Update on the Case of Wine and Online Therapy

The long-awaited US Supreme Court decision about online direct wine sales to consumers in other states is in. What impact — if any — will the judgement about state authority to restrict interstate online commerce have on mental health practitioners who provide online services to clients in other states, or who operate from other countries?

Just a couple of days after posting a note about the UK-based Mental Health Foundation’s campaign to raise awareness about the mental health benefits of exercise (“Blood, Sweat, NO Tears Virtual Relay Race”), I noticed an announcement about a recent study indicating the effectiveness of exercise as a treatment for depression.

From the press release:

Prozac and its competitors have spawned best-selling books, racked up sales of more than $10 billion annually and reshaped the clinical treatment of depression.

But an altogether different treatment that shows tremendous promise in alleviating depression has gone largely unnoticed. That treatment is exercise. A growing body of medical literature, including at least three 2005 studies, is showing that aerobic routines as well as weight lifting are effective at combating depression. In addition to the famous “runner’s high,” or endorphin surge that provides a temporary mood lift following a workout, the studies show that there is a round-the-clock relief that sets in several weeks after the establishment of a regular exercise routine.

A study in the January issue of the Journal of Preventive Medicine suggested that a half-hour a day of exercise six days a week – which is the amount the federal government recommends for all Americans – might be ideal. Comparing two groups of depressed patients, the study found that the group that performed only 80 minutes of exercise a week received little to no mental-health benefit. But the three-hour-a-week group had a substantial reduction in symptoms. The study concluded “the response and remission rates in the (three-hours-per-week) group are comparable to other depression treatments, such as medication or cognitive behavioral therapy.”

Unfortunately, the role of exercise in fighting depression and promoting mental health in general gets little attention in the mainstream press. In fact, the article goes on:

Interviews with psychiatrists — medical doctors whose specialty is mental health — suggest that some aren’t even aware of the body of literature supporting exercise as a treatment for depression. When the American Psychiatric Association is asked to provide a psychiatric expert on exercise and depression, it recommends James Lake, a California psychiatrist who says he believes his specialty is too narrowly focused on medication.

“Because of collective professional values and financial interests of academic psychiatry, research priorities have almost exclusively targeted psychopharmacology,” says Dr. Lake. However, Dr. Lake points out that the association recently created a committee to research and provide information about alternative therapies, including exercise.

You can read more of the Associated Press article, carried by the American Psychological Association, at this APA page.

Background on the Case and US Mental Health Laws

In our article last December “Online Psychotherapy Practice, a Case of Wine and the US Supreme Court”, we summarized the case being argued about whether a given US state can restrict the freedom of wine merchants in other states to sell wine directly to the residents of the first state. In a nutshell, the case hinges on whether individual states can regulate or prohibit merchants outside their state from doing business with their residents. Although the ‘commerce clause’ of the US Constitution has long reserved for the Federal government the sole right to regulate interstate commerce, in practice both the law and the Constitution have been interpreted as providing several exceptions to this jurisdiction — with alcohol sales being one.

The outcome of the case has been eagerly awaited by the business community, as it could have far-reaching implications for the free trade of goods and services via the internet. Our interest in particular was on how the decision might eventually come to bear on the provision of online therapy and other mental health services. In the US, the provision of mental health services is regulated at the state level. Recently, some states — most notably California — have begun making extraterritorial claims of jurisdiction for their state licensing boards, claiming that in order to practice lawfully, online therapists who provide services to California residents must be licensed by the state of California, even if those therapists are geographically located in other states or other countries. (Again, see our earlier article “Online Psychotherapy Practice, a Case of Wine and the US Supreme Court” for further details of California’s claims to legislate for the entire world.)

Could it be that this decision about selling wine could spell the end for such restrictions on interstate commerce?

The Decision is In: Free Trade Wins

At least with respect to the sales of wine, the US Supreme Court decision is clear: its 5-4 decision declares interstate discrimination unconstitutional and opens the door to online wine sales. “The mere fact of non-residence should not foreclose a producer in one state from access to markets in other states”, wrote Justice Anthony Kennedy in the majority opinion. “States may not enact laws that burden out-of-state producers or shippers simply to give a competitive advantage to in-state businesses”.

The two states specifically involved in the case, New York and Michigan (as well as 30 other state attorneys general, who filed briefs in support), argued that the 21st Amendment (which repealed prohibition) gives states the sole right to regulate alcohol sales within their borders. The court agreed with this interpretation, provided that local laws do not violate interstate commerce laws.

What Does It Mean for Online Mental Health Services?

But while the decision was initially widely lauded as a victory for free trade, and the beginning of the end for other protectionist legislation impeding other areas of interstate ecommerce, it remains to be seen whether this decision will have any real impact on the provision of online mental health services.

For a start, the decision focuses very narrowly on Michigan and New York, and given the tremendous amount of money and control involved — states are worried about losing tax revenues to other states’ merchants — it seems unlikely that state legislatures across the country will be rushing to open their doors to online direct wine sales. (Indeed, Michigan Liquor Control Commission Chairwoman Nida Samona has already asked the state legislature to pass new laws banning all direct shipments of alcohol — since making all such sales illegal would treat in-state and out-of-state merchants exactly the same. New York is planning to allow out-of-state merchants to ship to New York residents, but only up to a certain amount each month.)

But in addition to the narrowness of the actual court decision, there remains the problem of vested interests within the mental health profession who treat state-level regulation not only as a protectionist barrier to competition, but also as a direct endorsement of their professional prestige…

The Real Issue for Online Mental Health?

In my view, it is that desire for professional prestige which stands as the biggest barrier of all to the elimination of state-level interference with the online provision of mental health services.

As I argued in “Online Psychotherapy Practice, a Case of Wine and the US Supreme Court”, an abundance of hard scientific data indicates that the types of factors considered essential for licensing by state-level boards of overseers are virtually irrelevant to the effectiveness of the mental health services provided to consumers. (For an overview of real scientific data about what really does have a bearing on effectiveness, see our review of Hubble, Duncan and Miller.) As I said in that previous article:

If licensing boards were really concerned with consumer protection or clinical effectiveness, I believe they would stop promoting what I consider to be anti-scientific views to the general public. Instead, they would focus on tasks like conducting background checks or evaluating actual effectiveness or even (gasp!) helping to educate the public with real science, ultimately improving consumers’ capacity to make their own well-informed choices. Of course, that would not go down well with a large proportion of their colleagues, who earn their living in part by promoting themselves to the public as ‘fully qualified and state-licensed experts’.

So, we shall see… Initial media reactions to the recent Supreme Court action were enthusiastic, as the decision appeared to open the way to removing all kinds of protectionist legislation restricting interstate ecommerce. But on reflection, I find myself more than a bit dubious that it will have much effect on the practice of online therapy or the online delivery of other mental health services. I find myself even more pessimistic that the licensing and regulation of mental health services in the US will be moving any time soon to a fact-based, empirically sound, scientifically well-informed footing.

But then, I never thought Apple would start building Macs with Intel chips, either — and look how wrong I was about that!

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