The IPA on Confidentiality
Andrew Brook, Chair, Committee on Confidentiality and IPA Treasurer
Confidentiality is at the heart of psychoanalytic treatment. The analysand's trust in the process and the analyst depends on it. So protecting the confidentiality of analysand communications is something that every analyst seeks to do in all circumstances. This is not always easy because sharing clinical material is also essential to psychoanalytic practice and teaching and these two requirements are often in considerable tension.
In the winter of 2017, the Board of the IPA created a Committee on Confidentiality, to examine the use of clinical material, use of distance technology, and other matters. (The members of the committee are listed at the end of this article.)
At the time of writing, the Committee is about half way through its work so this article is a progress report and may or may not be a good guide to the committee's final recommendations.
The IPA has had a major interest in confidentiality for as long as it has existed but the immediate impetus for the committee was a law suit some years ago. It arose due to confidential information about a patient being revealed in a clinical presentation. (These remarks were made in an ad-libbed response to a question so could not have been caught in advance by any review process.) Subsequently the patient learned of the remarks and was outraged. The patient sued and the IPA ended up paying a substantial settlement. The issue, of course, concerning confidentiality was not the money or who was responsible for what but how to prevent such ethical violations in the future. This is the issue that launched the Committee on Confidentiality.
In short order, the Committee identified six areas as focal points for issues of confidentiality:
- Protecting patient confidentiality in presentations (the issue behind the law suit).
- Protecting confidentiality in publications. A huge amount of work has already been done on this issue and as a community we have perhaps done better with it than we have with some others.
- Protecting confidentiality in distance analysis and supervision. Here one main problem is that Skype and other video conferencing software packages can be hacked into. Sessions thus stolen could be posted on public sites. Another is that governmental and perhaps other agencies record most or all communications on electronic media. Yet analytic communications, including analytic sessions and supervision sessions, via distance technology are becoming extremely common in the community.
- In a number of countries, including quite possibly the whole European Community, patients own medical records concerning them and have a right to see and control them. This may extend to analytic process notes. If so, then if material drawn from a patient's treatment is used in any forum (scientific presentation, teaching, clinical case study, maybe even supervision), the patient would have the right to see and control what is thus used. In some jurisdictions, disguising identifying features may not be enough to ensure that a patient's ownership rights have been respected. Where to go from there is an interesting question. Will informed consent be required? - in analysis, a vexed topic in its own right. The IPA has sought legal opinion to help guide us through this thicket of difficult issues.
- Important issues of confidentiality also arise when the laws of one's country or the policies of a professional body demand that confidentiality be breached in certain circumstances. Two such circumstances have become prominent:
a. Many jurisdictions have reporting requirements. Such requirements demand that confidentiality be breached in cases, for example, of reported sexual assault or evidence of imminent danger to the patient or another person. Since such reporting not only destroys confidentiality but can have a massive impact on a treatment as a whole, such requirements raise serious questions for the analytic community.
b. In many jurisdictions, analysts can be subpoenaed to testify in trials involving a patient as defendant, plaintiff, or witness. Similarly, analysts can be required in the course of legal proceedings to produce process notes. How the IPA should view such subpoenas has become an important issue in debates about the relationship of such legal requirements to what should count as ethical and unethical behaviour under the IPA's Principles of Ethics.
- Another issue concerning confidentiality in the context of our Principles of Ethics is the issue of how the confidentiality of colleagues accused of wrong-doing should be treated during the investigation process. Prior to a finding of wrong-doing, the possibility remains open that the investigation will find that no violation of the Principle of Ethics has occurred.
These six issues largely define the work of the IPA Committee on Confidentiality. It is too early to say what recommendations the Committee will make, though on some issues we have provided at least some pointers to the directions in which our thinking is tending. We would be delighted to hear from any member of the analytic community on any of these issues in any of our languages. When our recommendations are settled, we will circulate them widely and there will be lots of further opportunity for comment.
The Committee on Confidentiality:
Andrew Brook, IPA Treasurer, Chair
Nahir Bonafacino, Latin American Member
Allannah Furlong, North American Member
John Churcher, European Member
Altamirando Andrade, Chair, Ethics Committee, Ex officio
Sergio Nick, Vice-President, Ex officio