An Interview With O. Brandt Caudill, Jr.
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O. Brandt Caudill, Jr. is an attorney from Tustin, California, who specializes in defending therapists. In the May/June issue of Psychotherapy Networker he discussed with my colleague Garry Cooper in the Clinician’s Digest section the idea of “Cocktail Party Therapy”. That is the tendency of psychotherapists to give advice to others in informal settings such as cocktail parties to people they may not know well about people they may have never met at all. It’s a great article and a good summation can be found in this one statement, “Under no circumstances should you express an opinion about someone you haven't met.”
Well if it is problematic to express professional opinions about people you have not met to people you may or may not know well, what about the phenomena of professionals asking and giving advice about their patients on open internet discussion groups?
Recently I did a series about the dangers of confidentiality breaches when therapists discuss cases on the Internet even when names are omitted. As a direct result of our series, the owners of at least one prominent discussion group began to insist that cases be sent to the list owners first so that the list owners can disguise all relevant information before posting and thus providing an extra layer of anonymity. See Introduction To The Confidentiality Series
Let’s assume for the moment that cases discussed are disguised to the point where it is impossible for anyone to be recognized. How then can one offer meaningful consultation on a case where no one can ever be sure who is who on these discussion groups. That means that therapists are asking and giving advice to others who they have never met about people they also have not actually met. What we have is a Catch -22. If accurate information is given the danger of a confidentiality breach is high. If on the other, hand the case is sufficiently disguised or if information is changed to the point of non recognition, then that would mean that the advice is really about composite or fictional client who may differ from the actual client for which consultation was sought. It seems that there is a problem either way.So I asked Attorney Caudill if he would extrapolate on the idea of cocktail party therapy and bring it into cyberspace or the Internet discussion group cyber consultation a.k.a. Cyber Cocktail Party Consultations.
The Q&A is as follows:
1. Riolo: If a clinician is in need of consultation, say for example, they have a case beyond the scope of their experience would they be meting their professional obligation to obtain consultation by going to a discussion group of several hundred people and asking for advice? Or, do they have an obligation to contract with specific professionals who are known to have expertise with the type of client or problem area for which they need guidance. In short, is using an Internet discussion group a reasonable substitute for actual professional consultation?
Caudill: I strongly believe that a discussion group of several hundred people is not equivalent to professional consultation. It is different if the clinician is talking to a small peer consultation group. Anything raised in front of several hundred people geometrically increases the chances of an unintentional breach of confidentiality, because someone in the group of several hundred may be able to recognize the case, even if disguised, because of the facts. In addition, the discussion group scenario raises the possibility of conflicting advice being given.
(JR Note: If any one has followed any of these discussions it is clear that conflicting advice is the norm.)
Riolo: If the case is disguised beyond recognition and colleagues offer advice based on the disguised information is there a danger that any advice received might not be useful or that it may actually be harmful if applied to their actual client?
Caudill: The risk with disguising a case is that key facts will be left out that might cause the consultant to give different advice, if those facts were disclosed. This problem can be minimized by having the patient sign a consent form at the beginning of therapy authorizing the therapist to disclose information as part of consultations, so long as the name or identifying information is not used.
(JR Note: Some psychotherapists report having patients sign a release allowing case consultation. However if these releases do not specify that the consultation is to take place on the internet with hundreds of people the consent may not be very informed and can be challenged as misleading.)
Riolo: Do professionals who offer advice to people online expose themselves to any liability under such circumstances?
Caudill: Professionals who offer advice online face risks of several types, including:
a. not realizing they are dealing with minors who are lying about their age (and therefore can't give valid consent),
b. being accused of practicing without a license in another state than the one they are licensed in
c. not seeing the affect of the person they are interacting with, which may skew their advice.
d. whether they are subjecting themselves to another state's long arm statute (for service of process).
Riolo: Do discussion group owners or moderators who encourage these types of discussions expose themselves to liability?
Caudill: The parameters of liability over the web are still being defined. It is possible someone could argue negligence on the part of the moderator, which is why disclaimers are necessary.
(JR Note: One can think of a number of situations where negligence could occur. One common way negligence is observed is that the moderator through human error fails to disguise the patient information as promised. On several occasions the original patient information was included by mistake.)
Riolo: Will making disclaimers that such discussions are not supervision or even formal consultations protect those involved?
Caudill: Disclaimers should help, but people can claim they did not see / understand it. Any disclaimer should be in CAPITAL LETTERS, UNDERSCORED, RED INK ETC. There should also be a statement no warranties are made as to the accuracy of any information communicated and all participants are assuming the risk their involvement may cause them emotional distress and any advice they receive may not be accurate or helpful.
We are indebted to Mr. Caudill for his comments.
He can be reached at his law firm at Callahan, McCune & Willis APLC http://www.cmwlaw.net/attorney.htm#
