Confidentiality and Its Discontents

Dilemmas of Privacy in Psychotherapy

Paul W. Mosher, Jeffrey Berman

• Publisher: Fordham University Press
• Year: 2015
• Print ISBN: 9780823265107, 9780823265091
• eBook ISBN: 9780823265114
• Topic: Philosophy
• Subtopic: Law Theory & Practice

Freud promised his patients absolute confidentiality, regardless of what they revealed, but privacy in psychotherapy began to erode a half-century ago. Psychotherapists now seem to serve as "double agents" with a dual and often conflicting allegiance to patient and society. Some therapists even go so far as to issue Miranda-type warnings, advising patients that what they say in therapy may be used against them.Confidentiality and Its Discontents explores the human stories arising from this loss of confidentiality in psychotherapy. Addressing different types of psychotherapy breaches, Mosher and Berman begin with the the story of novelist Philip Roth, who was horrified when he learned that his psychoanalyst had written a thinly veiled case study about him. Other breaches of privacy occur when the so-called duty to protect compels a therapist to break confidentiality by contacting the police. Every psychotherapist has heard about "Tarasoff, " but few know the details of this story of fatal attraction. Nor are most readers familiar with the Jaffee case, which established psychotherapist-patient privilege in the federal courts. Similiarly, the story of Robert Bierenbaum, a New York surgeon who was brought to justice fifteen years after he brutally murdered his wife, reveals how privileged communication became established in a state court. Meanwhile, the story of New York Chief Judge Sol Wachtler, convicted of harassing a former lover and her daughter, shows how the fear of the loss of confidentiality may prevent a person from seeking treatment, with potentially disastrous results.While affirming the importance of the psychotherapist-patient privilege, Confidentiality and Its Discontents focuses on both the inner and outer stories of the characters involved in noteworthy psychotherapy breaches and the ways in which psychiatry and the law can complement but sometimes clash with each other.

1. We Have Met the Enemy, and He (Is) Was Us

To understand the human stories behind noted confidentiality breaches and dilemmas in psychotherapy, we need to understand first the historical reasons for the ongoing loss of confidentiality in the patient-therapist relationship. Neither Freud nor anyone else could have foreseen the historical factors responsible for the therapist’s increasingly complicated dual allegiance to patient and society. And so we present briefly here this changing history, mindful of Julian Barnes’s observation in The Sense of an Ending that “History is that certainty produced at the point where the imperfections of memory meet the inadequacies of documentation” (65).

“The Duty of Medical Discretion”

Freud himself did not always follow the excellent advice he offered to other psychoanalysts about maintaining confidentiality. The words “breach of confidence [or confidentiality]” rarely appeared in the psychoanalytic literature during the first half of the twentieth century. The first use appears in the preface to the first edition of Studies on Hysteria in 1895, the book generally viewed as the beginning of psychoanalysis. Acknowledging the difficulty of writing about their patients’ intimate lives, Breuer and Freud declare: “It would be a grave breach of confidence to publish material of this kind, with the risk of the patients being recognized and their acquaintances becoming informed of facts which were confided only to the physician. It has therefore been impossible for us to make use of some of the most instructive and convincing of our observations” (xxix). These observations, the authors add, refer “especially to all those cases in which sexual and marital relations play an important aetiological part.”

If, as Breuer and Freud argue, hysteria is caused by sexual repression, they must have felt something akin to intellectual repression as a result of their inability to include this material because of confidentiality concerns. Yet Freud succeeded remarkably well in hinting at his patients’ erotic conflicts, as when he suggests in the “Fräulein Elisabeth von R.” chapter that her illness was caused by thwarted love for her brother-in-law. Freud’s language rises to the occasion in evoking these conflicts. He admits, with a combination of modesty and disingenuousness, that he still finds it “strange that the case histories I write should read like short stories and that, as one might say, they lack the serious stamp of science. I must console myself with the reflection that the nature of the subject is evidently responsible for this, rather than any preference of my own” (Studies on Hysteria, 160). Notwithstanding his literary modesty, thirty-five years later Freud received the coveted Goethe Prize, honoring his contributions to literature.

James Strachey reveals in a footnote near the end of “Fräulein Anna O.” that Freud told him something of crucial importance that Breuer left out of the case study of the first patient in psychoanalysis, an “untoward event” in which, in Strachey’s words, “when the treatment had apparently reached a successful end, the patient suddenly made manifest to Breuer the presence of a strong unanalysed positive transference of an unmistakably sexual nature. It was this occurrence, Freud believed, that caused Breuer to hold back the publication of the case history for so many years and that led ultimately to his abandonment of all further collaboration in Freud’s researches” (Studies on Hysteria, note 1, 40–41). Freud later expanded on the details of this untoward event in On the History of the Psycho-Analytic Movement, where he discloses that Breuer “must have discovered from further indications the sexual motivation of this transference” (12).

Freud’s first major biographer, Ernest Jones, points out that the sharp temperamental differences between Freud and Breuer complicated and probably doomed their personal and professional relationship. “Breuer was in his work reserved, cautious, averse to any generalization, realistic, and above all vacillating in his ambivalence” (1:297). Without the reticent Breuer as his coauthor, Freud later allowed himself to write more candidly about the intimate aspects of his patients’ lives. To be sure, Freud exercised “discretion” when writing about his patients, which is what he claimed he had the right to do in the name of “science.” In exercising this discretion, he was selective in choosing the patients about whom he wrote. He was also selective in writing about himself and his own inner experience.

Freud never used the words “breach of confidence” again. Instead, he used the more euphemistic term, “medical discretion,” in Fragment of an Analysis of a Case of Hysteria—better known as the story of Dora—in 1905. In the “Prefatory Remarks” Freud, who came to view himself as the conquistador of the unconscious, or, changing metaphors, the disturber of the world’s sleep, now associates medical discretion with the forces antithetical to science. “If it is true that the causes of hysterical disorders are to be found in the intimacies of the patients’ psychosexual life, and that hysterical symptoms are the expression of their most secret and repressed wishes, then the complete elucidation of a case of hysteria is bound to involve the revelation of those intimacies and the betrayal of those secrets” (7–8).

Freud offers here an ingenious conceptualization of the major dilemmas of psychoanalysis, a dilemma that has never been entirely solved. Patients would never speak freely and openly if they suspected that their “admissions” might be put to “scientific uses.” Nor would patients, in Freud’s view, give him permission to write about them. Paradoxically, Freud then characterizes analysts who would try to preserve the very kind of confidentiality he has just described as essential as being “persons of delicacy” or “merely timid.” As the psychoanalyst Barry Landau observes,

the fact that the identities of all of Freud’s published cases have been found out and disclosed illustrates the problem of trying to balance confidentiality with other strongly held values. Confidentiality can be very inconvenient and often does conflict with other important values. However, the attempt to balance confidentiality with these other values puts confidentiality at risk. To the extent that confidentiality is a necessary condition that makes psychoanalysis possible, such balancing can put the entire psychoanalytic enterprise at risk to a degree that could ultimately be untenable. (personal communication, August 17, 2013)

Freud’s blindness thus set the stage for later analysts not only to identify with and protect the creator of psychoanalysis but also to disclose confidential information about their patients while at the same time espousing the necessity for confidentiality.

Freud leaves little doubt where his allegiance lies. “Thus it becomes the physician’s duty to publish what he believes he knows of the causes and structure of hysteria, and it becomes a disgraceful piece of cowardice on his part to neglect doing so, as long as he can avoid causing direct personal injury to the single patient concerned” (Fragment of an Analysis of a Case of Hysteria, 8). After claiming that he has taken every precaution to prevent his patient from suffering any injury, Freud vows to protect his patients’ privacy while writing truthfully about their psychopathology:

I am aware that—in this city, at least—there are many physicians who (revolting though it may seem) choose to read a case history of this kind not as a contribution to the psychopathology of the neuroses, but as a roman à clef designed for their private delectation. I can assure readers of this species that every case history which I may have occasion to publish in the future will be secured against their perspicacity by similar guarantees of secrecy, even though this resolution is bound to put quite extraordinary restrictions upon my choice of material. (9)

“No Mortal Can Keep a Secret”

Despite these assurances, Freud did not entirely fulfill his pledge of secrecy, partly because of his defensive thinking, which made it possible to rationalize the disclosure of confidential information for the purpose of scientific research, and partly because he felt that betraying secrets was human nature and therefore inevitable, as he vividly writes in Fragment of an Analysis of a Case of Hysteria. “He that has eyes to see and ears to hear may convince himself that no mortal can keep a secret. If his lips are silent, he chatters with his finger-tips; betrayal oozes out of him at every pore” (77–78). If no mortal can keep a secret, then Freud cannot be criticized for failing to live up to his own ethical imperatives to maintain confidentiality. It is true that he waited four years before he published the case study, but we know the names and backgrounds of most of his patients, including the identity of “Dora,” Ida Bauer, who later discovered that she was the subject of Freud’s case history and, like his other patients, appeared to be proud of it. Throughout the “Prefatory Remarks” in the case study, Freud anxiously anticipated so many of the considerations and rationalizations that would be used by analysts over the course of the next century. He was never able to resolve the conflict between preserving patient confidentiality and pursuing scientific research. He concealed various facts about his patients’ lives to show his efforts to preserve confidentiality, but his views tipped more in the direction of disclosure than of concealment.

According to Ernest Jones, Freud was highly secretive about the details of his own life, apart from what he revealed in his writings, but, “oddly enough, Freud was not a man who found it easy to keep someone else’s secrets. He had indeed the reputation of being distinctly indiscreet” (2:409–410). Nor did Freud always practice what he preached. The psychiatrists David J. Lynn and George E. Vaillant have shown, in a review of forty-three of Freud’s case studies from 1907 to 1939, the striking disparity between his recommendations on psychoanalytic technique and his actual methods. “Freud communicated with others about analysands in 23 (53%) of these cases. These communications were to people known to the analysand and included Freud’s identification of the analysand.” An “interesting additional finding,” Lynn and Vaillant observe, “is that no fewer than 20 (47%) of the 43 analysands in our series received information from Freud about other analysands” (165). As Louis Breger points out, “Freud almost never followed his recommendation of confidentiality, certainly not when he had some personal or political interest at stake” (370). Or as John Forrester remarks, “Freud is as active in the transgression of his own implicit rules, for his own good reasons, as he is in their observance” (22). Analysts have had many positive reasons to identify with the creator of psychoanalysis, but identification with Freud’s disclosure of patients’ secrets is not something that is in the best interest of analysts’ patients, reputations, or profession.

“The Gossiping Psychoanalyst”

Freud’s belief that no mortal can keep a secret anticipates “The Gossiping Psychoanalyst,” the title of Stanley L. Olinick’s article in a 1980 issue of the International Review of Psycho-Analysis. He begins his article by raising a fundamental question. “How does gossiping about patients become an issue among a group of people whose professional lives are otherwise dedicated to fostering the autonomy and inviolability of the individuals who are their patients?” (439). Noting that at that time the psychoanalytic bibliography was “scant and scattered,” Olinick calls attention to one of the thorny difficulties confronting anyone writing about this subject, including himself: “adequate clinical discussion of gossip would require breaches of confidentiality that, by the very nature of the topic, would be easily traceable” (439). Without citing clinical or statistical evidence, Olinick nevertheless believes it is no exaggeration to say that “almost every analyst has gossiped about his patients at some time, and that some engage in it with high frequency” (439). In his view, psychoanalysts gossip about those patients whom they envy, those patients with a “narcissistic personality, with grandiosity well-disguised,” with a flair for flaunting their “overtly successful social, economic, and marital (or, at any rate, sexual) adjustments” (439). Narcissistic patients thus become objects of envy to the gossiping psychoanalyst. Olinick contends that contrary to what people may believe, isolation and stress are not the primary reasons for psychoanalysts’ gossip. Rather, the operative factor for the gossiper is the need to “bask in the gratified curiosity of his listener”; the giver and receiver of gossip “are united in a common action, and both are reassured and confirmed through the reciprocal kinship. The need for union and kinship is satisfied through gratified curiosity, assuaged loneliness, and shared derogating of the envied person” (440).

Wealthy or prominent patients with a sense of entitlement can stir up powerful countertransference feelings in a psychoanalyst. Additional complications arise if, as Ira Brenner suggests, the psychoanalyst feels proud about treating a celebrity patient and begins to gossip as a way to enhance his or her status (10). This is an enduring problem. In 1972 Markowitz had noted “the not infrequent occurrence of casual allusion and gossip on the part of analysts about their patients, asserting vigorously that psychoanalysts have the duty to deny themselves the privilege of enhancing their status by associating themselves publicly with their patients” (Watson, 157). Such gossip always, of course, violates the patient’s right to privacy and the psychoanalyst’s obligation of confidentiality.

Olinick, Brenner, and Markowitz don’t explore the devastating psychological consequences that arise when a psychoanalyst breaches confidentiality by talking about one patient to another patient, but this is the focus of Jane Burka’s article “Psychic Fallout from Breach of Confidentiality,” appearing in a 2008 issue of Contemporary Psychoanalysis. She is an exception to the rule that victims of breach of confidentiality do not publish in professional literature. A psychoanalyst, she writes about how her analyst breached the confidentiality of her training analysis by revealing privileged information about her to a patient with whom he was having a sexual relationship. The experience was traumatic for Burka, undermining her sense of trust, security, and self-esteem. The breach of confidentiality also called into question the value of her training analysis. To make matters worse, her analyst never admitted wrongdoing. Reluctant at first to file a lawsuit because it would mean further public exposure and humiliation, Burka made the wrenching decision to take her analyst to court. Three years after she filed the lawsuit and four and a half years after she ended her analysis, the case came to trial. The court found her analyst liable for negligence and breach of fiduciary duty. Burka concludes by saying that for the psychoanalytic community, “breach of confidentiality represents an apostasy that undermines the foundation on which our profession is based” (197).

Marilyn Monroe is the most dramatic example of a prominent patient who was the victim of breach of confidentiality and invasion of privacy. Ralph Greenson was considered the “dean” of psychoanalysis in southern California, the “analyst to the stars,” counting among his patients Frank Sinatra, Tony Curtis, and Vivien Leigh. He treated Marilyn Monroe during the last two years of her life, when her marriage to Arthur Miller was falling apart. Believing that traditional psychoanalysis had failed her, Greenson treated her at his posh home in Santa Monica, invited her for dinner after her daily therapy session, encouraged his children to help her, and made her feel a part of his family. As Christopher Turner recounts in an article in the London Telegraph, Greenson diagnosed her as a “borderline paranoid addictive personality,” took on the role of “good father” to her, and sought to create what a colleague called a “foster-home fantasy of a haven where all hurts are mended.”

Marilyn Monroe’s depression continued to deepen, however, and she died of a drug overdose, accidental or deliberate, in 1962, a death that conspiracy theorists regard as a murder planned by Jack Kennedy, Robert Kennedy, or Greenson himself. Turner quotes Monroe’s biographer Donald Spoto accusing Greenson of having “betrayed every ethic and responsibility to his family, his profession, and to Marilyn Monroe” in his “egregious mishandling of his most famous patient.” Olinick does not cite Greenson as an example of a gossiping psychoanalyst, but there is no question that the iconic actress was a trophy patient who allowed the analyst to bask in her legendary fame. It’s ironic that Greenson, the author of a classic textbook, The Technique and Practice of Psychoanalysis, deviated so radically from analytic technique. Analysts who make unusual interventions must “retain humility,” in Salman Akhtar’s words, “and have the moral courage to seek consultation when faced with difficult and puzzling clinical situations” (28). Greenson is reported to have consulted with his office partner about Monroe, but this might have been a biased consultation, a kind of folie à deux resulting from their existing ties to each other. Greenson’s treatment of Marilyn Monroe at his home is an example of what Mark Moore calls the “use of unorthodox space gone awry” (43). It’s hard to disagree with Moore’s conclusion that the “use of unorthodox space in this treatment left open too many unexamined questions and stands as an example of a failure to ensure authenticity and reliability” (44).

It remains unclear whether Greenson’s invasion of Marilyn Monroe’s privacy and breach of confidentiality contributed to her death; his rationalization was that she would have died sooner if she were hospitalized. Greenson wrote a paper in 1978 entitled “Special Problems in Psychotherapy with the Rich and Famous” that remains unpublished and unavailable to the public, but in light of his problematic co...

Table of contents

• Cover
• Half Title
• Series Announcement Page
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1. We Have Met the Enemy, and He (Is) Was Us
• 2. The Buried Bodies Case: Lawyers Risk Their Careers to Defend Their Ethical Commitment to Client Privacy
• 3. The Case of Joseph Lifschutz: A Psychoanalyst in Jail
• 4. “The Angry Act”: The Psychoanalyst’s Breach of Confidentiality in Philip Roth’s Life and Art
• 5. Angry Acts and Counteracts in Philip Roth’s Life and Art
• 6. The Case of Jane Doe v. Joan Roe and Peter Poe: The Most Extensive Violation Ever of a Psychotherapy Patient’s Privacy
• 7. The Anne Sexton Controversy: “There Is Nothing Like This in the History of Literary Biography!”
• 8. The Tarasoff Case: Must the Protective Privilege End Where the Public Peril Begins?
• 9. Jaffee v. Redmond: The Supreme Court Speaks
• 10. The People v. Robert Bierenbaum: “Long-Ago Warnings Cannot Justify Abrogating the Privilege Covering Still Confidential Communications”
• 11. United States v. Sol Wachtler: “This Chief Judge Is Either Crazy or Criminal”
• Conclusion
• Works Cited
• Index
• Series Page