The importance of confidentiality as a public concern has risen considerably in the past few years. The incursions into privacy by the computerized ordering of information, the development of a consumer-advocacy movement, the definition of privacy as a constitutional right by the U.S. Supreme Court, the work of the U.S. Privacy Protection Study Commission (appointed by the President and Congress), the impact of insurance-application and claim forms, and many other developments have increased public awareness of issues of confidentiality.
The Joint Ad Hoc Committee on Confidentiality was appointed in April 1974 by President Burness E. Moore. One of the first issues the Committee considered was the “Buckley Amendment,” which provides students access to their academic records. Participating in the modification of the more unacceptable provisions of the original draft of the law, we determined that the provisions did not apply to our Institutes or to our candidates. Nevertheless, there has been an impetus toward openness in the relationship among candidate, institute, and faculty, manifested by the tendency of supervisors to share their reports with the candidates. In addition, the Committee, in May 1975, recommended that, generally, training analysts not make reports about their analysands to various Institute committees.
The Committee is now working on the issues highlighted by the Roe vs. Doe case, in which our Association is participating as an amicus curiae. A former patient has obtained a temporary injunction against the distribution of a book by her therapist on her case-history, which was published against her specific wishes. The therapist claims to have obtained consent to publish and that the case was adequately disguised. The evidence tends strongly to support the patient's view. We have participated in a brief, prepared by the Mental Health Law Project, supporting the patient. The first brief successfully petitioned the U.S. Supreme Court not to hear the case until it had remanded the case to the U.S. District Court in New York, where it is about to be argued in detail. At a pretrial hearing in May, 1976, it became apparent there are no legal guidelines for consent to publish by a patient in therapy: should consent be written or oral; can a patient give realistic consent while still in analysis or therapy; is consent once given, revocable; what differences in criteria obtain when publication is for lay or scientific purposes; how does one reconcile the rights of a patient to privacy with the scientific gains from publication of clinical material? It is hoped the case will help supply answers to these questions.
A second problem, highlighted by Roe vs. Doe, is the matter of the proper disguising of case reports. There are no legal guidelines and no clearly articulated policies from our publications or our organizations. A third problem is the legal and ethical definition of what constitutes a breach of confidentiality. Again, there are no clear guidelines. To help clarify some of these problems, our next Committee meeting in December 1976 will be attended by judges, lawyers, editors, and authors.
The Association is also participating as an amicus curiae in Whalen vs. Roe, a class-action suit brought by a group of consumers and physicians to protest the computerization of prescriptions for Schedule II drugs (ritalin, amphetamines, methadone, codeine) by the State of New York. Consumers fear that hyperkinetic children on ritalin or amphetamines will be labelled drug abusers. The state claims it is searching for criminal drug abusers. After only one suspected case was found in a million prescriptions, the lower court found in favor of the plaintiffs on the basis of incursions into the privacy of the doctor-patient relationship and the right to unencumbered optimal medical treatment. The state appealed, and the case will be heard by the U.S. Supreme Court. The Mental Health Law Project is also preparing this brief. There are Supreme Court precedents defining parts of the doctor-patient relationship as encompassed by a right to privacy (abortions, contraceptive information), but this case is of relevance to us, because it provides an opportunity for the Supreme Court to rule on the complete doctor-patient relationship as part of a constitutional right to privacy. If this can be established, then we will be in a strong position to withstand incursions into the privacy of the psychoanalytic relationship.
A more immediate matter was called to the Committee's attention by one of our affiliate institutes, concerning informed consent on the part of clinic patients for the use of their clinical material for purposes of supervision and teaching. In some psychoanalytic communities, clinic applicants are sophisticated and do not require specific information, but this is not the case in all communities. Premature disclosures to prospective clinic patients of the nature of training procedures is likely to consitiute an unnecessary complication, and yet the patient's right to be informed is also apparent. A majority of our Committee supports the position that sometime during the intake procedure the clinic applicant be informed casually and verbally that the clinical material, with all due precautions to protect privacy, will be used in a training context. The fact that such information was given should be included in the applicant's record.
The newly adopted Code of Ethics of our Association provides that the psychoanalyst protect the confidentiality of analysand-psychoanalyst communications within the requirements of the law. Many colleagues are not sufficiently aware that a subpoena for information about a patient can usually be resisted successfully with the aid of legal intervention. We strongly recommend that the paragraph in our Code of Ethics dealing with confidentiality be changed so as to direct psychoanalysts to resist vigorously, within the broad limits of the law, any incursions into a patient's privacy.
We are also working on a Model State Statute to protect the confidentiality of therapist-patient communications. At present, only seven or eight states have such a law. The AMA has adopted its own Model State Statute, but it has many shortcomings. By working in conjunction with the Committee on Confidentiality of the American Psychiatric Association, we hope to have some influence on the form of the model statute.
The most important issue currently facing our Committee developed over the past summer and concerns the insurance-claim-form devised by the Washington, D.C., Blue Cross-Blue Shield in conjunction with the Federal Employees Health Benefit Plan (FEHB) and NIMH for purposes of research, and monitoring quality control of practitioner competence, adequacy and effectiveness of treatment. In the past year, the Washington Blues have spent 15 million dollars on long-term psychotherapy and psychoanalysis. Their system of monitoring involves a questionnaire that potentially jeopardizes the privacy of patients. Complications in career advancement, for example, might accompany unauthorized disclosures. Both the Blues and NIMH assure competent maintenance of privacy. The fact that some colleagues feel they can live with these requirement, at least on an experimental basis, complicates previous assertions that psychoanalysis cannot be conducted in an atmosphere of substantive incursions by third parties. For the time being, we recommend the establishment of an Oversight Committee consisting of representative from the Blues, NIMH, and our profession, to monitor the effectiveness of maintaining confidentiality; and also the definition of substantial penalties for breach of confidentiality.
—Jerome S. Beigler