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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:
LEAPchair@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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