If only something were wrong with my body it would be fine, I would rather have anything wrong with my body than something wrong with my head.

                                                                    Sylvia Plath

While the vision of a global Internet community has a great deal to offer in the health care service arena, different legal sensitivities must be faced.  In particular, jurisdictional questions have become increasingly complex with the explosion in Internet usage and technology (Rosik, et al, 2001; Frankel, 2000).  Views vary on this topic.  Some suggest that cyber space doesn’t belong to a single state or country, but to a whole range of geographical topographies with diverse legal concepts, making regulation extremely difficult (Markoff, 1995; Frankel, 2000).  A consumer traveling the information superhighway has also been likened to the consumer driving the interstate highway (Stofle 1996).  If one would take I-64 west into Kentucky and have a car accident in that state, it would seem logical not to require the nurse or the physician who puts a cast on one’s arm and prescribes a ten-day course of antibiotics to be licensed in West Virginia to practice medicine, even though the treatment will be ongoing (medicine will continue to be taken) after the patient exits Kentucky and enters again into West Virginia.  However, it is just as logical to maintain that the Internet is not a free city in the sky, where no standards apply.

Traditionally, the licensure of health professionals is a function performed at the state level. Laws governing individual health care providers are enacted through state legislative action, with authority to implement the practice acts delegated to the respective state licensing boards (Telemedicine Licensure Report, 2003; Rosik et al, 2001).  The Federation of State Medical Boards (1996) took the lead in addressing the issue of jurisdiction by adapting state licensure requirements to accommodate practice across state lines (Rosik, et al, 2001).  They published, “A Model Act to Regulate the Practice of Medicine Across State Lines.”  Section II (Definitions) of the Model Act states:

It is important to view the practice of medicine as occurring in the location of the patient in order that the full resources of the state would be available for the protection of that patient.  The same standard of care, already in existence in the patient’s home state, would be required of all individuals practicing medicine within that jurisdiction…(pp. 2).

There are even more conservative approaches.  California law now states that only therapists licensed in California can provide online therapy to residents of California (rosik, et al, 2001; Frankel, 2000; Stofle, 1997). 

Current law in the state of West Virginia has no prohibition against the provision of online mental health services across state lines, as exists in California.  However, given 1) the broad territorial landscape of the internet and the diversity of law across states; 2) the premise for licensure regulations (e.g., protect the public) and 3) knowledge that several courts have ruled that a professional relationship does exist when an individual pays a fee to a professional for advice or there is evidence of repeated communications between a therapist and client, it is prudent, until further measures are taken, that the online therapist makes an informed decision and proceeds cautiously, if it all, when crossing state lines (Rosik et al, 2001; Hunt v. Disciplinary board, 1980).

One option is, of course, to acquire licensure in every state in which an eTherapy client resides.  However, that restriction is likely problematic for several reasons including that it may well deny services to individuals who have found one’s website and responded to it favorably.  This mimics the same way that a potential client may respond favorably to a Yellow Pages add or to an appearance in public by a therapist.  What brought about the favorable response may have been some vague quality that nevertheless prompted an inquiry.  A refusal, even with a referral, may delay services, or cause the client to become discouraged about the prospects of treatment entirely.

Another problem with requiring “every-state” licensure is that it is not practical, at least at present.  Such a requirement would serve as a de facto requirement that eTherapy be limited to one, (or perhaps two or three) states for the majority of therapists.

Additionally, a law such as that in California probably harms clients when it denies access to therapists who possess expertise in treatment for specific disorders.  For example, a potential client whose problem is tricholtillomania may find expert treatment on-line and out-of-state, while no face-to-face expert exists within a hundred miles of the client’s home or online elsewhere in California.  In such a case, it is conceivable that the California law is overly restrictive and inconsistent with the principle of protecting the public.

Given the above, some suggested alternatives to the restrictive California law come to mind.  One of these is to require that a client be connected to a qualified therapist in his or her home state, if the therapist is out-of-state.  That could be accomplished if the therapist requires that the client verify that at least one visit to a local therapist is done prior to the start of eTherapy, and that the local therapist approve his or her own status as a “back up” professional, rather than as a primary therapist.  An extension of this plan is to require a visit with the local therapist following, for example, every fifth eSession.  An ancillary legal issue is whether the local therapist may also be an eTherapist.  An online network of providers (governed and regulated by standards accepted by the mental health communities) may facilitate that process.

Another alternative to the restrictiveness of the California law is for the therapist to determine that he or she meets the requirements of the practice law in the client’s state, without actually seeking licensure in that state.  For example, if the therapist’s state and the client’s state requirements for licensure are that the therapist have (1) a doctoral degree in clinical psychology from an APA accredited program, (2) a one-year internship; (3) a score of 140 on the national licensing exam; and (4) an oral exam, then the online therapist might consider it “safe” to conduct eTherapy with that client.  However, such a standard not only invites a risky test in the courts, but is quite vague and, thus, not highly suitable.

Thus, it seems that national minimum standards for eTherapy across state lines ought to be established.  This likely entails federal legislation that should be informed by APA and those who are familiar with the internet services of professions such as medicine.

Conclusion

Although there are thoughtful and principled positions from various sides of the issues of eTherapy, it remains clear that the Internet and eTherapy have established a sense of permanence in our lives.  The legal and ethical issues of online therapy are not going away, and they possess the potential for tragedy if not adequately addressed.  I think it is important to echo the sentiment “If the ethical therapist is not online, who is?” (Stofle, 1997)

Frankel (2000) writes effectively as to the need for such caution. While visiting in the East African country of Malawi, a friend cautioned him while walking one morning to watch out for the poisonous snake nicknamed, “The Third Man Death”.  The snake earned its namesake because the first passerby would awaken it, the second would irritate it, and the third person would be bitten and killed by it.  Despite the emergence and pace of dot.com mental health practices, there are several barriers yet to be addressed in order to protect the public, the profession, and the practitioner from harm.  Similarly, it may not be the first or second eClient who suffers.  Rather, harm may come about because potential hazards are either unknown to the “passerby” or have not been addressed by the client’s “guide”.

The most pressing barriers include the lack of case law, federal regulations, and professional guidelines for online mental health practitioners.  It was the intent of this paper to contribute to the debate by providing a contemporary review of the literature and perspective of eTherapy, its ethical and legal concerns.  In order to adequately and expeditiously address the potential traps articulated here, practitioners working within professions which lack legal, regulatory or ethical guidelines are encouraged to do the same.  Additional helpful measures may include contacting federal legislators, state licensing boards, malpractice carriers and professional associations with requests for written, clearly defined definitions of acceptable practice (Maheu, 2001).  Beyond all of this, the national nature of eServices demands that professional organizations devise standards that inform U.S. Congress, and that the organizations encourage the congress to establish equitable ePractice laws.

Donna M. Midkiff, PsyD