Further Clarity on the Meaning of the Controlled Act of Psychotherapy from HPRAC

The controlled act of psychotherapy was proclaimed in force on December 31, 2017. As we discussed in a blog post earlier this year, although the controlled act of psychotherapy is defined in the Regulated Health Professions Act, 1991 (“RHPA”), it is difficult to identify exactly what type of therapy might meet this definition, as it involves multiple and complex elements.Last summer, the Minister of Health and Long-Term Care asked the Health Professions Regulatory Advisory Council (“HPRAC”) to provide clarity on the meaning of the controlled act of psychotherapy. A final report was submitted to the Minister on November 1, 2017 and released to the public on March 5, 2018. At the same time, HPRAC publicly released an Alternative Clarification Document regarding the controlled act of psychotherapy (the “Clarification Document”). In this blog post, we summarize the guidance set out in the Clarification Document, including what is and what is not considered the controlled act of psychotherapy.

What is the Controlled Act of Psychotherapy?

The controlled act of psychotherapy is defined in section 7(12) of the RHPA as follows:Treating, by means of a psychotherapy technique, delivered through a therapeutic relationship, an individual’s serious disorder of thought, cognition, mood, emotional regulation, perception or memory that may seriously impair the individual’s judgment, insight, behaviour, communication or social functioning.

As noted at the outset of the Guide, the controlled act of psychotherapy is the only one of 14 controlled acts set out in the RHPA that is defined by a narrative as opposed to an observable description of a procedure. This makes it particularly difficult to understand what activities are captured by this definition.

HPRAC draws a clear distinction in the Guide between psychotherapy and the controlled act of psychotherapy, noting that the controlled act of psychotherapy is a smaller aspect of the overall practice of psychotherapy. According to the Guide, psychotherapy involves communication between a client and a health care provider that helps the client: (a) find relief from mental health concerns, (b) find solutions to problems in their life, and (c) change the ways of thinking and acting that are preventing them from working productively, functioning in their daily living, and enjoying personal relationships. There are several different treatment models and psychotherapy techniques that are employed by health care providers, but it is recognized that most are time-limited and goal-focused. Furthermore, it is acknowledged in the Guide that psychotherapy could be complemented by other therapies, such as medication and counselling.

The Guide notes that although many regulated and unregulated health care providers employ psychotherapy techniques in their practices, a specified set of conditions that define a strong therapeutic relationship must exist for the controlled act of psychotherapy to be performed. Interestingly, HPRAC comments in the Guide that the exemption set out in the RHPA for emergency situations may not apply to the controlled act of psychotherapy because of the requirement for a sustained therapeutic relationship. The RHPA exemption provides that the performance of a controlled act by a person who is not authorized to do so under a health profession Act or through delegation will not be in breach of the RHPA if the act is done in the course of rendering first aid or temporary assistance in an emergency.

The Guide establishes four steps that must be present in order for the controlled act of psychotherapy to be performed:

1. Determining that an individual has a mental health impairment that is affecting the individual’s judgement, perception, and actions

2. Determining that psychotherapy could improve the client’s mental health impairment

3. Establishing a therapeutic relationship between the client and provider

4. Receiving treatment by means of a psychotherapy technique

Further clarification and examples of what the client and the health care provider should expect and/or do under each of these four steps is provided in the Guide. Below, we provide a brief summary of these examples and clarification, but we recommend that you refer to the Guide directly for complete information.

Step 1: Determining that an Individual has a Mental Health Impairment

As set out in the Guide, the first step toward receiving psychotherapy, which may lead into the controlled act of psychotherapy, is the insight by the client that their present mental health condition (disorder of thought, cognition, mood, emotional regulation, perception, or memory, etc.) is affecting their life in some way, such as impacting their judgement, insight, action, communication, or connection with others.

The provider may hear or observe that the client is experiencing mental health impairments that are having negative impacts on the client’s day to day life. Using their judgement and understanding of the situation, along with input from the client, the provider will decide whether the client requires additional support or treatment and may:

• Continue to provide emotional and/or other supports to the client and monitor their progress

• Conduct further assessments to determine options for next steps

• Refer the client to a regulated provider who practices psychotherapy

Step 2: Determining that Psychotherapy Could Improve the Client’s Mental Health Impairment and Functioning

At this stage, the provider would conduct assessments and/or diagnose the client. This would be done based on the provider’s scope of practice and using the tools commonly employed in their profession in order to determine whether the client would benefit from psychotherapy, and specifically the controlled act of psychotherapy. The results of the assessment and/or the diagnosis would be shared with the client and the provider will discuss with the client a recommendation for next steps, including that the client receive psychotherapy.

Step 3: Establishing a Therapeutic Relationship Between the Client and a Provider: The Controlled Act of Psychotherapy

The controlled act of psychotherapy occurs when a therapeutic relationship, which includes psychotherapy, is established between the client and the health care provider. The primary goal of this therapeutic relationship must be amelioration of the client’s mental health.

According to the Guide, in order to be considered to be performing the controlled act of psychotherapy, a provider must deliver psychotherapy to a client through a therapeutic relationship that includes all of the following elements:

1. The client’s full understanding of, and commitment to, the expectations and obligations of the proposed treatment plan

2. The client’s informed consent to treatment

3. Development and execution of a treatment plan

4. Re-evaluation of the treatment plan

5. Conclusion of the treating relationship

The provider is expected to educate the client on what psychotherapy is, what the psychotherapy technique(s) used will entail, and the expectations for the client’s involvement in the therapy in order to make the treatment as successful as possible. The provider is also expected to advise the client that they may continue current supportive relationships with other providers, in addition to receiving psychotherapy.

Step 4: Receiving Treatment by Means of Psychotherapy Technique

According to HPRAC, there are many psychotherapy techniques, but only four broad treatment models, which include: (1) cognitive/behavioural; (2) psychodynamic; (3) strategic/systems; and (4) experiential. Each provider is trained in specific psychotherapy techniques and tend to focus their experience within particular groups of techniques. The provider will work with the client to explain the psychotherapy technique(s) that is/are most likely, in their judgement, to best ameliorate the mental health condition of the client. The Guide states that the explanation should address the following:

• what psychotherapy techniques can be provided;

• the rationale for recommending this/these particular psychotherapy technique(s) over others;

• what the psychotherapy technique(s) entail(s)

• the anticipated results of this/these psychotherapy technique(s) to improve the client’s mental health condition; and

• other types of treatments that could be considered in combination with this/these psychotherapy technique(s).

What is Not the Controlled Act of Psychotherapy?

In the Guide, HPRAC also distinguishes the controlled act of psychotherapy from coaching, counselling and crisis management. Each of these terms is defined in the Guide.

• Coaching: partnering with clients in a thought-provoking and creative process that inspires them to maximize their personal and professional potential. Coaching supports personal growth based on self-initiated change in pursuit of specific, actionable outcomes.

• Counselling: an episodic encounter limited to providing assistance and support after making a preliminary assessment regarding a mental health concern to help a patient develop a follow-up plan involving linkages to community agencies or support networks. Note that counselling may include the controlled act of psychotherapy but this is not necessary.

• Crisis Management: an interaction usually focused first on addressing the crisis; the therapeutic relationship is shorter term and the impairment is addressed once the person has stabilized.

According to HPRAC, the controlled act of psychotherapy does not apply to counselling, coaching, or crisis management/intervention, or to the following activities:

• motivational interviewing;

• information/advice and knowledge transfer;

• spiritual or faith guidance;

• rehabilitation aimed at helping an individual deal with symptoms of a medical illness;

• clinical follow-up;

• family counselling (including of family members); and

• psychological education intended to teach skills.

The Guide also indicates that the controlled act of psychotherapy does not apply in the following scenarios:

• Regulated or unregulated providers providing information, encouragement, advice or instructions about emotional, social, educational or spiritual matters where the goal in the relationship with the client is to provide support, information, and choices to the client for follow-up plans (this would include first point of contact after a mental health crisis following a traumatic event).

• Interactions where the primary goal is improvement for a client who does not have significant impairments such as a disorder of thought, cognition, mood, perception, emotional regulation, or memory that could negatively affect the client’s judgement, insight, behaviour, communication or social functioning.

• Interactions that do not include a defined treatment plan and implementation of a psychotherapeutic technique and a therapeutic relationship.

Need More Information?

While the Guide provides some much-needed clarity and will no doubt be of assistance to clients and providers moving forward, every scenario is different, and the different context and factors involved in each individual scenario may make it difficult in certain cases to determine whether or not the controlled act of psychotherapy is being performed.

Please contact us for more information regarding the interpretation of the controlled act of psychotherapy or for assistance in determining how the law regarding psychotherapy applies to your practice. This is especially important for non-registered practitioners offering various forms of “therapy” or mental health treatment, as these practitioners or their employers/agencies may be at  risk of contravening the legislation in the delivery of service or in the description of services to clients.