Mr Brodsky is a writer who has coauthored numerous books and articles in the mental-health field. Drs Bursztajn and Gutheil and Mr Brodsky are co-founders and Dr Norris is a member of the Program in Psychiatry and the Law at Harvard Medical School.
When meeting patients online, mental-health practitioners must confront a host of issues.
During the present COVID-19 pandemic, mental-health practitioners of all disciplines are becoming accustomed to a variety of telemedicine-enabled modalities for treatment and evaluation. A growing variety of telemedicine platforms are now in use. This development has produced an explosion of articles and other documents describing theoretical advantages and disadvantages of teletherapy in psychiatry and how it can best be carried out.1-5 For more than a decade we have practiced with the assistance of telecommunication technology for patient and examinee accessibility. Based on our own and our colleagues experience with clinical and forensic telepsychiatry, what follows are some practical pointers and potential pitfalls for clinical and forensic practitioners.
The Practice Context of Telemedicine
Over the past several decades, rural health care delivery, the courts, and prisons have increasingly relied on telemedicine to accomplish their work. This modality has increased access to examinations and improved care by medical professionals in remote geographic communities. However, it took the pandemic of 2020—and the suspension of some governmental regulations until an emergency no longer exists—to increase significantly the use of telemedicine. In forensic settings, telelinks are now used even by judges conducting trials, as well as in forensic competency evaluations, independent medical examinations, and tribunal hearings for evaluating claims of physician liability.
It is clear by now that telelink-enabled clinical and forensic evaluations are here to stay, given their evident convenience and cost savings. This is especially true in the forensic context, where the examiner and examinee, having no ongoing local treatment relationship, may be located in different regions of the country, or the examinee may be incarcerated or otherwise immobile. Moreover, elimination of the costs of travel allows for more frequent (virtual) meetings with patients, who can more easily maintain attention and concentration in shorter sessions. These may include persons suffering from psychosis, severe anxiety, depression, dissociation, fatigue, and/or lack of self-integration. Such meetings may routinely be preferred because the absence of travel, parking, and security requirements allows for more flexible scheduling and time- and cost-effectiveness.
Nonetheless, the authors believe that insufficient attention has been paid to concrete structural and behavioral details of this form of psychiatric work. There are practical issues to keep in mind that can increase the efficacy of clinical and forensic telepsychiatry, and steer clear of common pitfalls. (Except where otherwise specified, the term “interview” is meant to apply to both clinical and forensic interactions.)
Setting and Structure
It is important to establish appropriate video and audio platforms and to allow time to ensure that the preparatory technological setup for the interviews is working adequately. (When the interview is on the court premises, the setting and technical apparatus are predetermined.) As to what technological complaints need to be addressed, some evaluators have noted that poor lighting is a concern. Dark shadows, for example, can interfere with clarity of the visual image. In addition, disruptions in the video feed may interfere with accurate evaluation of the patient for abnormal involuntary movements (the AIMS test) used to monitor long-term effects of neuroleptics. On another sensory dimension, the sense of smell obviously cannot be utilized on video calls. For example, the odor of alcohol may go undetected—a significant potential omission. This limitation may necessitate alternative means of gathering otherwise olfactory-dependent data.
In the current COVID-19 emergency, free video platform setups, which have received HIPPA-compliant waivers from the federal government, may be used. However, the manufacturers may set time limits for the sessions that can compromise the needed length of an interview. Additionally, technical difficulties such as bandwidth and the absence of timely technical assistance may interrupt the flow of the interview. Such interruptions, if not adequately prepared for, may compromise the interview and affect the process of therapy or the findings of a forensic examination.
In forensic evaluations, problems may arise with connectivity for the attorney and/or the judge. The greater the number of persons on the video link, the greater the opportunities for technical interruptions, particularly when trying to connect with WIFI and cell phones. Allow time at the beginning of sessions to test and correct any audio or visual problems and plan for augmented bandwidth.
For a clinical interview, all participants have a role in establishing the appropriate guidelines. To begin with, it is important to establish who will schedule the sessions and provide the formal invitation. Some parties may prefer to originate the telecall interview to feel more in control of the session process. Generally, it is the party that initiates the link that is responsible for whether or not that link is HIPAA-compliant. Some patients who initiate telecommunication will wish to waive any applicable HIPAA-compliance requirement for the comfort of using a more familiar telecommunication pathway of their choice.
The Visual Field
The visual environments of both parties can be expected to influence the dynamics of the interaction. While many interviewers practice in home offices, those are usually curated to some degree, with attention paid to the furnishings according to some concept of a professional space.6 By contrast, when practitioners who have not already set up home offices find themselves unexpectedly working from home in the pandemic, they may be working in their lived-in home. Both information and misinformation may emerge from this reality.
For this reason, some clinicians and evaluators, especially those who are novices to home office practice, prefer a blank screen that will not show personal effects in the office space or provide any indications of the geographic area of the assessment. Such details may expose clues to the whereabouts of secure locations needed in domestic violence or custody cases. Other practitioners use a virtual background, which, while reflecting an aspiration to neutrality, may also contribute to an aura of unreality. An inauthentic background can reinforce an interviewee’s predisposition to view Shakespeare’s metaphor of “All the world is a stage” (in “As You Like It”) in concrete terms. By contrast, appropriate objects visible in the office, such as works of art, can prompt helpful associations in psychotherapy or psychodynamically informed forensic examination. Regardless of the distinctive features of an interviewer’s office, it is often better that the background be the interviewer’s own authentic office.
The visual field of online practice has a number of potentially limiting factors. Awareness of these potential pitfalls is a vital step in increasing the efficacy of such practice.
For example, while video makes it easy to observe facial expressions and register tone of voice, the lower body, sometimes from the neck down, often is not visible. Some body language and aspects of dress are thus unavailable. This potential limitation may be particularly problematic in custody evaluations, where full body choreography in family evaluations is sometimes essential. The presence of the family can be a positive part of an online evaluation.7 However, if the interviewee is told to place him/herself far enough from the lens to permit such full viewing, facial expressions may be harder to see and the voice harder to hear. Varying the patient’s distance from the camera in the course of the interview is a potential remedial option when necessary.
Telepsychiatry may not be the ideal or exclusive modality for young children, especially when they are overactive to the extent it is difficult to keep their attention or capture their interactions within the screen. However, evaluations for attention deficit disorders may be successfully accomplished using telehealth.8 The mindful observer may need to pay closer attention to information that may be more telepsychiatry-accessible, such as variation in eye movement, facial expression, and speech rhythm or tone, as well as to integrate this information into analysis of corroborative data.
In one such custody evaluation, a child being interviewed was noted to look away from the screen at times. It became clear that the parent, initially excused from the room, had returned, unnoticed by the interviewer, and witnessed (and perhaps influenced) the interview.
In family evaluations or domestic violence screenings, it may help to visually take in the entire clinical gestalt of the family. Without an additional party running the cameras, many camera settings do not permit a full view of all parties at the same time. In such instances, more attention needs to be paid to the rhythm, timing, and tone of the family speech patterns. The visual gestalt may need to be further complemented by the auditory gestalt and corroborative data (eg, medical and school records, structured interviews, and psychological testing).
Time may also be a relevant consideration, especially if clinician and patient are in different time zones. Some patients, uncertain about their appointment time, may be confused if placed in a digital waiting area until the doctor is available. Because of the recognized intensity of such meetings and the need for particular focus and attention, the session may need to be divided into 2 or more such meetings to allow breaks for either party.
In working with developmentally disabled individuals, some evaluators find that the lag in digital savvy can be a major holdup in the evaluation process, particularly with a deficit in WIFI and the staff’s inability to correct deficiencies. At times, the video feedback may be so distorted that the evaluator cannot get enough of the expressive language clues to understand the problem. This is made even more difficult when the staff is new and unfamiliar with the parties being assessed. The collegial relationship and teamwork between staff and evaluator are critical factors deciding the quality of the examination, particularly in agencies with increased staff turnover. With these patients, it is best to have a team in place, including a behavioral clinician, a nurse, and family members. However, be aware that some family members will not agree to participate in video sessions.
Some of the problems that emerge from online observations can be grouped under the rubric of potential distractions for both interviewer and interviewee.
Recording the session, as well as providing a record of the interview, may increase performance anxiety and attempts to manage one’s impression, especially in forensic examinations or adversarial proceedings, in which the examinee and others (family, attorney) have a stake in the outcome. The same applies to having a third party (such as an attorney) present. The distorting effect of recording or third-party presence in both the clinical and forensic contexts has been well studied.9-12 If such distortion is unavoidable (eg, by court order), special consideration needs to be given to minimizing it. In some states, such as Massachusetts, the recording of clinical interviews without permission of all parties is prohibited by law.13
Some patients of all ages are more comfortable with audio transmission alone, as they are then less distracted by the close-up of the therapist’s face as well as their own. As in all therapy and evaluation, being aware and respectful of the wide range of individual variability, as well as of one’s own countertransference, is vital.
By contrast, the absence of the interviewer’s picture or the substitution of a photo for a live image may be experienced by some interviewees as inattentiveness or lack of interest on the part of the interviewer, much like analytic patients who cannot tolerate being unable to see the analyst. When an interviewer is aware of such a risk, asking the interviewee to describe their experience of the interview can be helpful.
The picture-in-picture effect may have several valences, pro and con. For some interviewees it is a potent distraction. For others it may convey the reassuring presence of the examiner and/or an intrusive pressure to influence behavior. Not using picture-in-picture, especially in forensic contexts, may decrease some interviewees’ less authentic tendency to play to an audience. Clinicians and forensic examiners likewise may be distracted by their own faces or facial reactions, splitting attention from the interviewee. Alternatively, some interviewers find it helpful to see themselves as the process evolves, perhaps detecting their own countertransference reactions (eg, blind spots) and distractions. An interviewer’s awareness of these effects can help support the therapeutic alliance or the validity of a forensic examination.
How Therapeutic Issues Can Manifest in Telepsychiatry
Sometimes it is difficult to distinguish between interruptions or distractions attributable to technical imperfections or mishaps and those that have a deeper dynamic origin.
The session started on time, but when the questions moved into more affect-laden material, the examinee complained that they could no longer hear the examiner. After several attempts to resolve the difficulty, the interview was rescheduled. This change resulted in lost time for all parties. In this case, one might conclude that telepsychiatry was no longer time efficient. On the other hand, the ostensible technical breakdown might serve as an opening for exploration of sensitive material.
Awareness of a potential distraction can turn a potential video call pitfall into a therapeutic insight. Exploring the meaning of telelink-enabled communications in the course of treatment can be helpful not only for avoiding telelink-related pitfalls, but also for furthering the therapeutic process itself.
A patient who is a childhood survivor of the Shoah invariably kept her eyes glued to her therapist’s face on telelink. At one point she noted less cyberspace traffic than usual as background noise. Her associations to the changed transmission noise included the bombing she heard as a very young child in hiding. This exploration opened the path for a safer cyberspace discussion. Having less need to keep her eyes on the therapist’s face, she spoke more freely and with great insight into how her experience of social isolation as a hidden child at times shadowed her experience of danger and social isolation during the pandemic.
In telelink-enabled psychotherapy with an adolescent patient who had early issues around separation anxiety due to the father’s medical problems and a mother who felt the need to be immersed in work, processing the feelings of both being there and not being there opened up an avenue for more effective use of teletherapy.
Emergency Backups and Privacy
When the patient is present in one’s office, one always knows what local emergency services to call in, which is not the case when the individual is a distance away. In virtual sessions, it is still sometimes necessary to have an appropriate emergency support network and backup plan at the patient’s site. In the rush to adapt to telehealth, there is a risk of omitting this step. Thus, for new patients, for some ongoing patients when indicated, and in high-risk populations of forensic examinees, a risk assessment should be completed at the beginning of every session, along with the standard brief technical check-in (“How’s the WIFI? Can you see me, hear me okay?”). Since interviews may occur at some distance from the practitioner’s location, and may even cross state lines, the practitioner should obtain phone numbers of local emergency services, police, family members, or significant others to assist in times of crisis. When indicated, the availability of such resources should be assessed and documented.
During a teletherapy session, the patient became distressed and threw a chair at the monitor. A limit was set on this behavior, as it would have been had the patient and therapist shared the same physical space. The behavior was then explored for its meaning for the patient and the relationship.
When patients are at risk for emergencies, interviewers should know whether other parties are in the home or within earshot, and whether the session is being recorded. The use of HIPAA-compliant or -noncompliant telecommunications should also be identified. It is important to establish behavior limits, ensuring that the meeting is a safe time for communication without domination, bullying, or intimidation.
Many students are now spending much more time in the family home. One recalled that he had to go to a local coffeeshop or sit in the car to get needed WIFI for his session via cellphone and to be out of the hearing of family members. Obviously, a public setting poses its own privacy issues.
In one session a patient was discussing a sensitive marital issue when the spouse walked into the room.
Clearly, family privacy rules need to be set early in treatment. The patient may wish to bring others into the session; ideally, this would be discussed in advance. However, since the patient is already there, the opportunity for this step may be missed or scanted.
In addition, telepsychiatry poses some questions that the clinician or examiner needs to reflect upon, since a single size does not fit all patients or examinees; nor is telepsychiatry any more of a rote diagnostic-checklist exercise than in-person psychiatry. How does the new remote distancing process affect people of diverse cultures? How is rapport established between parties to encourage truthful disclosure? These are questions that need to be considered early in the process. Clinicians should inquire about the patient’s or examinee’s comfort during the process.
Whenever possible, encourage patients to decide how and where the virtual interview will occur and proceed only with their agreement. They may have concerns about allowing someone into their home space; for example, an interviewee may be self-conscious about the appearance of their home environment. Inquire about what other options may be available for the interview: is there private space in a library or other accessible public building? For individuals needing an interpreter, how is this use accounted for in the responses to questions? How does this affect the interview process?
It is essential to maintain a professional environment when working from home while connecting with the interviewee’s home space. Doing so requires an appropriate setting and attire, even if one is not fully visible to the patient. For example, interviewing from a bedroom or while wearing pajama bottoms is unwise.
It is the authors’ view that in some instances the casualness of the setting does present potential obstacles for maintaining appropriate boundaries, even when online. A messy environment in either the clinician’s or patient’s room may generate an atmosphere of laxity about the clinical work, leading to a loss of focus. On the other hand, with increased self-awareness and experience, a casual atmosphere can have the advantage of freeing all concerned from rigid formulations or habitual preconceptions.
The patient was interviewed at home. During the course of the session, the patient was suddenly lost from view. The patient had decided to take the therapist on a tour of the home and yard and was not aware that the WIFI did not extend outdoors.
A clinician reported that a patient partially disrobed in the session and had to be reminded of her state of undress and of the expected appropriate decorum.
Telemedicine is not the same as in-person visits. Some patients feel that some things have been lost, such as empathy and respect. The shift to a virtual environment has shocked some patients, and some claim that physicians are seemingly less available and less empathic about patients’ concerns. One person complained that physicians seemed to be keeping their distance—even when the office was back up and running with appropriate personal protective equipment. Another patient, who had undergone major surgery for cancer, recalled that when they arrived for a follow-up visit, the treating physician spoke from the doorway and never came into the examining room.
Has the patient-physician relationship suffered from this imposed distancing? Historically, it has been recognized that an emotionally vital and mutually respectful professional relationship between physician and patient offers some protection from lawsuits. The physician’s commitment to caring for the patient, even within the safe distancing of this pandemic, must be maintained.
Practitioners should pay attention to their own wellness. Clinicians have complained of increased eye strain, body stiffness, and fatigue during long stretches of time in front of monitors. It is prudent to build in time periods and techniques for recovery and replenishment. In addition, the telehealth mode can feel isolating compared to pre-pandemic, in-person practice. Clinicians should coordinate periodic consultation with colleagues and participate in clinical rounds so as to remain part of a professional community and maintain clinical and/or forensic acumen. Making one’s home office artfully and authentically comfortable can be beneficial as well.
During the COVID-19 emergency, usual restrictions regarding payment for services across state lines, regardless of licensure, have been relaxed.14 However, this reimbursement process may change after the pandemic, as some private insurers indicate plans to limit coverage for virtual visits.15 Therefore, it is important for all parties to be fully aware of their financial responsibilities for these arrangements going forward and to negotiate the finances thoughtfully. For Medicare and Medicaid patients, updated guidance is available on the website of the Centers for Medicare & Medicaid Services (CMS.gov). Patients who rely on third-party reimbursement should be advised to check with their insurance companies before proceeding with consultation.
Risk Management in Telepsychiatry
In 2011, Cash16 wrote: “Telepsychiatry, if done well, can benefit patients. It also presents significant risks for the unwary.” Telling practitioners that a current practice modality is both non-uniform and actively evolving is not reassuring, but telepsychiatry has checked both boxes. Nonetheless, under pressure of the pandemic, telehealth is rapidly gaining greater acceptance and legitimacy, with consequent revisions in legal and regulatory frameworks. Although the subject is now extensively covered elsewhere,17 a useful brief summary can be attempted here.
1. Standard of care. The issue of standard of care, a touchstone of malpractice claims, is surprisingly straightforward and broadly accepted. The standard for a telepsychiatric treatment or forensic evaluation is identical to that for the in-person equivalent. Documentation should note the limitations of this medium and what is done to minimize them.
2. Informed consent. Informed consent has acquired 2 different dimensions: the patient must consent to the use of telepsychiatry in the first place; and further consent should be negotiated if either party wishes to record the session or have third parties present (with consideration of the problematic consequences of recording and third-party presence discussed above).
3. Interstate licensure. Up to now, at least, it has been good risk management for the clinician to know whether they need to be licensed, even temporarily, in the patient’s jurisdiction. For a patient in the same state, no matter how remote, this is not a problem, although one should inquire with one’s local licensing board as to any specific requirements for telepsychiatric practice. For a patient in a different state, that state’s licensing board needs to be contacted directly to establish 1) whether a local license is required or, in some cases, a temporary one; and 2) whether any local regulations differ from those of the practitioner’s home state (eg, whether the Tarasoff warning is required). Seeing that state licensure requirements for forensic evaluations are met is the responsibility of the retaining attorney. In addition, the practitioner’s malpractice insurer should be asked whether coverage extends to such interstate practice.
In December 2020, the US Department of Health and Human Services (HHS) allowed health-care professionals to provide telehealth services across state lines, regardless of state and local prohibitions, both to ease access and to expand the range of telehealth services Medicare pays for during the COVID-19 emergency. Practitioners need to stay informed of developments in this area. In practical terms, however, with 43 out of 50 states having explicitly waived the state licensure requirement for telehealth practice in the current pandemic,14 a few states’ medical boards’ delay in updating their regulations to accommodate the increasingly common practice of telepsychiatry will likely no longer be recognized as a legal prohibition.
4. Confidentiality and HIPAA. Questions involving confidentiality, as indicated in some of the case vignettes above, may be complex, with unexpected intrusions into the session and other leaks of confidential material that are far less likely to occur in the professional office setting. The platform used for telepsychiatry (Zoom, Skype, etc.) must be established as HIPAA-compliant and the patient/examinee so informed. The patient does have a right to waive that requirement.
5. Handling emergencies. As noted above, practitioners using telepsychiatry should establish a method of dealing with any emergencies that occur during a session. One approach is for the practitioner to become familiar with resources in the patient’s location and to negotiate with them in advance how emergencies will be handled. Another is to establish a collegial relationship with a local physician who can handle any needed physical examination, lab work, or emergency response. Note that many prescribing contexts require an initial physical examination.16
6. Sharing uncertainty in the therapeutic alliance. Last but far from least, the therapeutic alliance is itself a cornerstone of liability prevention. Sharing clinical uncertainty, in both its cognitive and affective dimensions, with patients (and their families, when involved) strengthens the alliance and, with it, the patient’s resources for dealing with pandemic-compounded pain, fear, and grief.18-20 This process is as essential and can be as effective in telepsychiatry as in in-person psychiatry. Given the perennial uncertainties of practice, now compounded by ever-changing clinical and legal standards, attention to unintended clinical iatrogenesis and legal harms, or “critogenesis,” is vital. However, a hyper-focus on legalisms to the detriment of good clinical care needs to be avoided.21-22 Just as there are hybrid forms of education now in place during the pandemic, we anticipate that the future delivery of mental health care will continue to blend telehealth and in-person office practice.
The above summary is intended to alert practitioners to areas of risk for litigation in telepsychiatry. Local regulatory boards, malpractice insurers, and personal attorneys may be further resources for case-specific questions that arise.
Dr Norris is assistant professor of Psychiatry (part-time) at Harvard Medical School. She practices clinical and forensic psychiatry in Wellesley, Massachusetts. Dr Bursztajn is associate professor of Psychiatry (part-time) at Harvard Medical School. He practices clinical and forensic psychiatry in Cambridge, Massachusetts. Dr Gutheil has been faculty and staff at the Massachusetts Mental Health Center in Boston for half a century and is professor of Psychiatry at Harvard Medical School. Mr Brodsky is a writer who has coauthored numerous books and articles in the mental-health field. Drs Bursztajn and Gutheil and Mr Brodsky are co-founders and Dr Norris is a member of the Program in Psychiatry and the Law at Harvard Medical School.
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