Using AI in therapy and other legal questions with Clare Veal from Aubergine Legal

Welcome to The Business of Psychology podcast. Today I'm here with friend of the podcast, and the lawyer who is behind all of our amazing legal documents and legal training that we have in Psychology Business School, Clare Veal from Aubergine Legal. This episode is really a bit of an update following on from our previous podcast episode on Data Protection, and we're going to be talking a bit about AI and covering off some of those common questions that we still get asked.

Full show notes and a transcript of this episode are available at The Business of Psychology

Episode Links:

Episode 146: Data Protection for Psychologists in 2024 with Clare Veal

Packs:

Legal Essentials: Contracts, Policies and Processes

Legal essentials for working with children and young people in independent practice

The Business Growth Pack

Links for Clare:

Website: www.auberginelegal.co.uk

LinkedIn: ​​Clare Veal

Facebook: Aubergine Legal

Aubergine Legal: AI Compliance Checklist for Healthcare Professionals

Links for Rosie:

Substack: substack.com/@drrosie

Rosie on Instagram:

@rosiegilderthorp

@thepregnancypsychologist

The highlights

• I introduce Clare and explain that this podcast will answer some of the questions that get asked of us covering AI and other legal questions 00:00
• We discuss the legal aspects of using AI in our practices 02:54
• Clare talks about whether we should trademark, and how to got about it if we do 23:18
• We look at what we need to do if we're using another author's work in our own online course or book or live training 31:18
• Clare talks us through the additional information we need to provide for working with children 41:03

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SPEAKERS

Rosie Gilderthorp, Clare Veal

Hello and welcome to the Business of Psychology podcast. Today I'm here with friend of the podcast, and the lawyer who is behind all of our amazing legal documents and legal training that we have in Psychology Business School, and that is Clare Veal from Aubergine Legal. Welcome back Clare.

Hi. Thanks for, thanks for inviting me back. It's great to be here and to be chatting to everyone today.

So what we decided to do with today's podcast is answer some of the questions that come into my inbox and get asked of us when we are doing training with psychologists and therapists that we think actually, we need to do a bit of updating from our previous podcast episode and get them covered off. So there is a really in-depth podcast episode with Clare, which I think came out in May 2024, all about data protection. So if you want a deep dive on what GDPR means and what you need to do to keep your client data safe, do go back and listen to that episode. This episode is really a bit of an update, we're going to be talking a bit about AI today and I'm going to be covering off some of those common questions that we still get asked. Just before we dive into the questions, I also wanted to mention, if you are struggling with the legal aspects of your practice at all, if you're listening to this today and feeling the anxiety rising because you haven't got your contracts covered off or you don't have the policies that you need, thanks to Clare, we have absolutely got you covered in Psychology Business School. We now have three packs of amazing legal documents for whatever stage of your practice you are at. We've got our Essentials Pack, which frankly, all of us need. We've got the Child Pack, which helps you to get the right policies and contracts in place when you're working with children and young people. And we've also got our Business Growth Pack for all of those extra things like working with organisations, developing digital products, and all those things that you might want to start doing when your practice goes beyond just you in a therapy room. So I just wanted to mention that before we get started, because I know some people will start listening to this and start to feel really anxious. You don't need to. We've got you covered. Head over to psychologybusinessschool.com and you'll find all of our packs there. But hello and welcome today Clare, because I'm so excited to ask you some of these questions that we get asked a lot at the moment, and I am never sure of the answer frankly. So it's great to have you here.

No, no. It's great to be here and you know, I'm always available if people have random legal queries, I'm just at the end of an email or the phone. So, yeah, never be shy in asking, most questions can be answered quite quickly, it's better to ask than to worry, so yeah, happy to help.

Yeah, I completely agree. So let's kick off then with the one that I know a lot of people are thinking about at the moment, and that's about AI. So a lot of us have started using these AI note takers for our clinical sessions. So I use Heidi, really love it; it's saving so much time. I've got one of the founders coming on the podcast soon, so will be able to talk to them about how that business model works and any concerns we might have about that. But AI was something which we felt we needed to update our legal packs and our legal documents to incorporate, and when we did that, which I was very grateful for you, for doing. I put out an email explaining to everybody that we'd put these new clauses in and I actually got quite a few emails back saying, well, why do we need new clauses for these AI tools, because they don't store data? I was wondering if we could talk a bit about why we felt we did need those clauses and why they're important to have in our legal documents.

Okay. Yeah, I mean, this is such a hot topic, and there's a lot to say here. We probably could talk a long time, but I'm just going to pick out the main points that people need to think about. So the first thing to think about is, well, number one, at the moment in the UK there is no AI legislation. So, first of all, don't panic, but there is a piece of legislation in the EU which affects EU member states, but obviously the UK is no longer a member state. But if you are providing any services to somebody who lives in one of the member states, then you do have to comply with that EU AI Act. The second thing is, is that the UK is likely to follow the EU at some point. So we're just sort of getting ourselves ready for when the UK inevitably brings in some legislation or regulations around AI. But also, even though at the moment the UK doesn't have a specific piece of legislation for AI. It does have the data protection legislation. So a lot of the bits and pieces that I'm going to talk about with respect to AI is because of the data protection laws that we have to comply with here in the, in the UK, which mainly is about being transparent with people and telling people what you're going to be doing with their data, especially if it's their health data.

Yes, that's the reason. Just to pick up on that, that’s the reason that even if there wasn't legislation telling me I had to, I would still want to have this in my therapy terms and conditions. Because people should understand what we are doing with their data. I would want that for myself, and so that is the experience that I want to give my clients.

Yeah. It's not just about being transparent, but it's also being ethical and just being, doing the right thing. So even though there's no strict legal requirement in the UK for AI at the moment, there is this ethical kind of feeling behind it all. But also there is the laws which relate to data protection and privacy, which do say you have to be transparent with your clients and the people you're collecting data about. So, on that basis, if you are collecting health data about somebody, so for example, if you're using Heidi and you're switching that on in a therapy session, you are collecting health data about somebody and you're sharing it with the AI platform because it's transcribing it. So just for that purpose alone, you have to, under UK data protection laws, tell your clients what's going on. But before you actually tell them about what's going on, there's a few things you have to do before that. So first of all, you know, the first thing you need to do if you're thinking about using an AI tool within your healthcare practice is you need to carry out a DPIA. What's that? You might ask. Well, that's a…

I would ask.

It is a bit of a mouthful. It's a data protection impact assessment. Now under UK data protection laws, there is a requirement that you have to complete one of these if you are going to be using AI, you know, for special category data, which is health data, so yes, you're doing that. And also if you're going to be implementing a new piece of technology within your practice, which is going to be involved with health data, then that's another reason why you have to carry out this DPIA. But basically, don't worry too much because it is essentially a form filling exercise. And it's an internal document that you will keep within your practice. You don't need to share it with clients or anybody, but it's something that you have to do, and basically by filling in this DPIA form, you can work out whether the use of that AI tool within your practice is all okay from a privacy perspective. By answering the questions you'll be creating an early warning system for yourself to identify any risks that that AI system might have. It will kind of focus your mind on what you should be doing, because it is health data, you have to be extra careful, and so by completing this DPIA, working out whether there's any risk, what steps you need to take, you'll be protecting your reputation as a practice. You're doing things properly. And also if the ICO ever come knocking and want to sort of check, you know, do an audit on your practice, you can show them that you've done this, which is a legal requirement, and that you've covered off the risks and you are using ID or you know, any other AI tool responsibly and that you are making sure that your client's data is, is protected. So that's the first thing you need to do.

Just to check, is this a formal, templated thing?

So the DPIA, sorry, the ICO do have templates on their website, but they're very generic ones. You know, you can, you can complete a DPIA for any type of, sort of data use. I have actually created myself a specific DPIA template for practices using health data and AI tools. So that is available in my shop and I've kind of done the hard work, so you will just literally need to go through and that all the questions have been asked and it, it shouldn't take too long to complete. But yeah, it is kind of like a templated thing that you have to just go through methodically and answer the questions, and it will, by answering those questions, like I said, it will highlight risks if there are any.

Yeah, that sounds really important.

Yeah. But then just to reassure people, you know, the reputable AI providers like Heidi have made sure that in the background that they are complying with all the relevant laws. They're global. They've thought of every, you know, they've looked at each jurisdiction as well. They're not just compliant for the UK. You know, if you have a look on their website, you'll see that they're also ticking all the boxes for like Australia, America, you know, they're, they are reputable and you can trust them. It's more when you are dealing with small, new AI providers who are not that well known, then you might need to do a bit more, a bit more due diligence and checking whether or not they are actually treating data properly in the background, especially if they're transferring data out of the uk, you need to make sure they've got the correct agreements in place for transferring data internationally because in the UK there are laws about that as well that you need to cover off. But like I said, don't worry too much. If you're using someone like Heidi, they've already implemented those transfer documents on your behalf, and so it'll already be set up properly. The big reputable AI tools providers will have like a privacy team. They should have on their website a whole privacy FAQ section, and you can scroll through. You'll know when you are doing your checks, whether a company has been set up properly or not. If you go and scroll through an AI provider's website and there's no FAQs, there's nothing about privacy, that's a massive red flag, it means they're not telling you what's going on, which means it might not be that compliant with, with the laws, so.

Yeah, and I think, you know, we are lucky that when we are talking about AI note takers, we have the option of choosing a company like Heidi, where they have gone to that extra effort. I have to say, the reason that I felt okay to use them is because all of that documentation was easy for me to find, they actually wanted me to find it, and it was laid out in such a way that I could understand it. So I thought they’d been incredibly thoughtful, I could literally select I'm in the UK, and see all the documentation relevant to the UK and they've also been very forthcoming about answering questions. And I know lots of other psychologists in the professional groups I'm in have also been sending them questions and getting answers. And all of that to me puts the ticks in the box to say I'm willing to, you know, use this company. I have had other dealings with other companies that might be very good at marketing, but didn't invest as heavily in that kind of transparency, and I decided that even if they showed me some small print eventually that made me think, okay, maybe they have covered this off, I don't want to work with them, because it's not a priority for them. It's not something they think about at the center of their mission. And so that's not good enough for me. I think we can set quite a high bar.

Yeah, exactly. And like these AI tool provider companies, you know, this is their business collecting data. They should be talking about data. They should be telling you everything about the privacy angle. You know, what's going on with the data they're collecting, how they're using it, where, where is it being stored. These are all the questions that they should be telling you. You are right, you shouldn't have to be digging around for it. So yeah, I suppose do your DPIA, but I suppose the step before that is do your due diligence, have a good look at their website. Make sure that it's all laid out, it's clear, it's easy to find the information because ultimately, you, as a healthcare practice, you are responsible, you are the data controller. You are collecting that data from the individual about their health, it is up to you what you do with it. And if you've chosen a dodgy AI platform provider who's not looking after their data properly, even if they created a data breach, you ultimately, as the data controller, the person originally collecting the data from the individual, is responsible and you are the one that will be fined. And the ICO will take, you know, breaches of data with respect to health and, you know, any type of special category data, more seriously than just a list of someone's name and email address because it's…

Yeah, and just to say as well, I know people have written to me saying, oh well, it's not collecting health data though, because it's just transcribing the session content, and that's not identifiable because we don't typically use names in a session or talk about, you know, somebody's address or date of birth or any of that stuff. And my answer to that is you can't control what they say. So for all you know, you might take great care not to mention any of that stuff, but for all you know, they're going to reel off their address, and then they've been talking the whole time about some medical condition. They might refer to themselves in the third person. You just don't know what's going to come up in that session

Or they might mention something about somebody else. They might mention something about Billy down the road had this, you know, you know them, or they might, you know, inadvertently talk, you know, make reference to where they live, or you just don't know. And on that basis, you know, nine times out of ten, there probably won't be any personal data, nothing identifiable, but that one time when it happens, if you've not set all this up in the background, you are in breach of the data protection laws in the UK, and potentially in the future some AI rules if the UK implements anything. So this is kind of like doing your background sort of steps to make sure that you're compliant and that you're not at risk of any data breaches or any fines from the ICO. And also, like we said at the beginning, just being ethical and transparent. I actually think it's a good thing if somebody, if I do work with a company and they're telling me that they're using this, that, and the other, I like it because I think these people are honest, they're telling me all this information and that's brilliant. They're not hiding stuff from me. And I put more trust in those type of organisations than those who are not. So yeah, I think it’s a good thing. So I suppose going back to your first question, do your due diligence carry out a DPIA, and then if you are collecting or processing health data about people, you'll need to do two other things. You'll need to add some wording into your privacy policy just to explain that you are using some AI tools. This is the type of data that is being collected by the AI tool and what the purpose of that is. And you should probably link, just as best practice, to the privacy policy or the privacy kind of hub section of the AI provider's website so people can find out more information if they want to.

And then also, even though you've got that in your privacy policy, it does no harm to pop it into your therapy T&C's as well, just to let people know when they're signing up for therapy with your practice that this is being used. Again, it's being transparent and ethical, especially because it's health data. And then finally, oh, sorry, there's one more, this is super important. This is probably the most important point of all of this, is that if you are using an AI tool, and you are potentially going to be collecting health data about people via the tools, so if you're using it in the therapy sessions, you definitely need to get explicit consent from your clients before you are switching that on. So you'll need to do one of two things. You can either add a little tick box to your therapy, T&Cs along with your other usual consents, or you can just give them a separate little consent form just about AI if you wanted to make more, you know, give them more information about it. But you definitely need that. And also, obviously if they say no, don't switch it on.

I have to say, so when we started using Heidi in my practice, I verbally talked about it with every client, because, you know, these were people that had signed the T&Cs and the privacy policy before I started implementing it. So although I did get that written consent, I also felt like before I do that, I wanna have a chat and just see, you know, how comfortable are people with this, because I don't want to do it if it's going to make people uncomfortable. And actually I was really surprised by the conversations I had. The vast majority of people were like, yeah, I use Alexa, Alexa's always listening, isn't she? And I was like, well, no, not in my therapy room. I don't use Alexa or Siri or any of the, like, voice control stuff because I wouldn't want that accidentally listening into a client conversation. But it was really, really interesting that the vast majority of my client group were already using AI tools so much that there really wasn't any anxiety from anybody. And my clients probably range in age from kind of mid twenties to mid fifties. So yeah, I found that very interesting and might surprise some people that might be worrying that their clients will be alarmed by this.

I think a lot of people were worried about AI a few years ago when it first became on, you know, came on the scene, but I think people now realise that it's actually very useful and can, you know, help with things, you know, in a sensible way. And I don't think people are so scared that the robots are coming anymore. And I think they just realise that these are just really useful business tools if used properly. So yeah, that's really good to hear that people are welcoming it. Have you had anybody who's not been interested and has asked you?

No, I've not had any pushback at all about it. Yeah, I thought actually that it would be more anxiety provoking for people in an in-person session, because we're all kind of used to people using maybe the Zoom AI or Otter AI or something like that on a video call, and I know there's a Microsoft Teams transcription version that is very commonplace in, you know, a lot of workplaces. So I was expecting that most of my clients might be used to that kind of online version. But for my in-person clients, I thought it might feel really weird that there's just something kind of sitting there listening in the background, but no, I honestly haven't had anybody yet.

That’s amazing. That's good.

Who’d’ve thought that, pre covid, right? When we were all getting really anxious about can we even do therapy online? And now we're like, yeah, sure, there's a robot listening, that's cool.

Yeah, five years later, what's going to happen in the next five years?

Oh geez. Yeah, let's not get too scared by that. But just to say, I love that in the updates to the contracts that you've done for us, I love the fact that it's got the really clear link to the privacy policy of the tool. I think that’s really empowering for people. So if I did have somebody that was anxious, I really like the fact that I can say, hey, look, follow that hyperlink, we're not going to have it on today, but just have a read and see how you feel

after you've kind of read what they've put out there about how they're going to manage your data. Because I found it reassuring, so I'm sure clients that are anxious would too. So I really like that. I like how, I really like how clear it is. And just to say to anyone that is feeling anxious about this, in our legal essentials pack that Clare developed for us, we do have the DPIA and we have all of these updates in the policies where you need to have these clauses about AI. So don't stress. And if you've already got the pack or you've got our legacy pack, we have updated all of the documents in those packs with these new clauses. So you do have the latest version in your Kajabi portal.

Also, just to let you know, on my website, I have a free download, so my website is auberginelegal.co.uk I have a free AI compliance checklist for healthcare practices. I'm wondering, Rosie, whether we should add this actually to your pack, we can do that, you know, to our, to our legal packs, but if people want it now, it is available on my website.

And it's like a, it's a 12 point plan of like the things you need to follow when, when you are about to implement a piece of AI within your practice. It talks about some of the things I've touched on today, and there's a few extra bits in there, so if any of your… but I'm thinking we should add it to the legal packs as well. It's quite new. I only developed it last month, so yeah, I'll share that with you. I dunno if you…

Oh that’s brilliant, thank you, Clare. Yeah, let's put it in the essentials pack and I'll also link to it in the show notes for this episode in your shop so that anyone that doesn’t have the pack can go and get it.

Yeah. It's really user friendly and hopefully it will stop people worrying.

Oh yes, we need to do that. It's all about anxiety management over here.

We don't need to worry about this. But yeah, that's the main bits and bobs on AI.

Yeah, it's fascinating and I can't wait to do the episode with one of the founders of Heidi so that we can really dig into what they’re doing, what their plans are, whether the robots are coming. Very exciting. But okay. Right. That's the legal aspects of AI for today. Something I've seen coming up loads in professional groups recently and also in my inbox, and therefore yours, is about trademarking. I think people want to know typically whether they should try and trademark the name of their practice and if not the name, what is worth trademarking in our businesses?

Okay, so taking a step back, first of all, you don't have to have a trademark, but by having a trademark, it will make your life easier if you want to stop somebody copying your practice, name your branding. If you don't have a trademark and someone copies your practice name or your logo, you have to jump through so many hoops to prove that they're, that somebody, first of all, has copied you, that people are getting confused and they think the other person is you, and you have to prove that you've actually suffered some loss. So you have to prove that people are going to the other people and you've lost revenue. That's quite a lot to prove, and it's expensive. You have to carry out surveys and you have to have a court case and before you know it, you've got a massive headache, massive legal bill, just because of, you know, somebody's copied your name. If you have a trademark on the other hand, and somebody copies you, all you have to do is whip out your trademark certificate and say, stop it, I own this. And you know, nine times out of ten, they can't argue back if you've done your trademark properly. And so therefore you can nip it in the bud. So that's why people get a trademark, just to make life easier. Now, if you've got a brand name or a logo that you don't really care about, you know, is quite generic, you don't really care if someone copies it or, or does a practice name that's similar, then don't bother. You know, a trademark is only if you are wanting to fiercely protect the look and feel and the name of your practice. So that's the first thing to think about. If you have got a practice name that you want to protect and stop other people copying you then have to ask yourself, can I actually trademark this? So there are rules in the UK about things that you can't trademark and what your trademark must have in order for it to get past the trademark examiner at the Intellectual Property Office. The most important thing is, is that your trademark cannot describe your services. So if you were trying to register something really descriptive about therapy, you're not going to get it because you can't, for example, you can't earmark the word therapy, you can't stop everybody else in the UK from not using the word therapy. But if you tie the word therapy with something that's quite distinctive, then you can, so, you know, for example, I'm Aubergine Legal, I've got that as a trademark because Aubergine has nothing to do with law, but I have got the word legal in there, but I couldn't, you know, it wouldn't have been able to get that if I didn't have the, the distinctive elements in front of it. So that's the first thing. So make sure that you’re, there is some kind of distinctive element to your brand name, your practice name that is nothing to do with therapy if you want to trademark.

So would you then, just to think about that kind of use case a bit more, I guess for a therapy practice then, you know, a lot of the time you wouldn't necessarily feel the need to trademark it unless I suppose you were wanting to develop some kind of like national reputation. Would that be it? So like thinking about the, you know, the really big practices, which a lot of us have mixed feelings about, but might have associates all around the country, they're a brand and so they kind of need that name to be trademarked, because if somebody else popped up with the same name, I could definitely see how there would be a lot of confusion. But if I'm just operating in my kind of local area, really my reputation as the kind of sole practitioner in that clinic is what brings me clients, not the brand of the clinic usually. So then it wouldn't be that important.

Yeah, so like, that's a really good example. So therefore, you probably wouldn't care if somebody 300 miles away was using a similar name, would you? Because it's not going to, like, your clients are not going to suddenly go and use somebody 300 miles away. They're coming to use you. You are the, you are the product of your practice. You know, you are the thing that attracts them in. It's not the name, so much, of the practice. Some people, a lot of practitioners will use their name as well within their practice name. Like, you know, there's not going to be somebody else that's going to set themself up as Dr Rosie Gilderthorp is there, I mean, why would someone do that? So like, if that was your practice name, there's no point trademarking that, it's your name. Nobody's going to really copy that unless there's another Rosie Gilderthorp within the country who's a psychologist. Do you see what I mean? But like, if you have like a unique like that, I had, you know, a lot of psychology practices will have spent money on their branding and they would've created a nice cool name. It kind of creates a look, you know, like a feeling and it kind projects an image about their practice. And you know, if they've spent all that money and they've spent a lot of time thinking about what their branding's going to be, they might have created a cool logo, which kind of evokes feelings and values, then yes, definitely protect all of that because somebody might copy it and then it… if somebody is copying your brand or using something similar to you in the same field, you know, for therapy, psychotherapy services, it's going to make your brand, it's going to dilute it, it's going to make your brand not so valuable, especially if the people copying are rubbish.

Yes, that's the problem!

Exactly, it's going to be no good for your reputation if someone's copying you or doing something similar, and it is the same kind of look and feel, and they are just not good people and things are going wrong, it might impact your business, your practice. So, yeah.

And actually thinking about this world of AI that we are now living in, it would be very easy not, not to actually develop a practice that is copying yours, but to develop a website that is very much copying your brand and look and feel. And I can think of a few nefarious reasons that that might happen. So actually, and this seems like a useful additional protection that you could put in place, but it seems like the core question is, do you want people to know you or do you want people to know the brand? And if you want people to get to know the brand and the brand is important, then it needs protecting.

Yeah. And it's really cheap. It's, you only have to pay £170 to the Intellectual Property Office. Obviously they are a government body, so there's no VAT on that, so it is literally just £170. You can apply online. For you guys, it'll be class 44. So every trademark has to be registered against a class of goods or services. So you are a service provider, you're providing psychotherapy services, and that falls within class 44, which is like everything to do with medical services. So yeah, you'd pay £170, you register it in class 44, you fill in the online form, it then goes to the trademark examiner, they will carry out some checks to make sure it's free for use and that there's nobody with a similar mark already, and then it gets advertised for two months in the trademarks journal, which gives people time to object if they want to. If no one objects you then get your certificate. It's a relatively easy process. But, sorry, one thing I didn't mention was if you do want to do a trademark, it's worth doing some of those checks yourself first before you spend the money. Because once you've paid that £170 to the trademark office, if they find a similar mark and say, no, you can't have that, you do not get your £170 back. So you can do some searches on their website and check first.

That’s really good advice.

But the main thing is do your checks, make sure it's not descriptive and just trademark it if you want to fiercely protect it.

Brilliant. So now we've got a bit of a sticky question, but it's one that comes up for me all the time and no one ever likes our answers to it. But I thought let's cover it here and then I've got somewhere that I can link people. So this is around what we need to do if we're using another author's work in our own online course or book or live training. So for example, the one that is brought to me most often is somebody wants to use Paul Gilbert's three circles model from his Compassion Focus Therapy book. What do we need to do, Clare?

Well, first of all, this falls into the realms of copyrights. And so this is like an another area of intellectual property. So copyrights, well first of all, if you're planning on using some extracts from another person's work, so this would be that, then first of all, you should really be getting their prior permission to do so, but you only need to do that if what you are copying is a substantial amount of their work. But that's another kind of conundrum. What does that mean? What does substantial mean? So if you are copying, like it might not be the actual amount, it is more the quality. So you could be copying a small part of somebody's work, but it might be the nub of their theory, and that therefore would be seen under copyright laws as being a substantial amount. So if you're doing that, you need to get prior permission. Whether or not it's a substantial amount or an insubstantial amount, whether or not you need to get their permission or not, you should always be acknowledging them as the owner of the work. Now, I know there are a lot of theories within the psychology world, you can rewrite a theory, you know, you can… the copyright is more about plagiarizing, so it's more about copying word for word or copying like an illustration or a diagram completely. If you are rewriting something or recreating something in your own words, then copyright infringement doesn't apply. But you should still probably acknowledge that this concept has come from the person that develops the theory. The other thing to remember is that copyrights only last, well I say only, it is quite a long time, it lasts for the duration of the author's life plus another 70 years.

That's a long time!

And then, but then after that, it falls away and you can do what you want with it. So for example, George Orwell's 1984 book is no longer protected by copyright because he died in 1950 and so 70 years and more has passed since then, so now you could go and get that book and copy massive chunks and do what you want with it. You know, you could write a poem and put a whole paragraph, you know, from his book in your poem and that would be fine. So that's the other thing. So if there are some really, really old theories, or if somebody wrote a theory and they died quite young and that 70 years has passed, then you can do what you want. But that's, that's like a bit of research. You have to then find out how old the person was when they died and what the year is now.

Yeah, and I think most of the time the people that we’re, you know, inspired to use their work, they're actually still alive and we're still able to talk to them and ask for permission, which is great, but it can take a long time. So I guess my advice on this is if you know that something like the three circles, you want to put into your book or your online course, because you don't want to do it a different way because it's already been done the perfect way, then get that permission early, start that process as soon as you think I'm going to, this is going to be in the book. Because I know that’s really held up publication several times for people I know who've wanted to include particular models that have to look a certain way

books. Can I just ask, does this only apply if what we are creating has commercial benefit?

Or is it equally true for blogs or maybe, you know, free training we are running, if we, if we were doing some teaching for a course, for example?

Yeah, I was just about to say, there's a real commercial point about all of this, so if you are putting it into a book and you're going to be making money from it, it's even more important that you get that permission because you are riding off the back of somebody else's theory and you are, you are making money as a result of the theory that, you know, partly of the theory that they, they created. There are some exceptions within the copyright laws, whereby you do not need to seek permission from the copyright owner. So like you said, if you're providing some training or you're doing some research and you're doing that for free, by the way, you can't do some training and charge £50 and then use it, it has to be free training. So, you know, like, you know, universities, educational establishments, none of those people need to ever get permission from copyright owners. They can do what they want because they're educating. It's all been done for free, although actually that's not technically true, is it?

Yeah, it's not kinda true, because everybody, everybody there is being paid. But the students, no, the students have paid too, haven't they at university.

Yeah, I think there's like an, there's an exception for education, but with training it has to definitely be free. But yeah, if there's no commercial gain, then you can, if you are making money, but even if you are putting some of this stuff into a blog and popping on your website, you are still a business, and that blog is a marketing tool used to, you know, generate traffic to your website, which in turn will result in you getting extra work. I actually think by putting some of these theories into a blog, even though the blog is free, it's still a commercial tool to make money. So I would, even for blogs, get permission.

The way that I've always approached it for blogs, because it does take ages to get these permissions quite often, is usually you'll notice in my blogs, I will rewrite so that I don't need to do that. I very rarely will use somebody else's, you know, model or replicate their theory exactly. I usually will try and get around it by rewriting for a blog, but if it's something which I am going to, you know, use commercially like training that I've sold to organisations or for a book, for example, then I would bother to go and try and get the permission so that I can use it in its best form. And you may not always think that the original author did do it in the best form, but just because we've used Paul Gilbert's example, to me that was really good. And so I don't want to mess with it.

Yeah. So in that case, yeah, you should be getting permission. But yeah, like I said before, if you're only using a small amount and it's not a significant part, it's an insubstantial amount, then you don't need to get that prior permission and you can use. But if it's a, you know, it’s a, the nub of it, it's a large proportion, then yes, you need to get permission. And regardless of whether or not you get permission, get that acknowledgement put in there, and then, yeah, and then just think to yourself, if I'm doing all this for free, I don't need to do any of that. I suppose that's it in summary. It's annoying, but I suppose it's annoying for the person that created the theory if everyone's starting to use it and using it in their business and making money from it, it's annoying for them. So I suppose this is just, these copyright laws are annoying, but they're there to keep the world fair.

Yeah, and most of us will end up on both sides of this at some point. So I think it is just like the spirit actually of data protection law, very much about treating data how you would want yours to be treated, I always apply that with intellectual property as well. It’s like, if I develop something amazing, which I have not done yet, but I might, then how would I want that to be used?

The packs, the legal packs.

Oh yes, of course. Yes, well, they’re certainly high quality intellectual property, and actually I talk about that all the time, often in my inbox or on social media. Those contracts are intellectual property and people should not be copying and pasting other people's contracts for that reason. I get on my soapbox about it regularly.

That’s brilliant, I love the fact you do that.

Yeah, well, I think we have a problem in mental health professionals in general that we don't respect our own work, and that means that we don't respect other people's either. Actually. If we all respect each other's time and effort and skills and, you know, amazing creativity, then we live in a much fairer world where we're not all stealing from each other and then feeling resentful and burnt out and awful. So yeah, I actually think it's really important. And we could record a whole episode on the psychology of all of that. But yeah, just really important, I think, to respect each other's intellectual property. So the final thing I wanted to ask, I'm aware we've only got a couple of minutes, but I just really quickly wanted to ask about special terms and conditions for working with children. Because again I think, you know, sometimes I get in my inbox like, do I actually need anything additional for working with children? Or could, could what I've already got from the essentials pack, for example, be good enough?

So with children, obviously children, there's like a lot, there's a wide age range for children. But the thing you need to be thinking about here, well, like we're harping back to data protection laws now because the ICO have this children's code, which says we need to be transparent to children about consent and what we're doing with their data. It's no good just giving the parents the therapy terms and getting the parents to tick the box. If the child is of a certain age and you know a certain awareness, they know what's going on, they know why they're going to therapy, that you should be telling them in a child friendly way what you are doing, getting their consent and telling them what's happening with their data and what their rights are. And like I said, this needs to be done in a child friendly way. You have to tell them what information you're collecting, what you're doing with it, who you're sharing it with, and what's actually happening to their data. So there's two ways of doing this. First of all, you could give them a child friendly version of your privacy policy or a child friendly set of therapy terms, which will just explain to them in a nice, childlike way how the sessions will be run, how what they share with you is safe, you know, and they can tell you things, confidentiality, you know, in a confidential way. But you would have to explain to them about safeguarding and supervision and all of that kind of stuff. But again, you need to explain it on their language. Then you also need to consider whether the child is gillick competent as well when considering consent. So anyone over 16 years are already deemed to be able to consent by themselves. Anybody under 16 can also consent if they are gillick competent. If they're not gillick competent, then you would need parental consent. I'm assuming that everybody on this podcast will know about gillick, or did you want me to briefly mention?

I think probably people have got a good idea. I think my understanding, I don't work with children, but my understanding of it is basically that it's a quick assessment that you do to work out whether you think somebody is able to fully understand and give informed consent for either the therapy itself, the, you know, intervention that you're offering or for the data protection side of things.

Yes. They need to be able to fully understand and grasp, you know, why the treatment, why the therapy that you are offering is recommended. You know what's going to happen. Do they know the benefits? If there are any risks, do they understand that? Do they know if there's any alternative options? Have they got that mental thought process to be able to grasp all of those concepts? If they have, you know, young, you know, some children as young as seven would be, might be able to grasp all of this. If, you know, some seven year olds are quite mature.

Yeah, and it's not fixed, is it? So when I worked in adult learning disability services, we did a lot of mental capacity assessment and actually you have a responsibility to try and give somebody capacity if you can, through adapting your materials and trying to teach so that they will be able to grasp these concepts with a bit of additional work. And lots of people fall into that category where actually they might not get it if I just, you know, reel it off to them the same way I would someone else, but if I tailor my language or maybe I use some visual supports, then they could make an informed decision about that. And actually in, in work with children, although I don't do it, I do as a mother believe that it will reduce their anxiety about therapy significantly if they feel in control and like they really understand what's happening.

Yes. There's two resources I've created. We've created the Children pack, which has got the child friendly privacy policy in, you know, words. But I've also, just the, it’s actually only finalised a few weeks ago, I've created a video which you can buy and you can, it's unbranded, but it's got graphics, not graphics, but it's got images and sort of, you know, it is got a voiceover, it's got colors and it basically explains to the child, you know, the, you know that they can, they can withdraw their consent for example, if they don't want to have therapy anymore, that's fine if they change their mind. This is what's going to happen during therapy.

It's a safe place. This is what's going to happen to your data, it's going to be kept safe and secure, only shared with people that need to have it. It's a really nice video, which a practice can literally just show to the child. It's about three minutes long, maybe at the beginning of their first therapy session. Then the practice knows they've ticked all their boxes. They've told the child about consent, about confidentiality, what's happening with their data. The child is going to probably trust the therapist more because they've given them this information. I do worry sometimes that some therapy practices just get permission from the parents. What about the child? Does the child actually want this therapy? Do they, like, do they know that they can change their mind? And there might be some kids who are forced along to therapy, for example, and that's not good. You want to be an ethical, you know, friendly open practice, complying with all the laws, giving these children information about what's happening with their data. That can only do…

Absolutely. And we all know that therapy is only effective when the participant actually wants to do it. So I think, yeah, all of this, actually everything we've talked about today, having this stuff in place, it gives your clients a better experience and that will make therapy more effective. So often we think of this as the boring stuff and we are like, oh yeah, we want to do the clinical work. The two things come together. If you are not meeting your legal obligations, then it's very unlikely that you are delivering a good quality clinical experience, because they do really come together.

Yeah. And the legal requirements are there for a reason. It's not just there, just red tape, just to be annoying. It's there to protect individuals and to make sure that everybody's happy and every, you know, everything's done in a proper way, you know. And I, like you said, you know, for example, if a child was presented with some child friendly documents or child friendly video, they're probably going to be more receptive to the therapy and they might actually end up doing more therapy sessions because they trust you. You've built up that trust and they don't feel like there's stuff going on in the background that's going to be negative for them.

Well, thank you so much, Clare, for coming on the podcast again. I'm going to make sure that there's a link to our previous episode for anyone that wants that deep dive on data protection, and also links to all of our amazing packs so that you can get all of this stuff sorted in your practice with minimal efforts, and like maximum confidence thanks to the wonderful Clare. So thank you so much Clare. Really appreciate your time today.

Thank you. No worries.