Legal, Ethical, and Professional Issues in Psychoanalysis and Psychotherapy
Scenarios for Psychoanalytic Practice
Marvin Hyman Ph.D.
In recent conversations with many of my professional colleagues, in psychology and in psychoanalysis, I have heard, with increasing frequency, anticipations which they hold in common about how they will practice in the coming years. In one of these scenarios, our profession will be able to convince the managers of health care delivery systems to think more kindly and gently about psychoanalysis and, as a result, they will approve of psychoanalysis in certain cases and under certain circumstances. Determination of the frequency and duration of treatment, not to mention the objectives of the analysis, would remain the prerogative of the managers, but would be tolerable to the practitioner as conditions of treatment.
Another scenario of practice envisions that practitioners of psychotherapy will be able both to accommodate to whatever system of regulation comes to govern the delivery of health care services in this country, and, in addition, they will be able to treat patients or clients outside of the system and free of the regulatory controls that are an integral part of it. Thus, will the psychoanalytic practitioner in this scenario be able to continue to do psychoanalysis even though most currently conceptualized health care delivery systems have no place for psychoanalysis or, if they do have a place for it, it is under severe constraints.
My purpose in this column is to present a third scenario of practice to which we, as psychologists and as psychoanalysts, ought to be giving some consideration. In this scenario, government agencies, professional organizations, health insurance companies, etc., devise and adopt concrete and exquisitely detailed descriptions of diagnostic entities. Then, for each specific diagnostic entity, treatment guidelines and standards are established which are based not only on clinically demonstrated effectiveness, but also on cost effectiveness, feasibility of providing the treatment, and ease of training practitioners in the method of treatment. Thus, for each specific diagnosis there will be specific treatment(s) designated. Further, adherence to these diagnostic and treatment guidelines and standards, in this scenario, would constitute a "complete defense" against allegations of negligence and/or malpractice. Non-adherence would incur the risk of having no defense against such allegations.
Practitioners, in this scenario of practice, would thus be well advised to acquire demonstrated proficiency in making any one of the specified diagnoses and in providing the treatment specific to that diagnosis. Both providers and recipients of health care services would not be able to exempt themselves from the regulatory requirements of the existing system, just as is the case now with recipients of services who are over 65 years of age. Also, any provider of a particular treatment for a particular diagnosis could be a member of any one of several professions, generically licensed to provide that treatment.
In the scenario I have just outlined, psychotherapists generally and psychoanalysts particularly would have great difficulty in conforming to the governing regulations, if for no other reason that the psychoanalytic enterprise is a totally individualized endeavor that cannot be systematized or defended as "cost effective", as is the case, say, with pharmacological treatment of depression. In addition, the professional activity of making clinical judgements as to diagnosis and treatment would be replaced by mechanization of those activities, with the result that we would have become mechanics rather than have the prerogatives of members of a profession.
I anticipate that the scenario I have presented will be dismissed as a bad dream, as a delusion of persecution, as an improbability which will never come to pass. Before you arrive at any of these conclusions, however, let me provide you with some of the "information" from which I derive the scenario. (I am indebted to Dr. Patrick B. Kavanaugh for providing me with much of what follows.)
Investor's Business Daily, Monday, January 17, 1994 reports that the Health Security Act of 1994 sets up a 15 member council to write "practice guidelines" for health care based on the severity of the patient's need and the potential success of the treatment. The Act stipulates that all providers must abide by these "practice guidelines" and must agree to utilization review, even if they are practicing outside of an HMO (the designated form of health care provider organization). The Act guarantees basic benefits to all Americans and deems which of these benefits are medically necessary and appropriate. The proposed act mandates that a recipient cannot directly pay a provider, even one who is outside of an HMO. The Act mandates that those providers who follow the appropriate practice guideline established by the "National Quality Management Program" would have a "complete defense" against any liability action.
Practitioner Update published by the APA Practice Directorate, December, 1993 reports that it is actively endorsing and supporting the Health Security Act and is actively engaged in having clinical psychologists written into the act. The same issue reports that the National College of Professional Psychology has been proposed to provide guidelines for the education and credentialing of psychologists in "designated proficiency areas". Another report in the Practitioner Update indicates the establishment of The Board of Professional Affairs Task Force on Psychological Intervention Guidelines. The report states that this Task Force has been established as a reaction to federal and state government attempts to develop their own specific treatment guidelines for designated conditions so that certain diagnostic categories are to receive specific treatments. The BPA Task Force will be developing a template for treatment guidelines for the practitioner which are to meet certain "internal validity criteria", derived from clinical experience and based on research data. "External validity criteria" will be based on cost factors, feasibility of treatment, and ease with which the practitioner can be trained in its application.
Register Report, December, 1993, describes the Utilization Review and Accreditation Commission (URAC). URAC originated because of the rapid growth of managed care; is charged with the responsibility of developing standards and ensuring quality in utilization review organizations; is to address problems of inappropriate and inefficient health procedures; is medically oriented, and is controlled by the American Medical Association. URAC accreditation is currently being substituted for state certification in various states. The Register Report also describes the National Committee for Quality Assurance (NCQA) which is charged with the responsibility of determining a core set of performance measures for greater standards in the Health Care Industry; which is medically oriented and controlled by the American Medical Association; and which espouses the position that mental health can be evaluated adequately by NCQA standards even though current standards are not necessarily focused on mental health.
The Medicare Program is already well established as a national health care system. It has established policies, procedures, practice guidelines, "audit flags" (for deviation from regulations), and the principle that the guidelines cover all "medicare eligible" individuals, regardless of whether or not they are enrolled in the program. The program reserves to itself the determination of whether a procedure is medically "necessary and appropriate." Medicare can serve as a model for any further federal health care delivery system.
The Psychologist's Legal Update, December 1993, provides the following:In a tort case the law compares the professional's conduct (l) to the standards of the profession in general; and (2) especially to that of practitioners which are similarly trained and situated. The most common types of malpractice claims and those most likely to produce litigation are: Misdiagnosis; Practicing outside of one's area of competence; Failure to obtain informed consent for treatment; Negligent or improper treatment; Physical contact or sexual relations with patients; Failure to prevent patients from harming themselves or others; Improper release of hospitalized patients; Failure to consult another practitioner or to refer a patient; Failure to supervise students or assistants; Abandonment of patients. Current trends in liability are: sexual involvement with patients continues to cause, directly or indirectly, the largest number of claims. The next largest category of recent cases are those challenging the propriety of a therapist's diagnosis and treatment methods. Negligent or improper diagnosis is a deviation from accepted standards of practice abo standards of care.
In this presentation, I am arguing that it is not too farfetched to envision the last scenario I have described. I believe that it is a distinct possibility that psychoanalysts will not only be prohibited from practicing within any system of health care that may be developed; they also will be prohibited from practicing outside of any system because of guidelines, standards, rules, regulations, and malpractice considerations that are being developed. Indeed, many of these are already in place.
I urge, therefore, that not only do we need to stop our profession from allying itself with the forces that propel us toward our own demise; we need to move quickly in a new professional direction that will assure our patients and us the autonomy, freedom and self direction that the psychoanalytic enterprise requires.
This article was originally published in the Round Robin, the newsletter of Section I of the Division of Psychoanalysis of the American Psychological Association. It is reprinted here with permission.
Dr. Hyman has recently retired from his private practice in psychoanalysis and from his post as Associate Professor in the Department of Psychiatry and Behavioral Neuroscience at Wayne State University School of Medicine. He has been president of the International Federation for Psychoanalytic Education, the Division of Psychoanalysis (39) of the American Psychological Association, the Michigan Psychological Association, and the Michigan Society for Psychoanalytic Psychology. He is the co-author, with B.F. Auld, of Resolution of Inner Conflict: An Introduction to Psychoanalytic Therapy, published by the American Psychological Association. Dr. Hyman was a founding member of the Academy for the Study of the Psychoanalytic Arts and is current chair of its Lexicon Committee.
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