In the continuing struggle to define a reasonable balance between, on the one hand, maintaining the confidentiality prerequisite to effective psychoanalysis (and psychotherapy), and on the other hand, the legitimate needs of a complex society for information, several recent legal and legislative developments point to a regressive phase in the jurisprudential ambience in which we practice. There has been an increasing trend to use physicians, and particularly psychiatrists (psychoanalysts), as agents of social control.
Laws require the reporting of medical and psychiatric information in the assessment of driver's license applicants, drug abusers, gun permit applicants and child abusers. A convincing case can be made for the breach of psychiatric confidentiality in the reporting of child abuse, but experience is proving that reporting of child abuses has, because of limited social resources and complex family problems, not been effective. Protection of child-abuse medical records confidentiality similar to that provided in federal alcohol and drug abuse treatment programs would be a reasonable compromise; thereby enabling judicial balancing of society's need for disclosure versus the need to maintain confidentiality.
Although federal rules and regulations for alcohol and drug abuse treatment programs wisely protect the identities and clinical records of drug and alcohol abuse clinic patients, there have been many examples of breach of these rules by law-enforcement and auditing agencies. A New York psychiatrist went to jail to prevent access to his clinic's records by the police; in direct contravention to federal rules, San Francisco police in February, 1979, detained the director of a methadone clinic until 40 case histories were released (1); Nyswander, who introduced methadone treatment, in her ten-year report emphasized the damage to drug rehabilitation programs by police intervention (2).
Another example of using the psychiatrist (psychoanalyst) -patient relationship as a mechanism of social control is the California 1976 Tarasoff decision, imposing on psychotherapists under certain circumstances a “duty to warn” presumed intended victims of their patients' threatened aggression. This has resulted in complications to the ability of psychiatrists to help their patients. Marginally dangerous patients do not initiate treatment lest they be disclosed by their therapists; some patients have terminated treatment prematurely rather than reveal their aggressive fantasies, leaving themselves and others unnecessarily vulnerable. But also, even “warning” intended victims has proved ineffective. Tarasoff is another example of well-intentioned jurisprudence impairing access to treatment; whereas an unencumbered therapist-patient relationship is potentially the most effective method of defusing a patient on the verge of losing control.
A major erosion of the constitutional protection of doctor-patient privacy resulted from the 1978 U.S. Supreme Court decision in Zurcher v. Stanford Daily News, in which the validity of a warrant to search the premises of a newspaper for evidence on a crime involving a third party was upheld. This made not only newspaper offices vulnerable to surprise searches, but also the offices of doctors, lawyers, legislators and even private homes. If Zurcher had been available at the time, ex-president Nixon's “plumbers”, rather than having to burglarize, could have obtained a warrant to search Dr. Fielding's office for Ellsberg's records.
Sheriff Zurcher was also issued a warrant to search the office and home of a Stanford psychiatrist for evidence of a crime involving a patient of hers. No evidence was found. The chilling effect of such searches on psychiatry (psychoanalysis) and patients is readily apparent. But also disconcerting is the fact that the psychiatrist's husband is a famous scientist, and his records, too, were thus rendered accessible. This is a scenario not only of breach of psychiatric privacy, but also for industrial and international espionage.
The impact of Zurcher was further compounded by the passage in 1978 of Act 105 in Hawaii authorizing search warrants for probable cause defined as “public interest”. Thus should an official swear that a given provider treats Medicare or Medicaid patients and that it is in the public interest to inspect the records involved, a warrant can be issued. The office of a Hawaiian psychologist was searched and the records of his Medicare patients seized, and those of his private patients examined. The law was soon declared unconstitutional in a federal court, but the decision was appealed.
In October, 1980, President Carter signed a bill protecting newsrooms from Zurcher-type searches, and directing the Justice Department to develop guidelines for Federal searches of other innocent third parties such as psychoanalysts; but the guidelines are expected to provide little real protection. Several states have passed laws protecting newsroom searches, but no protection to others. Psychiatric and psychoanalytic records remain vulnerable.
As pernicious as the effects of the above sequence of laws and court decisions are on the ability of a psychiatrist (psychoanalyst) to assure the confidentiality prerequisite to his work, even of more significance are the potential effects of a series of bills introduced into Congress in 1979. Senator Javits introduced S.503, the Privacy Act Amendment of 1979. It purports to protect medical records from abuses of confidentiality, yet unauthorized disclosures are allowed not only for a summons or subpoena, but also for a “search warrant or formal written request” (3). In addition, there are two pages of detailed instructions on how law enforcement agencies may get confidential information from physicians without notifying the patients, and federal law would preempt more protective local state law. In effect, this proposed law codifies a law enforcement agency's use of a physician as a source of confidential information about a patient under investigation.
Equally disconcerting was the introduction on April 10, 1979, amid much publicity, by Senator Ribicoff “at the request of President Carter”, of two “privacy” bills (S.865, S.867) that actually curtail confidentiality even more than the Javits bill. In the House, Congressman Richardson Preyer introduced similar bills (H.R.2979 and H.R.3444). Subsequently, H.R.2979 was modified so that psychiatric records are shielded and more protective state laws preempt federal law, but it remains a regressive legislation. Thus we have the anomaly of our President and Congress announcing as heralded privacy bills legislation which actually would destroy confidentiality and convert physicians into informants for law enforcement agencies.
Through the combined vigorous efforts of the American Medical Association, the American Psychiatric Association and the American Psychoanalytic Association these bills were defeated, but they
may be revived in future sessions. The American Psychoanalytic Association is to be congratulated on its key contributions (via its counselor, Allan Fox) to this important, although perhaps only temporary victory.
Finally, Senator Kennedy introduced the FBI Charter Act of 1979, S.1612, which contains a “physician-informant” provision purporting to restrict the FBI's use of physicians as informants, but could be used to coerce confidential information. In addition it mandates access to the records of “licnsed insurance carriers,” thereby making all medical insurance reports available to scrutiny.
Thus we are confronted by a series of disconcerting developments that augurs ill not only for our ability to fulfill professional obligations to our patients, but constitutes a hazard to fundamental democratic principles. Eternal vigilance does seem to be the price of liberty. By working individually and with other professional organizations we can be effective even in these increasingly conservative times.
Jerome S. Beigler, M.D.
Chairman
Joint Ad Hoc Committee on Confidentiality