Poster presented at the
1999 Army Behavioral Sciences Short Course
Bethesda, Maryland
30 August 1999
by
Sheila Hafter Gray, M.D.
Teaching Psychoanalyst
Baltimore-Washington Institute for Psychoanalysis
Laurel, Maryland
Adjunct Professor of Psychiatry
Uniformed Services University of the Health Sciences
Bethesda, Maryland
Psychiatry Consultant
Walter Reed Army Medical Center
Washington, D.C.
Disclaimer:- The opinions or assertions contained in this presentation are the private views of the author and are not to be construed as official or as reflecting the views of the Uniformed Services University, the Department of the Army or the Department of Defense.
Background
In Jaffee v Redmond the Supreme Court found that the value to society of a psychotherapist- patient privilege is to make it optimally possible for people to get good treatment, and that these health considerations outweighed other concerns including those of the justice system. Observing that effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make frank and complete disclosures, the Court established a psychotherapist-patient privilege that is based not on an individual’s need for or right to personal privacy but on the technical requirements of a specific form of health care. The confusion between confidentiality and privacy appears to have influenced the decision of the Joint Service Committee on Military Justice that Jaffee is not applicable to the military. This is likely to have had an adverse effect on the mental health of active service members.
REF:- Jaffee v Redmond, 116 S. Ct. 1923 (1996) (No. 95-266).
Memorandum from Bryan G. Hawley, Major General, USAF, The Judge Advocate General for All Staff Judge Advocates, et. al., Release of Medical Records in Criminal Proceedings (July 31,1966). cited in Zanotti, B.J. and Becker, R.A. (1999) A.F.L. Rev. 41:1-72.
Educational Objectives
To suggest a basis on which viewers may
– differentiate between privacy and confidentiality
– have an overview of the place of confidentiality in psychotherapeutic technique
– have an overview of the process of psychotherapeutic listening
– have an overview of the role of unconscious and preconscious memorial processes in creating a psychotherapy chart
– find ways to reconcile the alleged conflict between their military and medical roles and to advocate for a sensible policy re confidentiality of psychotherapeutic communications.
Privacy and Privilege
Derived from Old Latin PRIUUS – that which is isolated from the rest = owned by one person. PRIUUS LEGIUM = law affecting a private person –> Privilege
Who owns the psychotherapy case record? Is it a privileged document?
– Freud believed it belonged to Science; though for cases after Dora he asked specific permission to publish.
– Contemporary psychotherapists believe it is the patient’s = privileged. Good technique (v.i.) requires that it is also confidential.
– Supreme Court in Jaffee agreed.
– Health care of military service members is a function of command which delegates the task to specified professionals and which owns the charts
Service member-patients have no privilege.
Optimal readiness may require granting them access to confidential psychotherapy.
REF:- Freud, S. (1905) Fragment of an analysis of a case of hysteria. S. E. 7:7-122
Lipton, E. (1991) The analyst’s use of clinical data, and other issues of confidentiality. J. Am. Psychoanal. Assn. 39: 967-85.
Jaffee v Redmond, 116 S. Ct. 1923 (1996) (No. 95-266).
Therapeutic Alliance
Derived from Latin LIGARE = to bind –> Middle French LIER –> Alliance AND –> Liaison = a love affair and the material that holds a sauce together.
The therapeutic alliance = a situation in which patient and psychotherapist are bound together in an operation toward mutual communication and understanding. Requires that a patient may rely upon an exclusive liaison with the analyst. (Tower)
“The consistent, stable relationship which will enable the patient to maintain an essentially positive attitude towards the analytic task when the conflicts revived in the transference neurosis bring disturbing wishes and fantasies close to the surface of consciousness.” (Zetzel, 1958)
Note similarity to the concept of unit cohesion as basis of successful military operations.
REF:- Tower, L. (1960) Unpublished communication on file in the library of the Chicago Institute for Psychoanalysis.
Zetzel, E. R. (1958) Therapeutic alliance in the analysis of hysteria. In (1970) The Capacity for Emotional Growth. New York: International Universities Press, 182-196.
Zetzel, E. R. (1966) The analytic situation and the analytic process. Ibid., 197-215.
Confidentiality
Derived from Latin FIDERE = to trust. The therapeutic alliance is based upon trust.
“The emotional betrayal of this deep and unspoken bondage, not the occasional revelation of a communication or of a given secret, leads to loss of confidence in the psychotherapist. “It is in this emotional bondage, I believe, that one finds the quality of need for confidentiality which is characteristic of the psychoanalytic treatment.” (Tower)
“Reliability and trustworthiness are ordinary and fundamentally necessary features of the psychoanalytic situation.” (Zetzel)
Consensus exists that trust is a requisite condition for psychotherapy conducted by all health professionals.
Command which holds the trust of service members may need to asset its privilege to guarantee these conditions for patients treated under its aegis.
REF:- Tower (1960) Unpublished communication cited by Gray, S. (1992) Quality Assurance and Utilization Review of Individual Medical Psychotherapies. In Marlin R. Mattson, M.D., editor (1992) Manual of Psychiatric Quality Assurance Review. Washington, D.C.: American Psychiatric Press, 159-166.
Zetzel, E. R. (1966) The analytic situation and the analytic process. In (1970) The Capacity for Emotional Growth. New York: International Universities Press, 197-215.
Brief of the American Psychoanalytic Association, Division of Psychoanalysis(39) of the American Psychological Association, The National Membership Committee of Psychoanalysis in Clinical Social Work, and the American Academy of Psychoanalysis as Amici Curiae. Jaffee v. Redmond, 116 S. Ct. 1923 (1996) (No. 95-266).
Confidentiality
Matrix for the evolution of the treatment process.
Psychotherapeutic technique is designed specifically to help patients gain access to aspects of their minds that they ordinarily do not allow themselves to know, and to gain understanding of their motives and the methods they use to keep these matters out of awareness. Ideas, memories and feelings that one keeps hidden from oneself are extremely difficult to share with another person. This process is facilitated when patients come to believe on the basis of actual experience that the therapist safeguards confidences –> patients feel free to imagine and to say anything. Clinical experience with training psychoanalyses in the 1st half of the century revealed that if the analysand verified that the analyst made judgments that were or could be communicated to or discoverable by external sources (e.g. a training committee) the resistance to disclosure was fortified. This always burdened and sometimes fatally compromised the psychoanalytic work –> more recent policy that a fire-wall be erected between training analysis and other education and training functions.
The situation of training psychoanalysis may most closely approximate that of all psychotherapies in the military health care setting.
REF:- Freud, A. (1950 [1938]) The problem of training analysis. In (1968) The Writings of Anna Freud, Vol. 4. New York: International Universities Press, p. 417 footnote
Gray, S. H., Cummings, R. R. (1995/1997) Charting Psychoanalysis. J. American Psychoanalytic Assoc. 45:656-672.
Evidence Regarding Therapeutic Alliance
replicated studies of utilization of mental health benefit under BC/BS Federal Employees Health Benefits Program conducted by Peer Review and Standards Committee of Washington Psychiatric Society
= Methodology:-
Psychiatrists submitted detailed clinical reports on cases for which claims had been submitted.
Cases review by fellow psychiatrists within ambit of confidentiality of APA District Branch.
= Conclusion: Accuracy of reporting was enhanced when clinicians knew that reports would be available only within ambit of professional confidentiality of the DB.
= No adverse clinical effects ever reported to DB or to Committee on Peer Review of American Psychoanalytic Association.
= Ambit of confidentiality not clearly defined for military health care.
REF: Sharfstein, S.S., Towery, O. B., Milowe, I. D. (1980) Accuracy of diagnostic information submitted to an insurance company. Am. J. Psychiatry 13:70-73.
Gray, S. H. (1992) Quality Assurance and Utilization Review of Individual Medical Psychotherapies. In Marlin R. Mattson, M.D., editor (1992) Manual of Psychiatric Quality Assurance Review. Washington, D.C.: American Psychiatric Press, 159-166.
Evidence Regarding Therapeutic Alliance
Open study of case reports of psychoanalyses at semiannual Review Clinics of the American Psychoanalytic Association:- Sharing clinical information outside ambit of professional group –> breakdown of confidence even when privacy is maintained. It is a counter-therapeutic activity.
– Submitting complete histories and full speculative (metapsychological) formulations for external review –> irrevocable contamination of treatment process.
– Reporting even limited clinical information beyond ambit of professional confidentiality –> unanalyzable defect in therapeutic alliance. Impetus for Informed Consent to Review.
– Constructing reports –> technical problems. Impetus for:
Charting Psychoanalysis
Draft APA position that psychotherapy charts be subject to special rules.
REF:- Gray, S. H. (1992) Quality Assurance and Utilization Review of Individual Medical Psychotherapies. In Marlin R. Mattson, M.D., editor (1992) Manual of Psychiatric Quality Assurance Review. Washington, D.C.: American Psychiatric Press, 159-166.
Gray, S. H., Biegler, J., Goldstein, J. (1995/1997) Informed Consent to Review. J. Amer. Psychoanal. Assn. 45:652-655.
Gray, S. H., Cummings, R. R. (1995/1997) Charting Psychoanalysis. J. Amer. Psychoanal. Assn. 45:656-672.
APA Commission on Psychotherapy by Psychiatrists (1999) Documentation of Psychotherapy by Psychiatrists. DRAFT available on www.psych.org.
Psychotherapeutic Listening
Requires maintaining evenly suspended attention in the face of all that one hears. Clinicians who abstain from special or immediate attention to any one element best absorb and thus remember all that their patients communicate.
replicated research studies using long term follow up interviews all indicate that patient and psychoanalyst independently remember the treatment encounter consistently, completely and accurately. Since a psychodynamic recollection of the therapeutic interaction reliably exists in the minds of clinicians and patients and can be retrieved as needed, detailed health care charts are not needed for optimal psychotherapeutic care.
Appropriately limited charting of psychotherapy –> records that are adequate for health care but are not useful for administrative or forensic purposes.
REF:- Freud, S. (1913) On beginning the treatment. Standard Edition 12:121-144.
Pfeiffer, A. (1959) A procedure for evaluating the results of psychoanalysis: a preliminary report. J. Amer. Psychoanal. Assn. 7: 418-444.
Norman, H. et al. (1976) The fate of the transference neurosis after termination of a satisfactory analysis. J. Amer. Psychoanal. Assn. 24: 819-844.
Adams-Silvan, A. (1993) The transformation of the listening process into a therapeutic instrument with special reference to analytic memory. J. Clinical Psychoanal. 2: 513-527.
Gray, S. H., Cummings, R. R. (1995/1997) Charting Psychoanalysis. J. Amer. Psychoanal. Assn. 45:656-672.
APA Commission on Psychotherapy by Psychiatrists (1999) Documentation of Psychotherapy by Psychiatrists. DRAFT available from APA Online.
Therapeutic Alliance is a Factor in Readiness
Conclusions and Recommendations
Clinical and research evidence from the civilian sector indicates that both privacy and confidentiality are required to maintain a functional therapeutic alliance and thus good psychotherapy technique. This position is endorsed by Supreme Court.
In the military sector privacy of health care records is appropriately a function of and defined by command. Judge Advocate Generals’ position that the need for good order and discipline places confidentiality at the discretion of command –> situation that cannot support appropriate counseling or psychotherapy.
Psychotherapy makes essential contributions to readiness by diminishing and preventing psycho-pathology and enhancing the functional capacity of service members. Confidentiality is an essential precondition of effective psychotherapy. Command may consider delineating a guarantee of confidentiality for psychotherapy of all service members –> effective psychotherapy available within the military health care systems.
REF: Gray, S. H. (1992) Quality Assurance and Utilization Review of Individual Medical Psychotherapies. In Marlin R. Mattson, M.D., editor (1992) Manual of Psychiatric Quality Assurance Review. Washington, D.C.: American Psychiatric Press, 159-166.
Gray, S. H. (1996) A Training Psychotherapy Elective for Psychiatric Residents. Paper presented at The American Academy of Psychoanalysis, Scottsdale, Arizona 5 December 1996.
Zanotti, B.J. and Becker, R.A. (1999) A.F.L. Rev. 41:1-72.