All of us take for granted that psychoanalysis is a procedure in which the analyst's guarantee of strict confidentiality is a significant, even indispensable, component of the “psychoanalytic situation.” And yet, despite this, there seems to me to have set in among many of our members a gradual erosion of the high importance that once surrounded this promise of confidentiality. I'd like briefly to put forward my views as to the reasons for this loss of professional bearings.
Two decades ago, under the shadow of a political drive toward a national health care system, coupled with a serious reduction of insurance benefits for psychoanalytic patients who were employed by the federal government, a movement arose within The American to make continued coverage of analysis more palatable to government and insurance company planners. Somehow it came to be believed that the hostility to analysis in some circles, due supposedly to the idea that many treatments were either entirely unnecessary or excessive in length, could be ameliorated by proposing a method of utilization management. To that end, an ad hoc committee of The American, and eventually the Executive Council, approved a detailed review form the analyst could submit to insurance company or government reviewers. The form was based on one used by candidates of that era for making periodic reports on the progress of supervised cases. The Committee on Confidentiality vigorously opposed The American's endorsement of any such proposal, but its protests were drowned out in the enthusiasms of the moment.
Subsequently that review form was published in review manuals by other professional groups, including the American Psychiatric Association, and became a de facto standard referred to by insurance companies when requesting information from analysts. Although in December 1991 this reporting method was implicitly superseded by a vote of the Executive Council designating the most recent version of “Reporting Information for Claims Review of Psychoanalysis” as the sole official protocol for reporting clinical information to third parties; the Council's earlier blunder continues to affect our members, many of whom remain unaware that the position of The American on this issue has changed.
As we all do know, insurance coverage for psychoanalysis has continued to deteriorate over the years. In addition, many patients who might have been covered have declined to use existing benefits because of insurer demands for information. More significantly, I believe, a large number of our members feel betrayed by the old position taken by The American. They now doubt its commitment to the principle of confidential treatment and therefore do not support recent efforts to obtain expanded coverage for intensive therapy and psychoanalysis in the current debates over health reform. In fact, until recently the precondition of maintaining strict confidentiality regarding the patient-analyst relationship has not played a prominent part in The American's efforts to promote such coverage. As a result, many of our organization's most determined advocates of confidentiality, feeling defeated and disillusioned by the earlier Council action, have directed their energies outside The American.
In all fairness, the world of the nineties looks very different from that of the late sixties and early seventies. In those days, one could have a reasonable hope that a report marked “confidential” and submitted to the “medical director” of an insurer would be handled in an ethical and discreet manner by a professional peer. Today, however, much of the review work in insurance companies and managed care firms is done by low-level professionals and clerical employees. In addition, upper-level medical managers in those firms have a less than collegial, at times even hostile, attitude toward intensive psychotherapy. As a result, not only is it possible for sensitive material to fall into the hands of unqualified individuals, but reviewers demand more and more information in order to “justify” coverage. In particular, even in the circumscribed area of providing a diagnosis to the insurer, the well-known practice of providing a “benign” diagnosis is no longer sustained by the previous “gentleman's agreement” between practitioners and medical directors. Now, using diagnosis-based criteria for reimbursement, insurers insist on the most severe diagnoses before agreeing to significant psychotherapy coverage.
In the surrounding culture, the line between truly confidential treatment and various degrees of self-revelation has been blurred by a number of phenomena. Among these are radio and TV “therapists,” the use of recording devices and oneway mirrors to teach psychotherapy, the “let it all hang out” mentality of the seventies, the use of group psychotherapy based on psychoanalytic principles, the rise of marital and family treatment modalities, and a torrent of self-revelatory books and articles by prominent individuals. The cumulative effect of these phenomena, despite the counterbalancing value of some of them, has been an erosion, in the minds of lawmakers, the public, and even our own members, of a recognition of the special confidentiality required for truly in-depth psychotherapy.
Recent government proposals for “computerization” and the “information superhighway,” in conjunction with government-sponsored health reform, have entered into the area of medical record keeping. Some proposals have included the requirement that all medical encounters be reported in detail through a national information system to improve the efficiency of health care. The point of these proposals is the reasonable intent to make a patient's complete health record available at every treatment encounter, particularly in emergencies. The conflict between reasonable accessibility of useful information on the one hand, and the confidentiality of medical records on the other, is obvious.
Various new reporting requirements have been imposed, by an increasingly intrusive government, under the rationale of the “public good.” Among these are the “duty to warn” invoked in the Tarasoff decision, the requirement of professionals to report evidence of child abuse, and the demand that professionals report professional misconduct by colleagues.
Several disturbing new trends have emerged in the past few years that now threaten the confidentiality of records kept by analysts in their own offices. Under current rules, Medicare carriers have the right to inspect the records of all patients treated by an analyst who treats even one Medicare patient. Further, at least one physician-sponsored independent-practice HMO has established, as a “quality assurance” method, the procedure of having reviewers enter therapists' offices to read the records of all patients they insure. Insurers are well aware of the fact that analytic therapists are unlikely to make their records available to outside reviewers. Therefore, when an analyst wishes to appeal an adverse decision by a managed care insurer, an appeal he may be required by law to make, the company may simply request that the analyst submit his entire clinical record as part of the appeals process. It is easy to imagine that in this situation many appeals are dropped at the patient's request.
Finally, the “medicalization” of psychiatry training programs in the U.S. has led to a generation of psychiatrists many of whom are poorly informed or even hostile vis-à-vis psychoanalysis. Gradually, these psychiatrists are exerting their influence in shaping insurance company practices and government policy. There is a trend even within our own membership to advocate the publication of verbatim material from analytic sessions, in the hope of providing published “data,” thus putting analysis more on a par with other sciences.
Because of the special requirements of our work for a confidential relationship, however, we hold a unique public trust. That our data cannot (as a general matter) be made public is a scientific problem of psychoanalysis, not a disqualification of psychoanalysis as a science. Analysts have no need to be defensive about this aspect of our profession.
As I assume the chair of The American's Joint Committee on Confidentiality, it is our committee's goal to increase awareness among our members of the importance of maintaining the spirit and the substance of confidentiality in our professional work and in the official actions of our organization.
All of us recognize that any third party—relative, insurer, government agency—that provides the considerable financial support required for an analysis is entitled to some assurance that the treatment is appropriate and is being carried out in a reasonable manner. However, we should bear in mind that there is no evidence that any disclosure by the treating analyst is necessary to achieve this goal. The consensus on our committee is that psychoanalysts should not participate in any review procedure in which any data allowing identification of the patient are released by the treating analyst. Utilization management within this constraint is still possible. For example, patients might make disclosures of their choice to a third-party payer or to a consultant. Alternatively, the treating analyst might consult with or report to another analyst under the condition that the consultant has no way of identifying the patient. No information would be reported to the insurer other than the consultant's decision.
Early in this century, Freud considered the question of whether other persons could be invited to observe a psychoanalysis. “It is to be regretted,” he wrote, “that we cannot let them be present as an audience at a treatment of this kind. But the ‘analytic situation’ allows of the presence of no third person….” Few other professions set such a high standard for their members. Many other psychotherapists have yielded, for reasons of financial gain, to the growing intrusion of the government, and of government-endorsed utilization managers, into the psychotherapy relationship. Eventually, the office of an ethical psychoanalyst may become the only place where a person in distress can be assured an opportunity for a completely confidential exploration of personal difficulties with a helping professional.