Ethics Committee Newsletter Piece: Confidentiality and Case Reporting
For the IPA Ethics Committee
by Howard B. Levine, MD
Professional Ethics are a foundational principle of clinical practice and, according to the philosopher Levinas, of all human relations (Chetrit-Vatine 2014). In this short communication, we will focus on patient confidentiality and case reporting, a subject that has been of recent discussion in both the Ethics Committee and the IPA Board.
In Freud’s (1913) second essay on technique, “On Beginning the Treatment,” where he described the fundamental rule of psychoanalysis - say everything that comes to mind without exception (pp. 134-137) -, he made it clear that nothing was to be exempt from disclosure in the process of free association, noting that:
“It is very remarkable how the whole task [of analysis] becomes impossible if a reservation [to speak one’s thoughts freely and completely] is allowed at any single place. But we have only to reflect what would happen if the right of asylum existed at any one point in a town; how long would it be before all the riff-raff of the town had collected there? I once treated a high official who was bound by his oath of office not to communicate certain things because they were state secrets, and the analysis came to grief as a consequence of this restriction. Psychoanalytic treatment must have no regard for any consideration [that would allow evasion of the basic rule], because the neurosis and its resistances are themselves without any such regard.” (pp. 135-136).
Although unstated in this essay, no doubt Freud, who was a physician and who had taken the Hippocratic Oath, assumed that the analyst had a reciprocal obligation. If the patient was required to tell all without regard for social conventions or personal comfort, then the analyst, like the priest in the confessional, was obliged to hold whatever was told or occurred in the privacy of the consulting room in the strictest of confidence.
Without this safeguard of absolute privacy protection of the patient’s disclosures, psychoanalytic treatment becomes impossible. This principle was upheld in US Federal Court in a famous case (Jaffe vs. Redmond), in which a police officer shot and killed a man who was committing an armed robbery. Although the police officer was found to be operating within the accepted stipulated principles involving the use of force by law enforcement officers, he was nevertheless sued by the deceased robber’s family for a civil rights violation.
Subsequent to shooting this man, the police officer developed psychological symptoms and sought psychotherapy. The prosecuting attorneys in the civil rights violation case, claiming the right to discovery of the facts, persuaded the court to subponae the therapist’s treatment notes. The therapist claimed patient confidentiality and refused to comply. She was held in contempt of court and threatened with prison. Her appeal to her state appellate court was denied. She then went before the US Supreme Court and her action was upheld in a landmark decision. The Supreme Court ruled that the right to confidentiality of patient communications in therapy was so central to the fact and potential success of treatment, that it generally superceded all other rights, such as that of discovery of facts.
This principle and the rationale behind it has remained the standard used in assuring patients’ rights to privacy of therapy communications in all subsequent US Federal court decisions. It is for this reason that the Ethics Principles of both the IPA and APSA state that if there is a conflict with local reporting laws or other legal requirements, an analyst may justifiably defy those laws, if he or she feels that to comply with them would harm or endanger the patient’s rights to absolute confidentiality of therapeutic communications.
But how then do we view this foundational principle in the light of another professional necessity and ‘good,’ that of the need to communicate our experiences with other analysts and therapists so that ideas may be discussed and debated, experiences shared and the field may advance to the benefit of our patients?
Consultation, supervision and clinical seminars are common occurrences in our educational models and in daily professional life. We all attend congresses and other professional meetings where papers are given that include clinical case material. The ethical principle that obtains in all of these situations is that the same level and obligation of confidentiality and respect for patient privacy exists for the consultant, supervisor, or seminar and audience member as for the treating analyst. It is for this reason that at our IPA Congresses we ask attendees not to speak, write about or communicate in any public place or manner the personal or clinical details of what they have heard presented. In the age of blogs, twitter and the internet, observing this stricture has become a matter of the greatest importance.
But what of the presenting analyst who reads or publishes a paper? The accepted standard of confidentiality, one referred to and used by all of the major journals in our field is that either the analyst obtains informed consent of the patient for use of the material or the material is presented in such a way that the identity of the patient cannot be recognized by a third party (Gabbard and Williams 2001). Obviously, the patient may come across and recognize him or her self in a published paper, and this may prove difficult for the analyst and treatment. However, if the disguise to third party recognition is observed in the presentation, it does not constitute an ethical violation.
The choice of informed consent or disguise to third parties remains a complex and subtle matter. On the one hand, it may be an unwarranted imposition to have an analyst interrupt the patient’s natural trajectory of the treatment to announce that he or she is planning to speak or write about the analysis and request permission to do so. On the other hand, if a patient discovers that his or her analyst has published or presented material about their analysis without notice or consent, a strong negative response might ensue. It is also debatable in any given instance as to whether, given the transference and its unconscious dimension, informed consent is even possible. And of course, the analyst’s wish to speak or write about the treatment, in addition to being a legitimate scientific activity, might also be scrutinized by the analyst as a potential actualization, enactment or carrier of elements of the countertransference.
Clearly, there are no easy answers as to how to proceed, although proceed we must. Bion often reminded us that in psychoanalysis the most we can do is to try to ‘make the best of a bad situation’ and this may be one of them. When confronted with the problem of case reporting and confidentiality, perhaps the most an analyst can do is to be aware of their ethical requirements and responsibilities and try to do what seems most appropriate in each particular situation.
A final related matter that sometimes comes up for Societies and institutes is the question of what the ethical considerations are when considering whether or not to allow non-analysts and non-clinicians to attend analytical clinical presentations and case discussions. Analysts and candidates are bound by the Ethical Standards of our profession. Non-analyst, non-candidate clinicians are bound by the Ethical Standards of their professional disciplines. Do these match the stringency of our own? If not, then there is a possibility that these attendees at our clinical exercises might not act in accordance with our Ethical Standards.
Lay analysts and lay analytic candidates would fall within and be bound by analytic Ethical Codes and Standards, but non-analyst, non-clinicians – e.g., academics from a non-clinical discipline who are interested in learning about analysis and applying it to their work in other fields – constitute a separate and unique category. While we may trust in their good judgment and general discretion, they may not be bound by a professional ethical code that is as stringent as our own. In such cases, where a similar code of Ethical conduct is not in place, it may be reluctantly necessary to ask them to recuse themselves from the clinical discussion or presentation.
Chetrit-Vatine, V. (2014). The Ethical Seduction of the Analytic Situation. The Feminine-Maternal Origins of Responsibility for the Other. London: Karnac/IPA.
Freud, S. (1913). On Beginning the Treatment. S.E. 12: 121-144.
Gabbard, G.O., Williams, P. (2001). Preserving Confidentiality in the Writing of Case Reports. Int. J. Psycho-Anal., 82:1067-1068.
Mosher, P. and Berman, J. (2015). Confidentiality and its Discontents: Dilemmas of Privacy in Psychotherapy (Psychoanalytic Interventions). New York: Fordham University Press.
 See for example the case of the writer, Phillip Roth (Mosher and Berman 2015).