RN Collins has written a new series (3) of 18 articles for cannabis law report on 2026 Psychedelics & Legal Issues.

This is the 3rd in the series

Contact RN Collins: https://www.linkedin.com/in/rn-collins/

The Facilitation Relationship: Toward a Tort Framework for Psychedelic Professional Duty in Oregon and Colorado

Special Relationships, Fiduciary Obligations, and Regulatory Standard-of-Care in a New Licensed Professional Context

RN Collins, M.S., JD Candidate

https://www.linkedin.com/in/rn-collins/

Abstract

The emergence of licensed psilocybin service facilitators in Oregon and licensed healing center facilitators in Colorado has created a professional relationship that does not yet have a settled legal name. Existing tort doctrine does not map cleanly onto the facilitator-client relationship: the relationship exhibits characteristics of the therapist-patient relationship, the custodian-ward relationship, and the research-subject-investigator relationship, while simultaneously being disclaimed as medical treatment by the governing statutory and regulatory framework. This article works through the doctrinal frameworks that courts may draw on if and when a facilitator negligence case is filed. No such case has yet been litigated to judgment in either state, and this analysis does not predict a particular outcome; it maps the analytical terrain.

The analysis proceeds through three doctrinal strands. First, it considers whether the Restatement (Second) of Torts § 314A special relationship doctrine could identify custodial characteristics of the facilitation relationship sufficient to give rise to a duty of care. Second, it examines whether the facilitation relationship might constitute a fiduciary relationship under the Restatement (Second) of Torts § 874 analysis and its development in Oregon and Colorado case law. Third, it considers how a regulatory-conduct-as-standard-of-care framework, under which violation of a statute or regulation may constitute negligence per se or at least evidence of negligence, could apply to the specific OAR and CCR obligations that appear to define a floor for the standard of care.

The article identifies three liability categories that may prove significant, contraindication screening failure, session management failure, and boundary violation, and considers the doctrinal framework potentially applicable to each. It addresses the vicarious liability question for service centers that use independent contractor facilitators, the possible post-closure duty to clients in active integration periods, and the differential standard-of-care questions raised by Oregon’s Facilitator pathway as compared with Colorado’s Clinical Facilitator pathway. The article suggests, without certainty, that the special relationship doctrine and the regulatory standard-of-care framework may be sufficient to establish a facilitator’s duty in an eventual case, and that the first litigated matter is likely to have significant influence over how subsequent facilitator conduct is measured, though this too cannot be stated with confidence in advance of any actual litigation.

I. Introduction

Oregon licensed its first psilocybin service facilitators in 2023. Colorado began licensing healing center facilitators in 2024. By June 2026, two states have operational psychedelic service markets and a growing professional category, the licensed psilocybin facilitator, that exists in law but has not yet been defined in tort doctrine. No court has yet articulated the facilitator’s standard of care. No regulatory agency appears to have specified what “reasonable facilitator” conduct requires across the full range of situations the facilitation relationship may generate. No insurance product appears to have been designed specifically around the liability categories this professional relationship could create.

This article works through the doctrinal framework that courts may need to draw on if and when the first facilitator negligence case is filed. The framework is built from existing doctrine, special relationship, fiduciary duty, and regulatory standard-of-care, applied to a professional relationship that appears genuinely novel but does not seem to be beyond the reach of existing analytical tools. The article does not argue for a particular outcome in any specific case, and it should not be read as predicting how a court would rule; it suggests that existing doctrinal tools may be adequate to the task and offers a preliminary account of how each might apply.

Part II maps the regulatory structure of the facilitation relationship in Oregon and Colorado, identifying a disclaimer/duty tension that runs through both frameworks. Part III considers the special relationship doctrine. Part IV examines the fiduciary duty question. Part V develops a possible regulatory standard-of-care framework. Part VI identifies three liability categories that may become significant and applies the doctrinal framework to each. Parts VII and VIII address the Oregon and Colorado comparison. Parts IX through XIII address vicarious liability, confidentiality, insurance considerations, the Colorado Clinical Facilitator, and analogous relationships from which courts might draw. Part XIV concludes with observations addressed to state program designers and regulators, not to legal practitioners advising individual clients.

II. The Regulatory Structure: Disclaimer and Duty

Both Oregon and Colorado’s psychedelic service frameworks share a structural feature that may prove doctrinally significant: they simultaneously disclaim clinical status and impose duties that read as clinically graded. Oregon’s ORS § 475A.305 declares that a psilocybin service center is not a health care facility. OAR 333-333-1010(72) prohibits use of the term “therapy.” OAR 333-333-5130 prohibits facilitators from diagnosing or treating health conditions. Colorado’s 4 CCR 755-1 similarly declares healing center services not to be medical or clinical treatment.

Against these disclaimers, both frameworks impose substantive obligations that could be characterized as clinically graded. Oregon’s OAR 333-333-5120(1) imposes a duty to put the client’s interest above the facilitator’s own and to apply “a standard of care that other reasonable facilitators would use under similar circumstances.” OAR 333-333-5050 mandates screening for psychosis history, family psychosis history, active suicidal ideation with intent or plan, and lithium use. OAR 333-333-5120(4) requires immediate emergency services contact for medical emergencies. OAR 333-333-5120(7) and (10) prohibit boundary violations.

This disclaimer-plus-duty structure may create the central analytical problem for tort doctrine in this area: the facilitator is not a clinician, yet the facilitator’s duty appears to be defined, at least in part, by what a reasonable clinician-adjacent professional would do. Resolving this tension, at least provisionally, is the central aim of this article, though any resolution offered here is necessarily preliminary in the absence of governing case law.

III. The Special Relationship Doctrine

A. Section 314A and Its Categories

The Restatement (Second) of Torts § 314A (1965) provides that certain “special relations” may give rise to a duty to provide aid and protection that ordinary relationships do not. The recognized categories are: common carriers and passengers; innkeepers and guests; possessors of land and invitees; and those who voluntarily take custody of another under circumstances such as to deprive the other of his normal opportunities for protection. The facilitation relationship does not appear to fit cleanly into any of the first three categories, but there may be a reasonable argument that it fits within the fourth: voluntary custody. This is not a conclusion any court has reached, and the argument could be contested.

OAR 333-333-5120(9)’s prohibition on leaving a client unattended during the session when the client is not in a stable condition could be read as a custody provision. It may define the conditions under which the facilitator is not permitted to abandon the client, and by implication, some of the conditions of a possible custodial relationship. The extended duration of psilocybin administration sessions (typically four to eight hours, during which the client is in an altered state and may be physically or psychologically impaired) may make the voluntary custody characterization more plausible, though this remains an inference rather than a settled legal conclusion.

B. Application to the Facilitation Relationship

The Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40 (2012) updates the special relationship framework by moving away from the exhaustive enumeration of prior categories toward a more general principle: “[a]n actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.” The comment to § 40 identifies factors that may be relevant to a special relationship determination: whether the actor has taken custody of the other person; whether that person is particularly vulnerable and unable to protect themselves; and whether the actor has undertaken to protect that person.

The facilitation relationship arguably touches on all three factors, though whether it satisfies them in a manner sufficient to establish a special relationship is a question a court would ultimately have to decide. The facilitator could be said to take custody of the client through the session structure: the client is in the facilitator’s physical space, under the facilitator’s supervision, during a period of pharmacologically induced altered cognition that may limit the client’s capacity for independent self-protection. The client may be particularly vulnerable during this period; the REBUS model’s account of psychedelic-induced relaxation of prior beliefs could also be read as an account of reduced psychological defenses, though this connection has not been tested in litigation. The facilitator may be understood to have undertaken to protect the client through the OAR-mandated duty of care and the emergency response obligations of OAR 333-333-4700.

IV. Fiduciary Duty Analysis

Whether the facilitation relationship constitutes a fiduciary relationship, one in which the fiduciary must subordinate its own interests to those of the beneficiary, could have implications for the standard of care analysis and for the remedies that might be available, though this question has not been resolved by any court. OAR 333-333-5120(1)’s duty to put the client’s interest above the facilitator’s own reads as a fiduciary formulation, resembling the duty of loyalty associated with fiduciary relationships in attorney-client, trustee-beneficiary, and physician-patient contexts. Whether a regulatory duty of this kind is sufficient, standing alone, to establish a common-law fiduciary relationship is not something this article can resolve with confidence.

The Restatement (Second) of Torts § 874 (1979) provides that a fiduciary who commits a breach of duty to the beneficiary may be subject to liability to the beneficiary for the harm caused by the breach. Fiduciary duty is generally understood to arise when one party places trust and confidence in another, and the other party voluntarily accepts that trust. The voluntarily-accepted-trust element could plausibly be satisfied by a facilitator’s undertaking of the OAR-mandated standard of care. The placed-trust element could plausibly be satisfied by a client’s submission to an extended altered-state session under the facilitator’s supervision. Neither inference has been tested against the facilitation relationship specifically, and a court presented with the question could reach a different conclusion.

If a fiduciary characterization were adopted, it might have a specific implication for the boundary violation category: a breach of fiduciary duty by boundary violation could be treated as something more than an ordinary negligence claim, potentially a breach of the duty of loyalty the fiduciary relationship is thought to impose. Oregon’s recognition of fiduciary duty in the psychotherapist-patient context, where courts have in some instances treated sexual boundary violations as a breach of fiduciary duty independent of professional negligence, may offer the closest available analogy for a facilitator-client boundary violation claim, though the analogy has not been tested in this context and may not transfer cleanly.

V. Regulatory Conduct as Standard of Care

Under Oregon negligence per se doctrine, violation of a statute or regulation designed to protect a class of persons from a specific type of harm may constitute negligence per se where the plaintiff is a member of the protected class and the harm suffered falls within the type the regulation was designed to prevent. The OAR 333-333 rules appear designed to protect psilocybin service clients from certain categories of harm: contraindication-related adverse events (OAR 333-333-5050), session management failures (OAR 333-333-5120(4) and (9)), and boundary violations (OAR 333-333-5120(7) and (10)). A client who suffers harm within one of these categories may be a member of the protected class and may have suffered harm of the type the regulation was designed to prevent, though whether a court would apply negligence per se doctrine in this specific regulatory context has not yet been tested.

If the negligence per se doctrine applies, it would likely establish only a floor for the standard of care: compliance with the OAR may be necessary but does not appear to be sufficient to satisfy the standard of care in full. OAR 333-333-5120(1)’s “reasonable facilitator” standard, which appears to import a broader range of professional conduct than the specific regulatory minimums, may extend above the regulatory floor. A facilitator who complies with OAR 333-333-5050’s mandatory screening form but does not inquire about SSRI use, a pharmacological variable that may affect a substantial proportion of the client population, could be found to have satisfied the regulatory minimum without satisfying the broader reasonable-facilitator standard, though this remains a plausible inference rather than a certain conclusion.

VI. Three Liability Categories That May Prove Significant

A. Contraindication Screening Failure

Contraindication screening failure liability could arise where a facilitator conducts an administration session for a client whose condition makes psilocybin administration contraindicated, and where that condition could plausibly have been identified through a reasonable screening inquiry. The OAR 333-333-5050 mandatory client information form specifies certain required screening questions. It does not appear to specify all conditions that a reasonable facilitator might screen for.

The SSRI non-exclusion gap may represent the most significant current contraindication screening exposure, though this characterization is necessarily provisional. Oregon does not prohibit SSRI-using clients from accessing psilocybin services, and the OAR mandatory form does not include an SSRI inquiry. Psychedelic Alpha’s Q1 2025 data estimates that up to 80% of Oregon service center clients may be using SSRIs. Whether a reasonable facilitator would have inquired about SSRI use beyond the OHA-mandated form is a question that would likely turn on expert testimony about what professional training programs in this field teach regarding SSRI-psilocybin interactions. Given the apparent prevalence of SSRI use in the client population, this may be among the more commonly unaddressed contraindication exposures in the Oregon market, though the significance of this gap in any actual case cannot be assessed with confidence in the abstract.

B. Session Management Failure

Session management failure liability could arise where a facilitator fails to respond appropriately to events occurring during an administration session. The OAR obligations most relevant to this category appear to be OAR 333-333-5120(4) (emergency services contact obligation), OAR 333-333-5120(9) (prohibition on leaving a client unattended in an unstable condition), and OAR 333-333-4700 (emergency response protocols). A violation of any of these provisions may constitute negligence per se under Oregon’s statutory negligence doctrine, provided the harm suffered falls within the type the provision was designed to prevent.

The session management category may be one in which contemporaneous documentation carries particular evidentiary weight. A facilitator who documents the basis for a decision not to contact emergency services, including the specific indications observed and the specific assessment made, may create a record that could help defeat a negligence per se claim or support a reasonable-care defense. A facilitator who does not document this decision-making process may be left relying on recollection against a client’s account of what occurred during an extended altered-state session, which could be a difficult evidentiary position in litigation.

C. Boundary Violation

Boundary violation liability may be the most doctrinally developed of the three categories, given its apparent analogues in the mental health counselor and massage therapist professional liability frameworks. OAR 333-333-5120(7) prohibits sexual contact between facilitator and client. OAR 333-333-5120(10) prohibits romantic or sexual relationships for one year following the session. These prohibitions track professional boundary rules that Oregon courts have applied to mental health counselors and massage therapists, contexts in which boundary violations have in some instances been treated as both professional negligence and breach of fiduciary duty.

The particular vulnerability associated with psilocybin administration, clients who may be psychologically open, emotionally accessible, and physically impaired during extended altered-state sessions, could be relevant to a damages analysis, though this is speculative in the absence of any facilitator boundary violation case. Courts in some analogous professional contexts have treated boundary violations occurring within relationships of psychological vulnerability as more damaging, potentially supporting higher compensatory and punitive damages, than boundary violations in relationships without that vulnerability. Whether a comparable framework would be adopted for the facilitation relationship specifically is not something this article can predict with confidence; it would likely depend on how the first such case, if any, is litigated and decided.

VII. The Oregon and Colorado Comparison

The standard-of-care analysis may differ in at least two respects between Oregon and Colorado, though both observations are offered provisionally. First, Colorado’s Clinical Facilitator pathway appears to create a dual-standard exposure that Oregon’s framework may avoid. A Colorado Clinical Facilitator, who must hold both a healing center facilitator license and a secondary clinical license such as an MD, psychologist, or licensed counselor, could conceivably face both the healing center standard of care and the clinical professional standard of care for conduct occurring during a session. OAR 333-333-5130’s prohibition on exercising a clinical license during a psilocybin session may limit this dual-standard exposure in Oregon: an Oregon dual-licensed facilitator who complies with the OAR prohibition would appear to face only the facilitator standard, whereas a Colorado Clinical Facilitator who imports clinical judgment into a healing session could potentially face both, though how a court would actually resolve overlapping standards has not been tested.

Second, Colorado’s SB25-297 (effective July 1, 2026) appears to create a similar administrative-record discoverability issue to the one Oregon’s SB 303 creates, but at an earlier stage of market development. Colorado healing centers that are only beginning to build SB25-297 compliance infrastructure may be in a position to design documentation practices before case law establishes what those records will mean in litigation, a window that Oregon service centers, whose SB 303 reporting obligations are already underway, may no longer have available to them in quite the same way.

VIII. Vicarious Liability and the Independent Contractor Question

Many Oregon service centers use independent contractor agreements with their facilitators. The independent contractor structure has an apparent advantage: if the facilitator is not an employee, the service center may not be vicariously liable under respondeat superior. This argument, however, would need to contend with the multi-factor Oregon employment test and with Restatement (Third) of Agency § 7.08’s retained-control analysis, and it is not clear that the independent contractor label would be dispositive in every case.

A service center that requires facilitators to follow its protocols, use its forms, operate within its facility, and implement its emergency response procedures may be found to have retained control over the physical conduct of the facilitation in the manner § 7.08 treats as significant. The label used in a service agreement, independent contractor or employee, does not appear to control the § 7.08 analysis on its own. State regulators and legislators overseeing service center licensing may wish to consider whether the current regulatory framework adequately anticipates this retained-control question, since the current rules do not appear to resolve it directly, leaving the matter to case-by-case litigation under general agency principles.

IX. Confidentiality

ORS § 475A.450 establishes client confidentiality for psilocybin service records. The confidentiality protection applies to “information about a client obtained by a psilocybin service center or psilocybin service facilitator in the course of providing psilocybin services.” The protection is not absolute: ORS § 475A.450 permits disclosure “with the consent of the client,” “to the extent required by state or federal law or rule,” or “pursuant to a court order.”

The interaction between ORS § 475A.450’s confidentiality protection and SB 303’s data reporting requirement raises questions that do not appear to have been fully resolved. If SB 303 data is de-identified, the confidentiality-reporting tension may be substantially reduced. If SB 303 data is identifiable or potentially re-identifiable, the disclosure may fall under the “required by state law” exception, but this could in turn raise Fourth Amendment concerns if the data were subsequently accessed for law enforcement purposes. This is an area where the Oregon Health Authority’s own de-identification methodology may be determinative, and state regulators may wish to publish clearer guidance on this methodology before further SB 303 submissions occur, so that service centers and clients alike have a clearer basis for understanding what protections apply.

X. Analogous Relationships and the Standard of Care Hierarchy

Courts resolving facilitator negligence claims may draw on three analogous relationships, in varying proportion depending on the specific liability category at issue, though which analogies a court would actually find persuasive cannot be known in advance. The mental health counselor relationship may be closest in scope of duty: both involve professional-client relationships during a period of psychological vulnerability, with duties to screen for contraindications, respond to psychological emergencies, and maintain professional boundaries. The massage therapist relationship may be closest in the boundary violation context: both involve bodily contact in a setting of physical and psychological vulnerability, within a reasonably well-developed body of professional boundary doctrine. The research protocol administrator may offer the most developed adverse-event and emergency-response standard: psychedelic clinical research protocols include specific contraindication screening requirements, adverse event reporting obligations, and emergency response procedures that arguably represent the professional community’s most detailed account of what competent session management could look like.

Of these three analogies, the mental health counselor relationship appears closest in scope of duty; the massage therapist relationship appears closest in the boundary violation context; and the research protocol administrator appears to offer the most developed adverse-event and emergency-response standard. Courts may draw on all three in some combination, though the weight any court would give to each cannot be predicted with confidence.

XI. Conclusion

The facilitator-client relationship is a comparatively new professional relationship without a settled legal name. At least three doctrinal frameworks could plausibly supply one, special relationship, fiduciary duty, and regulatory standard-of-care, and each may apply in different proportions to different phases of the facilitation relationship and to different liability categories. Whether courts resolving a first facilitator negligence case would find these existing doctrinal tools adequate to the task is not something this article can state with certainty; it can only be said that the tools appear available and that their application to this new context does not seem foreclosed. The more difficult and currently unanswerable question is not whether courts would hold facilitators to some standard of care, but what that standard would be found to require in specific factual contexts, a question that only actual litigation is likely to resolve.

Recommendations for State Program Design

The analysis above suggests several areas where state program designers and regulatory agencies in Oregon and Colorado may wish to consider clarifying the existing rules, in order to reduce the degree to which the standard of care is left to be established retrospectively through litigation:

1. State regulators overseeing psilocybin and healing center programs may wish to consider whether the mandatory client screening forms should be expanded to address SSRI use specifically, given data suggesting substantial prevalence of SSRI use among clients and the current absence of an SSRI-specific inquiry in the Oregon mandatory form.

1. Regulatory agencies may wish to consider issuing guidance on contemporaneous documentation practices for session management decisions, particularly decisions not to contact emergency services, since such documentation may affect how negligence per se and reasonable-care questions are eventually resolved.

1. Legislators and agencies responsible for SB 303 and SB25-297 implementation may wish to consider clarifying, in advance of further data submissions, the de-identification methodology that will govern client outcome data, so that the interaction between confidentiality protections and reporting obligations is not left ambiguous.

1. State licensing authorities may wish to consider whether existing rules on independent contractor facilitators adequately address the retained-control questions raised by Restatement (Third) of Agency § 7.08, since the current regulatory text does not appear to resolve this question directly.

1. Colorado regulators developing the Clinical Facilitator pathway may wish to consider whether additional guidance is needed on how the healing center standard of care and a clinical professional’s separate licensing standard should interact when a single practitioner holds both, given that Oregon’s framework appears to have addressed a similar issue through OAR 333-333-5130’s prohibition on exercising a clinical license during a session.

These are offered as considerations for regulatory and legislative attention, not as legal advice to any individual service center, facilitator, or client, and none of them resolves the underlying doctrinal uncertainty this article describes. That uncertainty is likely to persist until the first facilitator negligence case is litigated to a decision.

Endnotes

1. ORS § 475A.305 (psilocybin service center not a health care facility); OAR 333-333-1010(72) (prohibition on term “therapy”); OAR 333-333-5130 (prohibition on diagnosis or treatment); OAR 333-333-5120(1) (duty of care: standard of other reasonable facilitators under similar circumstances; duty to put client’s interest above facilitator’s own), https://secure.sos.state.or.us/oard/viewSingleRule.action?ruleVrsnRsn=323163; 4 CCR 755-1 (Colorado DORA Natural Medicine Health Act implementing rules); ORS § 475A.450 (client confidentiality), https://www.oregonlegislature.gov/bills_laws/ors/ors475A.html.

1. Restatement (Second) of Torts § 314A (1965) (special relations giving rise to duty of care: common carrier, innkeeper, possessor of land, voluntary custodian), https://www.ali.org/publications/show/torts/; Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40 (2012) (“[a]n actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship”), https://www.ali.org/publications/show/torts/; OAR 333-333-5120(9) (prohibition on leaving client unattended in unstable condition); OAR 333-333-4700 (emergency response protocol requirements).

1. Restatement (Second) of Torts § 874 (1979) (breach of fiduciary duty: fiduciary liable for harm caused by breach of duty to beneficiary), https://www.ali.org/publications/show/torts/; OAR 333-333-5120(7) (prohibition on sexual contact); OAR 333-333-5120(10) (prohibition on romantic or sexual relationships for one year post-session); OAR 333-333-5050 (mandatory client information form: psychosis history, family psychosis, suicidal ideation with intent or plan, lithium use), https://secure.sos.state.or.us/oard/viewSingleRule.action?ruleVrsnRsn=323163.

1. Restatement (Third) of Agency § 7.08 (2006) (principal liability for tortious conduct of non-employee agent with retained physical control over agent’s performance), https://www.ali.org/publications/show/agency/; Or. S.B. 303 (2023) (client outcome data reporting to OHA, effective 2025); SB25-297, Colo. 75th Gen. Assemb. (2025) (de-identified client data reporting to CDPHE, effective July 1, 2026); Psychedelic Alpha, Oregon Psilocybin Services Tracker (Q1 2025) (estimating up to 80% of clients may be using SSRIs; Q1 2025 adverse event rate 6 per 1,509 clients), https://psychedelicalpha.com/data/the-oregon-psilocybin-services-tracker; ORS § 475A.338(1)(b), (2)(b) (enacted by Or. Laws 2025, ch. 147, § 4 (HB 2387), operative Jan. 1, 2026) (dual-licensed provider protection from discipline, conditioned on not providing health care services while providing psilocybin services), https://olis.oregonlegislature.gov/liz/2025R1/Downloads/MeasureDocument/HB2387/Enrolled.