the Human Rights Review Tribunal (Section 130).
The IPP are set out in Table 3 below. They set out what an “agency” should do, and so its
meaning is central: it includes individuals who are resident in New Zealand. In addition,
one of the consequences of the introduction of the Privacy Act 2020 was that the Health
Information Privacy Code 1994 has been replaced by the Health Information Privacy Code 2020.
This is arranged around the privacy principles. It applies to such matters as information
about health (including medical history), disabilities, and services being provided or
provided in the past; and it applies to a wide range of professionals who provide health and
disability services, which, for the purposes of the Accident Compensation Act 2001 includes

134 Ata: Journal of Psychotherapy Aotearoa New Zealand

 Keith Tudor and Kris Gledhill

public health services; units within larger agencies; psychotherapists and other psychological
therapists; professional bodies; training agencies; insurers; district inspectors; and those
who supply medicines or medical supplies. Thus, Table 3 sets out the general principles of
the Privacy Act 2020, and the more specific rules of the Health Information Privacy Code 2020,
together with some commentary about their implications for you the reader/practitioner.

Table 3. Information privacy principles applied to psychotherapy notes

Principle Focus Description Implications for practitioners

The Act: Only information that is That you consider the relevance
1 Purpose of necessary for the lawful purposes or of the information you collect. Is
collection functions of an “agency” may be it fit for purpose or suited to
collected. your task, or do you ask about it
The Code: Similar, in the context of because you always do? For
lawful health functions, but with the example, is a person’s sexual
indication that if information that history and identity relevant to
can be collected without identifying the reason they have come to see
information, the latter must not be you?1
required. The Code provision relating to
not collecting identifying
information may be relevant
particularly to public health
functions, but it applies to all
health agencies and so requires
consideration.

The Act: The individual must be the That you have good reasons to
2 Source source of the information about speak to others (such as their
them unless good reasons exist not family members or health
to abide by this. professionals) about your client,
The Code: Similar, and with clear and that they have given their
instances of the good reasons, informed consent for you to do
including that the person is not able so.
to give their authority, or that the
information is collected for
statistical or research purposes and
does not identify anyone.

The Act: That reasonable steps are to That you consider this and have
3 Information be taken to make the person aware a standard or consistent way of
about that information is being collected, providing this information.
collection why, who can access it, and how the
person can access and correct it; this
is subject to various exceptions for
good reasons.
The Code: Similar, rephrased for the
health context.

The Act and the Code: The means of That you consider these three
4 Manner of collection have to be lawful, fair and elements in the collection of
collection not unreasonably intrusive. information about your client, as
well as the balance between
gleaning the information
necessary in order to work
therapeutically, and the impact
of the client’s experience of
intrusion.

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 Notes on notes: Note-taking and record-keeping in psychotherapy

The Act: Reasonable security of That you have secure storage of

5 Storage and storage and against misuse is information, and some protocol
security required, and reasonable steps are about sharing information.
taken when information is shared That you make use of secure
when that is necessary. processes for deleting
The Code: Similar, with the addition information.
that documents containing That you have considered how
information are disposed of so as to this applies to information
preserve privacy, and making clear collected recently and prior to
that IPP5 (above) applies to the new Code becoming
information obtained prior to the operative.
Code becoming effective.

The Act: An “agency” must confirm If you hold such information

6 Access by the whether it holds information about about clients (and supervisees),
person a person and how to access and that you have a process for
correct it, though subject to various confirming this, and for them to
good reasons to refuse. request, access, receive and, if
The Code: Similar, and confirming necessary, to correct it; and
that it applies to information criteria for refusal to share this
obtained prior to the Code information with them.
becoming effective. That you have considered how
this applies to information
collected recently and prior to
the new Code becoming
operative.

The Act: A person may ask for See 6 above.

7 Correction information to be corrected, and an
“agency” must take reasonable steps
to ensure that information is
accurate, up to date, complete and
not misleading; and if a request to
correct is refused, the request must
be attached to the information. This
is subject to various good reasons to
refuse.
The Code: Similar, and confirming
that it applies to information
obtained prior to the Code
becoming effective.

The Act: Before using or disclosing What process do you have for
8 Checking information, an “agency” must take reviewing and checking the
accuracy reasonable steps to ensure it is information you have, whenever
before use or “accurate, up to date, complete, obtained, before you make use of
relevant, and not misleading”. it or pass it on?
disclosure
The Code: Similar, and confirming
that it applies to information
obtained prior to the Code
becoming effective.

The Act: Personal information can What process do you have for
9 Retention only be kept for as long as needed removing redundant personal
for any lawful purposes. information, whenever it was
The Code: Similar, and confirming obtained? How often do you
that it applies to information review older files?
obtained prior to the Code
becoming effective.

136 Ata: Journal of Psychotherapy Aotearoa New Zealand

 Keith Tudor and Kris Gledhill

The Act: Personal information can Note the link with Principle 8.
10 Limits on only be used for the purpose for What process do you have to
use which it was obtained (with various ensure that you use information
exceptions, including for research only for the purpose for which
purposes if a person cannot be you sought it?
identified, and based on necessity).
The Code: Similar, but with a proviso
for health information obtained
before 1 July 1993.

The Act: Disclosure of personal Note the link with Principles 8

11 Limits on information must be directly linked and 10.
disclosure to the purpose for which it was
obtained, authorised by the person
concerned, or necessary for various What process do you have to
reasons. pause and check before
The Code: Similar, and giving disclosure that it is lawful?
instances of what might be proper,
such as disclosing to a caregiver that
someone has been detained under
the Mental Health Act 1992, or for
professional accreditation or risk
management purposes, or reporting
by health practitioners to a Medical
Officer of Health.

The Act and The Code: Supplements What process do you have for
12 Limits on Principle 11 and requires investigating whether disclosure
disclosure consideration of whether there are may be to someone not governed
outside New equivalent protections or whether by New Zealand law and whether
the person concerned has been there is similar protection or not
Zealand informed that the protections may and what to do if not?
be less strict.

The Act: Unique identifiers can be What checks do you have for this
13 Assigning used only if necessary (and cannot requirement, particularly if you
unique be the same as one used by another work with other agencies?
identifiers agency only in limited
circumstances).
The Code: Similar, but with
provisions for the use of the
National Health Index number.

* In terms of working with other health professionals, it is useful — and, in an emergency, essential —
to have your client’s full name, date of birth, and NHI (national health index) number.

Health and Disability Commissioner Act 1994

The Health and Disability Commissioner Act 1994 provides an additional element of the
framework for those providing health services (widely defined and expressly including
psychotherapy and counselling services). A central function of the Commissioner is to
prepare and enforce a Code of Health and Disability Services Consumers’ Rights (Health &
Disability Commissioner, 1996); this is contained in secondary legislation, emphasising its
status. Right 1(1) sets out the right of every consumer “to be treated with respect”, and Right
1(2) is the “right to have his or her privacy respected”. This means that there is an additional

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 Notes on notes: Note-taking and record-keeping in psychotherapy

method of enforcing privacy, though this turns on an assumption that the reference to
“privacy” here indicates the rights as defined in the Privacy Act 2020.
There are other aspects of the Code that might have implications for notes, reflecting
how notes might be drafted and what should feature in notes:

yy Right 1(3) sets out a right to have services that reflect cultural and social beliefs and
values: a professional approach to meeting this requirement will note what was
considered, what was concluded, and why (including what discussion was held with
the client and perhaps with others if appropriate — and without breaching privacy
rights — to determine how to meet this right).
yy Right 3 is the right to respect for dignity and independence; see above as to how this
was ensured.
yy Right 5 is the right to effective communication, which may include interpreters;
again, notes about the process of deciding that there was no need for support in
communication or what was contemplated and ultimately decided on will ensure that
this right is respected.
yy Right 6 is the right to be fully informed, including making informed choices and
having relevant information provided, including a written summary of information
provided; Right 7 is the express right to informed choice and consent (including
issues of capacity to consent and steps to take if there is no capacity). Evidencing that
these rights have been met without having adequate notes of the steps taken may be a
significant hurdle.
yy Right 10 is the right to complain and have a fair and speedy process of resolution;
adequate notes, made contemporaneously, will play a central role in this.

There are also rights that ensure that the standard of care is of an appropriate standard
(Right 4), non-discriminatory, exploitative or otherwise problematic (Right 2), and with
support persons present, unless there are good reasons (Right 9).
Naturally, there is a need to ensure that this does not become a tick-box exercise; nor
should there be the move to unnecessarily defensive practices whereby treatment is
rendered ineffective because of the concern that rights have been accorded. At the same
time, a reminder of issues that arise in the context of compliance with rights, in the form of
a template, cannot be problematic: and the provision of treatment should be in accordance
with the right to treatment, and these various subsidiary rights can be seen as designed to
secure this primary right.

Pae Ora (Healthy Futures) Act 2022 (The Act)

The Guide to He Korowai Oranga: Māori Health Strategy (Ministry of Health, 2014), notes that:

Pae ora is a holistic concept and includes three interconnected elements: mauri
ora — healthy individuals; whānau ora — healthy families; and wai ora — healthy
environments. All three elements of pae ora are interconnected and mutually
reinforcing, and further strengthen the strategic direction for Māori health for the
future. (p. 3)

138 Ata: Journal of Psychotherapy Aotearoa New Zealand

 Keith Tudor and Kris Gledhill

The Act itself sets out certain principles by which the health sector will operate, the implications
of which for psychotherapy we plan to discuss in a separate article. With regard to notes and
records, we suggest that the following principles are relevant to psychotherapy practice:

yy engagement with Māori and other population groups in a way that reflects their needs
and aspirations (Section 1b);
yy providing opportunities for Māori to exercise decision-making on matters of
importance (Section 1c);
yy providing services that are culturally safe and responsive (Section 1d(ii)); and
yy providing services that reflect mātauranga Māori (Section 1d(vi)).

Health Practitioners Competence Assurance Act 2003 (HPCA Act)

The HPCA Act does not refer to notes and, although it refers to records and clinical records, it
does not define them. However, the various references to clinical records (Sections 40(3e),
41(3d(iii)), 42, and 44) suggests that there is an expectation that a health practitioner has, and
maintains, such records, and can make them available should they be required, for instance by
a professional conduct committee (Section 77), or a Disciplinary Tribunal (Schedule 1 Sections
7, 8, 11(1), and 12). In this, such notes may be useful for justifying a course of action. Also, as
Section 16 (“Fitness for registration”) refers to the practitioner being able to communicate
effectively, this may also imply the presence of notes or records on which the practitioner can
base their communication. That said, with regard to compliance with the requirement to
provide information or document(s), the Act also states that:

No person is required to produce to a committee any papers, records, documents, or

things if compliance with that requirement would be in breach of an obligation of
secrecy or non-disclosure imposed on the person by an enactment (other than the
Official Information Act 1982 or the Privacy Act 2020). (Section 78(3))

The PBANZ
The PBANZ has information sheets on health records (PBANZ, n.d.b) and on clinical notes
(PBANZ, n.d.a), and also refers to records and information in its Psychotherapist Standards of
Ethical Conduct (PBANZ, 2022) in a section (8) on respecting privacy. This includes the
imperatives to:

yy keep appropriate records that are accessible and legible;

yy take all reasonable steps to ensure that the client’s personal information is collected,
stored, used and disposed of in a manner that protects the information;
yy take all reasonable steps to ensure that information remains retrievable for at least 10
years from the date of the last provision of services to the client;
yy make adequate plans for access to and disposal of records in the event of retirement,
serious illness, or death of the psychotherapist; and
yy take all reasonable steps to maintain the anonymity of clients, colleagues, supervisees
or trainees when clinical material is used in education and training, or in research and
publications, unless consent to disclosure has been obtained. (pp. 7–8)

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 Notes on notes: Note-taking and record-keeping in psychotherapy

Implications
From our reading of the literature, law, policies, and guidelines regarding notes, note-taking,
records, and record-keeping, we conclude the following:

1. That, whilst there is no legal mandate that health care providers must make notes and/
or keep records, it may be considered unprofessional not to so do, especially if your
notes are subsequently required in a legal or disciplinary process. Moreover, if you are
a psychotherapist, you have an ethical obligation to keep records (PBANZ, 2022).
2. That there are no legal definitions of what constitutes appropriate notes or records,
although the context in which you work may determine this and may, for example,
require you to obtain and record certain information about clients. Whilst you may
question this, any failure to do so, could lead to sanctions under your terms and
conditions of employment.
3. That there is some ambiguity about the distinction between clinical notes and
psychotherapy notes, which warrants further research, in the context of which, it may
be prudent to separate them. It appears that, in practice, most therapists do make a
distinction but the origin and effect of such a distinction is not clear and also warrants
further research. However, subject to the clarification as to whether there is a legal
distinction between clinical notes and psychotherapy notes, and as the PBANZ (n.d.a)
state that health records include “a record of the therapeutic process and clinical
thinking” (p. 1), this may be problematic for some psychotherapists. An alternative is to
make only those notes that you are willing to share with clients; and, indeed, we know
one colleague who writes up notes on each session and emails them to their clients.
4. That, assuming you do keep notes and records, there are clear guidelines about all
aspects and phases of the practice: from the purpose of collection, and the source
of information, through to the disposal of notes and records (as we have detailed
and referenced above), and that these have implications not only for the education/
training of psychotherapists, but also for the time involved for practitioners to follow
and apply these in their practice.
5. That, ultimately, and as Freud himself acknowledges, the nature of such notes and
records are as much if not more to do with the individual constitution and character
of the practitioner.

Public statutes
Accident Compensation Act 2001
Health and Disability Commissioner Act 1994
Health Practitioners Competence Assurance Act 2003
Health Practitioners Competence Assurance Amendment Act 2019
Mental Health Act 1992
New Zealand Bill of Rights Act 1990
Pae Ora (Healthy Futures) Act 2022
Privacy Act 2020

140 Ata: Journal of Psychotherapy Aotearoa New Zealand

 Keith Tudor and Kris Gledhill

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Keith Tudor is Professor of Psychotherapy at Auckland

University of Technology (AUT) where he is also a co-lead of
the AUT Group for Research in the Psychological Therapies. He
is working on a number of projects with Kris Gledhill, including
an article on Pae Ora — Health Futures, and another on
psychotherapy and disability in the context of human rights.
He has a small independent practice in West Auckland as a
health care provider, supervisor, and trainer, with regard to
which he takes minimal notes.

Kris Gledhill spent the first part of his career as a lawyer; as a

barrister in London, his main work was representing detained
people, including those subject to mental health legislation.
He always maintained an academic side, publishing articles
and books, and lecturing both in academic settings and in
continuing professional development settings. In 2006, he
moved to Aotearoa New Zealand and academia became the
forefront of his work. He is currently a Professor of Law at
AUT’s Law School. He has published several further books in

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 Notes on notes: Note-taking and record-keeping in psychotherapy

the areas of human rights law, mental health law and criminal law, and a large number of
academic articles and op-ed pieces; he edits two journals and a book series. His teaching, in
the areas of criminal law, human rights law, clinical legal education and prison law, has
included numerous courses taught as a visiting professor at various overseas universities.
Kris remains grounded outside academia, working with lawyers and governmental bodies,
lecturing in various continuing professional development settings for various professions,
and serving on various committees. His particular interest is in developing arguments
based on the Human Rights Framework that allow social progress to be made, whether
through legislation, policy development or litigation. This has led to his involvement in
several cross-disciplinary research projects. See his profile and links at: https://academics.
aut.ac.nz/kris.gledhill

144 Ata: Journal of Psychotherapy Aotearoa New Zealand