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Virtual Mental Healthcare May Expose Clinicians to Liability


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When the U.S. shut down due to the spike in Coronavirus cases, myriad professionals immediately pivoted to remote delivery of services. Mental health professionals were no exception. They rushed to ensure their patients would continue receiving much-needed therapy via phone or videoconference.

But as the pandemic drags on, many have begun to voice concerns about the particular liabilities that come with tele-psychiatry or tele-counseling.

As a mental health attorney and former healthcare risk manager, I’ve received a sharp uptick in calls from clinicians seeking advice on how to manage the risks of providing virtual mental health services. Many of these risks are technology-specific and concern such issues as patient privacy, but others reflect the reality that remote counseling doesn’t provide mental health practitioners with as much information about patients as they would receive in-person.

To illustrate, an in-person appointment offers clinicians the opportunity to consider minute details about their patients’ body language, facial expressions, ability to focus, etc. Such details are all too often lost during remote appointments. Without them, practitioners might find it difficult to piece together the warning signs that indicate a mental health crisis – a gap that could lead to tragedies and lawsuits.

The unprecedented nature of today’s crisis makes this a difficult problem to solve. It is completely unchartered territory in terms of healthcare liability. That said, there are things clinicians can do to mitigate this risk.

They include:

  • Be vigilant in documenting remote appointments. Take comprehensive notes about how patients present both verbally and non-verbally. Be sure they are organized factually and meticulously in the event they are needed for reference or evidence at a later date.
  • Overcommunicate. Repeat important points more than usual to best make sure you’re getting through to the patient on the other side of the screen. Ask for the patient to repeat back key points or instructions, as appropriate.
  • Suggest trusted family members join remote appointments. Provided patients grant this permission, the ability for clinicians to connect with someone who lives with, observes and/or interacts with them in-person can offer extremely important information.
  • Consider legal options when necessary and/or appropriate. When patients give indication that they pose a danger to themselves or others, clinicians should not delay in considering the legal tools at their disposal, from psychiatric interventions to mental health warrants and hospitalization.

With no clear timeframe for a return to normalcy, tele-psychiatry and tele-counseling are sure to remain vital for the foreseeable future. Mental health practitioners providing these remote services must be vigilant in ensuring they protect themselves from potential liabilities, even as they continue helping their patients make it through this extremely challenging time.



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