Review - Confidential Relationships
Psychoanalytic, Ethical, and Legal Contexts
by Christine M. Koggel, Allannah Furlong and Charles Levin (Editors)
Rodopi, 2003
Review by Diane J. Klein, J.D.
Mar 26th 2004 (Volume 8, Issue 13)

Nearly every essay in the dozen that make up this collection sheds genuinely fresh light on some aspect of the "confidential relationships" referred to in the volume's title, namely, the confidential relationships between psychotherapist and patient (or client).  With sometimes complementary, sometimes contradictory perspectives, the contributing psychoanalysts, philosophers, and law professors engage the reader and each other in a fascinating and thought-provoking conversation on the meaning, scope, and significance of psychotherapist-patient confidentiality.

At a time when confidential relationships (at least in North America), including but not limited to therapist-patient relationships, are under attack from the legal system, the health-care-industrial complex, and perhaps our confessional "therapeutic culture" itself, this book comes as a needed antidote -- a multifaceted, multidisciplinary exploration of the value, meaning, and even the cost of confidentiality.

Part One, "Introduction," contains a single brief essay by the book's three editors, Charles Levin, Christine M. Koggel, and Allannah Furlong, called "Questions and Themes" (Chapter One), which needlessly attempts to justify the presence of twelve seemingly disparate essays in a single volume.  In fact, its heterogeneity is the book's greatest strength -- the unexpected, unscripted connections generated by juxtapositions of "orthodox" psychoanalytic theory, policy analysis of challenges to confidentiality deriving from medical insurance databases, and feminist critiques of defendants' access to sexual assault complainants' therapy records (to name just a few of the essay topics), are more valuable than any links spoon-fed to us by the editors.

            Part Two, "Psychoanalysis," contains two of the very best essays in the book.  R.D. Hinshelwood's contribution, "A Psychoanalytic Perspective on Confidentiality: The Divided Mind in Treatment" (Chapter Three), is especially excellent in its treatment of the nuanced and complicated effects of disclosure (and even the possibility of disclosure) on the analysis itself.  After clearly articulating the distinctiveness of the classic psychoanalyst-analysand relationship, in general and with respect to confidentiality, Hinshelwood responds psychoanalytically, rather than politically or legally, to the consequences of court-ordered disclosures, addressing "psychodynamic aspects of confidentiality related to psychoanalytic unconscious processes" (38).  In discussing the patient who may be a danger to himself or others, subpoenaed clinical notes, and relations with lawyers, Hinshelwood critically examines not only the effects of disclosure on the patient (and the analysis), but also the analyst's motivations and reasons for disclosure.

Jacques Mauger's very brief contribution, "Public, Private…" (Chapter Four) continues this attention to the analyst, and is richly provocative about the "weight" of transference and the pressures toward disclosure inevitably created, as it were, by the cumulative force of all that is disclosed to the analyst, not only about the individual patient, but in an almost Jungian way.  Building on the ideas that "[w]e [both analyst and analysand] always say more than we intend" (53), and "the impossibility of containing -- or, for some analysts, the excessive containment of -- this compulsive dimension of human experience" (namely, transference) (57), he suggests, albeit abstractly, that at least some forms of "disclosure" by analysts (such as the presentation of case studies, or supervision of analysts-in-training) "is thus not really a 'release valve' of transference overflow….[but] rather a 'return to sender' of information that by its nature transcends individual existence" (58).  He suggests that communication of "the unconscious transindividual content" (59) of analysis, "the human reality which lies beyond individuality" (60), may be a "necessary violence" (59), necessary for the analyst, for the practice of analysis itself, and for the larger project of understanding human nature in which psychoanalysis plays such a unique part.

The bulk of Part Three, "Ethics," is devoted to discussions of the Canadian Supreme Court decisions that have given (male) criminal defendants in sexual assault cases access to the psychotherapeutic records of (female) complainants as part of the criminal defendants' right to a "full answer and defense."  Notwithstanding the rather general title of her contribution, "Confidentiality in the Liberal Tradition: A Relational Critique" (Chapter Seven), editor Koggel presents a narrow but penetrating feminist critique of this Canadian law.  Her essay also provides a clear introduction and sketch of "relational theory" as a feminist ethics, including the significance of "private relationships" and the sources of political inequality.  In defending privacy rights as part of an equalitarian politics, she writes, "Because the therapeutic relationship would be viewed as a vehicle for addressing inequalities in the private lives of its citizens, state protection of privacy would be understood as promoting equality" (117). 

Chapter Eight, "Sexual Inequality and the Crisis of Confidentiality: The Myth and the Law on Personal Records," by Margaret Denike, places the requirement to produce therapy records in sexual assault cases squarely within the history of women's sexuality and the criminal prosecution of sexual assault, illuminating how traditional notions of privacy both derive from and entrench sexual inequality. 

Chapter Nine, "Relational Remembering: Suggestibility and Women's Confidential Records," by Sue Campbell, rounds out this feminist analysis, placing "false memory syndrome" in psycho-historico-legal context as a direct descendant of hysterical pathology and concerns over hypnosis and the purported excessive suggestibility of women.  This essay also includes valuable contemporary political and legal history relating to the False Memory Syndrome Foundation and its role in changing Canadian law.  Campbell's piece is not really about confidentiality per se, but rather defends the therapeutic context as one that is not necessarily "contaminating" to memory, once "remembering" is properly seen as a social practice, not simply a physiological phenomonen -- "memory" -- testable in the laboratory.

Part Four, "Law," contains the sole essay devoted exclusively to U.S. law, "Psychotherapist-Patient Privilege: The History and Significance of the United States Supreme Court's Decision in the Case of Jaffee v. Redmond," (Chapter Ten), by Paul Mosher, one of America's leading experts on this case and the psychotherapist-patient privilege under U.S. law.  The essay is tremendously useful for lawyers, therapists, students of either profession, and those who belong to neither, in placing this privilege both in the context of the other familiar testimonial privileges in American law and in situating the development of the privilege alongside the development of the various forms of psychoanalysis, psychotherapy, and counseling currently practiced.  Its concise recounting of the relevant history, and its legal precision without unnecessary technical jargon, make this essay a valuable addition to the literature on testimonial privileges, significant both in professional ethics and in the law of evidence. 

Karen Busby's "Responding to Defense Demands for Clients' Records in Sexual Violence Cases: Some Guidance For Record Keepers" (Chapter Eleven) is an empirical demonstration of a familiar argument advanced in defense of attorney-client privilege -- namely, that if the communications will not be kept confidential, the "evidence" later sought in the judicial process will never come into being.  Busby actually lays out, in the context of Canadian law, the evolving thinking about whether "counselors and therapists should alter their record making and retention policies in light of the continuing uncertainty about when the defense (and therefore the defendant himself) can obtain possession of a complainant's records" (208).  She addresses whether counselors have any obligation to keep records (and hence to "create evidence" (208)), whether counselors should stop keeping records, and what can be done "to minimize the impact of their records in criminal proceedings" (208).  This essay goes well beyond the theoretical, in presenting the quite practical consequences for psychotherapeutic practice of changes in the law of confidentiality regarding the records created in that setting.

While Busby's contribution seems most closely related to the three essays on Canadian law found in Part Three, certain chapters from elsewhere in the book really belong in the "Law" section.  For example, "The Questionable Contribution of Psychotherapeutic and Psychoanalytic Records to the Truth-Seeking Process" (Chapter Two), editor Furlong's contribution, presents several important arguments in defense of a robust therapist-patient testimonial privilege, in the context of Canadian law.  The basis of her argument is that "established legal avenues for determining relevance and probative value are unsuitable when applied to psychotherapeutic or psychoanalytic documents" (14).   For American lawyers, one of her more interesting suggestions involves assimilating therapist-patient privilege not to doctor-patient privilege (as Chapter One implies) but to what is known in Canada as "the privilege of the deliberative process" (20) and in the U.S. as the "self-evaluative" or "self-critical analysis" privilege, which has begun to gain acceptance in some U.S. states.

"Welcoming Big Brother: The Malaise of Confidentiality in The Therapeutic Culture" (Chapter Five), editor Charles Levin and Christine Ury's contribution, is not in fact about therapist-patient confidentiality at all -- the "Big Brother" of the title is not George Orwell's creation but the television program of the same name, and the "therapeutic culture" is actually counterposed to the private, one-on-one character of actual therapy.  After breaking through the hard shell of obligatory Foucault references, the reader is treated to the soft, chewy center -- a quite fascinating discussion of the exhibitionistic, confessional, and self-disclosive strands in contemporary culture, especially televised popular culture, which constitutes a counter-trend to any rising concerns about protecting the confidentiality of personal information in the psychotherapeutic context or elsewhere. 

"The Moral Framework of Confidentiality and the Electronic Panopticon" (Chapter Six), by Michael Yeo and Andrew Brook, ambitiously tries to identify and describe what the authors call the "traditional" and "emerging" views of confidentiality; provide empirical details about "the information revolution currently going on in health care" (110) and its consequences for confidentiality; and also situate these views in the context of political and moral philosophy more generally.  After reading this essay it is clear that no discussion of confidentiality can meaningfully be carried on without reference to the legal and technological dimensions of the management of health care data today, and the institutional imperatives created by ever-growing databases, regardless of whether one defends privacy rights in a "deontological" or Kantian way, or criticizes contemporary health care policy as thoroughgoingly utilitarian (or better, consequentialist).  It should be noted that this essay, like the preceding one, contains very little discussion specifically directed to psychotherapist-patient confidentiality (and that feels a bit "tacked-on"); most of what the authors have to say applies to all medical privacy issues generally.  This is not necessarily a problem; only this book's other superb analyses of the uniqueness of the psychotherapeutic context make the failure to distinguish medical doctor-patient from therapist-patient confidentiality loom large.

Finally, Nathalie Des Rosiers' "Confidentiality, Human Relationships, and Law Reform" (Chapter Twelve) is one of the few disappointments in the book, perhaps due to an infelicitous translation from French that creates an impression of imprecision.  It is hard to know how to take statements such as, "expressed aspirations of confidentiality should be considered like any other promise made" (238), when the party expressing such "aspirations" is obviously seeking to extract, not to make, a promise.  Similarly, no careful distinction is made between confidentiality, secrecy, privacy, loyalty, and trust -- all important, but surely not interchangeable.  Her account of the Law Commission of Canada's "'relationship' approach" to law reform (230) seems unfortunately beholden to a kind of psychologized politics-by-slogan, in which the goal of "official law" is to stimulate "healthy and productive relationships" (232) based on "respect for the human capacity to self-regulate" (232) while simultaneously "recognizing other needs such as acknowledgment of the wrong done, accountability, and commitment toward a strategy of prevention" (233).  While she is surely correct that "relationships rooted in trust are essential to human development" (236), the relevance of this very general psychological claim to the proper legal scope of therapist-patient confidentiality is severely under-argued.

All in all, though, nearly every essay in the book contains some fact or theoretical insight about confidential relationships -- psychotherapeutic and otherwise -- for which professionals and non-professionals alike will be grateful.

© 2004 Diane J. Kein

Diane J. Klein, J.D. (UCLA School of Law), Ph.D. candidate (philosophy) (U.C. Berkeley), is Associate Professor of Law at Albany Law School, Union University, Albany, New York.  Her philosophical areas of interest include virtue ethics and moral theory; her areas of legal scholarship include professional responsibility, race and gender, and trusts and estates.