Just Let Me Press Record: Risks and Ramifications of Audio-Video Recording in Therapy Sessions
By Timothy S. Brennan, Esq.
Partner – Phelan, Phelan & Danek, LLP

Audio-video recording has several applications in the mental health professions. From telemedicine to simply recording sessions for future review, audio-video equipment has become a valuable tool. With applications aplenty, practitioners should be aware of the legal pitfalls the use of this equipment represents. Mental health practitioners can safely navigate these risks by better understanding the legal implications posed. The most common issues are seen in applications related to: (1) practitioners recording mental health sessions; (2) patients recording mental health sessions; and (3) telemedicine. In each of the instances, the paramount considerations are consent and confidentiality.

Practitioners Recording Mental Health Sessions: “Scene One, and Action!”

Perhaps the most obvious application for audio-visual equipment in mental health is its use by practitioners to record therapy sessions. There are many potential benefits to recording sessions. For instance, recording sessions is a common practice for supervising treatment professionals. It can also be useful when a patient has a cognitive deficit and may not be able to remember what was said. On a more basic level, practitioners may wish to record sessions simply to have a more detailed account of the session available for future reference. In this regard, recording sessions can ease the burden on the practitioner to take detailed notes during the session and afford opportunities to focus more on the patient interaction than the record. While potentially beneficial, the use of audio and video equipment in this way does not come without potential legal risks and ramifications.

The primary issue from a medical-legal standpoint is whether, and to what extent, consent is required for recording the sessions. To make matters more complicated, the consent requirements differ from state to state. Some jurisdictions require only one-party consent to the recording, while other jurisdictions require both parties to consent.

As a starting point, the Federal Wiretapping Law (18 U.S.C. § 2511), requires that only one-party consent to recording a conversation. Importantly, many states also have laws governing the recording of conversations. In states where the state law is more restrictive than the federal law, the more restrictive state law would supersede. Examples of states that require the more restrictive two-party consent are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, New Hampshire, Pennsylvania and Washington. Prior to recording sessions, the practitioner should be sure to understand the consent law of their jurisdiction.

The best practice for a practitioner, regardless of the jurisdiction, would always be to obtain consent of the patient prior to recording any session. To this end, many treatment providers have developed specific consent forms for patients to review and sign prior to being recorded.

Aside from the issue of consent, confidentiality is also a paramount consideration when recordings are made. In this regard, practitioners should take all necessary steps to ensure patient confidentiality is maintained in the same manner as treatment records. All records should be kept confidential in accordance with Health Insurance Portability and Accountability (HIPAA) standards.

Every state has its own statutes and regulations regarding the practice and licensure of psychiatrists. Prior to engaging in the practice of recording sessions, practitioners should familiarize themselves with all applicable statutes and regulations, with a particular emphasis on the issues of consent and confidentiality.

Patients Secretly Recording Sessions: “Smile, You’re on Candid Camera!”

Aside from mental health practitioners using audio-video devices during sessions, patients themselves may also seek to record sessions for a variety of reasons. They may wish to have the recordings to maintain a connection with a psychiatrist or to reflect upon things that were said during the session.

The very same consent laws discussed above come into play with a patient recording a session. Thus, as a general matter, a patient may secretly record a session without the knowledge or consent of the practitioner unless it occurs in a state where two-party consent is required.

From a risk perspective, practitioners should always assume that their patients are recording them. While not a mental health case, a recent high-profile medical malpractice case serves as a cautionary tale to practitioners. In this case, a Virginia man was recently awarded $500,000 in medical malpractice and punitive damages by a jury after his cell phone voice recorder (accidentally left on during a surgical procedure) captured cruel and mocking comments his doctors made about him while he was under anesthesia. While mental health professionals do not need a reminder to remain professional, they should nevertheless be aware that patients may be recording sessions even without their knowledge or consent. As such, careful practitioners should be wary of making statements that might be taken out of context.

Telepsychiatry “Near, Far, Wherever You Are”

Another widespread use of audio-visual technology in the mental health professions is the practice of telemedicine or telepsychiatry. Telepsychiatry is a subset of telemedicine that can be used to provide a wide range of services to patients. Telepsychiatry involves the use of telecommunication equipment in the diagnosis and treatment of patients who are separated by distance from the provider. It can be used in several ways including, among others, medication management, patient education, psychiatric evaluations and group or individual therapy. During the COVID-19 pandemic, telemental health is the best option for providing care and treatment.

The use of telemedicine in psychiatry has become more and more prevalent since its inception. It is easy to understand why this method of practice has grown so rapidly as it has obvious benefits. For instance, telepsychiatry improves access to mental health specialty care that may not otherwise be available in certain areas. The use of this technology also reduces delay in care and is a strong tool to improve continuity of care. Like many other innovations, telepsychiatry presents its own set of challenges and obstacles.

From a medical-legal standpoint, the use of videoconferencing warrants several considerations. One of the primary concerns is the potential for a data breach. To protect against this, practitioners should first discuss with the patient the risks of videoconferencing. Like the concept of informed consent, the practitioner should ensure that the patient is fully aware of the risks associated with the use of this medium. More importantly, however, the practitioner should only use system platforms that are in compliance with Health Insurance Portability and Accountability (HIPAA) standards, are encrypted and secure.

During this COVID-19 pandemic, the Office of Civil Rights (OCR) is exercising its enforcement discretion to not impose penalties for noncompliance with the HIPAA Rules in connection with the good faith provision of telehealth using such non-public facing audio or video communication products during the COVID-19 nationwide public health emergency system platforms. During the national emergency only, platforms such as FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype may be used.1 The practitioner should take steps to ensure that both the patient’s physical location and the practitioner’s location are secure and confidential. Providers should utilize only videoconference platforms that have adequate security parameters, or with the non-pubic facing audio or video communication products being allowed, ensure that all available encryption and privacy modes are being used.

From a legal standpoint, the psychiatrist must be licensed in the jurisdiction where the patient they are working with is located. As stated before, every state has its own statutes and regulations regarding the practice and licensure of psychiatrists. These regulations and statutes often have special provisions relating directly to telemedicine and videoconferencing. Prior to engaging in telemedicine in a given jurisdiction, the psychiatrist should be familiar with the state statutes and regulations regarding both in-person and telemedicine practice. During the COVID-19 pandemic, licensure requirements have been waived or expedited. Practitioners should check with the State Boards of Medicine for the states in which their patients are located.

Conclusion

The potential uses for audio and visual recording equipment in the mental health profession are limitless. Fortunately, while the use of such equipment does require consideration of legal implications, these waters are navigable. While applicable statutes and regulations may vary widely from state to state, practitioners should take advantage of available resources to familiarize themselves with the applicable rules in their jurisdiction. Typically, a state’s Medical Board or applicable licensing authority provides access to resources regarding consent and confidentiality rules and regulations. Provided that the mental health provider familiarizes him or herself with these rules, the use of audio and visual equipment in the mental health field can be implemented as a valuable tool.

Brennan1

About the Author

Tim Brennan has been a partner with Phelan, Phelan & Danek, LLP for the past 15 years. He has extensive experience in all areas of complex litigation and alternative dispute resolution. In addition to his practice as a trial attorney, Tim is the head of the firm’s Appellate Law practice. In this capacity, he has served as lead appellate counsel on several major appellate cases that have shaped and altered practice in the field of medical and professional malpractice in the State of New York. In his free-time, Tim is a father of four and frequent community volunteer.

1 HHS.gov. Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency. https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html

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