Confidentiality: Ethical Perspectives and Clinical Dilemmas (Book Review)

Author:  Levin, Charles, Allannah Furlong & Mary Kay O’Neal
Publisher: Hillsdale, N.J.:  Analytic Press, 2003
Reviewed By:  Valerie G. Giberman, Winter 2005, pp. 68-71

This fine collection of papers is based on a 2000 Montreal psychoanalytic conference, Confidentiality and Society. This was an interdisciplinary project, as is the present volume. More than the sum of its parts, it reviews developments in the law and the health-care industry that undermine psychoanalytic confidentiality, explores the specific meanings of confidentiality in the psychoanalytic context, and invites debate about confidentiality and its ethics. The book ends with a newly written epilogue by Anne Hayman, the British psychoanalyst who in the 1960’s faced going to prison rather than revealing whether someone had been her analysand. My experience in reading this book was colored by the fact that I had already volunteered to review it, as this was a topic that I’d already pondered a great deal. However, my thinking was broadened and deeply challenged.

The first section, “Thinking about Confidentiality,” outlines our intrinsic concern as practitioners: confidentiality is constitutive of the psychoanalytic process itself. And as Jonathan Lear reminds us in the very first chapter, we not only face threats to confidentiality from the outside, but also commit violations of this principle ourselves. These are committed not only out of carelessness, disrespect, loneliness, self-promotion, or financial gain, but also out of the need to transmit knowledge to the next generation.

Lear, a philosopher/psychoanalyst, looks at confidentiality as one of the virtues, in the Greek rather than in the Judeo-Christian sense, of the analytically wise person. Since few of us actually add to the body of “scientific” knowledge, he kindly suggests that we find ways to recognize excellent analysts besides expecting them “needlessly” to present case histories, and indeed suggests that whenever cases are presented, orally or in writing, the need to do so be justified against the strong claims of the principle of confidentiality. John Forrester adds that we are disingenuous to press our claim for the importance of confidentiality on the principle of “trust,” since “the analysis of the negative transference is the essence of psychoanalysis.” Psychoanalysis is the “shadow relationship” between the imaginary and the real; words are only used to communicate within it. For the analyst, outside communication is her form of acting out. Arnold Modell’s very respectful paper holds that having our own thoughts is a biological as well as a psychological necessity, since identical twin studies have shown that we form our own unique brains out of experience as well as endowment. Thus, intrusions on one’s inner world are assaultive to homeostasis and not just unethical, illegal or psychotherapeutically detrimental.

Allannah Furlong suggests that we consider confidentiality “a skin rather than a lock,” as collegial psychoanalytic consultation may be desirable, and “a technical means, not a moral goal,” as it allows free association in the analysand and hovering attention in the analyst. And finally, Charles Levin explicitly adds psychoanalytic theory to the discussion: “It is no longer possible to conceptualize confidentiality without object relations theory and recent developments in transference/countertransference dynamics, (as it) serves as a container for the analytic couple.” Levin delineates psychoanalytic confidentiality from civic confidentiality: “the unconscious doesn’t belong in court.” He and others point to the absurdity of “informed consent” in an analytic context, which is about understanding the unconscious reasons for things by not acting on them.

Section 2, “Dilemmas in Treatment, Research and Training, “ begins with a paper by Otto Kernberg, who believes there are factors like the patient’s psychopathology which make confidentiality impossible, stating that he warns patients that they will be reported under certain circumstances. However, he advocates fighting against external intrusions, e.g. managed care, and advises against testifying in court “outside Tarasoff, except in child custody situations.” Robert Galatzer-Levy avers that psychoanalytic research and confidentiality are both essential for psychoanalysis to survive, and offers eight possibilities for coping with this dilemma, ranging from “what he doesn’t know won’t hurt him,” to disguising the material, to informed consent. However, he shows that these have all led to violations of either confidentiality, conduct of the treatment or integrity of content.

Ronald Britton and Robert Michels independently comment on the training analysis, the former opining that occasionally material from the analysis must be revealed. (He describes a candidate, whom he considered not amenable to psychoanalysis, (but who I think had developed a regressive selfobject transference that would well have been amenable to working through in a self psychological analysis.) “…the simplest arrangements allow for the greatest flexibility,” he states. Conversely, Michels believes that the training analysis is inviolate for clinical, not ethical reasons. Otherwise, it is a sham. This is my position, too, though I had a twinge of discomfort in reading that “a training analyst in a Rio institute remained silent about a candidate who was acting as a consulting psychiatrist in the torture of political prisoners” (Gampel et al., 2000).

Mary Kay O’Neal looks at the analysand’s need for confidentiality vs. the analyst’s need for privacy, throughout his career. What about the analyst’s need for self-expression, or to defend himself against accusation? Some institutes are now providing analytic wills, to address the analyst’s clinical records upon incapacity or death. In a survey O’Neal made of psychoanalytic institutes, she found that complaints for violation of confidentiality have rarely been made.

An introduction to the next section, “Clinical Practice,” crystallizes the difficulty in discussing our topic: “The clinician who dares to describe the damaging effects of compromised confidentiality risks the accusation of self-contradiction.” In a historical review of the concept of confidentiality in psychoanalysis, Tomlinson points out that Freud himself “observed confidentiality, abstinence and neutrality mostly in the breach.” He cites Kernberg’s opinion that the hypocrisy in not acknowledging that strict technical standards were actually not followed contributed to “authoritarianism and a culture of paranoia within psychoanalytic organizations” (Kernberg, 1986, 1996).

Guy Da Silva gives examples of analysands who wished/feared that the analyst would testify publicly about them, describing how each situation was resolved interpretively. We must preserve reverie space “as private as our dreams at night” for exploration of internal truth, to offer the transformational opportunity of psychoanalysis. In describing how an analysand’s perverse actions are transformed into dreams asserting his manhood, he demonstrates that ultimately there is no conflict between the aims of the analysand and those of society. Penelope Garvey depicts her harrowing experience in having her records subpoenaed, and receiving little support from her professional organizations or her insurance carrier to withhold even her private notes. Garvey clarifies that though the case itself is a composite, paradigmatically the analysand played an active part in starting and maintaining the situation: “… the experience of being trapped… in the cruel presence of someone who took pleasure in his failure, was one…that drove him into perverse activity…I then became the object into whom he could evacuate as much of his difficulty as possible…” Garvey describes feeling torn between loyalties to the patient, to the profession, to herself and to her family. Finally, Sunderson’s chapter, “…Breaches of Confidentiality in an Ethics Procedure,” describes individual and systemic failures to preserve the privacy of a complainant at every level.

The final section, “Professional Ethics and the Law,” contains essays by several psychoanalysts and attorneys. Christopher Bollas maintains that psychoanalysis is not really a profession, as its practitioners are still wedded to their professions of origin, and that these promulgate codes of ethics that are contrary to basic psychoanalytic practice. In his emphatic challenge to us, he states that psychoanalysis has “found itself enamored of the original disciplines’ forms of hate, … (which will) come to the orgasm-death of psychoanalysis as a practice…Analysts bear the hatred in their own unconscious structures, to be revealed through a strange type of passivity, an indifference to their fate.” He, and others, advocate that we form ourselves into a freestanding profession and provide a strong legal argument for our ethics. Ray Freebury describes that in addressing the subject of confidentiality at the Toronto Institute, “my somewhat self-righteous and zealous enthusiasm has been tempered without inducing the need to jettison the whole works.” He points out that in Ontario, by having used universal health care benefits to be paid for psychoanalyses, including candidates’ training analyses, medical analysts are finding it more difficult to provide confidentiality to their analysands.

Paul Mosher, in “We Have Met the Enemy, and He (Is) Was Us,” offers a most helpful if disturbing summary of developments in the U.S., starting with J. Edgar Hoover’s 1952 editorial in the Journal of the American Medical Association warning physicians to turn in potentially subversive patients! As in Canada, organized psychoanalysis threw in its lot with the health care system when generous health benefits were initially provided. Gradually increasing amounts of information were requested, and provided, to insurance companies. Since reporting and warning laws, starting with “child abuse” and expanding to other possible offenses, have become widespread, “(t)he fundamental rule of psychoanalysis…places the patient in an untenable position.” Mosher clarifies that the infamous Tarasoff ruling does not require the analyst to warn of a possible threat to someone, but makes the analyst liable to civil suit if a patient harms a specified person. Actually, in this case, the therapist had notified the police of the threat, resulting in the patient’s stopping treatment. The killing followed later.

Mosher sees some hopeful signs: First, the U.S. Supreme Court in Jaffee v. Redmond (1996) ruled that the psychotherapist-patient privilege exists in the Federal courts, not subject to a “balancing test,” which would permit a judicial review. Second, HIPAA provides a singular exception excluding “psychotherapy notes” from a person’s medical record, and third, in 1999 the U.S. Surgeon General recommended stronger laws against third party disclosure for “mental health” information (as is already the case in several jurisdictions).

Robert Pyles offers a spirited inside view of “The American Psychoanalytic Association’s Fight for Privacy,” in which he is an active participant. The APsaA submitted Friend of the Court briefs, for example, in Jaffee and in Bierenbaum (a murder case in which a psychiatrist wanted to testify against someone he had previously seen). Pyles expresses outrage against the concept of a clinician’s testifying against someone he has met with, likening this to an involuntary colonoscopy or to the forced use of sodium pentothal. He asserts that all of our psychoanalytic societies must establish clear standards of practice, create a strong political presence through lobbying and participate in key cases.

Daniel Shuman, an attorney, looks at the possible legal bases for the confidentiality privilege, utilitarian (consequentialist) and deontological (ethics of duty). He believes that in common-law countries like the U.S., we lean more toward utilitarian arguments, but in fact we have not researched whether, for instance, people actually utilize psychotherapy more when they have prior assurance that nothing can be divulged. Therefore, we revert to the question of “what is right,” but this is more of a “balancing” perspective, since, for instance, we could also say it is right that defendants have access to any evidence that might exonerate them. Finally, Claire L’Heureux-Dube, retired Canadian Supreme Court justice, discusses whether it is an equal rights infringement for complainants in sexual assault cases to be required to release their psychotherapy records. She wrote a minority opinion to this effect, given that these complainants were predominantly women, and later her opinion was supported by the legislature and then by the judiciary.

In her epilogue, forty years later Anne Hayman revisits the witness stand. She was not trying to protect a specific patient, or even all her patients; she was trying to protect psychoanalysis. She reports having explained to the court that in psychoanalysis there is no such thing as informed consent, since unconscious motives are unknown and the influence of the transference could lead a person to do what he would later regret. Though she had no legal right to refuse information, and still would have none in Britain today, the judge excused her, understanding that she was acting on principle and would not relent. Hayman muses upon possible exceptions to her position: 1. What if an analysand seems to present a real danger, and analysis does not seem to reduce the risk? 2. What if the analyst hears truly dangerous information about a colleague, especially from an analysand? In humility, she recommends consultation with trusted colleagues.

Most of the authors writing about the delicate and mostly unconscious interplay between analyst and analysand, regarding breaches of confidentiality introduced by either, use such object relations concepts as the analytic container and projective identification. Translating these phenomena into my theory base, psychoanalytic self psychology, I would schematically say: The analysand’s profound fear of psychic disintegration is activated when the archaic selfobject longings threaten to re-emerge in the transference, since the individual fears crushing disappointment and retraumatization. However, the analysand must maintain some kind of selfobject connection at any price, also to protect against psychic annihilation. His unconscious solution, part of the defensive structure that forms in the transference to protect the nuclear self, is exquisitely similar to one that he had reached in relation to the available selfobject milieu during his development. In principle, this is amenable to analysis.

I found this book both richly textured and disconcerting. Beginning with a somewhat self-righteous attitude, with a list of grievances against others, I emerged chastened. In relation to Bollas’ comments, I am familiar with the frozen response of other minority group members to external (and internal) challenge. In this case, “Let’s hope this blows over. We don’t want to be seen as supporting murderers and child molesters.”

Another dilemma: I personally learn and teach best, about both theory and technique, from studying psychoanalytic case material. We are all challenged, I believe, to find ways of teaching, learning and communicating with each other that will preserve the privacy and dignity of our analysands, and we must be continually alert to our human tendency to play out the unconscious dynamics of the transference/countertransference matrix through action instead of interpretation.

Gampel, Y. et al. (2000), Comments on the IPA Executive Council’s decision at the meeting in December 1999, in New York, in relation to Rio 1. International Psychoanalysis, 9:5-6.

Kernberg, O. (1986), Institutional problems of psychoanalytic education. Journal of the American Psychoanalytic Association, 34:799-834.

Kernberg, O. (1996), Thirty methods to destroy the creativity of psychoanalytic candidates. International Journal of Psycho-Analysis, 77:1031-1040.

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