In September 1976, the members of The American Psychoanalytic Association received a pamphlet entitled Principles of Ethics for Psychoanalysts and Provision for Implementation of the Principles of Ethics for Psychoanalysts. Under Section VI, entitled “Protection of Confidentiality,” the following statement was to be found: “Except as required by law, a psychoanalyst may not reveal the confidences entrusted to him in the course of his professional work or the peculiarities that he may observe in the characters of patients. Should he be required by a court of law to give testimony relating to the confidences of his patient, he should conduct himself responsibly toward his patient and should disclose only such information as may be required by law.” When a number of members objected to this statement, the Ethics Committee modified it to read as follows: “Except as required by law, a psychoanalyst may not reveal the confidences entrusted to him in the course of his professional work or the peculiarities that he may observe in the characters of patients. Should he be required by a court of law to give testimony relating to the confidences of his patient, he should make use of all available legal means to safeguard his patient's right to confidentiality.”
Among those of us who did become aware of the modification, some felt that inasmuch as a statement of principles contained a reference to implementation—as implied in instructing one how to conform with the law—there was still a problem. And we certainly felt that the ethical principles of psychoanalysts should preclude, by reason of technical necessity, any reference that might imply a breach in the confidential nature of the analyst-patient relationship.
In accordance with these feelings, my Society petitioned the Ethics Committee to remove any reference to the law from its formulation of the principle in question, or to indicate that, should an analyst be required by a court of law to testify on his patient's confidences, he might consider facing contempt of court. According to Dr. Homer C. Curtis, the Committee's chairman at the time, the Committee saw “merit” in the suggestion and was “inclined in that direction.” But as far as I or anyone in my Society knows, no action has been forthcoming.
Considering the issue at stake, I have been wondering how it was possible for our Association to come up with an ethical principle of this kind, to begin with; and, furthermore, to stick with it for at least three years now. Even to have no written statement of any principle at all would have been preferable to the one we may have to live with indefinitely.
On the surface, of course, the facts are simple enough: Section VI was originally copied, with little change, from the ethical guidelines of the American Medical Association. To copy, with little change, ethical principles applicable to one group of professionals and apply them to another is in itself, ethically speaking, a doubtful practice. Of much greater importance, however, is the question of the meaning of our parapraxis, a term which in my view characterizes best our adopting the ethics of the AMA.
We are usually not lax when it comes to technical issues, as even minor ones have often taken up a great deal of our time. For instance, not too long, ago, I attended a workshop where much effort was given to the question whether or not the analyst should have coffee available in his waiting-room. Indeed, it is difficult to reconcile such an all-encompassing concern about correct technique with a seeming willingness to undermine the very basis of psychoanalytic treatment—namely, the confidential nature of the analyst-patient relationship.
I am afraid it is as if, for all the trees, we have lost sight of the forest. Seeking after an explanation for this unhappy state of affairs, I was reminded that in most of our institutes confidentiality is not strictly maintained when it comes to training analysis. In fact, until a few years ago, training analysts had to report to their respective Education Committees on the progress of their analysand-candidates. In commenting on the problems raised by our ethical principles concerning confidentiality, Margaret Brenman-Gibson wrote to me: “I have been fighting this battle for years (also on Education Committees, where training analysts don't seem to take confidences of their analysands as seriously as they might).” Even now, in most of the so-called “non-reporting” institutes, the training analyst retains power over the candidate's career in that he must okay his matriculation to the institute's courses. Also, at the end of his analysand's analysis, he indicates whether or not termination was successful.
It is, of course, understood that the reason why training analysts are willing to more or less violate the candidates' confidences stems from the wish to ensure that only those candidates will graduate who have sufficient personality strength, integrity, and analytic acumen to carry out the manifold responsibility of our profession. The prevailing impression is that only the training analyst can judge adequately whether such desired qualities are sufficiently present in the candidate. Therefore, the training analyst agrees to compromise what otherwise would, and should, remain inviolable. But, here, painful questions arise: Could it be that resentment over a betrayal of privacy in their own training analysis makes analysts unconsciously wish for ordinary analytic patients to have a similar fate? Could it be that the extreme to which we have gone to keep our ranks pure has actually succeeded in weakening us where even the mere appearance of unreliability is enough to undermine the most essential part of the analytic process?
Peter C. Novotny, M.D.
Topeka