By: Jessica Bonsu
Teletherapy is remote therapy provided by mental health practitioners that uses technology as a tool for therapist and client communication spanning various geographic areas. For example, conducting therapy sessions over the phone, through videoconferencing, or cell phone application are common formats to conduct teletherapy. Despite the COVID-19 pandemic bringing teletherapy to the forefront, teletherapy has existed since the 1950s. According to The Nebraska Psychiatric Institute, videoconferencing was used to provide group therapy, long-term therapy, consultation-liaison psychiatry, and medical student training during the 1950s at the Nebraska State Hospital. Researchers found many advantages to using teletherapy technology. Particularly, the researchers noted that teletherapy can reach underserved populations by offering treatment that is neither place nor time-bound. Teletherapy reached clients who were unable to attend in-person therapy sessions due to a physical handicap, mental inability to go outside, or depression. Despite its advantages, teletherapy historically proved unpopular for administering mental health treatment. Due to software programs not having the proper built-in privacy and security safeguards, as well as, insurance companies not willing to expand coverage beyond in-person services.
Fast-forward to 2020, the ongoing COVID-19 pandemic necessitated the increased physical isolation of patients. As a result, teletherapy has become a vital tool in delivering essential public health services. However, its renewed use has spurred a variety of security, legal, and ethical issues. COVID-19 caught most providers unprepared to offer teletherapy, but both providers and their patients must be aware of the limitations of teletherapy technology and potential security threats to their private data and information. Limitations and threats include but are not limited to hackers, phishing scams, unsecured electronic files, and computer viruses. Providers using teletherapy should ensure their equipment is secure, with up-to-date software that reduces the risk of a privacy breach. Patients, too, should exercise caution when sharing their confidential information with their provider by making sure their provider is using software with updated security measures. Both providers and their patients should become familiar with the technology they are using to maximize security measures such as providing a passcode to enter the session or providing a Privacy Policy to be read by the patient.
Because providers of teletherapy services attract patients from all over the country, these providers must pay close attention to the geographic locations of their patients to ensure compliance with the unique laws of the state in which their patient resides. In response to the COVID-19 pandemic and a resulting surge in demand for teletherapy services, some states have expressed leniency in allowing therapists to practice even if not licensed in that state. Despite the leniency of some states, therapists can be prosecuted for practicing medicine in a state in which they are not licensed or otherwise failing to comply with that state’s laws. So, despite a possible free pass, it is essential that providers understand the applicable laws of the state in which their patient resides. Therapists must also ensure that their malpractice insurance provides coverage outside of the state in which they are licensed to practice should an issue arise.
In addition to state licensing concerns, a therapist must ensure she obtains informed consent from a patient. Therapists are encouraged by the American Psychological Association (“APA”) to inform the patient of all the possible options available to them, including in-person therapy. Therapists must be open and honest with their patients about the risks and limits to the patient’s privacy and confidentiality. For example, prior to the patient’s first session, therapists should disclose their own physical location with patients to make sure that the patients’ insurance provider will adequately cover their services. Additionally, therapists should inform their patients of the expected teletherapy experience and provide the patient with the option to continue or not. Therapists should document in writing a patient’s informed consent to teletherapy in order to guard against any lawsuits that could arise.
Therapists have an obligation to protect their patient’s confidentiality, except when the provider reasonably believes that a patient presents a danger to himself or to another. In such an instance, a provider is obligated to warn the affected third party, even if it means disclosing the patient’s confidential information. This duty to protect others becomes especially challenging when a teletherapy patient does not provide their true name or geographic location to the provider.
Even after the worst of the pandemic is over, teletherapy services will likely continue to be in wide use, as patients and providers become more comfortable with, and accustomed to the convenience of the technology – even despite the challenges of information security, varying state laws, and ethical issues that can arise. At least until patients and providers feel comfortable returning to in-person therapy, teletherapy is expected to continue to thrive.
Student Bio: Jessica Bonsu is a second-year law student at Suffolk University Law School. She is a staffer on the Journal of High Technology Law. Jessica received a Bachelor of Arts Degree in Political Science from Stockton University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
