The National Conference on Confidentiality, organized by the American Psychiatric Association, was attended by 120 representatives of fifty organizations from such fields as psychiatry, medicine, pediatrics, law, federal government, insurance, industry, hospital administration, political science, sociology, psychology, etc. At the end, the group resolved to establish an interim body to fashion a permanent Commission on Confidentiality of Health Records, to be privately financed. Future conferences will be held once or twice a year.
The conference was addressed in an opening plenary session by Arthur R. Miller, Professor of Law, Harvard Law School, who pointed out that although current realities warranted a high level of anxiety, the energies so generated need not result in self-paralysis, but should be directed creatively toward effective making of policy.
The conference was also addressed on November 7 by Senator Sam J. Ervin, Jr. He left us with the impression that there was still a chance that Rule #504, providing psychotherapist-patient privilege, would be included in the proposed new Federal Rules of Evidence in the Senate version of H. R. 5463. Should this happen, there would still be the task of passage by the House.
The conference then broke up into ten workshops. My own workshop was on the “Formulation of a Model State Law to Protect the Confidentiality of Health Records.” I was the Reporter for the group, and had submitted a pre-conference
paper on the subject. It was discussed intensively. As a result of our workshop, I was able to influence favorably the content of model state statutes on privilege of confidential communications proposed both by the AMA and by the Mental Health Law Project. Both of these organizations will have considerable influence in shaping future legislation on confidentiality. These, in turn, will influence the ambiance in which psychoanalysts work. It was encouraging to observe the changes in those who in the past seemed inflexible in their positions.
Further support for positions I had advocated in the past came from another workshop on “Litigation” which recommended the resistance by all possible means to the disclosure of confidential information, noted that a subpoena can often be effectively resisted, and recommended that a court-appointed psychiatrist should testify in the evaluation of any psychiatric case rather than the treating psychiatrist. These recommendations came from participants who in the past would have considered such steps too radical for reasonable consideration, people who are in policy-setting positions, and it is only a matter of time until such ideas are translated into practicalities. The fact that leaders in the field are thinking this way augurs well for the setting in which psychiatrists and psychoanalysts will be able to practice.
A total of ten workshops discussed various aspects of these issues. They cannot be covered here, but a summary can be made available upon request to the Joint Ad Hoc Committee on Confidentiality.
Since so many issues discussed at the conference have extreme relevance to practice and research in psychoanalysis, I recommend that the American Psychoanalytic Association continue its participation in a future Commission, should financial prerequisites be feasible. If such a Commission is established, it will have a significant impact on the shaping of national policy in matters of confidentiality and privacy. Because of our particular sensitivity to such issues, our Association can provide important input and should, for both selfish and altruistic reasons, participate in such a commission.