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by Christine M. Koggel, Allannah Furlong and Charles Levin (Editors)
Review by Diane J. Klein, J.D. on Mar 26th 2004
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
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
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
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
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
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
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.