NH Legal Perspective: What you need to know before using AI in your mental health practice

AI can play an integral role in standard administrative technology, such as automated scheduling, billing and virtual assistants to handle client inquiries. AI also has worked its way into clinical aspects of treatment, such as by using predictive analytics to anticipate risk of relapse or suicide and by suggesting diagnostic or treatment options.

Maybe most fascinating to mental health professionals, though, has been AI’s promise to remove the therapist’s millstone: the clinical note. Google “ai clinical note,” and you will find a long list of service providers promising that their note-generating services are HIPAA-compliant, low-cost, and ready to free you up to do the part of the job you enjoy — actual therapy.

Few therapists entered the profession for the satisfaction of pounding out clinical notes in 10-minute intervals between sessions and during those misnomered “off-hours.” Certain AI programs prepare notes based on your written reflections. Others include transcription services and natural language processing tools that use a recording of the session — not just what a client said, but how she said it — to construct a note.

So what do you need to think about before handing some of your documentation burden over to AI? Here are some of the most critical considerations:

Disclose your use of AI and obtain clients’ consent. Your state may have statutory requirements about recordings and consent. Regardless of the state in which you practice, ethical codes governing mental health professions require that you respect client confidentiality and autonomy. This requirement likely implies that therapists must obtain consent to use of audio recording.

For truly “informed” consent, ensure the client understands what he is consenting to. Make it clear he has a right to say no to AI, to change his mind after saying yes, and to ask questions at any time. If a client cannot understand the role of AI, then it is impossible to obtain true, informed consent; forgo AI in this case.

Consider other pros and cons of recording. There are security risks, especially with certain platforms falsely purporting to be HIPAA-compliant. It is vital, therefore, to obtain a Business Associate Agreement. And what happens to session recordings? Would you like your clients have access to them? If they are preserved and considered part of the client file, you may not have a choice. So find out how your AI program stores and deletes recordings, and develop a policy on audio storage for your practice.

Remember that, while AI can save time, it can also spend it. Even if AI is working from a recording, it can often take 15 minutes to generate your note, which you must then review and edit.

“But do I have to review and edit?” some of you just asked. The answer is a resounding YES. AI is reluctant to say, “I don’t know,” including when trying to fill in the details of a session. It may add information that did not actually occur and may make inferences without enough data. Do not put yourself in a position where you must explain to a client (or licensing board or jury) why your note misstates the medication your client discontinued, or his risk for self-harm. AI is fallible when crafting a note demonstrating an appointment’s medical necessity to an insurer, sometimes failing to demonstrate medical necessity, and other times making up events that support medical necessity. If diagnosis is your Achilles’ heel, then take advantage of AI but remember its limits. AI learns from a vast range of sources, not just from pages of the DSM-5-TR. If you have ever seen a website misstating the components of a diagnosis, then so has AI. Given these risks, if you fail to review your note, you are not meeting the standard of care and could find yourself liable for malpractice.

So explore whether AI can help remedy some of your documentation ills, but remember that any remedy can be dangerous when not taken as prescribed. Remember this prescription for using AI with peace of mind: seek legal advice, obtain consent, review and edit, and remember that AI is sometimes your aid but never your cure-all.