Fifteen years ago an investigator from a government security agency arrived unannounced in my waiting room requesting a chart of a former patient. He told me that, as part of a routine background check, he needed to borrow the record for a few hours in order to copy it. When I explained to him that all my records of interactions with patients were completely confidential, he apologized and left. No follow-up request ever appeared. I think the investigator was simply taking a chance that I would be naive in such matters. I wondered how often requests of that sort succeed, and what the successful attempts would say about the attitudes of other psychotherapists toward the confidentiality of their work.
The New Informants, a slim volume written by Christopher Bollas, a British psychoanalyst with considerable experience in the United States, and a California attorney, David Sundelson, who has written on other topics from a psychoanalytic point of view, takes up this question in a way that is informative, timely, accusatory (toward us), and at times a bit “over the top” in its speculations.
The book's thesis is that over the past few decades, and particularly in the United States, a dramatic erosion has taken place in the previously assured, essential confidential status of psychoanalytic (and psychotherapeutic) treatment relationships.
Beyond this assertion—with which I completely agree—the authors place the blame for this transformation largely at the feet of our profession: we are the informants and betrayers referred to in the title of the book. To quote Pogo, “We has met the enemy and it is us.” In fact, Bollas and Sundelson argue that psychotherapists have to a large degree become “agents of the state” who often act, through disclosure, in ways that serve the purposes of either the government or society in general, rather than the interests of their patients. They recognize three particular areas of concern: the accumulation of legal requirements that therapists report certain behaviors, or likely behaviors, of patients in treatment to government authorities or potential victims; the shaky, uncertain, and variable protection given to a patient's privilege of preventing treatment records from being forced into court proceedings; and the current widespread practice of therapists disclosing personal information about patients to the agents of third-party payers.
How the past three decades have brought these circumstances about, and what we can do about them, is a subject of major concern to all psychoanalysts. Bollas and Sundelson have done us a great service by providing descriptions of some of the cases and events that have led to the current sorry situation. They are particularly effective in describing the evolution of the reporting laws for child abuse in California as the hysteria over child sexual abuse has become transformed into a minor industry in that state. In 1991, 571,000 cases of suspected abuse (20 percent of which were sexual in nature) were referred to “protective services” in that state alone. The task of processing such a massive number of cases implies the existence of a large bureaucracy with huge budgets and illustrates its own zealous interests in increasingly stringent reporting requirements.
The authors are less specific in describing the catastrophic implications for confidentiality of the restructuring of the outpatient psychotherapy industry now in progress. They do mention the abusive nature of managed care and offer a strong prescription for a response: “Psychoanalysts should refuse under any circumstances to cooperate with managed care institutions….
“Indeed, agreement of psychoanalysts to collude [sic] in what they know to be a serious degradation of the ethics of their profession has done enormous damage to the practice of psychoanalysis (p. 173).”
They do not, however, detail the unfortunate and naive past activities of organizations, such as ours, that have unintentionally helped to lay the groundwork for the current disastrous utilization-management schemes. Under current managedcare schemes the coverage for extended psychotherapy is so limited that this is probably only a very small issue for psychoanalysis proper.
However, the cooperation of professional groups such as ours in formulating reporting schemes in which therapists send confidential clinical data to insurance companies and government agencies constitutes the background against which current third-party payers regularly demand such information and even enter therapists' offices to “review” their records.
The book's introduction recognizes that readers may well disagree with the formulations offered to explain society's acquiescence in the erosion of confidentiality. Indeed, I did find some of these a bit fanciful, particularly the suggestions of collusion of one sort or another, such as that suggested between the leaders of organized psychiatry and the manufacturers of psychoactive drugs (however much such suggestions might contain a grain of truth). I believe the overall explanation is so complex as to be beyond our reach, but certainly it must include an eagerness of many in society to abrogate the psychoanalytic situation based on indifference or hostility to the tenets of psychoanalysis, such as the notion of unconscious motives. Edward Greer, in his review of this book in the New England Journal of Medicine on April 25, 1996, puts it this way: “For those who think the unconscious is metaphysical nonsense the psychiatrist-patient privilege is trivial.”
In arguing, in effect, for an absolute kind of confidentiality for psychoanalysis, Bollas and Sundelson will find themselves with many sincere opponents. For example, Daniel Kevles, an ethicist at the California Institute of Technology, in his review of The New Informants in the New York Times Book Review on December 31, 1995, argued against an absolute privilege for psychotherapists. He supported instead a balancing of the privacy interests of patients, on one hand, against the needs of “justice” and society on the other— the very test that was advocated in the appellate court decision in the Jaffee v. Redmond case. He wrote, “It would be neither surprising nor unreasonable if a social and legal consensus were to form that is consistent with the ruling [of the Appellate Court].” Maybe it's a sign of a turnaround in the trend described in The New Informants that after Kevles' review was written, and in complete contrast with his conjecture, the United States Supreme Court Jaffee v. Redmond decision specifically
rejected that part of the appellate court's opinion which advocated a “balancing test,” ruling instead that the psychotherapy patient's privilege is effectively as absolute as any privilege in existence, and that no balancing with other interests can weaken it. While the Supreme Court's decision applies only to the rules of evidence in federal courts, the strength of the Court's statement offers us hope for increased legal protection for the confidentiality of psychotherapy, in general, in the future.
Despite its somewhat sensational tone and occasional lapse in scholarship (the five-page bibliography omits most of the relevant writings on confidentiality in our literature, and the authors misidentify the committee I chair as a joint committee of The American Psychoanalytic and the American Psychiatric Associations), this book is essential reading for all analysts and other psychotherapists. I highly recommend it.
Paul Mosher chairs The American's Joint Committee on Confidentiality.