By Tahlia Harrison
As a practicing therapist in Oregon working with complex trauma survivors, I was optimistic at first about the passage in 2020 of Measure 109 and its promise of legalizing psilocybin-assisted therapy. Psilocybin has been shown in small samples to be an effective intervention for many challenges my clients face; I was excited about this option to further support their healing. As a bioethicist and researcher examining topics related to psychedelic-assisted therapy, and a former faculty member at one of the psilocybin facilitation programs, Measure 109 also brought feelings of trepidation and a flood of questions such as: Would my national associations be amenable to this intervention? Would my liability insurance provide coverage? What about the ethics of engaging clients in a treatment involving a federally illegal substance? What about informed consent and other ethical issues? While the current informed consent form used by facilitators does address some aspects of concern (like the use of touch, 333-333-5040 (9)), it does not address other aspects like suggestibility or power dynamics within the facilitator/client relationship. Additionally, the form states “I understand that psilocybin services do not require medical diagnosis or referral and that psilocybin services are not a medical or clinical treatment,” yet it is reported that many are still seeking this as part of treatment for a medical diagnosis. How do multiple licensures apply to understanding scope of practice? Three years later, many of these questions remain unanswered, and the option of offering psilocybin-assisted therapy remains illegal and off the table.
During the lead-up to the ballot initiative, 109’s chief petitioners (psychotherapists Tom and Sheri Eckert) repeatedly sold the measure as a needed solution for the mental healthcare crisis. In 2019, for instance, Tom stated that voters “should realize what they’re legalizing is ‘psilocybin-assisted therapy,’ rather than wholesale access to the drug,” and that the effort is “specifically focused on treating mental illness in a safe, controlled setting.” Recent headlines continue perpetuating this story, making statements such as “Oregon now offers psilocybin therapy. Here’s what one of the first patients experienced,” “Oregon Issues First Psilocybin Therapy Treatment Center License.”
While the campaign for 109 cultivated a sense among the public that its goals were primarily therapeutic, once the measure passed, the letter of the law was crafted to bar therapy professionals from engaging in this work.
While the original intention may have been to legalize psilocybin-assisted therapy, psilocybin-assisted therapy is not legal in Oregon. In fact, the use of the term “therapy” in the context of measure 109 is specifically outlawed (333-333-1010 (72)). The measure has only legalized “supported adult use,” under a non-medical model where trained and licensed “facilitators” may offer safety and support prior, during, and after a session with a dose of psilocybin.
In short, 109’s creators’ stated intent to make psilocybin therapy accessible to help the growing mental health care crisis has resulted in a policy that doesn’t allow for any of it. This leaves one to wonder who 109 ultimately serves – and if it’s capable in its current form of offering ethical facilitation and equitable access to psilocybin for the mental health community it continues to claim it supports.
Prior to formalizing Measure 109 rules, the board discussed creating two types of licensure which would have certified some facilitators certification to respond to clients with mental health conditions. This was vetoed on grounds that it would be in opposition to their equity and access commitments by leaving less wealthy people to see those with fewer qualifications. Some board members shared legitimate concerns that more vulnerable clients should have access to mental health professionals for psilocybin services. However, it remains unclear what licensing bodies will allow for their members to work with a federally illegal schedule I substance. Furthermore, which licensing body is responsible for any complaint? The Oregon Health Authority, or the therapists governing association? These issues, along with lack of access to liability insurance for facilitators, and tax and banking issues for businesses affiliated with a federally illegal schedule I substance are serious issues yet to be resolved. And while Measure 109’s facilitator code of ethics does address scope of practice and the need to provide referrals, there are ultimately no legal pathways for psilocybin-assisted therapy beyond participating in approved clinical trials, which have access limitations.
Unfortunately, the media, public figures, and local organizations continue to misrepresent Measure 109 in therapeutic terms. Oregon’s own (then-Gov. at passing of 109 initiative) Kate Brown instructed the new psilocybin advisory board to “ensure equitable access to this therapy for anyone who might benefit from treatment.” Healing Maps, an organization created as a “source for individuals looking for accurate and honest information about psychedelic-assisted therapy,” states in big capitals “GOING INTO EFFECT IN EARLY 2023 OREGON HAS APPROVED PSILOCYBIN THERAPY.”
On the front page of the Healing Advocacy Fund (HAF), a 501c3 organization executive directed by Sam Chapman (former campaign manager of 109), states their role as supporting the implementation of Measure 109 in Oregon with “education and advocacy,” with their top priority as establishing “a program that is affordable, accessible, and equitable for all who stand to benefit from psilocybin therapy.” When visiting the HAF web page, one is greeted with the words “A new path for healing for those struggling to heal from depression, anxiety or substance use disorder, psychedelic therapy can offer hope,” as well as links to further information about “the nation’s first regulated psychedelic therapy programs.” Just below it states: “In 2020, Oregon voters approved the nation’s first psilocybin therapy program. In 2023, that program launched, giving Oregonians suffering from depression, anxiety or addiction or approaching the end of their life access to a specific ‘breakthrough therapy’ that has been demonstrated to provide healing and hope.” Chapman identifies professionally as having “served as the Campaign Manager for Measure 109 in Oregon, the law that legalized the first ever psilocybin therapy program in the United States,” and has been quoted speaking of 109 to the media as psilocybin therapy as recently as January 2023.
There are some working towards providing accurate information of the realities of psilocybin services in Oregon, but a deeper question remains: how does one establish and uphold, in a sustainable sense, a law forbidding the use of the term therapy when the service offered was originally sold as therapy, and is often desired as therapy to treat mental health diagnoses?
Further exacerbating ethical issues with 109, some licensed therapists are becoming licensed facilitators, which emphasizes a pressing need to delineate how to practice when you’re explicitly barred from performing therapy during psilocybin facilitation (per OHA, Division 333-333-5130). One facilitator I spoke with in Oregon (who asked to remain anonymous for fear of liability) shared similar concerns:
“how are you going to sell a therapy to the public, naming our state’s mental health crisis, and then make that therapy unavailable to the people whose mental health outcomes affect those statistics?”
A registered therapy associate who recently completed facilitation training (who also asked to remain anonymous) stated that they:
“would love to be a therapist and a registered facilitator but it seems ethically sticky to have clients who are either therapy or facilitation. How do our clients know when you’re being a therapist and when you’re being a facilitator? Clients are confused that I am a therapist and that I cannot give therapy. My clinical therapy supervisor is confused and unsure that they want to associate their license if I practice facilitation, and ultimately folks who are coming in for mental health relief view the psilocybin facilitation experience as therapeutic, which is confusing for the consumer.”
Dave Kopliak of the Emerge Law Group (and one of the original drafters of Measure 109) emphasizes this primary issue of scope of practice by acknowledging that 109 has essentially created a new type of licensed professional; one whose profession has a limited, narrow, and non-medical scope of practice in relation to other mental health care professionals like psychologists, counselors, and therapists. When facilitation is being practiced in its pure, stand-alone form, and not in combination with some other licensed profession, there is little confusion. Though there is no hard data yet on the background of facilitators, the programs at Synaptic Institute, Inner Trek, and Fluence have all had health care professionals as part of their inaugural cohorts. For clients who are not seeking support for mental health distress, the simplicity of stand-alone facilitation is all well and good; however, facilitators and service centers are receiving inquiries from clients who are seeking treatment for mental health diagnoses they are either not allowed or trained to treat, because they cannot employ therapy interventions.
Some multi-licensed facilitators in Oregon like psychologist Lusijah Marx are seeking loopholes to operate legally, opting to use ketamine (federally legal for off-label use to treat depression) over psilocybin to alleviate the worry of federal legal issues and to bill insurance for the therapy aspect of the work.
Of broader concern, psilocybin research itself is still contending with the question of what diagnoses are experiencing positive outcomes and what methods are safe and effective. Despite these uncertainties, the demand for psychedelic-assisted therapy is already here and one of the first patients receiving psilocybin services reported his successful therapeutic outcome. Measure 109 is one reflection of the urgency to offer novel treatments for mental health concerns in the Western medical context. While it is understandable to push to meet these demands as quickly as possible, there is also an ethical imperative to transparently represent exactly what interventions are available. James Corroccio, one of the first recipients of psilocybin services discusses his decision to use psilocybin services to treat his mental health diagnoses and using psilocybin services to treat them. Notably, James is referred to as a patient in an article that is titled with the word therapy, while the journalist simultaneously reports that said system is “not medical.” The issue here is not just unethical and irresponsible reporting; such reporting reflects a system that is inherently unethical to engage with. It is a great disservice to all parties to continue this measure as it stands. Oregon Health Authority has a responsibility to review 109, consider how and by whom it’s being used, and adapt policy accordingly to ensure the safety of all involved.
Tahlia Harrison is a writer, educator, psychotherapist, ethicist, and policy advocate.
