Medium 9781855751163

The New Informants

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Confidentiality is one of the cornerstones of psychotherapy, and yet this confidence is betrayed with increasing regularity. This text attempts to answer three questions: how did this loss of privacy come about?; what does it mean for clinical practice?; and what can be done about it?

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1. Breaching the confessional

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In a recent detective novel by the Israeli writer Batya Gur (1992), a psychoanalyst is murdered just before she is to deliver a lecture to her colleagues on “Ethical and Forensic Problems Involved in Analytic Treatment.” The key to this murder, we learn, was the analyst’s intention to disclose that one of those colleagues, a candidate for admission to the Psychoanalytic Institute, has been sexually involved with a patient—a patient who subsequently commits suicide. The murder also causes another crime. The analyst’s medical records are stolen by one of her own patients, a prominent army officer. The officer fears that his career will be ruined if his superiors learn from publicity about the murder that he has been in treatment.

Gur’s tale of a therapist’s misdeed neatly presents both sides of the widespread current debate about confidentiality and psychotherapy. On one side are those who believe that a therapist must sometimes disclose confidential information to protect the innocent or punish the guilty. On the other is an equally strong belief that confidentiality is “at the core of the psychotherapeutic relationship” (Jagim et al., cited in Knapp and VandeCreek 1987, p. 10) and must be preserved to make that relationship possible.

 

2. Absent at the creation

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In October 1986, Michael Searcy took his daughter Stacy home with him to California from Texas. Stacy had been living there with her mother Sandra, from whom Searcy was divorced.1 In California, Searcy hired Roy R. Auerbach, a licensed clinical psychologist, to examine Stacy. Auerbach subsequently gave Searcy a written opinion stating his belief that Stacy had been sexually abused while in her mother’s custody.

Searcy contacted the police and a child welfare agency in Houston in early 1987 and gave them Auerbach’s opinion. The Texas officials called their counterparts in California. According to Sandra Searcy’s lawyers, they also investigated the allegations and found them groundless (Goldberg 1992). The California officials called Auerbach, who repeated to them the statements he had made in his opinion. After Sandra Searcy obtained a copy of the opinions, she and her children sued Auerbach in United States District Court for libel, professional negligence, and intentional infliction of emotional distress.

 

3. Loss of confidence

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Psychoanalysis cannot function if the patient does not have complete confidence that what he says to his psychoanalyst is privileged. Because the term psychoanalysis is used by all kinds of “therapists” it cannot be assumed that what we mean by the psychoanalytic method is self-evident. It differs in striking ways from other forms of talking treatments. Psychoanalysts and psychoanalytic psychotherapists1 encourage patients to free-associate: to say as openly and uncritically as possible whatever crosses their mind. Much as many new patients might wish to organize a session according to a predetermined agenda—and it is quite common for beginners to decide beforehand what they want to talk about—the analyst does not ordinarily collude with this aim. He may suggest that an agenda seems a way to escape the uncertainties of talking freely. Or he may remain quiet, allowing the patient to discover that an agenda does not work for very long; the absence of the analyst’s conversational response, the passing of time in the hour, the arrival of other—unplanned—thoughts naturally break down the structure of premeditation.

 

4. Creating informants

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It is undeniably hazardous to consider why psychoanalysis has lost the privilege of confidentiality, since the historical process is still taking place. It is useful, however, to reflect on certain trends so as to consider in the next chapter what steps could be taken to restore what has been taken away. We have already suggested a few important developments.

The widespread social alarm created by the work of the Kempes in the early 1960s shocked a nation that, until that time, had assumed that child abuse was negligible. There was at first sight little that could be done about what was described as an epidemic. The cost to states and county governments of training a new generation of child abuse investigators would have been great. A population in panic needed a swift response. Deputizing thousands of psychotherapists as mandatory informants was in some respects an ingenious solution; therapists were on the front lines, working with individuals and families in trouble. Few at the time considered the long-term effect on psychotherapy of this newly assigned role.

 

5. Restoring privilege

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The destruction of confidentiality by courts, state legislatures, managed care providers, biographers, and former therapists would seem to be so far advanced that attempts to reverse the process so as to restore the conditions essential to psychoanalysis may seem quixotic or worse.

If we begin with a premise that a patient who sees a psychoanalyst is guaranteed that absolute confidentiality is assured and maintained, then the door is shut to any and all requests from third parties for clinical notes and testimony by the clinician. Any psychoanalyst who listens to a patient describing the sexual molestation of a child would have to bear the considerable anguish of his position: specifically he would be obliged to refrain from trying to protect the child by informing on the adult. He may not disclose information that would reveal his patient’s identity because by doing so he destroys the practice of psychoanalysis. His position is no different than that of the journalist who must protect the source of an article, the lawyer who must protect his client, the priest who must protect his penitent. There can be no exceptions.

 

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