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AI Scribe Client Consent in Therapy: What to Cover, When to Ask, and How to Document It

Published 2026-10-19 · Last updated 2026-10-19

Changelog
  • 2026-10-19: Published.

An AI scribe listens to some of the most private conversations a person ever has. Before one runs in your office or telehealth room, the client should know it is there, understand what happens to their words, and have a real chance to say no. Here is what the rules and guidance say, and how to build a process that holds up.

HIPAA is not the whole answer

HIPAA lets a covered provider ask for consent to use health information for treatment, payment, and operations, but it makes that consent optional [1]. The vendor's side is the business associate agreement, covered in our HIPAA and BAA guide. Client consent comes from other places.

The first is professional ethics. The American Psychological Association (APA) Ethics Code says psychologists obtain permission from everyone they serve before recording their voices or images [2]. The ACA Code says counselors get client permission before recording sessions [3]; ACA says the 2014 code is still current [4]. The NASW Code says social workers obtain informed consent before audio or video recording clients [5].

Guidance written for AI scribes goes further. APA's December 2025 scribe guidance tells clinicians to build an informed consent process and documentation policy, and to make clear the tool is optional and that a client can opt out later [6]. A July 2026 resource document from the American Psychiatric Association says patients should be told about AI scribes and offered an opt-out, and that consent should be documented and obtained for each use [7].

State recording laws

California makes it a crime to intentionally record a confidential communication without the consent of all parties [8]. The Reporters Committee for Freedom of the Press lists 11 states that require all parties' consent and four more that do for either in-person conversations or phone calls [9]. Legal summaries do not always agree on the list, so check your own state.

Some states now regulate AI in therapy directly. Illinois requires non-physician therapy professionals to give written notice that AI will be used and why, and to get written, revocable consent, before AI supports a recorded or transcribed session. Accepting broad terms of use does not count [10]. Our adoption roundup covers that law. California's SB 903, vetoed on September 30, 2026 [11], would have required consent before AI recorded or transcribed psychotherapy [12].

Telehealth across state lines

When participants are in different states, the Reporters Committee advises assuming the stricter law applies, and notes that courts differ on whether the recorder's or the recorded person's location controls [9]. California's Supreme Court held that California's law could govern calls recorded in Georgia with California clients, at least going forward [13]. The NASW Code also asks social workers using technology to verify the client's location [5]. Confirm where the client is at each telehealth session, and apply the strictest standard to everyone.

A good consent covers:

  • That AI is used, and why. Name the tool and its purpose [10][14].
  • What is captured. Audio recording and real-time transcription are different. APA notes that even real-time tools usually save a temporary audio file [6].
  • Where data goes and how long it stays. The vendor, whether audio and transcripts are kept, and when they are deleted [6]. Terms vary by vendor; see the BAA guide.
  • Model training. Whether any data, including de-identified data, trains models. Some vendors make this opt-in and others opt-out [6]. Keep it a separate checkbox.
  • Clinician review. You review and edit every draft before it enters the record [6].
  • The right to say no. Say plainly that declining will not change their care, and tell them whom to contact to withdraw [14]. Some vendors offer a dictation mode for clients who decline recording (vendor-reported) [15][16].

Tell clients where the note will end up. HIPAA gives extra protection to "psychotherapy notes," meaning a therapist's private session notes kept apart from the main medical record [17]. Sharing those usually needs the client's specific written permission [18]. An AI scribe's note that goes straight into the regular chart usually doesn't get that extra protection, so clients should know their session summary will sit in the same record other providers and insurers may see.

Clients care about the details

In a 2025 study at one academic health center, 81.6% of 103 patients consented after a basic explanation, but only 55.3% did when details about AI features, data storage, and corporate involvement were disclosed. Most (59.2%) did not want their data shared with the vendor, and 35% said they would censor what they said about mental health [19]. A survey of 12,153 Canadian adults found 61.8% reluctant about future AI scribe use, and only 28.3% aware of AI scribe use [20]. Neither study focused on therapy. The answer is not less detail: consent that holds only when details are left out is not informed.

When to ask, and when to ask again

Ask at intake, before the first recorded session. The APA code calls for discussing confidentiality at the outset and again as new circumstances warrant [2], and NASW asks for consent before technology-based services begin [5]. A new vendor, a change in what is captured, or new retention or training terms is a new circumstance, so ask again. Given the psychiatric guidance on consent for each use [7], add a short spoken check at the start of sessions.

For people who cannot legally consent, the APA code calls for an explanation, the person's assent, and permission from a legally authorized person where the law allows it [2]. APA's scribe guidance asks for a process covering parents or guardians plus the client's assent [6]. HHS notes that parents are usually a minor's personal representative under HIPAA, but state law sets the age at which minors can consent to some care [21].

Couples, family, and group sessions

The APA code calls for permission from everyone served before recording [2], and California's law speaks of all parties [8]. In joint sessions, clarify roles and limits of confidentiality at the outset [2]. Ask everyone in the room; if one person declines, skip the scribe that session.

Substance use disorder records

Federally assisted SUD programs fall under 42 CFR Part 2, whose written consent forms have required elements [22]. Part 2 generally bars sharing records without written consent, and compliance with the 2024 rule was required by February 16, 2026 [23]. Some vendors publish Part 2 consent templates (vendor-reported) [15][16]. Our buyer checklist has the Part 2 question to bring to a demo.

Keep a signed or electronic consent in the chart, separate from general intake terms. Flag opt-outs where staff will see them, so the tool is not started by habit. When a client withdraws, record the date and confirm with the vendor what happens to anything already captured.

This article is general information, not legal advice. Check your state's recording and AI laws and your licensing board's rules, and consider a health care attorney, as APA also suggests [6].

Sources

  1. 45 CFR 164.506, Uses and disclosures to carry out treatment, payment, or health care operations. Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/cfr/text/45/164.506 (opened 2026-10-19)
  2. Ethical Principles of Psychologists and Code of Conduct (2002, amended effective 2010 and 2017), Standards 3.10, 4.02, 4.03, 10.02, 10.03. American Psychological Association. https://www.apa.org/ethics/code/ethics-code-2017.pdf (opened 2026-10-19)
  3. 2014 ACA Code of Ethics, Standard B.6.c, Permission to Record. American Counseling Association. https://www.counseling.org/docs/default-source/default-document-library/ethics/2014-aca-code-of-ethics.pdf (opened 2026-10-19)
  4. Ethics (ACA Code of Ethics resources page). American Counseling Association. https://www.counseling.org/resources/ethics (opened 2026-10-19)
  5. NASW Code of Ethics, Standard 1.03 Informed Consent. National Association of Social Workers. https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English/Social-Workers-Ethical-Responsibilities-to-Clients (opened 2026-10-19)
  6. Guidance for the Evaluation of AI Scribes (Office of Health Care Innovation, December 2025). American Psychological Association. https://www.apa.org/topics/artificial-intelligence-machine-learning/evaluating-ai-scribes.pdf (opened 2026-10-19)
  7. Resource Document on Artificial Intelligence in Psychiatric Practice (approved by the Joint Reference Committee, July 2026). American Psychiatric Association. https://www.psychiatry.org/getattachment/162a6743-6035-4f44-8f41-18f030044a99/RD-AI-in-Psychiatric-Care.pdf (opened 2026-10-19)
  8. California Penal Code Section 632. Justia (2025 California Code). https://law.justia.com/codes/california/code-pen/part-1/title-15/chapter-1-5/section-632/ (opened 2026-10-19)
  9. Introduction to the Reporter's Recording Guide. Reporters Committee for Freedom of the Press. https://www.rcfp.org/introduction-to-reporters-recording-guide/ (opened 2026-10-19)
  10. Public Act 104-0054, Wellness and Oversight for Psychological Resources Act (HB1806). Illinois General Assembly. https://www.ilga.gov/Legislation/PublicActs/PrinterFriendly/104-0054 (opened 2026-10-19)
  11. "Newsom vetoes 'overly broad' California bill limiting AI, chatbots in therapy" (Oct 1, 2026). The Sacramento Bee. https://www.sacbee.com/news/politics-government/capitol-alert/article317462909.html (opened 2026-10-19)
  12. SB 903: Mental health professionals: artificial intelligence (enrolled text and status). GovBuddy. https://www.govbuddy.com/california/bills/sb-903/ (opened 2026-10-19)
  13. Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006). California Supreme Court Resources, Stanford Law School. https://scocal.stanford.edu/opinion/kearney-v-salomon-smith-barney-33656 (opened 2026-10-19)
  14. Ethical Guidance for AI in the Professional Practice of Health Service Psychology (June 2025, updated July 2025). American Psychological Association. https://www.apa.org/topics/artificial-intelligence-machine-learning/ethical-guidance-professional-practice.pdf (opened 2026-10-19)
  15. "AI therapy note consent form: what to include, with a template" (vendor blog). Upheal. https://www.upheal.io/blog/ai-therapy-note-consent-form (opened 2026-10-19)
  16. "Free client consent forms for therapists" (vendor page). Mentalyc. https://www.mentalyc.com/client-consent (opened 2026-10-19)
  17. 45 CFR 164.501, Definitions (psychotherapy notes). Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/cfr/text/45/164.501 (opened 2026-10-19)
  18. 45 CFR 164.508(a)(2), Authorization required: Psychotherapy notes. Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/cfr/text/45/164.508 (opened 2026-10-19)
  19. Lawrence K, et al. "Informed Consent for Ambient Documentation Using Generative AI in Ambulatory Care." JAMA Network Open (2025). PubMed Central. https://pmc.ncbi.nlm.nih.gov/articles/PMC12284739/ (opened 2026-10-19)
  20. Chandrasekaran R, Moustakas E. "Patient attitudes toward ambient artificial intelligence scribes in clinical care: insights from a cross-sectional study." Journal of the American Medical Informatics Association. https://doi.org/10.1093/jamia/ocaf218 (abstract opened via Europe PMC 2026-10-19)
  21. Information Related to Mental and Behavioral Health, including Opioid Overdose. U.S. Department of Health and Human Services, Office for Civil Rights. https://www.hhs.gov/hipaa/for-professionals/special-topics/mental-health/index.html (opened 2026-10-19)
  22. 42 CFR 2.31, Consent requirements. Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/cfr/text/42/2.31 (opened 2026-10-19)
  23. Understanding Confidentiality of Substance Use Disorder (SUD) Patient Records or "Part 2." U.S. Department of Health and Human Services. https://www.hhs.gov/hipaa/part-2/index.html (opened 2026-10-19)

Who curates this site

Curated by a practicing, board-certified psychiatrist, not named to avoid conflicts. From the site data: 15 vendors tracked, 181 distinct external source pages linked, last full re-check of vendor facts 2026-10-13. How we work · Editorial policy.