The Analytic Observer

Newsletter of the Chicago Psychoanalytic Society

Chicago Psychoanalytic Society | December 1998 Newsletter


Confidentiality

by Jerome Beigler, MD

Editor's note: This article first appeared on the American Psychoanalytic Association's Bulletin Board as a response to the numerous postings regarding the issue of confidentiality. The discussions were an outgrowth of the Monica Lewinsky affair. This is an edited version of the original posting.

I first want to acknowledge Paul Mosher for his incredible energy and devotion to educating us further to the importance of confidentiality as a prerequisite to the effectiveness of our profession (and, also, incidentally to the survival of our Democracy). I wanted to call everyone's attention to a recent court decision entitled Jaffe, Redmond and Hawaii P.S. v. Ariyoshi. This ruling, by the U.S. Supreme Court established by a 7-2 majority, states that society must provide a circumstance in which injured or ill citizens have access to appropriate treatment. If the treatment is psychotherapy, absolute confidentiality is a pre-requisite. This decision helps all of us to actively assert our ability to maintain confidentiality in the face of strong opposing views and already has been supported by a ruling in the District of Columbia. It emphasizes the psychiatrist's responsibility to protect the confidentiality of his records from incursions (as from Medicaid). For example, there is currently a campaign from "so called" researchers to obtain APA's (The American Psychiatric Association) approval for unimpaired access to identifiable clinical records, all of which would be computerized and thus automatically exposed to public accessibility. Paul Mosher says "this can erode the need for strict privacy." One should call their APA representative, APA Trustee, APA President, Vice President or Trustee-at-Large to voice our opinion.

I also want to comment upon an often heard remark that "The privilege of confidentiality belongs to the patient." In 49 of our States, it is true the privilege belongs only to the patient. But, in the state of Illinois, our statute for over 30 years provides for a supra-ordinate privilege to the therapist when it is exercised "on behalf of and in the interest of the patient." This statute was enacted to protect the unauthorized disclosures by the patient of events of treatment, thereby providing the therapists with the privacy to become optimally therapeutic. The law also enables the therapist to over-ride a patient's uninformed permission for the release of information the patient either doesn't remember or whose significance is not understood. Often a patient will agree to disclosure without realizing the entire record will be released. There have been cases in the past in which the therapist's privilege has enabled interventions to their patient's benefit. The law does not impair the patients' right for legal redress when it is appropriate while placing a sense of equal responsibility to maintain professional confidentiality.

We have a great profession and a great cause. Let's do what we can. There is a word of good news: At the September meeting of the Managed-care Association in Chicago, their president, who originated the system and is revered by its members, announced that managed care has succeeded in alienating the public and that there are thousands of legal cases all over the country suing managed care entities. This illustrates the effectiveness of individual attention. The American Psychiatric Association has been active at the grass-roots level in promulgating these cases. We don't know what system will succeed managed care, but we must learn to be active, learn where the channels of power are and how to influence them.


Chicago Psychoanalytic Society | December 1998 Newsletter