Should I Use Telepsychiatry to Treat Children? Legal Questions and Concerns

What legal issues arise when psychiatrists treat children via telehealth? We discuss the special considerations for offering telepsychiatry services to this special population.

Telepsychiatry for Children - Legal Issues

Telehealth has been a useful tool with growing popularity— especially throughout the pandemic. Telepsychiatry is no exception to this trend, allowing psychiatrists to continue to provide much-needed care safely and remotely. But is telepsychiatry suitable for treating children? Could it be a better option for some patients? When treating such a vulnerable population using telehealth procedures, legal considerations, such as quality of care and privacy concerns, may arise.

Telepsychiatry and Quality of Care Considerations

There are pros and cons to using telehealth for minor patients. On the one hand, telehealth allows children and parents to access health services with more flexibility than ever before. In their home environment, children may also be more likely to feel comfortable opening up to a mental health professional.

On the other hand, the home can provide many distractions for kids, especially those who have trouble focusing. Psychiatrists may also face limitations on their ability to prescribe medications via telehealth. Moreover, both clinicians and patients can miss important body language and physical cues when communicating over the computer. Are providers more likely to miss important signs when using telehealth? Are children receiving effective treatment?

As evidence about telepsychiatry’s effectiveness for children continues to evolve, so too do questions about whether the quality of care offered via telehealth meets a provider’s “legal” duties to a patient.

Standard of Care for Telepsychiatry

One legal issue that might come into play involves “standard of care.” Standard of care is a legal measure based on the hypothetical level of skill and care that a reasonably competent health care provider would provide to a patient in comparable circumstances. Courts use it to determine whether a healthcare provider acted “reasonably” when treating a patient. If a patient questions the quality and level of treatment provided to them, they could use standard-of-care considerations as part of a medical malpractice claim against a provider.

Standard of care is a particularly crucial aspect to questions about child telepsychiatry effectiveness. Those working in child psychiatry have a duty to especially vulnerable patient populations—children and those with mental health concerns. Still, it may be unclear as to what this means for actual telehealth practice. Must the standard of care for telehealth services match the standard for in-person, pre-pandemic services?

Some state laws have explicitly addressed what the standard of care should be when conducting telehealth services. For example, Illinois law requires that practitioners provide telehealth services “consistent with the standards of care for in-person services.” With the problems described above—distractions, prescribing restrictions, difficulty maintaining focus, missed body-language cues—these standards could pose a problem for certain telepsychiatry practitioners and their patients. Psychiatrists who practice telehealth for minor patients may need to examine the quality of care they provide on a  case-by-case basis to ensure that they meet the standards.

Privacy Considerations in Telehealth

Another big concern for telehealth practice overall has been privacy concerns. The federal government has relaxed some privacy requirements during the pandemic, such as allowing providers to use platforms like Skype without violating HIPAA’s security rules. Though in a field as sensitive as child telepsychiatry, where even minor patients can request and receive confidential care in some jurisdictions, privacy concerns may be amplified.

Remote settings can make it infinitely more challenging to ensure that a patient is in a safe, secure, and consistent environment while receiving treatment. How can a psychiatrist overcome this obstacle? The answer is not entirely clear. 

Psychiatrists may need to establish new and creative guidelines for educating patients and their parents on confidentiality standards. Psychiatrists should also update their existing policies for securing informed consent and explaining the scope and nature of a child-psychiatrist relationship for care via telehealth. This way, all involved parties know the expectations for producing a successful virtual telepsychiatry session.

The Future of Telepsychiatry

Overall, telehealth’s popularity and usefulness during the pandemic may translate to patient care practices for years to come. In short, telehealth is likely here to stay. Unfortunately, the increased use of telehealth raises many unanswered questions. Likewise, much of the guidance that expanded practitioners’ telehealth authority was issued temporarily. Thus the existing rules applying to telepsychiatry and children will continue to evolve. It is essential to make sure your telepsychiatry practices are in line with these ever-changing regulations. A knowledgeable healthcare attorney can help you build the best course of action for your practice. 

If you would like to expand your practice into telehealth in any of the states where we are licensed, Jackson LLP can help you stay compliant. Book a consultation online with one of our attorneys to determine if we’re a good fit for your needs.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.