In AI mythology, the Titans and Cassandras of tech are slugging it out in the godlike realms of the ‘broligarchy’, over who should regulate the digital sector. Meanwhile, online therapy platforms act as intermediaries between therapists and consumers in the sector of therapeutic e-commerce, heroically winning the battle for mental health on the basis that in this era of platform capitalism, size always matters.
The rise of digital therapy platforms
Digital therapy is a broad term incorporating different therapeutic interventions such as teletherapy, text-based services and AI chatbots. Some of these will involve contact with human therapists, and some with a growing sector of non-clinical digital workers, both of whom will increasingly work for online therapy platforms. Some interventions – such as via AI chatbots and the growing market of mental health apps and self-guided support – will involve no humans at all. Despite current concerns about ‘AI psychosis’ and the need to regulate therapy chatbots, the lack of clarity about who and what you are relating to in the digital consulting room involves a technological sleight of hand that blurs the lines around what counts as real therapy.
When regulation finally caught up
In February 2024, we saw the first of what are likely to be many legal test cases in relation to regulating online therapy platforms in the UK. BBC Radio 4’s File on 4 programme, looking at digital providers of large-scale employee assistance programmes (EAPs), provided an in-depth examination of the risks of digital therapy. The reporter interviewed users and platform therapists, including me, talking about what I’ve called ‘attrition by design’, a theme I later explored in my book UberTherapy. Although just a radio programme, it was enough to trigger an investigation into a specific online therapy platform and to push the largest professional body to suspend it pending investigation, kickstarting the next generation of attempts to regulate the digital therapy sector in the UK.
Regulating digital therapy is not only necessary to protect the safety of consumers, but it should also offer parallel protection for the practitioners they are working with. This is formulated as the principle that free association (the ability to say what is on our minds) is tied to freedom of association for the practitioner (a core human right for workers to associate freely with other workers to build their collective and bargaining strength).
We have already entered a sustained period of regulatory development in the area of platform work, such as the EU directive on platform work, while also witnessing the growth in collective legal cases designed to extend employers’ responsibilities and duties of care towards platform workers. Much of this regulatory work looks at material harms – such as wage theft and ‘robofiring’ – but increasingly considers ‘non-material’ harms, such as the impact of platform work, specifically algorithmic control, on workers’ mental health. Much of the regulation of platform work relies on the extension of existing and relatively strong occupational health and safety (OHSE) rules, and the existence of trade unions in key countries and sectors to enforce regulation. Traditional OHSE mechanisms must now be extended to include algorithmic harms and the rising mental distress linked to platform work – a framework I call AI-Mental Health & Safety (AI-MHS).
A new era for digital consumer protection
A parallel regulatory process is underway for consumers of digital products, setting legal responsibilities and penalties when consumer products fail, with particular reference to platform ‘intermediaries’ within the e-commerce sector. In the UK, in addition to the introduction of the Online Safety Bill, we have also seen the introduction of the Digital Markets, Competition and Consumers Act 2024 (DMCCA), which articulates digital providers’ duties of care, restricting unfair commercial practices and increasing enforcement to allow penalties of up to ten per cent of global annual turnover, extending consumer rights to subscriptions next year. Running alongside these regulatory developments are important consumer group actions that operationalise corporate responsibility, often focused on consumer safety.
These legal precedents, increasingly targeting digital health providers, are premised on the important idea that it will be through the development of e-commercial consumer protections that we will see the development of regulation across the internet. This extension in law to digital therapy providers’ duties of care offers significant redress for their consumers who profoundly understand the risks and harms involved in the gap between what is advertised and what is being sold as digital therapy.
As it stands now, only two per cent of mental health apps can produce research evidence to support their use, and it is in this unregulated system of digital therapy e-commerce that we are likely to see the greatest traction in generating regulation. Decades of sustainability in practice in other sectors, and the current legal cases in the area of digital therapy, indicate that space is emerging for the creation of a series of digital therapy kite marks and fairtrade labels that recognise the interlock between practitioner and consumer protections and develop regulatory tools for AI-MHS on both sides of the therapeutic relationship.
This is not to say that AI and digital technologies are bad things, just that they come with a lot of financial and ideological baggage.
Elizabeth Cotton is Associate Professor of Responsible Business at the University of Leicester and the founder of Surviving Work, which carries out socially engaged research about mental health and its relationship to work and The Digital Therapy Project with UK and US practitioners and researchers. She has worked extensively with health teams and trade unions and has been a psychotherapist in the NHS.
UberTherapy by Elizabeth Cotton is available on the Bristol University Press website. Order here for £19.99.
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