How Sturdy is that Digital Couch? Legal Considerations for Mental Health Professionals Who Deliver Clinical Services via the Internet

Field: Social Sciences (Social Sciences)

ABSTRACT This article reviews legal issues related to providing mental health services via the Internet. It provides a general overview of the field and discusses jurisdiction, licensure, legal duties (competence, consent, confidentiality), and other legal concerns related to the business of online counseling. It surveys potential criminal and civil liability issues, noting procedural and substantive aspects of the relevant law. The author concludes that, although providers face a variety of challenges, their efforts in providing a service needed and desired by an important segment of the help-seeking population are worthwhile. KEYWORDS: CounselingethicsInternetlawtherapy ACKNOWLEDGEMENT The author is grateful to Judith Allen, PhD, Luis Suarez, Esq., and Professor Kristin J. Madison, PhD, JD, for their helpful feedback on early drafts of this article. Readers are also invited to visit http://www.etherapylaw.com, a website maintained by the author, intended to be a companion to this article and an ongoing resource for information regarding legal issues in online counseling. Notes This article is limited to legal issues that arise specifically out of the practice of online mental health counseling. For comprehensive information on legal issues related to mental health counseling, readers are urged to consult more general texts (e.g., Reisner et al., Citation2004; Swenson, Citation1997; Stromberg et al., Citation1988). I arbitrarily refer to online mental health services by different terms, partly for variety, but primarily to emphasize that, under most state laws, there is no real difference whether a mental health provider describes his or her work as "counseling" or "therapy," or whether they deliver services to "clients" or "patients." Interested readers may wish to consult these well-known Supreme Court cases laying out the basic constitutional contours of personal jurisdiction: International Shoe Company v. Washington (Citation1945) (requiring minimum contacts with the forum state); World-Wide Volkswagen v. Woodson (Citation1980) (requiring reasonable anticipation of being haled into court in the forum state); Burger King v. Rudzewicz (Citation1985) (requiring purposeful direction of activities toward the forum state); and Asahi Metal Industry Company v. Super. Ct. of Cal., Solano County (1987) (requiring that it be reasonable and fair to assert jurisdiction so as not to violate the due process clause of the Fourteenth Amendment, considering, among other things, (1) the burden on the defendant, and (2) the interests of the plaintiff and the forum state in asserting jurisdiction). Note that the Electronic Signatures in Global and National Commerce Act, which took effect in October 2000, provides that: [W]ith respect to any transaction in or affecting interstate or foreign commerce, a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form, and that a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. (Zitter, Citation2006) Readers are also invited to visit http://www.etherapylaw.com, a website maintained by the author, intended to be a companion to this article and an ongoing resource for information regarding legal issues in online counseling. Additional informationNotes on contributorsJason S. Zack Jason S. Zack, JD, University of Pennsylvania Law School (2008), PhD, Counseling Psychology, University of Maryland, College Park (2000), is a behavioral science consultant, former director of research and development for an online behavioral health company, and a past president of the International Society for Mental Health Online (ISMHO).