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Winter 2009/10 | Vol 13 No 2

Q & A

Ethical, legal and licensing issues in clinical work online

By Angela Pirisi

Online therapy is emerging as a legitimate, sometimes even the preferred method of delivering mental health and addiction services. Still, clinical professionals may be reluctant to work online because they are not sure what the ethical and legal issues are. Here, Dr. Carole Sinclair, chair of the Canadian Psychological Association’s Committee on Ethics, explores some of these concerns.

Are there any special licensing considerations for providing therapy online?
“Jurisdictional boundaries don’t really exist yet,” says Sinclair. “To my knowledge, no North American psychology jurisdiction has established a rule that says a psychologist registered in that jurisdiction cannot treat a client in another jurisdiction.” However, you need to know and observe not only the licensing regulations of your own jurisdiction, but also the licensing requirements in the client’s jurisdiction. Do they prevent your provision of online services in the jurisdiction because you are not licensed there? Being familiar with other types of laws of the jurisdiction where the client lives (e.g., mandatory child abuse reporting laws) is also vital. Each jurisdiction has the legal responsibility to protect those who live in that jurisdiction. Clients need to know where to go to complain if they believe they have been harmed. It is necessary to balance the benefits and risks of extending services beyond your jurisdiction. Check with your local professional governing body, since rules may vary for different clinical professions.

What is the interpretation of boundaries of competence for online therapy?
You cannot practice outside the scope of what you are licensed and competent to provide face-to-face. “In addition, when it comes to the Internet, it’s not just professional competence that matters, but technological competence as well, such as understanding how to protect client privacy and how best to use electronic media,” says Sinclair. How well can you transfer counselling skills to the online context? Can you aptly replicate the in-person experience? Make sure you are properly trained in both online technology and online therapy techniques.

What do you need to explain to a potential online client in order to obtain informed consent?
What counts is defining the parameters and limits of the online care process. Practitioners should explain to the client the nature of online therapy and discuss the benefits (e.g., convenience, comfort, discretion), risks (e.g., potential insufficiency, privacy limitations) and the possibility of technological failure (e.g., your e-mail is down). Informed consent is also about setting appropriate boundaries and explaining them to your clients. “It goes back to our third principle in the CPA Code of Ethics – integrity in relationships. For example, it is not reasonable to expect 24/7 service, but you should outline when and how you will be accessible and how quickly clients can expect a reply in the case of asynchronous counselling (e.g., e-mail).” You should also explain what to do if there is a technology failure, and suggest back-up communication methods such as the telephone, as well as suggesting emergency back-up when you’re not available, such as local support and crisis services.

What are some privacy issues and how can you protect privacy?
“Interception of or unauthorized access to online communication is a possibility, particularly if an e-mail account is shared with others in the household, or if there is shared computer access,” says Sinclair. Establishing password access, asking for return receipts, having code names and using encryption methods can help to protect privacy breaches. However, nothing is 100 per cent guaranteed.

What confidentiality issues may arise in clinical work online?
The same principles apply as in face-to-face clinical work. In terms of storing and releasing client information, it is important to keep on record only whatever is reasonably necessary for the care of your client (e.g., to assist your own memory or for continuity of care) or for legal purposes. You do not have to download everything produced online for storage in the clinical record, nor do you have to keep the e-mail messages indefinitely.

What is the clinician’s liability in crisis situations and how can you reduce your risk?
Imagine that a client is suicidal, but you don’t know this and don’t reply soon enough to stop him from following through. By establishing parameters during the initial assessment, you reduce both the likelihood of this happening, as well as your liability if it does. If you state that you are only available at certain times, arrange emergency back-up care (e.g., another clinician or local face-to-face resources), you have done a great deal to reduce your liability and protect your client. “The standard is to refer clients to local hospital emergency services, although you may also have to build in other alternatives for some clients,” says Sinclair. Also, review your liability insurance to see what it covers in terms of e-services.

What are some ethical and legal concerns around corresponding with clients via e-mail?
E-mail is becoming a common way to communicate with clients, not only as a method of counseling, but for practical reasons like arranging in-person appointments. “The greater issue regarding e-mail is privacy at home, so ask your client upfront: ‘How do you want me to communicate with you? Is there an e-mail address I shouldn’t use? How much do you want your family to know?’ Set standards to make that discussion part of your initial communication,” says Sinclair. As for saving e-mails, Sinclair advises clinicians to store only information that is relevant to treatment with that client.