Telehealth legal issues are complicated, fraught with exceptions and in telecommunications, still unfolding. Also, many practitioners either fear them or do not understand telehealth legalities.
Telehealth Informed Consent
Let’s begin with telehealth informed consent, which is the ongoing agreement that we make with our clients/patients about the process of treatment to we offer. Not to be confused with a document, informed consent is a process — a meeting of the minds between the clinician and the client/patient, whereby the clinician is reasonably assured that the client/patient knows what’s going to happen to them in treatment; that all questions have been answered; and that s/he is in full agreement. The document merely serves as written proof that the meeting of the minds occurred.
Clinicians can easily find themselves in hot water upon examination for a civil or regulatory suit if they fail to understand that important difference between the all-important process and signing the document. They need to be able to deminostrate that they took the time to engage in a process with their new as well as ongoing clients/patients. That is often most easily accomplished with additional documentation in the client/patient file that the informed discussion took place, which questions were asked and answered, and any other reactions demonstrated by the client/patient. Asking a client/patient then to sign an Informed Consent Agreement then, falls far short of what’s needed to prove that a meeting of the minds has occurred. Given that the details of the informed consent process and supporting documents are often the most important evidence that a clinician can produce to defend themselves against malpractice suits, it is more than unwise to skip these steps with all new or returning clients/patients, and definitely short-sighted to skip or abbreviate them with telehealth.
Legal requirements for the contents of such agreements are defined differently by various states, provinces, and countries. Ethical requirements can also differ from discipline to discipline. Therefore, it is important that clinicians will be informed and in full compliance with all relevant legal and ethical requirements for different states and disciplines served.
For example, Georgia’s Composite Board stipulates:
Prior to the delivery of TeleMental Health services by a licensee via technology-assisted media, the licensee at the distant site shall inform the client that TeleMental Health services via technology-assisted media will be used, and the licensee shall obtain verbal and written consent from the client for this use. The verbal and written consent shall be documented in the client’s record. Consent must include disclosure of the use of any third party vendor such as a record keeping, billing service or legal counsel.
On the other hand, other states, provinces, or countries do not mention telehealth, telemental health, or informed consent for telemental health at all.
Discuss telehealth informed consent issues with clients/patients before formally engaging in treatment. Repeat as needed.
Regardless of whether or not it is explicitly stated in a state’s business and practice code, all professional associations require informed consent to be an ethical standard, therefore inclusive but surpassing state or federal law. It is incumbent on clinicians to discuss a variety of technology-related issues with patients before formally engaging in treatment. Beyond this is how technology can help clinicians and patients deal with privacy and telehealth informed consent issues efficiently and effectively with a minimal diversion from the therapy itself.
We should point out, however, that discussion with a patient about informed consent is in itself already part of treatment. It is an important opportunity to define the therapeutic relationship, its boundaries, and to set appropriate expectations. Furthermore, the need for mentioning informed consent may repeatedly arise during various sessions. Often, a simple notation in the client/patient record is adequate to reflect new issues that arise on an ongoing, dynamic, and the informed consent process.
TBHI Best Practices and Informed Consent Professional Training
The Telebehavioral Health Institute (TBHI) offers a library of 50 potential informed consent clauses to consider adding to a clinician’s regular informed consent for telehealth. These are explained in the TBHI professional, both online and in-person. In-person training events are listed here. For online training, see TBHI’s “Legal/Ethical Issues II: Best Practices & Informed Consent” course to bring you up to speed with the legal and ethical requirements for telehealth informed consent. TBHI’s professional training is available online 24/7 for your convenience.