Geoff Bathje P.h.D.

Geoff Bathje P.h.D.

Geoff Bathje, PhD is a licensed psychologist, professor, and activist, with additional training in Psychedelic-Assisted Therapies and Research, Sensorimotor Therapy, harm reduction, and community organizing.
Geoff Bathje P.h.D.

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Not much has been written about the practical and legal considerations for working with clients who utilize psychedelics, despite an increasing popular interest in psychedelics and an increasing focus on “integration,” “intention setting,” and related services. As a result, licensed mental health professionals (“LPs”) who want to prepare themselves for the possibility of working legally with psychedelics in the next few years may feel uncertain of their options. Aside from the limited number of positions in the clinical trials of MDMA and psilocybin, it may seem there are minimal opportunities to gain therapeutic experience. However, there is other critical work to be done right now to explore practical responses that can protect and aid the millions of people who are already utilizing psychedelics, often without adequate preparation and support.

 

History and Current Legal Context of Psychedelics Globally

 

There are three major international drug treaties that have shaped drug policy around the world. They are the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The 1971 and 1988 treaties specifically require member countries to “control” psychedelics (along with other drug classes). However, the focus on psychedelics was on synthetics (e.g., MDMA or LSD) or the active chemicals in biologicals (e.g., DMT or psilocybin), rather than whole plants. As a result, the legality of biological psychedelics was left to individual nation states to determine. How does one determine what’s legal where? In the absence of a more authoritative directory, Wikipedia pages specific to the more popular biological psychedelics (e.g., ayahuasca, psilocybin, iboga, salvia, and peyote) sometimes, at least, point toward primary sources for further research.

 

Licensed Professionals and Harm Reduction

 

It is important to note that laws and policies vary greatly by jurisdiction, including stances towards “harm reduction.” Harm reduction has historically been a practical approach formulated by people who use drugs to protect themselves under the intolerance of prohibition, while “harm reduction therapy” is the treatment approach of the harm reduction movement. Proponents of psychedelic medicine sometimes resist the label of harm reduction due to the relatively low level of harm and low addictive potential of psychedelics. However, harm reduction does not assume that harms are inherently a product of drugs themselves, but rather risks are exacerbated or even created by prohibition, criminalization, and stigmatization.

 

The Real Alcazar in Seville, Spain. Photo by the author.

What if a client informs a licensed mental health professional (LP) that they plan to use a substance?

While some jurisdictions require festival organizers and other event organizers to prevent and report drug use, to the author’s knowledge, an LP has no legal obligation to attempt to control a client’s substance use. In fact, “Just Say Know” (as opposed to “Just Say No”) is a fundamental harm reduction approach to reduce the harms of drug use by providing accurate information. For example, harm reductionists routinely educate their heroin using clients to carry naloxone for overdose reversal, test their drugs for fentanyl, use sterile injection equipment, use better injection practices for vein care, and not to use alone (for overdose prevention). LPs might consider it a natural extension to offer what they consider harm reduction guidance for psychedelics, like having a sitter present or available by phone to help with a difficult experience, testing their drugs for purity, or carefully choosing set and setting. If clients have questions about specific drugs or doses, LPs should be careful to stick to providing accurate information, rather than giving specific recommendations about what a client should do. DanceSafe, Erowid, and the Zendo Project are user-driven organizations teaching psychedelic harm reduction practices; their techniques offer models for individual providers. The Manual of Psychedelic Support and The Psychedelic Explorer’s Guide, among others, may provide further harm reduction information.

What if an LP volunteers that the client may benefit from use of a banned substance? Presumably, informing the client how to sign up for a clinical trial (clinicaltrials.gov) or referring to use in the context of therapy, instead of what might seem like medically-unsupervised self-administration, would avoid a danger line.

What if a client unexpectedly shows up to an LP’s office already under the influence of a psychedelic? There might be liability in engaging in psychological work that they are unable to consent to due to being under the influence, but there might also be liability in turning them away while under the influence, particularly if there are other complicating factors, like driving or caring for a child after leaving the office. Thus, it would seem wise to assess the risk of turning them away but avoid work beyond what is needed to assure their safety or the safety of others. Good Samaritan laws exist in many jurisdictions to protect those attempting to help others in distress, though they will likely not apply if the LP has acted negligently or in bad faith. Certainly, the LP should assess the situation and legal and ethical options, including their own competence related to psychedelics, and consider consulting with a colleague, particularly when medical issues are of concern.

LPs may wish to offer “integration” services, helping clients to process their psychedelic experiences after the fact. This type of activity may seem least likely to result in liability, but consideration should be given to the issues cited above when providing integration services. The LP’s competence to provide integration services is particularly important, as people can remain psychologically vulnerable or be more open to influence than usual following psychedelic experiences.

 

Working with Psychedelics Abroad or by Distance

 

An increasing number of LPs are practicing abroad with psychedelics, typically in partnership with facilities that offer such experiences, or in “retreat” format, where a group gathers for a period of time for intensive work. This practice calls for examination of screening procedures, on-site support, referrals, and follow-up services after participants return to their home countries.

 

Referral or Promotion:

Is it legal to promote such retreats? In 2011, there was an attempt to pass the “Drug Trafficking Safe Harbor Elimination Act,” which would have made it illegal to plan or even advise someone about activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act. I am unaware of any current U.S. law that criminalizes such conduct.

However, the question is not resolved for LPs since they are held to higher standards than the general public. Laws related to practice do not state specifically whether a licensed professional would have liability in recommending an international experience with psychedelics. Professional ethical codes would seem to imply some restrictions. For example, The APA’s Ethics Code requires that clients be made aware when a recommended treatment is “experimental” as part of informed consent. Psychologists are also required not to exaggerate or make misleading statements about the efficacy or risks of a treatment, so it is advisable to be familiar with the relevant research and accurately discuss the evidence and limitations of the current knowledge base. It might also be wise to encourage clients to research a site for themselves if they are planning an international experience, and to discuss the information they find together, rather than recommending a specific program or center.

LPs may consider the following: Are you vouching for the center or program, or encouraging the client to do their own research? Are you making a recommendation, or providing information about options? Are you only discussing potential benefits, or are you also encouraging adequate caution and preparation? Are you aware of contraindications for such experiences (e.g. psychosis, certain heart conditions, interaction with certain medicines, etc.) and recommending medical evaluation? What support is there if the client has a psychotic episode or other adverse reaction? Does the client have access to integration services? Therapeutic relationships inherently contain a power imbalance, so the client may defer uncritically to the LP’s beliefs and take them as advice, which is why it’s important to keep clear documentation of what was and wasn’t said.

 

Being On-Site:

In addition, an LP might travel abroad to be on-site during psychedelic experiences to help guide and support the participants and minimize negative outcomes. While this approach may lead to better outcomes, it raises more questions than answers. What liability is there under the laws in the country where the participants consume psychedelics? If the LP is on-site with a client with whom they have a prior therapeutic relationship, would a domestic licensing board attempt to exercise jurisdiction, as it might if an LP engages in a sexual relationship with their client in a jurisdiction that does not prohibit it. Though it is no guarantee of protection, LPs working abroad might avoid working with individuals in psychedelic retreats if it can be established that they had a prior therapeutic relationship with the person (e.g., through screening them for the experience, providing preparatory sessions, etc.).

 

Coaching vs Therapy vs Consultation:

 

In any country or state, a handful of terms are legally protected and limited to describing the services of LPs. For example, laws often protect “counseling” and “psychotherapy,” though this varies by jurisdiction. “Coaching” is a popular term that is widely used to describe a range of unregulated services, including some that would be considered to be therapy if provided by an LP.

The services of LPs are more strictly regulated than those of non-licensed persons, and psychotherapy is whatever the licensing board determines it to be. An ethics board may not care that an LP uses the term “coaching” instead of “therapy” to prepare a client for a psychedelic experience, to help them during the experience, or to integrate it afterwards, if they see these behaviors as therapy. However, “consultation” may be an alternate descriptor of some services, and carries less obligation to clients than therapy. LPs may reflect or seek advice as to whether their work is best described as therapy or consultation in their jurisdiction. But, as with coaching, it is not sufficient to simply label one’s services as consultation to avoid liability and oversight.

 

Online Preparation and Integration Services:

International centers and retreats working with psychedelics increasingly provide some level of preparatory and follow-up services, typically online. Individual LPs also sometimes offer their services domestically via distance. This type of practice potentially implicates “telehealth laws.” These laws have evolved rapidly in recent years to match the growth in services. Most states now require an LP to be licensed in their own state and the client’s state when practicing across state lines. Ironically, it is easier to work across international lines, despite greater cultural and physical distance, due to the lack of international laws governing telehealth. The most thorough report of telehealth laws was commissioned by the state of Ohio and includes an analysis of all 50 U.S. states as of 2016, while the Center for Connected Health Policy maintains a regularly updated report of state telehealth laws. There have been recent attempts to create a “passport” system (PSYPACT) to allow LPs to apply to practice across state lines, though it will not take effect until at least seven states adopt the legislation. The current status is tracked by ASPPB.

It is also necessary to consider liability for violation of privacy laws when communicating via technology. LPs in the U.S. should consider whether the software they use is HIPAA-compatible. According to the Telebehavioral Health Institute (THI), Skype is not HIPAA-compatible and should not be used for therapy. There are many video chat programs that are HIPAA-compatible (usually for a fee), and THI provides a list of compatible software.

 

Conclusion

In summary, licensed practitioners are increasingly being called upon to support people through their experiences with psychedelics. There is also pressure to gain experience in preparation for the potential legalization of psychedelic-assisted therapy in the next few years. Much of this practice remains undefined in law, and many professional ethical scenarios can only be inferred. Although there is only space here to identify some of the major considerations, I hope this article will be helpful in stimulating further thought and dialogue on the topic.

Note:

This article is a general discussion of legal and ethical issues that may be relevant to licensed professionals. It is not to be deemed legal advice. The author specifically disclaims any liability to any person who relies on any part of this article as legal advice. Readers with questions about the legality of the conduct discussed here should consult with an attorney, licensing board, and/or their liability insurer. The author thanks Noah Potter, Esq., for his comments.