Legal, Ethical, and Professional Issues in Psychoanalysis and Psychotherapy
On the Loss of Confidence in Psychoanalysis
Christopher Bollas, Ph.D.
There have been many turning points in the history of psychoanalysis but few can have been as important as the one we now face.
Is psychoanalysis a confidential relationship or not?
I shall argue that there have been so many qualifications to confidentiality that it exists only in name and not in fact in the United States and increasingly in European countries. Space does not permit the kind of careful presentation of evidence to allow the psychoanalytical community to fully appreciate the history of this problem–both in its legislative, legal, regulatory, and professional dimensions, in the United States and Europe–and this has been presented in a short monograph co-authored with an attorney, David Sundelson, The New Informants: The Betrayal of Confidentiality in Psychoanalysis and Psychotherapy (Karnac, 1995). First, what do we mean by confidentiality?
"Whatsoever things I see or hear concerning the life of man, in any attendance on the sick or even apart therefrom, which ought not to be voiced about, I will keep silent thereon…", the Hippocratic Oath that founds the doctor's confidential relation to his patient. Within the medical tradition, however, circumstances would eventually arise in which the right of the patient would be qualified when in conflict with over riding needs of society: if the patient has a communicable disease, the doctor will report him to the authorities. The medical model of communicable disease spread to the mental health world around the ‘disease’ of child abuse. In the 1960's state legislatures in the United States passed laws mandating that a psychotherapist (and this included psychoanalysts of course) had to report any patient who was suspected of engaging in child abuse, or, who knew of someone who was either being abused or committing a sexual abuse. This was meant to be a ‘qualification’ on the otherwise confidential relation to the psychotherapist, but in fact, unsurprisingly this exception lead to other exceptions, and after the ‘Tarasoff’ decision in California in 1976, a principle–rather than a fact–mandated a breach of confidentiality. Now the psychotherapist had to ‘warn’ and/or to ‘protect’ a possible victim of potential harm committed by his or her patient. These legal mandates were adopted in differing forms by European Parliaments in the decades to follow and many of the European countries have laws that mandate the reporting of suspected child abuse, criminal activity (such as drug dealing), a felonious history (such as past crimes) and so forth. In the course of thirty years, then, the psychoanalytic situation which we may assume was passively understood within the psychoanalytical community as ‘strictly confidential’ had now to accept that no such ‘absolute’ or ‘strict’ confidentiality existed. It might be argued, however, that absolute confidentiality never existed in the first place. After all, some leading psychoanalytical institutes have reporting requirements on their candidates. How confidential is that? There are circumstances, furthermore, in which psychoanalysts are compelled to hospitalise patients, passing on information to admitting committees: so once again, confidentiality is not absolute. And psychoanalysts working in clinics discuss patients with colleagues, again seeming to render the Hippocratic Oath an arcane artefact.
This raises a question. If confidentiality is absolute, yet people are talking about a patient, how could it remain ‘strict’? It could only do so if confidentiality was held by the profession. Doctors have always discussed their patients with colleagues, yet that has not constituted a breach of confidentiality. Psychoanalysts present patients to colleagues, yet that also does not constitute a breach of confidentiality. So we may conclude that it is the profession that holds the patient's trust. The patient may, of course, feel that his trust in his psychoanalyst has been betrayed if the analyst arranges for hospitalisation, but if the analyst transfers analytical confidentiality to the hospital staff (who of course honour this) then the patient's communications will be held in strict confidence and there will be no breach of confidentiality to sources that are not bound to hold that trust. It was within this community of psychoanalysts and psychotherapists that individual clinicians could exercise ‘clinical judgement.’ Decisions about case presentations, possible hospitalisations, medications, and the like would derive from the psychoanalyst's clinical judgement in consultation with his peers and sometimes in collaboration with the institutions operating within this structure of confidentiality. It is exceptionally important to understand that the qualifications on confidentiality deriving from the laws and regulations passed since the 1960's constitute severe violations of the structure of confidentiality. When the psychoanalyst reports a patient to the police, the structure of confidentiality is destroyed. When the psychoanalyst agrees--even following legal appeal--to hand over his clinical notes to a court, the structure of confidentiality is destroyed. In an operational sense, then, strict confidentiality did exist until the 1960's, but since then we are witness to its degradation.
The range of the problem has widened substantially beyond the legislative qualifications. State licensing boards that determine practise guidelines for psychiatrists, psychologists, and social workers have added to reporting requirements, by amongst other things making it a standard of practise for clinicians to keep ongoing clinical notes of sufficient lucidity to be of use in a court of law. Further, the Ethics Committees of the professional associations–psychiatry, social work, psychology–have added even more codes of conduct that determine compliance with further regulations that are part of the structure of disclosure. Psychoanalysts in the United States are in many respects less worried about being compelled to present sessional material in court than they are concerned about losing their state license to practise (remember, most are psychiatrists or psychologists) or violating the Ethics Code of the American Psychiatric Association or the American Psychological Association, which could censure them, should they decline to abide by these regulations. Licensing would seem to be far from the European shores. Yet the European mandatory reporting laws are ‘implied licenses’ for practise. And with the increasing standardisation of commodities and services in the European Community, it is only a matter of time before statutory regulation codifies the practise of psychoanalysis. I have described in brief the three incursions on psychoanalysis in the United States, however, not simply to warn us about what I think will develop in Europe and elsewhere, but to indicate to the wider psychoanalytical community why I think the proposed IPA ethics code exports a compliance with the above developments and paves the way for the eventual elimination of confidentiality – in any meaningful form–from psychoanalytical practise anywhere in the world. Let us look at the statement.
"Confidentiality. Psychoanalysts shall respect the confidentiality of their patient's information and documents, within the contours of applicable legal and professional standards."
This looks reasonable. In fact, it is carefully constructed to comply with the three invasive vectors described above, and, it is designed to protect American psychiatrists and psychologists who are practising psychoanalysts from being in violation of state laws, state license requirements, and professional ethical codes of conduct. While we might have sympathy for the need to establish an interim solution of this kind in the United States, do we really wish to adopt a sad solution to a devastating turn of events, for the remaining portions of the psychoanalytical world which still have, in many respects, enough time to profess a strong statement on confidentiality and to lobby the state to explain the needs of psychoanalysis for privilege (the legal provision for exemption from giving information in a court of law)?
How is the IPA code constructed to fit in with the degradation of confidentiality, rather than to protect it?
The first part of the statement is clear and unequivocal: ‘Psychoanalysts shall respect the confidentiality of their patient's information and documents’. Had the statement ended there, it would have constituted a broad principle to which all analysts could agree. Now let us take note of its second clause, the qualifications: ‘...within the contours of applicable legal and professional standards.’ ‘The contours’? The contours would include all the shapes (i.e. mangling distortions) to which confidentiality has been subjected in the United States, from well intentioned but misguided state legislatures to state licensing boards, to professional ethical committees (themselves trying to create a moving ethical composite to adjust to the contours presenting themselves to them), to insurance company rules, to managed care requirements and so forth, that are part of the sad tapestry of ‘applicable legal and professional standards’ in the United States. In short, this draft does not defend confidentiality, it colludes with its disappearance. But it will be argued, do we psychoanalysts hold ourselves to be above the law? After all, as these are the laws of the land, are not the psychoanalysts living in the United States obliged to state the principle of law abidance? Further, are they not obliged to affiliate themselves with the ‘professional standards’ advocated by their disciplines of origin, psychiatry and psychology?
What is ethical and what is legal are not equivalent. We need go no further than our own century to think of countries which passed laws that were deeply unethical. Citizens in those countries who refused to obey such laws, or who protested against them, did so because it was clear in their mind that to comply with unethical laws would be to commit a higher crime, whether it was to obey laws against Jews in Germany during the 1930's, or against blacks in the United States and South Africa in the 1950's, and so forth. In these cases, it is not a matter of any individual being above the law, it is a situation in which the law is now below human decency.
In a democracy, where the rights of the individual are protected, society does accept the moral right of an individual to break a law, to follow Thoreau's edict that if ‘a law requires you to be the agent of injustice to another, then, I say, break the law’. As Pope and Bajt point out, this is the right of civil disobedience, and one specifically recognised by the California Supreme Court in 1966 in comprehending why certain psychotherapists would decline to obey the reporting laws: ‘If we were to deny to every person who has engaged in... non-violent civil disobedience... the right to enter a licensed profession, we would deprive the community of the services of many highly qualified persons of the highest moral courage.’
Indeed, it is when psychotherapists have complied with a subpoena to appear in court but have refused to give evidence – thus finding themselves in contempt of court – that one more often than not finds the court eventually recognising this issue as a conflict between ethics and the law! Some of the appellate courts rulings in favour of the psychoanalysts have provided the most intelligent and moving defences of psychoanalysis. Every few months in one of the world's democracies a journalist is summoned to court, ordered to reveal the source of his writings, and refuses. Journalists assert privilege even though they may be found to be in contempt of court and subject to sentence. It is interesting to consider, however, how in giving suspended or very light sentences, the courts acknowledge the strong ethical basis of journalism's claim for privilege. The court finds that it must pass sentence, fulfilling its mandate to uphold the laws of the land. But by giving ceremonial sentence the court implicitly recognises the journalist's right to civil disobedience in order to abide by a sensible ethical code held by his profession. Indeed, section 7 of the UK's National Union of Journalists ‘Code of Conduct’ is crystal clear: ‘A journalist shall protect confidential sources of information.’ Journalists have earned de facto privilege. A surprising number of psychoanalysts on the other hand believe that mandatory reporting laws (and their civil action derivatives) are appropriate and agree that when the common good of society is in conflict with the right of the individual, that right must be suspended for the common good. If you have a child molester in analysis, the argument goes, you must report him to the authorities because his right to privacy is suspended by the greater common need of society to be protected against such criminal activity.
Let us look at the principle of the common good of society. If we are myopic and examine this conflict (individual versus society) within a single case itself, the conclusion seems almost fateful, just and profoundly logical. The case-in-itself bears the conflict and foretells the conclusion: the rights of the individual versus the needs of society – one against all. Yet, society is composed of individuals and the collective rights of the individual are part of the common good of the democratic state. Put differently, isn't the principle of the right of the analysand to absolute confidentiality a common good of society? For when the individual loses his right in a particular situation, it is lost on behalf of all people. A society loses one right, in other words, in the misguided effort to protect another right. Indeed, I maintain that it is exactly on the core of this ethical conflict – so frequently cited by the advocates of qualified confidentiality–that proponents of qualified confidentiality fail the common good of society.
For it is essential to the common good of society that it be assured that any human being who suffers mental disturbance may seek help from a psychoanalyst knowing that in doing so his disclosures will be held in confidence. Maintaining that ethic is to the long term good of society and defeats the claim that other social requirements supersede it. Indeed, I think we may see implicit assumptions within democracy of civil liberty taking precedent over immediate and oftentimes profound social needs, where for example, an individual's right is protected against otherwise overwhelming social needs. Think of the suspect against whom there is absolutely convincing evidence that he has committed a crime, such as murder, or treason, or terrorist activity. Assume that he possesses knowledge that would save lives, yet he refuses to co-operate. If he were tortured, however, knowledge would be extracted. Yet this individual's right to a lawyer, and to trial by jury before judgement, rises above the common social good. It is recognised that although information might well be extracted from the criminal through torture–thus saving the common good for the moment – a principle of the violation of human civil rights is established that would destroy other common goods of society. There are occasions–thousands and thousands of them–in which society does not gain immediate protection from the conversion of an individual's right to its own pressing need. You do not ‘balance the interests’ of differing rights by corrupting one at the expense of another. Simply put, it is wrong for any society to suspend the individual's right of freedom of speech to a psychoanalyst in the interests of social need, whatever it be.
We need go no further than the lawyer-client relation to see this. All criminal lawyers find themselves informed of criminal activity by some of their clients, disclosure of which would save lives, restore injustice, and remedy grave social disruption. Yet the pledge of confidentiality that is part of the structure of the lawyer-client relation is privileged. Not only are lawyers legally exempt from reporting on their clients, if they nonetheless choose to do so, they will have violated their oath, which in turn will have been a violation of their profession, and they will lose their license to practise.
Psychoanalysts (like journalists) should exercise de facto privilege in what will inevitably be a long road toward guaranteed privilege. Psychoanalysis can and should assert the same right of confidentiality held by the legal community in the lawyer-client relationship. The law cannot exist without this privilege. And neither can psychoanalysis.
No psychoanalyst should ever hand over clinical notes to a court of law, or disclose information gained in a session. To do so may well be in compliance with the law of the land, but it is unethical. It betrays the analysand, it destroys psychoanalysis, and finally it fails the long struggle in many countries to provide a place of psychotherapeutic sanctuary for all persons whose mental life causes suffering to self and to others. This space is to the common good of all societies that have worked to create it.
The psychoanalyst is not simply custodian of psychoanalysis. For better or for worse, wished for or not, the psychoanalytical profession is guardian of a social right – the right to speak one's mental life assured that such disclosure will be held in strictest confidence – that will need continuous representation within the dynamic vicissitudes of a free society.
It is time to take a stand.
This article was originally published in the International Psychoanalytical Association (IPA) Newsletter,
Volume 8, Issue 2, 1999. It is reprinted here with permission.
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