Legal  Issues

Increasing legal and regulatory demands on “health-care practitioners,” including demands that directly conflict with the central tenets of traditional professional ethics (such as confidentiality) were a major factor in motivating the formation of the Academy.  The industrialization of health care (including the acquiescence of professional organizations in this process) and the proliferation of legislation designed to “protect the public” are greatly limiting psychotherapists’ and psychoanalysts’ freedom to exercise independent judgment in their professional lives.

Presented here are legal cases and other writings that describe the current state of the law as regards psychotherapy and articles that raise questions about the relationship between psychoanalysis and the law both inside and outside the medical model.

ARTICLES ON LEGAL ISSUES   

When Psychoanalysis Becomes Illegal   Marvin Hyman

“I am not predicting that psychoanalysis is going to be prohibited like alcohol was earlier this century. Rather, it appears that it is going to be strangled to death by the plethora of restrictions and controls to which it will be expected to conform, which conformity will be enforced by criminal or civil penalties which will be imposed upon non-compliance.”

 LEGAL CASES

Amici Brief: Jaffee v. Redmond,  (1996)  Psychoanalytic Consortium

“The full disclosure employed in psychoanalysis and psychoanalytic psychotherapy is not a process of identifying objective facts, but a technique designed to explore (through dreams, fantasies, etc.) unconscious factors that shape conscious thoughts or behavior.  Psychoanalytic therapy thus gives rise to an extraordinarily intimate relationship in which patients divulge thoughts, feelings, dreams, and fantasies that may have little correspondence to external reality.”

Jaffee v. Redmond: Supreme Court Majority Opinion  Supreme Court of the United States, Case No. 95-266, June 13, 1996

“Petitioner sought access to [the therapist’s] notes concerning the sessions for use in cross-examining Redmond.  Respondents vigorously resisted the discovery.  They asserted that the contents of the conversations between [defendant and her therapist] were protected against involuntary disclosure by a psychotherapist-patient privilege.  The district judge rejected this argument.  Neither [therapist or patient], however, complied with his order to disclose the contents of [the therapist’s] notes.  At depositions and on the witness stand both either refused to answer certain questions or professed an inability to recall details of their conversations.”

Jaffee v. Redmond: Supreme Court Dissenting Opinion   Supreme Court of the United States, Case No. 95-266, June 13, 1996

“Effective psychotherapy undoubtedly is beneficial to individuals with mental problems, and surely serves some larger social interest in maintaining a mentally stable society.  But merely mentioning these values does not answer the critical question:  are they of such importance, and is the contribution of psychotherapy to them so distinctive, and is the application of normal evidentiary rules so destructive to psychotherapy, as to justify making our federal courts occasional instruments of injustice?”

United States of America v. Archie Monroe Glass, II   United States Court of Appeals, Tenth Circuit Case No. 97-6066

“We therefore hold upon the record before us the psychotherapist-patient privilege announced in Jaffee is available to protect Mr. Glass’ statements from compelled disclosure…. Thus, on remand, the district court must proceed…to determine whether, in the context of this case, the threat was serious when it was uttered and whether its disclosure was the only means of averting harm to the President when the disclosure was made.”

In RE Grand Jury Proceedings (Gregory P. Violette)   Case No. 99-1734, August 19, 1999

“The attorney-client privilege and the psychotherapist-patient privilege both exist to foster the confidence and trust required for effective counseling relationships (legal and psychiatric, respectively).  The private interests served by these relationships, however, do not justify a privilege.  Rather, we customarily respect the confidentiality of communications made in the course of these relationships because, on balance, doing so serves the public weal.” 

ACADEMY FOR THE STUDY OF THE PSYCHOANALYTIC ARTS