Emerging Ethical Challenges in a Changing Landscape

Michael Winters, PhD & Kristin Scheel, JD

Technology and Ethics

Is there guidance?Emerging Ethical Challenges in a Changing

Landscape

What is the Internet?US Supreme Court, Reno v. American Civil Liberties Union, (paraphrase): “The internet is an international network of interconnected computers.”“Email enables an individual to send an electronic message - generally akin to a note or letter.”“Cyberspace is located in no particular geographic location but available to anyone, anywhere in the world.”

What is the Legal Test?Client’s Reasonable ExpectationFactors to Consider:

Customary Practices in Your ProfessionYour Pattern of ConductDisclaimersInformed ConsentPlain Language

What technology?Telephone

TeleconferencingVoicemailsText MessagesPDAs: Calendaring + Email

InternetSkypeFacebook, LinkedIn, TwitterWebsites, Blogs and Forums

Have I considered?Type of Communication

Jurisdiction / Licensing

Patient Privacy / Confidentiality

Quality of Care / Duty

Informed Consent / Capacity

Nature of Relationship

Types of Communication

Administrative Communications

Administering Psychological Services or Treatment

Marketing (Advertising, Platform for Public Statements, Display of Credentials)

Jurisdiction / LicensingUnder the laws governing personal jurisdiction, a psychologist who travels beyond the borders of his/her home state to provide services to out-of-state residents may be subject to suit in those states’s courts. US Supreme Court says this applies even if someone has never physically been in a particular state.

Rules of Texas Board of Examiners of Psychologists: An individual physically located in another state is considered practicing psychology in Texas if a recipient of psychological services in located in Texas. Texas license is required.

Duty to Warn: Texas vs. California (and Other States)

Limited knowledge of distant community resources, cultural norms, local traumatic events.

Particularly helpful for clients prematurely terminating therapy due to relocation, childcare difficulties, or post-surgical restrictions.

Patient Privacy / ConfidentialityProviding mental health care services online and transferring client data electronically clearly implicates HIPAA’s privacy requirements.

Access to electronically stored health information must be limited to those who have a legitimate business need to access data.

Psychologists must obtain a client’s authorization prior to allowing anyone to use or disclose the information.

Psychologists must insure the integrity of the data.

Psychologists must confirm identities of people with whom they communicate.

Health information transmitted over open networks must be protected from interception.

Involuntary disclosures. Privilege is limited to protection from disclosure of confidential information during course of treatment.

Quality of Care / DutyCan you give competent advice through the internet?

Lack of vocal, visual and other sensory cues

Potential for equipment failures leading to undue client anxiety, especially in crisis situation

Periodic face to face encounters are helpful

Duty to Protect

Imminent Harm

24 Hour Hotline or Forums

Informed ConsentOnly competent adults can give informed consent.

How to verify age, affect, demeanor and legal mental capacity of anonymous online user.

Use of language that is reasonably understandable to the clientTimeShifts in the relationship

Nature of the Relationship

Mutually Established Therapeutic Relationship

Client’s Community

Advertising Prior to Establish Relationship

Peers

Anonymous Internet Users

When providing comments via internet, or electronic transmission, ensure that statements are (1) based on your professional knowledge, training or experience; (2) consistent with Ethics Code; and (3) do not indicate that a professional relationship has been established with the recipient.

Consider generic responses, suggesting community resources or follow up.

TakeawaysTechnology is rapidly changing.

Can’t rely on law and ethical codes to provide guidance.

We have to use discretion. A good practice is to rely on a thoughtful process for evaluating ethical considerations and legal liabilities in the use of modern technology.

ResourcesBehnke, S. (2008). Ethics in the age of the internet. APA monitorhttp://www.apa.org/monitor/2008/07-08/ethics.aspx

Clay, R. A. (2010) Expanding your reach: Facebook, Twitter and other social media tools bring new advocacy opportunities but also new challenges. APA Monitorhttp://www.apa.org/monitor/2010/05/slc-social-media.aspx

DeAngelis, T. (2012) Practicing distance therapy, legally and ethically. APA Monitorhttp://www.apa.org/monitor/2012/03/virtual.aspx

Degusta, M. (2012) Are smart phones spreading faster than any technology in human history? Technology Reviewhttp://www.technologyreview.com/news/427787/are-smart-phones-spreading-faster-than-any/

ResourcesDraft of APA Guidelines on Telepsychology

http://apacustomout.apa.org/commentcentral/commentcentralPDF/Site26_Telepsychology%20Guidelines%20Draft_July2012_posted.pdf

Holland, C. (date not given) The Psychologists Legal Update 14: Psychology in the Electronic Age. http://www.e-psychologist.org/index.iml?mdl=exam/show_article.mdl&Material_ID=16

Spottd-Dr Lazzer, A. (2012) Losing your “mind”: What would you do in your mobile device went missing? Psychotherapy Networker, July/August p 17-18

Zur, O. (2012). Therapeutic ethics in the digital age. Psychotherapy Networker July/August, 26 -33.