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Psychotherapy and ConfidentialityReview - Psychotherapy and Confidentiality
Testimonial Privileged Communication, Breach of Confidentiality, and Reporting Duties
by Ralph Slovenko
Charles C Thomas Publishers, 1998
Review by Willard F. Enteman
Mar 31st 2000 (Volume 4, Issue 13)

This is an important book on an important topic. Recently, courts and legislatures have been carving out new areas of law in regard to confidentiality between psychotherapists and patients. As this is being written, the United States Supreme Court has granted certiorari to a case involving the related issue of medical confidentiality (Ferguson v. Charleston).

Slovenko, a Professor of Law and Psychiatry, demonstrates his considerable expertise and helps the reader through dense material while providing occasional humorous asides. It seems laypeople believe what they say to their psychotherapist will remain confidential. Exceptions made in the patient’s interest are understandable. However, what if the psychotherapist is required to testify in a patient’s divorce proceeding or when the patient is accused of violating the law? What information should psychotherapists give to third party payers? What should the psychotherapist do if he thinks his patient may harm someone else, and the authorities believe they cannot involuntarily admit the patient to a hospital? Slovenko does a masterful job of exposing general presumptions and many legally-mandated exceptions to confidentiality. By the end of the book, he leaves us with a rather distressing conclusion summarized in the following statements: "[The confidentiality privilege] offers a shield that looks more like a sieve, …[and] … virtually nothing that is relevant about a patient in litigation is shielded by the shield." (p. 550).

One is left with the impression there may be so many exceptions to confidentiality that rule and exceptions have traded places. Actually, as Slovenko shows, there are layers of rules and exceptions. The basic rule, especially in law, is that the public has a right to every man’s evidence. From there, exceptions are made. Beyond the psychotherapist exception, are, for example, spousal, clergy, physician, and, of course, lawyer exceptions. The only exception that has not been significantly eroded in recent years seems to be the last cited. By the time Slovenko shows us the exceptions to psychotherapist confidentiality, one might suggest we have come full circle and patients should be told as a general rule they should presume what they say may not be held in confidence.

Slovenko thinks it is trust, not confidentiality, that is sought by most patients. That, however, poses a problem he does not address. If trust is based on honesty, it is difficult to know how psychotherapists can be honest with patients. Simplifying this complicated situation by reducing it to a few words invites distrust when people discover the promise is empty. In addition, in a therapy session, words are symbolic and symptomatic, not objective descriptors of reality. It is the job of the psychotherapist to determine their deeper meaning, but she cannot do that if the patient does not talk freely. As Slovenko suggests, one can only agonize about what a litigator-adversary would do in court with statements made in a therapeutic context.

Two court cases loom large in the book. The longest chapter is devoted to the Tarasoff case in which Prosenjit Poddar told his therapist, Dr. Moore, he intended to kill his former girlfriend, Tatiana Tarasoff. Moore attempted to have Poddar committed, but the police concluded there were insufficient grounds and let him go with a warning. Two months later, Poddar killed Tarasoff. A majority of the California Supreme Court concluded Moore had a legal obligation to notify Tarasoff or her parents of Poddar’s threat. While Slovenko treats the case as an important step in the gradual erosion of the confidentiality privilege, he seems to miss its radical departure. It is one thing to argue that therapists have an obligation to break confidences with other professionals who are under some obligation to maintain professional standards. It is quite another to suggest that therapists should notify people with no such obligations. Slovenko also fails to recognize the decision arises out of a dilemma the court created for itself. In the majority opinion, it cites its related opinion invoking proof beyond a reasonable doubt (People v. Burnick). Given the current state of psychotherapy, no predictions can lie beyond reasonable doubt. Thus, the police were right to let Poddar go. The court transferred its dilemma to psychotherapists by requiring them to break confidence and notify prospective victims directly. In addition, the court engages in dubious logic by arguing that, since Moore had a "special relationship" with Poddar and Poddar had a "special relationship" with Tarasoff, Moore had a "special relationship" with Tarasoff. However, "special relationship" is nontransitive as application beyond three parties would make clear. Slovenko’s interpretation of the decision is the conventional one and, either legislatively or through stare decisis, it is now accepted in most states. In an ironic concluding comment about Tarasoff, Slovenko says he wishes it had gone to final trial because he believes the defense would have won. (p. 288)

The second case, Jaffee v. Redmond was decided by the U. S. Supreme Court in 1996. The question was whether a social worker, hired by a town to counsel a police officer, should be required to yield her notes in a suit against him. A seven person majority ruled in favor of the confidentiality privilege. However, Slovenko argues that, while the Court seems to uphold the privilege, it grants so many exceptions that the sieve remains. Slovenko might also have turned his analytic powers to the dissenting opinion by Justice Scalia, for it is little more than an collection of non-sequiturs, and false suppositions.

While Scalia has little use for the psychotherapist-patient privilege, he insists upon sustaining the lawyer-client privilege. There are exceptions there, too, but it still remains more a shield than a sieve. That may provide a solution. Perhaps psychotherapists should become lawyers as well as therapists. In that way, they could ignore the increasingly empty psychotherapist privilege and use, instead, the lawyer privilege. Scalia thinks psychotherapy is a lesser discipline than law. However, one suspects anyone sufficiently smart and dedicated to become a qualified and licensed psychotherapist could make it through law school and pass a bar examination.

 

WILLARD F. ENTEMAN is presently Professor of Philosophy at Rhode Island College. He has taught at Boston University, Wheaton College (MA), Union College (NY) and Bowdoin College (ME), where he served also as President. He has published widely in higher education and philosophy. His most recent book is: Managerialism: The Emergence of a New Ideology (Madison: University of Wisconsin Press, 1993).

 

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