Assaults on Privacy:

February 27, 2008

Reflections on The Erosion of Confidentiality in Psychotherapy

Until the mid-1950’s psychologists and their patients enjoyed a highly private, confidential relationship. No reporting requirements existed. The Evidence Code was rarely utilized to intrude upon psychotherapist-patient privacy. Their relationship was about as private as that between priest and penitent, or journalist and source. Individual privacy rights reigned supreme.

In contrast, psychologists practicing today must contend with societal controls unknown and perhaps unthinkable a generation ago. Now the rights of society have been elevated. The contemporary psychologist practicing psychotherapy must contend with at least 15 distinct potential incursions into the privacy of their consulting room. These include, but are not limited to, reporting on child abuse, elder abuse, threats of violence to others or to themselves (that most recent exception being related to the Menendez brothers’ trial), access by insurance companies, managed care companies, other providers with releases of information or family and friends of the patient with signed releases of information, various permitted disclosures allowed by the Evidence Code (section 1024), requirements of whatever agency or institution the psychologist may be employed by and the whole range of legal incursions related to subpoenas or court orders be they concerning civil, criminal. administrative, workers’ compensation, internal revenue service, EEOC or other matters. The sad fact is that the psychologists’ consulting room has become a rather crowded place, replete with a number of welcome and many unwelcome intruders. The rights of society to have access to information it deems important, even in that private space. now reign supreme (Alderman & Kennedy, 1995).

In the ensuing paragraphs, the identities of these intruders will be briefly delineated with some commentary made upon the appropriateness of their presence. The unwanted intruders are particularly problematic in that they interfere with clinical processes, especially the process of free association and the analysis of projective identification; the very foundations of most psychoanalytic approaches.

Beginning with the welcome and even necessary intruders, these consulting room guests have been present ever since psychotherapy started more than a hundred years ago. They consist of three sets of people. First, patients are accompanied by the ghosts of their past, be they parents, siblings or other influential figures during their developmental years. As practicing psychotherapists know, these ghosts constitute an integral part of the psychotherapy process. By understanding them, how they are projected into various interpersonal relationships and how they affect self-concept, psychotherapy unfolds. The unconscious family of the psychotherapist comprises the second group of hidden intruders. The concept of counter-transference rests on how these ghosts of the psychotherapist either interfere with or facilitate the process of growth in the patient. The third set of intruders consist of the theorists who guide the psychotherapist’s work.

Perhaps the most benign intruders who were introduced more artificially than these first three, consist of the authors of the ethical principles of psychologists established by the American Psychological Association (APA). Section five of the Ethics Code devotes itself entirely to issues of privacy and confidentiality. Section 5.01, for example, requires psychologists to discuss the limitations of confidentiality at the onset of the psychotherapeutic relationship. Section 5.02 requires that psychologists familiarize themselves with the state and federal laws and institutional rules governing privacy. This section establishes that maintaining confidentiality is a primary professional obligation. Section 5.03 requires that psychologists minimize intrusions into that privacy. Section 5.09, which concerns itself with preserving records and data, mandates that psychologists maintain their records in a fashion that maximizes patient confidentiality. The most recent version of the Ethics Code also requires that psychologists make plans for the disposition of their records in the event of their death or disability.

When legal mandates, such as subpoenas, call for violation of confidentiality in a manner that conflicts with the above-noted ethical requirement, the ethics code requires that psychologist adhere to their ethical principles. General standards section 1.02 requires that psychologists follow the ethics code even when it conflicts with the law. In such instances, they make known their commitment to the ethics code and try to resolve the conflict in as efficacious a fashion as possible, always working toward the maintenance of the privacy of the psychotherapy patient.

As if this group of extra-therapeutic observers were not enough, psychotherapists, whether aware of it or not, have assembly people and senators from the California State Legislature and justices of the California Appeals Court, the California Supreme Court and the United States Supreme Court in the room with them as well. Section 1024 of the evidence code, which was the creation primarily of legislators who in turn were repeatedly influenced by court precedent, allows for a number of incursions into psychotherapeutic privacy. Delineation of all of these potential incursions lies beyond the scope of this paper but include that psychologists may violate the confidentiality of their patient if the patient tenders their mental status as an issue in a legal proceeding, the patient uses the psychotherapeutic relationship to plan the commission of a crime, or if the patient threatens a reasonably identifiable individual.

Because of these possible intruders, psychologists increasingly find themselves caught between the Scylla and Charybdis of the interests of the individual versus the interests of society. These legislature/court mandated possible incursions, which include child abuse and elder abuse reporting, are based, simply put, on the idea that it is in the greater interest of society to be aware of the potential threat of these individuals than it is the right of these individuals to obtain treatment in absolute privacy. There once was a time when these individuals could obtain that treatment in such a private fashion; that time, at least for now, is over. Psychologists have become, as Christopher Bollas (1995) has written, the “new informants.”

Interestingly, California law also holds psychologists responsible for maintaining confidentiality as much as possible. In the psychology licensing law, which was similarly pieced together by state legislators, psychologists are required to maintain confidentiality – and that is according to law, in addition to ethics. Section 2918 of the licensing law reads, “The confidential relations and communications between psychologists and client shall be privileged ….” In section 2960, which delineates the various reasons that can cause a psychologist to have their license suspended or revoked, reason (h) reads, “willful, unauthorized communication of information received in professional confidence.”

So we have a consulting room already crowded by the patient and their unconscious family, the psychotherapist and their unconscious family, the psychotherapist’s theorists, the authors of the Ethical Codes of the APA and various state legislatures and justices. The room will become further crowded by the lawyers and municipal or superior court judges, in the event that a psychologist’s patient becomes embroiled in any type of legal proceeding, whether criminal or civil. Indeed, the very rationale behind the Evidence Code is to allow attorneys access to certain private communication revealed in a psychotherapist’s office in order to prosecute, or defend, an individual involved in a legal proceeding. Many of the subpoenas that arouse such anxiety in practicing psychologists arc related to just these type of matters.

There are two additional sets of intruders. If the patient is using insurance to pay for all or part of the treatment. then the executives of that insurance company, whether they provide indemnity or managed care coverage, are additional and perhaps the most unwelcome intruders into the consultation room. The insurance contracts signed by psychotherapy patients may require the psychotherapist to limit the degree of treatment, to report on extremely private details of the patient’s life, or to provide copies of actual clinical notes. Failure to adhere by these regulations can cause benefits to be disallowed or, in the case of managed care contracts, for the psychotherapist to be dropped from the managed care panel or even potentially sued for breach of contract.

The last type of unwanted intruder only applies to psychologists working for an agency or institution. For those psychologists, the administrators of whatever agency or institution they work for are also present in ghost form. These psychotherapists may be required to make certain other mandated reports, such as of spousal abuse or HIV infection, if the particular institution for whom they are employed requires such disclosure.

The incursions into psychotherapeutic privacy by these overzealous intruders can be limited, or perhaps even ejected from the consulting room, by the psychology profession as a whole. Organized psychology has failed to sufficiently establish the importance of the tenet of confidentiality and privacy, is the very foundation of any psychotherapeutic approach. Perhaps by educating the public, members of our own profession and state legislators regarding how and why maintenance of privacy and confidentiality is absolutely crucial to provision of effective, competent and ethical psychotherapy will the tide be turned back toward maintaining the privacy the consumer of psychotherapeutic services deserves.

Our profession has unfortunately been emphasizing societal rather than individual needs, sacrificing some degree of privacy and confidentiality in the process. Bollas noted that, in a policy statement during 1989, the APA declared “the social policy of protecting children from child abuse outweighs the social policy supporting the protection of confidentiality in the therapy relationship.” Although psychologists were initially left out as mandated reporters of child abuse, the then president of the California Psychological Association, Lewis Carpenter, Jr, PhD, wrote a letter to State Assemblyman Lockyer, on June 3, 1977, insisting that psychologists be placed on this list of mandatory reporters of child abuse. As discussion regarding adding mandatory disclosure of spousal abuse or HIV infection grows in intensity. psychologists who practice psychotherapy must increasingly wonder when their role as patient advocate will be entirely replaced by one of patient informant.

In the meantime, individual psychologists can best serve the needs of their patients by understanding all of these potential incursions. They then need to work, in full compliance with the law and the Ethics Codes, to limit these invasions of psychotherapeutic privacy. These strategies include, but are not limited to, fully understanding the Ethical Codes, the various laws that allow for intrusions into the consulting room including reporting requirements and the Evidence Code, and familiarizing themselves with the policies of whichever institution for which they work, or of whichever insurance company is contributing to payment for the treatment process. When their patients become involved in legal situation that can allow for violation of their psychotherapeutic privacy, then treatment providers need to familiarize themselves with the nature of that specific legal situation and be willing to contact their local experts in ethics, or their own legal counsel, so as to best protect their patient’s privacy.

Through the combination of working as a community to change laws affecting legal or insurance company incursions into the psychotherapeutic process, bolstering our ethical codes in the favor of protecting patient privacy, and educating psychologists regarding these various potential incursions and how to control them, the profession as a whole will hopefully be successful in working toward protecting, if not increasing, the foundational privacy and confidentiality that lies at the heart of any successful psychotherapeutic approach.

References
Alderman, E. & Kennedy,C. (1995). The Right to Privacy. New York: Knopf.

Bollas, C. & Sundelson, D. (1995). The New Informants. Northvale, New Jersey: Aronson.

Published as:

Karbelnig, A. (1999). Assaults on privacy: Reflections on the erosion of confidentiality psycho therapy. The California Psychologist, 32(6), 34-37.

(Dr. Karbelnig, a past Member of the CPA Board of Directors and current Chair of the Ethics Committee of the San Gabriel Valley Psychological Association, practices psychoanalytic psychotherapy and forensic psychology in South Pasadena, California.)

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