In my recent columns, I have attempted to call attention to a trend that is developing in regard to the delivery of health care, which trend appears to threaten the existence of psychoanalysis as a health care profession. In summary, I attempted to show that mental health services, including psychoanalysis, are increasingly becoming subject to proliferating rules, regulations₁ protocols, guidelines, quality assurance procedures, utilization review procedures, standards of diagnosis and of treatment, ethical codes and standards, cost effectiveness evaluations, requirements for demonstration of effective outcomes, and so on, and so on.

Psychoanalytic treatment, as such, is not currently or prospectively, included in any health care delivery system of which I am aware. Many of our colleagues are unhappy that they are not reimbursed for the psychoanalytic services they provide and they would like to be included as providers in present and future health care programs.

Other colleagues would like nothing better than to be left out of any present or future health care system in order to be free to arrange individually with their analysands the terms and conditions of the psychoanalytic situation and the services provided. The amount of the fee to be paid and the method of its payment would be part of the freedom of the analyst and analysand to negotiate the specifics of the analysis they are to do together.

Even if psychoanalysts could choose to be either included or excluded from any health care system as they wish, it would not protect them from the trend I have described, the effect of which would be to make the practice of psychoanalysis illegal. No, 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. Economist Thomas Sowell, in a recent newspaper column, notes that the "so-called 'moderate' Republican (health care) bills use the word 'require' dozens of times and the Clinton bill uses it 901 times according to a count by the National Taxpayers Union. Terms like 'ban', 'enforce', 'penalty', 'prison', 'fine', etc., occur nearly 1500 times in the Clinton bill, which contains 85 new civil and criminal penalties." All of us have heard of the requirements imposed by the Medicare rules and regulations, from which there is no exception other than that which is (dubiously) conferred by lax enforcement. And Medicare serves only as a current example of the kind of mandated conformity to which I am referring.

If a standard of technical performance is developed by government, by ethical code, by professional standards committees of professional organizations, by quality assurance organizations, by managed care companies, etc., then non-conformity to that standard is prima facie evidence of malpractice. Thus, for example, if the standard is established that medication of a particular kind is the treatment of choice for "depression", then the practitioner who provides psychoanalysis to the depressed person, even with that person's informed consent, is at risk of a malpractice action. Remember the Chestnut lodge case?

I am convinced that psychoanalytic practice, in the near future, will be so beset by legal pitfalls, which inevitably will be part of the health care delivery system, that the practitioner of psychoanalysis will continuously be at impossibly great professional risk. I am urging therefore that we take whatever steps we can as a profession to address this danger that looms in our future.

What can be done? First, we have to stop denying that which confronts us in so many ways and from so many directions. We have to stop hoping that government, or managed care companies, or professional standards organizations, or any other element of the power structure will behave rationally, sympathetically, empathically, or just with understanding toward the special needs of the psychoanalytic or psychotherapeutic enterprise: privacy, confidentiality, preservation of the singular relationship that characterizes the psychoanalytic situation, respect for the responsible and autonomous functioning of the participants as they arrange the conditions, including fees, of their work together, etc. We have to recognize that the goals of business and of government are different than ours when it comes to health care: business seeks to maximize profits; government subordinates the needs of the individual to the needs of the collective in pursuit of the social good (assuming that it is not just functioning to maximize power). The concern that psychoanalysts have for the individuals with whom they work is viewed by business and government as a joke, and a bad joke at that.

If we conclude that the only help we can expect will come from ourselves, then we have to make clear our expectations, first to ourselves and then to those organizations that represent us. We have to insist on their joining us in whatever actions will preserve psychoanalysis as we know and value it, including the preservation of psychoanalysts' right to provide analysis free of fear of legal repercussions and accusations of malpractice; and the preservation analysands' right to be in analysis free of restriction, prohibitions, and intrusions

However, even though I think we should try, I do not believe that we can be optimistic that we or our organizations can mobilize enough power to protect our psychoanalytic enterprise so long as it is identified as a component of one or more health care professions. The health care juggernaut seems to be more politically correct and powerful than we can ever hope to be.

It seems to me, then, that we have to begin to study and explore what alternatives psychoanalysis has to being a component of a health care profession. Perhaps we have to re-examine the status assigned to us as a specialty of the health care professions and begin to think of psychoanalysis as a profession in itself, related to, but independent of, those disciplines which now uneasily claim it for themselves. By becoming an independent profession that explicitly is not a health care enterprise, we abandon the opportunity to avail ourselves of the power and resources of other disciplines that are identified with health care. But, I would ask, has being connected to that power and those resources protected psychoanalysis from the threats I have described? I think not --- so what do we have to lose?

But even more important, we have to consider whether psychoanalysis wishes to continue to claim that it is a health care enterprise and thereby subject to all of the strangulating rules and regulations that are now proliferating in the health care arena. Perhaps this is the moment to invest at least a portion of our resources of time and energy in examining alternatives to being a health care profession. As attorneys are "counselors-at-law" we might be "counselors-at-living-with-self-and-others". Or we could conceptualize what we do in a kind of "education" model. Or psychoanalysis might adopt the position that it is an enterprise akin to religious study, engaging in "psychodynamic exegesis" comparable to "talmudic exegesis."

Please understand that I am not advocating any one of these alternatives. All I am suggesting is that we begin to consider the alternatives that we can make available to ourselves in redefining our endeavor. I do this because of my conviction that we do not have as much time as we imagine to preserve our profession.

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.

Legal,  Ethical,  and  Professional  Issues  in  Psychoanalysis  and  Psychotherapy