RISK MANAGEMENT IN CYBERSPACE L EGAL AND E THICAL C ONCERNS

Both cyber-shrink and cyber-patient liability issues have no precedent. The potential benefi ts-to-risk ratio of practicing psychology online leaves many of us confused and concerned about doing the right thing. Clearly, there are laws and ethical guidelines, confi dentiality and privacy issues, professional development requirements, and maintaining comprehensive liability coverage are necessary for cyberspace practice. David Nicholson, APA’s Practice Directorate expert, and Jeffery Thomas, California’s Board of Psychology’s Interim Chair, acknowledge that there is no case law at this point that drives standard of care in cyberspace (D. Nickelson, personal communication, November 14, 2005; J. Thomas, personal communication, October 20, 2005). Nickelson states that no professional licensing bodies have con- sensus regarding inclusive or exclusive criteria for practicing online.

What are we talking about anyway? Even the terminology lacks consis- tency and parameters distinguishing it from on ground practice. Is it telehealth, telemedicine, online counseling, etherapy, online therapy, ehealth, or a hybrid system? Now these descriptors are used interchangeably, often leaving us with comparing apples and oranges in the research. In addition to few directions and specifi c online professional guidelines for mental health professionals, recent advances in Voice Over Internet Protocols (VOIP) allow Internet users to

operate outside the jurisdiction of the Federal Communications Commission’s (FCC) state and federal regulations. The FCC does not regulate the Internet and has no way to safeguard the public interest online for any activity much less therapeutic ones (Voice Over Internet Protocol, 2005). According to Jeffery Thomas, Interim Executive Director California Board of Psychology, no one has yet been sued for practicing outside one’s scope of practice by inadvertently, ignorantly, or intentionally causing harm to a patient with online therapeutic communications. But in a litigious and digital world it is a matter of when not if. Lessig (2005), assumes that legal and ethical issues concerning confi dentiality or privacy on the Internet for all of us will require much more input from research institutions and the government than is currently the case ( J. Thomas, personal communication, Oct. 20, 2005).

The lack of guidelines and standards in cyberspace is sobering to many clinicians who already communicate with their patients and colleagues online. Some may continue to conduct therapy online or utilize hybrid systems, while others avoid cyber practice entirely because they are sure that cyber psychological inter- ventions are not effective and may even be anti-therapeutic. Alleman (2002) sum- marizes the jurisprudence issues of psychology online as placing clinicians in a double bind:

254 Joanie Farley Gillispie

[there is] a crazy quilt of state and local laws with no protective guidelines established for internet services… If a professional believes that the risks are too great to allow the practice of ethical psychotherapy online, he or she should not attempt to provide it. This does not change the fact however that other professionals have already arrived at a different conclusion. Nor does it in the least infl uence the fact that potential clients will continue searching for counseling online. …If the ethical counselor is not online, who is? Going forward, the greatest ethical risk we may face is that we will write the rules or enforce the laws in such a way that competent, principled professionals are forced to exclude themselves from online availability. It cannot possibly be ethical to create such a trap for potential clients who are merely seeking help through technology that is available to them (p. 204).

RISK MANAGEMENT IN CYBERSPACE L EGAL AND E THICAL C ONCERNS