Dianne Middlebrook's recent biography of Anne Sexton raises again for the mental health community the question of therapeutic confidentiality. The biographer, Professor of English at Stanford University, acquired from the poet's psychiatrist, Dr. Martin Orne, the tapes of her therapy for use in preparing the work. This is a good moment to review the important questions raised by these circumstances and to come to some understanding and judgment regarding Dr. Orne's action in releasing his patient's therapeutic communications.
Privilege is a legal concept concerning the giving of evidence under oath. In certain socially and legally recognized instances, a privilege may be claimed by one members of a two-person relationship not to give evidence against the others, such relationships include those between attorney and client, clergyman and penitent, wife and husband, doctor and patient, and psychotherapist and patient.
Privacy is a broader concept. The right to personal privacy is explicitly asserted in California in a recent amendment to the state constitution. In the famous decision in Griswold v Connecticut, which in 1965 invalidated a Connecticut law banning the prescription of contraceptives by a doctor for his patient, the U.S. Supreme Court held that the Bill of Rights provides citizens a “penumbra of privacy” that protects relationships in which the privacy of communications is an essential element.
Confidentiality requires that within an established professional relationship communications between the two participants will remain entirely with them, with no exceptions. The mere allowance of exceptions, even when unexercised, is enough to destroy true confidentiality. In the case in re Lifschutz (1970), the California Supreme Court asserted that psychotherapist-patient confidentiality was important enough to be of “Constitutional dimension,” falling under the “penumbra of privacy” articulated in Griswold.
It is often assumed that the nonprofessional member of the pair alone holds the privilege. In fact, situations vary in different jurisdictions. In Federal law there is no privilege at all. In California (but not all states) the client or patient has the right to claim the privilege of not testifying. In the absence of the patient's asserted claim the therapist must claim it for the patient. But the patient's own statement rules. However, the clergyman in California, independent of a penitent's wishes, may assert a privilege of silence in the face of the penitent's contrary wish. In the Lifschutz case it was claimed that the closest parallel to the therapeutic situation was indeed the Catholic confessional, sealed by the Church with a vow of silence as to such communications. In a secular society, it was argued, the psychotherapist required the same independent privilege already recognized in California for the clergyman. This argument was not accepted by the Court.
In contrast to the holder of the legal privilege, the ethical responsibility for maintaining the privacy of communications rests with the professional. Presumably clients, patients, and penitents wish to keep their communications private. If they do not, however, then ethical considerations may conflict with legal ones, posing the therapist a considerable dilemma.
Little has been made of the fact that the practice of psychoanalysis has a special need for strict confidentiality, quite apart from legal and ethical considerations. The efficacy of psychoanalysis as a treatment is based on the requirement of free association, whereby what is unconscious is brought to consciousness. For this the patient needs a mind optimally free to associate and to address unconsciously based resistances. But many people, lawyers especially, are reluctant to undertake analysis because they doubt the efficacy of the legal safeguards against third-party incursions into its contents. Though such a stance may be seen as a strong rationalization against beginning treatment, it also contains an important element of reality.
The analyst's ethical responsibility is first of all to the patient, but it does not end there. It extends to other current patients, past and future patients, to the psychoanalytic profession, and to society generally. Dr. Orne surely has treated other creative persons, and it can only be surmised what chilling effect the release of Anne Sexton's tapes had upon them. How could they have escaped the apprehension that they might be next, depending on where Dr. Orne next turns his attention?
Analysts who lack a powerful sense of the need for the utmost privacy of the relationship and the confidentiality of the exchanged communications are vulnerable to conflicts of conscience, reasonably based, whether conscious or unconscious. They cannot have an optimally free mind with which to respond to the patient's mental struggles. The ethical position of strict analyst-patient confidentiality may thus be seen to support the need for clear thinking and a clear conscience if analysts are to acquit themselves of their responsibility to their patients.
For these ethical considerations it is inadequate in psychoanalysis to leave the question of disclosure to the holder of the privilege alone. It is entirely legitimate, even ethically required, to oppose a patient's wishes for disclosure. It is unacceptable to permit a patient to dictate the arrangements and procedures of analysis by ordering the analyst to disclose its contents. That is never part of the agreement entered into at the beginning of treatment.
There is a previous case closely analogous to the Sexton-Orne relationship, in which a therapist exploited a patient's communications, this time for gain. On July 5 The San Francisco Examiner ran a long illustrated article about a current showing, at the San Francisco Museum of Modern Art, of Jackson Pollock's “Psychoanalytic Drawings.” Dr. Joseph Henderson, a Jungian, was Pollock's analyst in 1939-1940. Because Pollock had trouble communicating verbally, his analyst asked him to bring drawings in to be analyzed. Pollock produced 83 of them. The Examiner reported that Henderson “sold the drawings to the Maxwell Galleries after he discovered their value when he saw Pollock's great ‘Guardians of the Secret’ at SFMOMA in the late '60s.” Pollock's widow, Lee Krasner, opposed the publication of these drawings but was unable to stop it. The Examiner quotes her as follows: “I do feel there's a violation of privacy here. I just assume that anything that goes on between analyst and patient is private—about as private as a confessional.” In the early seventies, charges of unethical practice were brought against Henderson before the California Board of Medical Examiners. The Board took no action, on the ground that the therapy had occurred in another state, and any possibly unethical practice was not under their jurisdiction.