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DISCUSSION
"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."
Christopher Bollas
Exceptions to
Psychotherapist-Patient
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…"
Oath of Hippocrates
In a
complete reversal of the Hippocratic Oath, today in the United States, the
failure to breach confidentiality may lead to severe legal
sanctions and censure by professional organizations.
If
"what is legal and what is ethical are not equivalent,"
what do we do when law and ethics conflict?
The
Land of the Free Many
critics of the current "mental health care delivery system" have
focused blame for the loss of confidentiality in psychotherapy on managed
care. Academy members agree with Bollas that the problem is much farther
reaching, including not only insurance company rules, but state and
federal government policy, specific legal requirements, licensure rules,
"standards of practice" and professional organizations’
"codes of conduct." Bollas
points to the United States as the country that has taken the lead in
obliterating confidentiality in the analytic relationship. His article is,
in part, an effort to warn psychoanalysts in other (apparently
significantly less regulated) parts of the world not to go down the same
path as their American colleagues, who now operate in a professional
culture in which confidentiality has all but disappeared as a core ethical
value. American
psychoanalysts are no longer free to maintain confidentiality. If they
choose to honor certain of their analysands’ confidences, they do so
under penalty of law. How has this been allowed to happen in a country
that prides itself on the liberty of its citizens?
Eyes and Ears of the
State?
One way it has happened,
as Bollas points out, is through mandatory reporting laws. On what grounds
are psychotherapists required to report certain types of criminal
activities (or, more accurately, associations) to the state?
Why are we required to
report our suspicion of some crimes but not others? In some European
countries, according to Bollas, psychoanalysts are required to report not
only "criminal activities" but "criminal history."
Is there any reason to
believe that we may not, in future, be asked to report suspicion not only
of child abuse, but of tax evasion, drug use, insider trading, or unsafe
sex?
If it is right in
principle to report on our analysands, why are we not required under
penalty of law to report on our neighbors, to whom we owe no duty of
confidentiality?
And if it is right to
require therapists to report suspected crimes, does it not follow
that all citizens should be legally required to report suspected
crimes?
In the United States the
health-care professions have, in effect, allowed themselves to be
deputized as agents of the state—operating as its eyes and ears in their
own consulting rooms.
Double Entendre
Bollas’ title has an
elegant double meaning to which he never calls attention: We have lost
confidence in psychoanalysis in the sense that we have lost the
privacy of our communications. We have, during the same period, to a large
degree lost confidence in psychoanalysis in the sense of losing
belief in the value of our work (e.g., the concern that few persons will
seek psychoanalysis if they have to pay for it themselves). We can each
draw our own conclusions about the relationship between these two
developments.
Duty to Warn?
Do we have an ethical
"duty to warn" our analysands that anything they say to us may
be used against them in a court of law?
It would seem that the
answer, for anyone who had the least intention of obeying the law, would
be yes. If we don’t give such a warning, is it because we have
thought it through and decided against legal compliance or is it because
we are unwilling to face the unpleasant contradictoriness of our position
and are simply hoping the issue will not arise?
If, on the other hand, we
don’t Mirandize our analysands because we know we are never going to
report what we hear, is it not incumbent on us as professionals to
challenge the reporting laws rather than leave them in place where they
can do harm to ourselves and others?
Privilege and
Professionalism
How is it that
journalists have jealously guarded confidentiality through civil
disobedience (willingness to suffer legal penalties rather than reveal
their sources), while psychotherapists’ professional organizations have,
for the most part, hastened to change their ethics codes to allow
therapists to break confidentiality "as required by law"?
How is the privileged
status of psychoanalysis and psychotherapy the same as or different than
the privilege that exists between priest and penitent, husband and wife,
lawyer and client, journalist and source?
To whom does the
privilege rightly belong? The analysand? The analyst? Both? On what
grounds?
Truth
What, exactly, is it that
a psychoanalyst would be able to testify about concerning an
analysand? That, in response to the invitation to say whatever came to
mind, he or she spoke certain words?
In the past twenty years,
profound questions about the relationship between what goes on in an
analysis and "reality" as it is discussed in a courtroom have
revolutionized our field. (To take just one example, think of the debate
over narrative versus historical truth.)
Given these questions,
what possible interface is there between a court of law and an analysand’s
associations? On what grounds would we—or anyone else--assume that our
analysands’ free associations (or our understandings and recollections
of those associations) are the kind of "facts" on which a jury
could base its verdict?
What Is To Be Done?
"Is psychoanalysis a
confidential relationship or not?" If it is to be so, it will be
because psychoanalysts commit themselves to opposing existing laws and
"standards of practice."
We agree that it is time
to take a stand. It has long since been time to take a stand, and
we are grateful to Christopher Bollas for his courage in bringing this
painful issue front and center.
Bollas suggests taking a
stand through civil disobedience. That is, a principled refusal to report
on analysands or to testify in court about or to hand over records of
psychoanalyses in response to subpoenas.
He calls this the
exercise of "de facto privilege" and compares it with the
same extra-legal privilege asserted by journalists. He believes the
exercise of de facto privilege will bring this critical issue to
the attention of jurists and help to establish the principle of absolute
confidentiality in law as well as in fact.
We ask you to tell us
what you think of this proposal and what else you think we--as individuals
and through our professional organizations--can do to restore
"confidence" in psychoanalysis.
OUR
PROJECT
Academy members differ on
many issues, but share the view that psychoanalysis is in the position
Bollas describes largely because of its identification of itself as a
health-care profession.
We believe the removal of
psychoanalysis from health care and the re-thinking of all aspects of the
profession (including theory, education, ethics, and practice) outside the
medical model is the only feasible solution to our current difficulties.
The redefinition of
psychoanalysis as something other than health care (say, a branch of the
arts or the humanities) would mean giving up third-party reimbursement,
which some will consider a drawback.
But it would have the
great benefits of allowing us to be left alone to do our work
according to our own professional judgment and of bringing an end to the
situation in which we now find ourselves: that of being required by law to
be the agents of injustice to others.
Let us know
what you think about the issues and questions raised here. Write to us at:
RoundTable@AcademyProjects.org
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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 first published in the newsletter of the International
Psychoanalytical Association (IPA),
Volume 8, Issue 2, 1999.
It is reprinted here with permission.
Christopher Bollas, an
internationally known psychoanalyst, is a member of the British
Psycho-Analytical Society. He has been the Director of Education at the
Austin Riggs Center, Book Review Editor of the International Journal of
Psychoanalysis, and a Professor of English at the University of
Massachusetts. He is the author of Being a Character, Forces of Destiny,
The Shadow of the Object, and, with David Sunderson, The New
Informants: The Betrayal of Confidentiality in Psychoanalysis and
Psychotherapy.
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ROUND
TABLE