The previous employer may provide continuity of psychiatric care, group therapies, or other services that the leaving employee could not offer. Even if a valid restrictive covenant is in place, the health of the patient is paramount. In an effort to maintain the financial status quo, the patient must not merely become a pawn in a billing battle. Such a struggle may do additional harm to the patient, and may result in additional legal difficulties for the employer or the employee. A related issue deals with ownership and possession of the patient records.
Patient charts belongs to the employers.
Employers are not obligated to turn over the original chart and may give only a copy of the chart, pending receiving signed release forms from the patients. In addition, patients hold a possessory interest in their records. Thus, regardless of the nature of the restrictive covenant, patients can request that the records be forwarded to any therapist of their choosing. When the former employee continues to treat a patient, the question arises as to whether it is ethical for the former employee to pay a portion of the fee to the former employer. It is best to consider the issues of restrictive covenants, trade secrets, and flow of clients before entering into contracts with employers and employees.