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Friending, Linking, and
Posting: Washington Law
and Ethics in the Age of
Social Media
Eric Ström, J.D., M.A.
Ström Consulting
© 2009-2012 Ström Consulting
Washington Law and Ethics in
the Age of Social Media
Understanding Concepts
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Confidentiality & Privilege
Professional Use of Social Media
Ethics and Personal Relationships
Advertising and Marketing
Liability and Standard of Care
Documentation
Age of Consent for Care
Mandatory Reporting
Washington Law and Ethics in
the Age of Social Media
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Reasonableness
Interest of the client
The process matters
Very few “absolutes”
Washington Law and Ethics in
the Age of Social Media
Sources of Law
• Federal
• State
– RCW (Revised Code of Washington)
§70 Health Care; §18.19 Counselors; §18.225 MHCs,
MFCs, SWs; §18.205 CDPs; § 18.83 Psychologists
– WAC (Washington Administrative Code)
– Caselaw
– Standard of Care
Washington Law and Ethics in
the Age of Social Media
When does someone become a client?
Washington Law and Ethics in
the Age of Social Media
When does someone become a client?
a. Mr. Smith visits your website
b. Mr. Smith sends you an email saying “I’m thinking about
looking for a counselor.”
c. Mr. Smith schedules an appointment with you
d. You and Mr. Smith meet and discuss goodness of fit
e. Mr. Smith decides to begin treatment with you
f. Mr. Smith signs your disclosure and informed consent form
Washington Law and Ethics in
the Age of Social Media
When does someone become a client?
a. Mr. Smith visits your website Client w/r/t confidentiality
b. Mr. Smith sends you an email saying “I’m thinking about
looking for a counselor.”
c. Mr. Smith schedules an appointment with you
d. You and Mr. Smith meet and discuss goodness of fit
e. Mr. Smith decides to begin treatment with you
f. Mr. Smith signs your disclosure and informed consent form
Washington Law and Ethics in
the Age of Social Media
When does someone become a client?
a. Mr. Smith visits your website
b. Mr. Smith sends you an email saying “I’m thinking about
looking for a counselor.” Threat assessment?
c. Mr. Smith schedules an appointment with you
d. You and Mr. Smith meet and discuss goodness of fit
e. Mr. Smith decides to begin treatment with you
f. Mr. Smith signs your disclosure and informed consent form
Washington Law and Ethics in
the Age of Social Media
When does someone become a client?
a. Mr. Smith visits your website
b. Mr. Smith sends you an email saying “I’m thinking about
looking for a counselor.”
c. Mr. Smith schedules an appointment with you
d. You and Mr. Smith meet and discuss goodness of fit
e. Mr. Smith decides to begin treatment with you
f. Mr. Smith signs your disclosure and informed consent form
Now you can charge him $ as a client
Washington Law and Ethics in
the Age of Social Media
Confidentiality & Privilege
Washington Law and Ethics in
the Age of Social Media
Confidentiality and Privilege are concepts that are often
confused (even by courts & legislature)
What is the difference?
Washington Law and Ethics in
the Age of Social Media
General Rule
A health care provider may not disclose health care
information about a patient or client to any other person.
RCW 70.02.020
WAC 246-924-363
Washington Law and Ethics in
the Age of Social Media
Exceptions
With the client’s written authorization.
Washington Law and Ethics in
the Age of Social Media
Exceptions
If the client is a minor, and the information acquired by the
counselor indicates that the minor was the victim or subject
of a crime. In that case, the counselor may testify fully in any
proceeding in which the commission of the crime is the
subject of the inquiry.
Or as required for mandatory reporting.
Washington Law and Ethics in
the Age of Social Media
Exceptions
If the client waives the privilege by bringing charges against
the counselor.
Washington Law and Ethics in
the Age of Social Media
Exceptions
In response to a subpoena from a court of law or the WA
Department of Health.
Washington Law and Ethics in
the Age of Social Media
Exceptions
Disclosure is permitted if communication that reveals the
contemplation or commission of a crime or harmful act.
(RCW 18.19)
Disclosure is permitted with reasonable belief that disclosure will
avoid or minimize an imminent danger to the health or safety of the
individual or any other individual. (RCW 18.225; RCW 70.02.050)
However, there is no obligation on the part of the provider to so
disclose.
Washington Law and Ethics in
the Age of Social Media
Duty to Warn
&
Duty to Protect
Washington Law and Ethics in
the Age of Social Media
Duty to Warn/Protect
Tarasoff v. Regents of the University of California, 17 Cal. 3d 425,
551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976)
Peterson v. State, 100 Wn.2d 421, 671 P.2d 230
the special relationship between a psychotherapist and
patient created a duty by the therapist to persons injured by
the patient (Washington 1983)
*Reasonableness Standard
Washington Law and Ethics in
the Age of Social Media
Discovery request or compulsory process
Before service of a discovery request or compulsory process on a
health care provider for health care information, an attorney shall
provide advance notice to the health care provider and the patient
or the patient's attorney involved through service of process or
first-class mail, indicating the health care provider from whom the
information is sought, what health care information is sought, and
the date by which a protective order must be obtained to prevent
the health care provider from complying. Such date shall give the
patient and the health care provider adequate time to seek a
protective order, but in no event be less than fourteen days since
the date of service or delivery to the patient and the health care
provider of the foregoing. Thereafter the request for discovery or
compulsory process shall be served on the health care provider.
Washington Law and Ethics in
the Age of Social Media
Privilege
Applies to Psychologists, Mental Health Counselors,
Independent Clinical Social Workers, Sexual Assault Advocates
and Domestic Violence Advocates, & Physicians.
Does not apply to CDPs
WA privilege rule codified July 2009 at RCW 5.60.060
for Psychologists, also RCW 18.83.110
Washington Law and Ethics in
the Age of Social Media
Two Step process:
1) Notice in compliance with RCW 70.02.060
2) Object to admissibility in accordance with RCW 5.60.060
Washington Law and Ethics in
the Age of Social Media
Federal Privilege
Redmond v. Jaffee US Sup. Ct. (Majority opinion)
Significant private interests support recognition of a
psychotherapist privilege. Effective psychotherapy depends
upon an atmosphere of confidence and trust, and therefore the
mere possibility of disclosure of confidential communications
may impede development of the relationship necessary for
successful treatment. The privilege also serves the public
interest, since the mental health of the Nation's citizenry, no
less than its physical health, is a public good of transcendent
importance. In contrast, the likely evidentiary benefit that would
result from the denial of the privilege is modest.
Washington Law and Ethics in
the Age of Social Media
Use of Social Media
Washington Law and Ethics in
the Age of Social Media
What is Social Media?
Any use of technology to facilitate
communicating or connecting with others
Washington Law and Ethics in
the Age of Social Media
There is no place for SM in the mental
health profession
What do you think?
Washington Law and Ethics in
the Age of Social Media
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Confidentiality and privacy still apply
Blurring lines of client’s real and virtual world?
Encouraging social isolation?
ACA Code of ethics guidance
– e.g. A.12. Technology Applications (informed consent)
Washington Law and Ethics in
the Age of Social Media
Confidentiality and privacy
• HIPAA reasonableness standard for electronic
security
• Encryption
• Passwords
• Hard drives & smart phones
• Use of available security encryption features
Washington Law and Ethics in
the Age of Social Media
Litigation & Social Media
• Postings may document violation of SoC for
malpractice claim.
• On-line communications may be subject to
e-discovery rules and be discoverable during
litigation.
• Posts can last forever.
• Can be discredited or cross examined with posts
on social media.
Washington Law and Ethics in
the Age of Social Media
Litigation & Social Media
Recent NY Case. Party wanted access to pictures on
FB to disprove injury claim
• Privacy settings to “only friends”
• Ct ruled admissible and order included password,
deleted, and archived info.
*Romano v. Steelcase, Inc., No. 2006-2233, 2010 NY Slip Op 32645U, (Sep.
21, 2010)
Washington Law and Ethics in
the Age of Social Media
Use of Social Media
Litigation & Social Media
“Thus, when Plaintiff created her Facebook and
MySpace accounts, she consented to the fact that her
personal information would be shared with others,
notwithstanding her privacy settings. Indeed, that is
the very nature and purpose of these social networking
sites else they would cease to exist. Since Plaintiff
knew that her information may become publicly
available, she cannot now claim that she had a
reasonable expectation of privacy.”
*Romano v. Steelcase, Inc., No. 2006-2233, 2010 NY Slip Op 32645U, *5
(Sep. 21, 2010)
Washington Law and Ethics in
the Age of Social Media
Copyright & Social Media
• Civil or criminal liability under copyright laws for
posting third party content subject to copyright
protection.
• Digital Millennium Copyright Act requires internet
service providers to remove infringing content upon
notice from copyright owner.
• Copyright violations are typically strict liability
Washington Law and Ethics in
the Age of Social Media
Standard of Care & Social Media
• Online communications becoming SoC
• Blurred boundaries between personal and
professional relationships . E.g., “friends” on
Facebook
• Viewing client SM info without permission
- Almost ¼ of counselors view as unethical*
* Neukrug E., S. , & Milliken,T. (2011). Counselors’ perceptions of ethical behaviors. Journal of
Counseling and Development, 89, 2. 206-216.
Washington Law and Ethics in
the Age of Social Media
Standard of Care & Social Media
• Professional use may create expectation you are
monitoring health status online.
• Failure to check online client may be violation of
standard of care.
• Abandonment?
Washington Law and Ethics in
the Age of Social Media
Strategies for Professional Use of SM
1) Non-use
2) Professional or Personal
-No personal use, or
-No professional use
3) Dual Use with Complete Separation
How much can you trust security settings?
Washington Law and Ethics in
the Age of Social Media
Security Settings
Understand settings
Read the fine print
Don’t rely on defaults – look for changes
Restrict posting/tagging/searchability
Test access/security settings
Stay up to date
Washington Law and Ethics in
the Age of Social Media
Cyber/Tele-Counseling
Washington Law and Ethics in
the Age of Social Media
• Not prohibited in WA
(Not specifically allowed either)
• No current SoC consensus
Roughly 1/3 of counselors view it as unethical*
* Neukrug E., S. , & Milliken,T. (2011). Counselors’ perceptions of ethical
behaviors. Journal of Counseling and Development, 89, 2. 206-216.
Washington Law and Ethics in
the Age of Social Media
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Specific consent/best interest of client
Continuation of care in case of tech failure
Confidentiality & threat assessment
Insurance billing (coding)
Subject to other jurisdictions’ laws & regs
– Typically where client is located
Washington Law and Ethics in
the Age of Social Media
Hageseth v. Superior Court (2007)
What do you think the court decided?
What would you decide?
Washington Law and Ethics in
the Age of Social Media
See scenarios in handout
If Mr. Jones were in your consulting group, what
would you recommend? Why?
Washington Law and Ethics in
the Age of Social Media
Washington Law and Ethics in
the Age of Social Media
Personal Relationships
Washington Law and Ethics in
the Age of Social Media
Heinmiller v. Department of Health
What, if anything, did Joan do wrong?
*At the time, there was no prohibition against engaging in a sexual
relationship with a former client.
Washington Law and Ethics in
the Age of Social Media
Heinmiller v. Department of Health
Joan was found to have committed an act of moral turpitude
(based on the standard of care, not statute), and
Fraudulently applied for renewal of her license by not
disclosing the prior misconduct
Washington Law and Ethics in
the Age of Social Media
Romantic & Dating Relationships
WAC 246-16-100 - Licensed Mental Health Counselors
WAC 246-924-358 - Psychologists 5/2 year rule
(both may apply…)
• What Does sex mean?
• 2 year rule?
• Now includes key party
• “Includes but not limited to…”
Washington Law and Ethics in
the Age of Social Media
Dual relationships
Not statutory for MHCs
ACA guidelines A.5.c - A.5.d
APA guidelines section 3.05 - 3.08
Statutory for Psychologists (WAC 246-924-357)
Objectivity or competency impaired
What about friending on facebook?
Washington Law and Ethics in
the Age of Social Media
Advertising & Marketing
Washington Law and Ethics in
the Age of Social Media
Websites
• Privacy policy
• Terms and Conditions
- Jurisdiction, choice of law, copyright notice
• HIPAA Notice
• Must be kept up to date
- E.g., ACA standard of care
Washington Law and Ethics in
the Age of Social Media
The UDA prohibits:
All advertising which is false, fraudulent, or misleading
Promotion for personal gain of any unnecessary or
inefficacious drug, device, treatment, procedure, or service
Misrepresentation or fraud in any aspect of the conduct of
the business or profession
RCW 18.130.180
Washington Law and Ethics in
the Age of Social Media
Endorsements and Testimonials in
Advertising
Federal Trade Commission Act (FTC Act)
Washington Law and Ethics in
the Age of Social Media
Endorsements and Testimonials in Advertising
Federal Trade Commission Act (FTC Act)
• Any misrepresentation, deception, or inaccuracy imputed to
both endorser and seller
• Endorsement may not be presented out of context or
reworded to distort the endorser’s opinion
• The endorser must have been a bona fide user of product
15 U.S.C. §45
Washington Law and Ethics in
the Age of Social Media
Endorsements and Testimonials in Advertising
Federal Trade Commission Act (FTC Act)
• “Material connections” between endorser and seller that are
not reasonably apparent must be disclosed (payment or
compensation)
• Specifically does apply to endorsements made using “new
media” (e.g. blogs, social networking, etc.)
Washington Law and Ethics in
the Age of Social Media
Non-rebate rule
Getting or giving any compensation for health care
referrals is prohibited!
*This prohibition includes “unearned profits” (e.g. fee
splitting)
RCW 19.68; UDA
Washington Law and Ethics in
the Age of Social Media
Non-rebate rule
Violation could be prosecuted criminally
Unprofessional Conduct
Exceptions for partnerships, employees, hospitals
*There is no exception for contractors
RCW 19.68; UDA
Washington Law and Ethics in
the Age of Social Media
Federal Non-rebate rules:
Anti-Kickback Statute
Multiple “safe harbor” exceptions
Stark Act
Physician self-referral
42 USC 1320a-7b; 42 USC 1395nn
Washington Law and Ethics in
the Age of Social Media
See Scenarios in handout
Do you see any red flags?
Did Dr. Smith make sound decisions?
Washington Law and Ethics in
the Age of Social Media
Required Documentation
Washington Law and Ethics in
the Age of Social Media
Disclosure To be Provided to Client
RCW 70.02.120; RCW 7.70.060; HIPAA – All medical records
RCW 18.19.060, WAC 246-810-031 – Cert Counselors and Cert
Advisors
RCW 18.225.100, WAC 246-809-700, WAC 246-809-710 – MHCs,
MFTs, SWs
WAC 246-811-100 , 42 CFR Part 2 §2.22– CDPs
RCW 18.83.115 - Psychologists
Failure to provide is Unprofessional Conduct
WAC 246-810-032; WAC 246-809-720; WAC 246-811-110
Washington Law and Ethics in
the Age of Social Media
To be Kept by Counselor
Required notes that must be kept
WAC 246-810-035 (CCs, CAs)
WAC 246-809-035 (MHCs, MFTs, SWs)
WAC 388-805-320 (CDPs)
WAC 246-924-354 (Psychologists)
Washington Law and Ethics in
the Age of Social Media
To be Kept by Counselor
If client request no records be kept:
(a) Client name;
(b) Fee arrangement and record of payments;
(c) Dates counseling was received;
(d) Disclosure form, signed by counselor and client;
(e) Written request that no records be kept.
Washington Law and Ethics in
the Age of Social Media
To be Kept by Counselor
And if no “no records” request:
The presenting problem(s), purpose or diagnosis;
Notation and results of formal consults, including information
obtained from other persons or agencies through a release of
information;
Progress notes sufficient to support responsible clinical practice for
the type of theoretical orientation/therapy the licensed counselor
or associate uses.
Washington Law and Ethics in
the Age of Social Media
Other recommended documents
Consent to record,
Authorization to disclose (RCW 70.02.030),
Termination,
Use of electronic communication.
Washington Law and Ethics in
the Age of Social Media
Client Records
How long must records be kept?
5/6/8 +1
How should they be kept?
Then what?
Professional Will
*Psychologists must have written policy WAC 246-924-354
Washington Law and Ethics in
the Age of Social Media
Age of Consent for Care
Washington Law and Ethics in
the Age of Social Media
Age of Consent for Mental Health Treatment
The age of consent for outpatient mental health services in
WA is 13.
Includes chemical dependency outpatient services
When does it not apply in your practice?
Washington Law and Ethics in
the Age of Social Media
Mandatory Reporting
Washington Law and Ethics in
the Age of Social Media
• Must report suspected abuse or neglect of a child or
vulnerable adult. (WAC 246-810-040)
• RCW 74.34 – Abuse of vulnerable adults
• RCW 26.44.030, 040 – Abuse or neglect of a child
• CDPs must report Patient Non-compliance (WAC 388-805-330)
• Any others?
Washington Law and Ethics in
the Age of Social Media
• Patient Harmed by license holder
• Finding, conviction, or determination of
unprofessional conduct
• Not able to practice with reasonable safety and skill
– Must report self
– Must report others
Washington Law and Ethics in
the Age of Social Media
Questions?
[email protected]
(206) 295-0076