You're dead. What does your therapist do with your notes?

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Love. - Tanmoy

I spend roughly half the year in intense morbid meditations. These are windows when thoughts of death and dying are the only things that comfort my constipated soul, like industrial-strength emotional laxatives. They are also periods of terribly rich intellectual foment, when I'm obsessed with questions that Google doesn't have straight answers to.

Consider my current burning inquiry: What will my therapist do with the thousands of hours worth of notes she's taken during our sessions after I am dead? Will she burn them? Caress the creases on the yellowing sheets with teary fondness as she remembers the one that got away? Turn them into a novel? Hand them to my family? Gulp.

There's eerily little conversation on this aspect of therapy. It makes no sense, given just how much we are talking about therapy these days (and also that we are all going to die, some of us before our therapists).

Turns out, what happens to your therapy notes after you're gone is a big question in mental health bureaucracy, one with complex implications that you too should mull if you've ever used your time in therapy the way you ought to, i.e. to air extremely scandalous things that the world can never find out even after you're manure. I did the digging so you don't have to.

The legal course

In India, the Mental Health Care Act, 2017, stipulates that a person with mental illness has the right to confidentiality in respect of their mental health, mental healthcare, treatment, and physical healthcare. All health professionals providing care or treatment to a person with mental illness are mandated with keeping the patient's information confidential, with a few standard exceptions. The law doesn't specify the course of action after the patient's death, but I gathered from senior practitioners that the confidentiality requirement is taken to be valid even after death.

Globally, an often-cited benchmark regulation to safeguard the privacy and confidentiality of all manner of personal health information (PHI) is the US' Health Insurance Portability and Accountability Act, or HIPAA. Here's how HIPAA defines therapy notes:

... notes recorded (in any medium) by a health care provider, who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record.

Therapy notes exclude:

... medication prescription and monitoring; counseling session start and stop times; the modalities and frequencies of treatment furnished; results of clinical tests and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.

What does HIPAA say about the afterlife of your therapy notes?

It's super interesting that therapy notes are not seen as exactly the same class of records as the rest of your PHI. While you have the right to access your PHI maintained by any healthcare provider, under HIPAA's Privacy Rule you are not guaranteed access to your own therapy notes. Further, if your therapist denies you access to the notes, you cannot ask for a review of this denial, as you can with your other PHI.