Avoiding Liability Bulletin – March 2006
… Whether or not required by state law or regulation, therapists who practice online therapy (e.g., intrastate) would be wise to make certain disclosures to the patient prior to the commencement of online therapy, and to obtain the patient’s written and informed consent prior to such treatment. Of course, if there is an applicable state law or regulation, therapists must follow the law or regulation in all of its detail. Since it can be reasonably argued that online psychotherapy can be considered new, innovative or experimental, it would be wise and prudent to obtain written informed consent, even in the absence of a state requirement.
One of the disclosures that is often required or, at a minimum, advisable, is a description of the potential risks, consequences and benefits of online therapy. In one state, the telemedicine statute leaves it to the practitioner to determine what those risks, consequences and benefits actually are. Consequently, disclosures in that state and in other states will vary (where not specifically mandated) depending upon the technology used, the level of sophistication of the therapist and the patient/client, and the nature of the services being sought and rendered. Certainly a disclosure about how confidentiality will or may be affected by services being provided over the Internet, and what steps the therapist will take or has taken to make sure that the communications between patient and therapist remain confidential, would be important.
The patient should also be informed about how session records will be kept and how they may be retrieved or copied, to the extent that it differs from traditional record keeping practices. If therapy does not involve synchronous audio and video communication, but rather, written communication only, additional disclosures about the nature and process of the written communication should be considered. A therapist might also disclose the possible lack of certain clinical information about the patient because of the inability to see what might otherwise be seen in face-to-face therapy, and the possible consequences thereof.
ABOUT THE AUTHOR
Richard Leslie
"At the Intersection of Law and Psychotherapy"
Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues.
Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards.
Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity.
Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California.
While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California.
Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.
