INTERNATIONAL PSYCHOANALYTICAL ASSOCIATION
Report of the IPA Confidentiality Committee 1st November 2018
CONTENTS
1 INTRODUCTION
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2 GENERAL PRINCIPLES
6 6 6 6 7 7 7 8 8 9
2.1 Psychoanalytic & non-psychoanalytic approaches to confidentiality
2.2 The analyst’s responsibility for the frame/setting
2.3 The patient’s trust that the analyst will protect confidentiality 2.4 The possibility of unresolvable conflict between competing needs or views 2.5 Confidentiality as an ethical & technical foundation of psychoanalysis
2.6 Confidentiality & privacy
2.7 Institutional & individual responsibilities 2.8 Ethical versus legal considerations 2.9 Psychoanalysis and the wider community
3 PROTECTION OF PATIENTS IN THE USE OF CLINICAL MATERIAL FOR TEACHING, ORAL PRESENTATIONS, PUBLICATIONS, & RESEARCH
10 10
3.1 Preliminary remarks and the problem of ‘informed consent’
3.2 Reducing potential and experienced harm to patients induced by the profession's scientific, technical, and ethical needs to share clinical experience 12 3.3 At the institutional level: teaching 13 3.4 Presentations of clinical material in congresses & other scientific events 14 3.5 Publications in psychoanalytic journals and e-journals 15 3.6 Psychoanalytic research 16
4 CONFIDENTIALITY WHEN USING TELECOMMUNICATIONS, INCLUDING FOR REMOTE ANALYSIS & SUPERVISION
17 17 17 18 19 20 20 23 24 25
4.1 Introduction
4.2 Privacy in the classical setting
4.3 Loss of privacy in telecommunicative settings 4.4 Loss of privacy in the classical setting
4.5 Long-term consequences
4.6 Implications for the IPA and its members
4.7 Measures which only appear to address the problem 4.8 Ethical implications & some possible partial protections
4.9 Conclusion
5 THIRD-PARTY REQUESTS FOR A BREACH OF CONFIDENTIALITY
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6 COLLEAGUES AGAINST WHOM A COMPLAINT HAS BEEN MADE
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7 PATIENTS’ ACCESS TO FILES, INCLUDING PROCESS NOTES
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8 GENERAL CONCLUSIONS
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9 RECOMMENDATIONS
34 34 36 37 37 37
9.1 Protection of patients in the use of clinical material 9.2 Telecommunications and remote analysis 9.3 Third party requests for a breach of confidentiality 9.4 Colleagues against whom a complaint has been made
9.5 Patients’ access to process notes
9.6 Psychoanalysis and the wider community 38 10 COMMENTS RECEIVED BY THE COMMITTEE CONCERNING THE DRAFT VERSION OF THIS REPORT 39 10.1 Introduction 39 10.2 Comments on the report as a whole 40 10.3 Intrinsic limitations of psychoanalytic confidentiality 41 10.4 The community-of-concern approach 42 10.5 Informed consent and sharing of clinical material 42 10.6 Telecommunications 43 10.7 Third party requests 45 10.8 Child & adolescent analyses 45 10.9 Analyses of candidates & colleagues 46 10.10 Archives 46 10.11 Comments received after the report was finished 46 11 REFERENCES 47 12 FURTHER READING 51
13 APPENDICES
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1 INTRODUCTION The Confidentiality Committee has been mandated by the IPA Board to review “the ways in which confidentiality pertains to and impacts on the work of IPA psychoanalysts”, to draft documents on best practices for the IPA Board to review and approve, and to advise the Board on related issues for the 2019 Congress (see Appendix A). The members of the Committee are: Dr. Andrew Brook (IPA Treasurer, Chair), Psic. Nahir Bonifacino (Uruguayan Psychoanalytical Association), Mr. John Churcher (British Psychoanalytical Society), Dr. Allannah Furlong (Canadian Psychoanalytic Society), Dr. Altamirando Matos de Andrade (Chair of the IPA Ethics Committee, Ex-Officio), Dr. Sergio Eduardo Nick (IPA Vice-President, Ex-Officio), Mr. Paul Crake (IPA Executive Director, Ex-Officio). Administrative and technical support was provided by Mr. Steven Thierman. Although from its beginnings the IPA has had a major interest in confidentiality, an immediate impetus for establishing the Committee was a situation that arose in which confidential information about a patient was revealed during discussion of a clinical presentation at an IPA congress. Because the information was revealed in the response to a question by a member of the audience following the presentation, it could not have been prevented in advance by any review process. Subsequently the patient learned of what had been said and was outraged. The patient sued and the IPA ended up paying a substantial sum in settlement. The primary issue was not the money, or who was responsible for what, but how to prevent such ethical violations in the future. The Committee met on 20 occasions prior to producing a draft report in April 2018. The draft report was presented to the IPA Board at its meeting in June 2018, in London, following which it was sent to Presidents of component Societies and made available to all IPA members and candidates via the July IPA Newsletter, with an invitation to comment by 28th September. A further 3 meetings were held to discuss the feedback before producing the final report. In approaching our task we have kept in mind a number of general principles which are detailed below. We then discuss separately five areas of focal concern: protection of the patient in the use of clinical material for teaching, oral presentations, publications, and research; confidentiality when using telecommunications, including for remote analysis and supervision; third-party requests for a breach of confidentiality; colleagues against whom a complaint has been made to the Ethics Committee, while an investigation is ongoing; and patients’ access to files, including process notes. The first two of these are discussed in some detail as areas of current preoccupation for the IPA. We have had the benefit of reading unpublished legal advice about confidentiality and informed consent prepared for the IPA by an English barrister (Proops, 2017). We have also had sight of draft versions of recent documents prepared by a working party on confidentiality of the British Psychoanalytical Society, and by a working group of the German
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Psychoanalytical Association (DPV) on the use of digital media in psychotherapy and psychoanalysis. The approach taken in these drafts is broadly convergent with our own and we are grateful to the Chair of the British working party, Mr David Riley, and to the President of the DPV, Dipl. Psych. Maria Johne, for allowing us to see these in confidence. Our report ends with some general conclusions and a set of specific recommendations. The recommendations are intended to foster and strengthen a culture of confidentiality in the IPA and among its members. The feedback we have received concerning the draft report broadly shows a strongly positive appreciation of it. Where the comments have been critical they have been made from a wide range of positions. Rather than trying to modify the body of the draft report to take account of all the points raised, and the different positions from which they have been made, we have opted to restrict changes to the text to a necessary minimum, and to provide separately a synopsis and discussion of the remainder of them (see section 10). It has been suggested that the IPA should delay publication of this report to allow time for further discussion of some contentious issues. The Committee believes, however, that the best way of ensuring the widest possible discussion of all the issues raised in the report is not to delay its publication but instead for the IPA to use the report itself as a basis and focus for discussion.
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2 GENERAL PRINCIPLES 2.1
Psychoanalytic & non-psychoanalytic approaches to confidentiality As a profession, we have responsibilities to our patients, to each other, and to a wider public. We therefore have to engage with both psychoanalytic and non-psychoanalytic ways of understanding confidentiality. We need to assert and defend the requirements of a specifically psychoanalytic conception of confidentiality, while remaining aware of a wider, non-psychoanalytic discourse, and distinguishing between these where necessary. For psychoanalysts, confidentiality is not merely a requirement for the safe or ethical conduct of work that might otherwise be carried out unsafely or unethically. It is fundamental to the psychoanalytic method in a more radical sense: without the expectation of confidentiality, psychoanalysis would be impossible because both free association by the analysand and free listening by the analyst would be vitiated. Confidentiality acts as a container and as a boundary separating analytic space from a wider social space. The IPA states explicitly in the Ethics Code that confidentiality is “one of the foundations of psychoanalytic practice”. (IPA, 2015, Part III, paragraph 3a). 2.2 The analyst’s responsibility for the frame/setting The role of the psychoanalyst gives rise to profound responsibilities because of the ways in which the psychoanalytic framework both stimulates and frustrates regression, unfulfilled longings, and unconscious phantasy. The analyst’s responsibility encompasses an awareness of the seductive power inherent in the psychoanalytic setting. Although unconscious impulses and emotions are stirred up in both partners to the analytic encounter, there remains an important ethical asymmetry: the analyst has to respect the autonomy and separateness of the patient, whether or not this attitude is reciprocated by the patient. The full impact of the person of the analyst, and of the setting, on the treatment and on the patient’s reaction to it, may never be fully known to the analyst, and yet the analyst must try to assess it. For this reason, while a patient’s consent to a breach in confidentiality may render it permissible from a non-psychoanalytic viewpoint, such a breach may remain ethically compromising in the eyes of many analysts, who would feel that the patient cannot always know at the time how the transference has affected his giving consent. 2.3 The patient’s trust that the analyst will protect confidentiality For a psychoanalysis to be possible the analysand must be able to trust that the analyst will protect the confidentiality of their communication. It is not necessary that the analysand trust the analyst in every respect, and it may even be clinically undesirable, but without trust in the analyst’s willingness and ability to protect confidentiality it will not be possible for what they jointly undertake to be a psychoanalysis, because it will not be possible for the patient to attempt to associate freely, nor for the analyst to listen freely.
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2.4 The possibility of unresolvable conflict between competing needs or views
We can conceptualise confidentiality as pertaining to our professional relationships in at least two different ways. If we think of confidentiality exclusively in terms of the relationship between analyst and analysand, the need for the analysand to be able to trust the analyst to protect confidentiality is liable to come into conflict with the analyst’s ethical and scientific need to share anonymised material with colleagues in supervision, teaching, and publication. On the other hand, if we think of confidentiality in terms of a relationship whose quality and integrity requires from the beginning the inclusion of psychoanalytic colleagues as third parties with whom the analyst communicates clinical material ‘in confidence’, the analysand may not share this view, in which case there may be a conflict between the analyst’s and the analysand’s conceptions of confidentiality. Either way, a conflict between the analyst’s and the analysand’s views may be unresolvable. 2.5 Confidentiality as an ethical & technical foundation of psychoanalysis The principle that confidentiality is one of the foundations of psychoanalysis is a matter not only of ethics but also of psychoanalytic technique, and the ethical and technical aspects are inseparable. Protecting patients’ confidentiality thus involves the IPA in an ethical regulation of psychoanalytic practice. The challenge for analysts is that the object of our study, the unconscious, is as much a part of our being as it is in our patients, and as likely to emerge in unexpected ways. Our wish to protect our patients may be undermined by unconscious strivings in ourselves. It is for this reason that in this report regular recourse to non- judgmental listening by colleagues before the presentation or publication of clinical material is viewed as indispensable to detecting unconscious excitement stirred up by the process. Yet even this is not without its own pitfalls and limitations. 2.6 Confidentiality & privacy The words confidentiality and privacy are used in a variety of complex ways in everyday contexts, which often overlap and are sometimes confused. For the purpose of this discussion it will be helpful to distinguish them by thinking of confidentiality as arising always in the context of a relationship, within which private information, experiences, and feelings, are shared within strict limits. From a legal point of view, confidentiality is an ethical obligation, whereas privacy is an individual right. 1 Maintaining the privacy of what is communicated between analyst and patient is clearly a necessary condition of confidentiality in an analysis . This is the case regardless of whether confidentiality as an ethical requirement is understood to be unconditional or as subject to certain limitations or exceptions on clinical and/or legal grounds. Unless the privacy of their conversation can be assured, a psychoanalyst is not in a position to give or imply a 1 See e.g. http://criminal.findlaw.com/criminal-rights/is-there-a-difference-between-confidentiality-and- privacy.html
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guarantee of confidentiality to a patient. Any circumstances which breach or fail to protect the privacy of communication therefore undermine the possibility of undertaking a psychoanalysis. In the Ethics Code , privacy is protected in two different and complementary ways, which correspond to the psychoanalytic and non-psychoanalytic approaches to confidentiality mentioned above. Part III, paragraph 3a, of the Code , which protects the confidentiality of patients’ information and documents, implicitly protects the privacy which is a necessary condition of this confidentiality. 2 Part III, paragraph 1, prohibits psychoanalysts from participating in or facilitating the violation of basic human rights, which include a right to privacy 3 . 2.7 Institutional & individual responsibilities Protecting confidentiality may have implications for individual psychoanalysts which differ from those for the IPA as an organisation. Whereas an individual IPA member may decide to put ethical considerations before legal ones, the IPA as an organisation may not always be in a position to do this. The risks of litigation may also differ significantly between the IPA as a corporate body and its individual members. Part III of the Ethics Code provides guidelines for ethical practice, but these are necessarily general in nature and individual psychoanalysts have to decide how to apply them in particular situations. Each alternative at the analyst’s disposal may be fraught with limitations and risks, and if a patient feels betrayed or manipulated the consequences can be serious: considerable anguish for the patient, negative impact on an ongoing treatment, or retroactive harm to a completed treatment. Often, the individual analyst is faced with making the best of an essentially undecidable situation, clinically and ethically. The situation is further complicated by the vigorous presence of different clinical and theoretical orientations in the psychoanalytic community, and there may be no agreement as to what is ethically appropriate or technically correct in a given situation. 2.8 Ethical versus legal considerations The ethical requirement of confidentiality in the psychoanalytic sense of the term arises primarily from within psychoanalytic practice, not from laws or ethical codes external to psychoanalysis. Although the rule of law is a hallmark of modern democratic societies, it is not fixed or infallible but subject to political, institutional, economic, and community 2 “Confidentiality is one of the foundations of psychoanalytic practice. A psychoanalyst must protect the confidentiality of patients’ information and documents.” IPA (2015) III.3a 3 “A psychoanalyst must not participate in or facilitate the violation of any individual’s basic human rights, as defined by the UN Declaration of Human Rights and the IPA’s own Policy on Non-Discrimination.” IPA (2015) III.1. Article 12 of the UN Declaration of Human Rights makes explicit that everyone has a right to privacy, and to legal protection against interference with or attacks on privacy.
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pressures as well as changing social and ethical norms. Laws can be, and have been, directed to ends that are incompatible with psychoanalytic ethics. Individual analysts and their patients will generally be better protected if ethical guidelines avoid asserting the precedence of the law. It was for this reason that in 2000, the IPA Executive Council altered the statement about confidentiality by deleting the clause "within the contours of applicable legal and professional standards.” 4 The aim was to defend the autonomy of professional ethics and ensure that the Ethics Code creates a space which allows individual members who have doubts about breaching confidentiality to feel safe in explaining their ethical stance to the relevant authorities. 2.9 Psychoanalysis and the wider community Among the institutions of civil society, psychoanalysis makes a unique contribution to the extension and elucidation of human mental life, particularly its unconscious layers. There is an ongoing "work of culture" (Freud, 1933, p. 80) occurring in psychoanalytic therapeutic spaces around the world, the benefits of which are not only in one direction. The health and integrity of psychoanalysis is also dependent upon the values and goals fostered in the surrounding society. We do not practice in a vacuum; we both influence and are influenced by adjacent disciplines and contemporary cultural movements. This is why psychoanalysis, as an institution, must continue to take its place in the various forums of public life : listening, learning and engaging in dialogue with other community entities in an ongoing paradoxical labour of resistance to, and extension of, human collective experience.
4 Executive Council Minutes, 28 July 2000.
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3 PROTECTION OF PATIENTS IN THE USE OF CLINICAL MATERIAL FOR TEACHING, ORAL PRESENTATIONS, PUBLICATIONS, & RESEARCH 5 3.1 Preliminary remarks and the problem of ‘informed consent’ Given the complexity of the unconscious transference and countertransference dynamics in any analytic treatment and the variety of theoretical schools represented within the IPA, each with its own understanding of this complexity, with its own techniques and associated ethics, there is no universal, fail-safe procedure which can be recommended as the best way to protect the analysand when sharing clinical material with colleagues. The problem can be illustrated by considering some imaginary examples of statements that analysts might make if they were required to justify their positions when presenting clinical material in scientific presentations or publishing clinical material: ● Example 1: “I believe that what transpires in the psychoanalytic consulting room is a product of the conscious and unconscious activities of both patient and analyst. I consider it appropriate and proper to ask my patients’ permission whenever I use clinical material from our work together. The patients whose material is referred to in this paper have vetted it and given their written permission.” ● Example 2: “There is no doubt that any clinical event is properly speaking a unique product of the interaction between a given patient and a given analyst. Any description of it by the analyst is naturally therefore subject to that analyst’s point of view, in ways not necessarily fully comprehended, including his or her theoretical bias and unconscious personal equation, at a given moment of time. However, it is my conviction that asking a patient’s permission to use clinical material in a scientific presentation is a significant intrusion into his or her psychoanalysis or psychoanalytic therapy and thereby to be avoided if at all possible without harm to the patient. I have chosen to disguise the personal histories referred to in this article so that other persons would not recognize them. As for the patients who might recognize themselves, I hope that they will feel that I have tried to respectfully render our work together as a particular contribution to society.“ ● Example 3: “I do not believe it is right to involve patients in discussing publications of mine which make reference to their work with me. The inevitable and ethical asymmetry of the therapeutic relationship makes informed consent both problematic and unavoidably troubling to the patient. With a view to protecting the confidentiality of my patients and to correcting for my own unconscious blind spots,
5 As will be evident from the Further Reading listed at the end of this report, the Committee has been able to draw upon a substantial literature examining the conflict between the ideal of absolute confidentiality in relation to patients and the equally absolute need to consult with colleagues in order to maintain our capacity to work as psychoanalysts. For ease of reading, we have chosen to keep references in the text to this literature to a minimum, citing only when we think the point being made might otherwise be viewed as controversial.
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I have asked three colleagues to carefully read over and approve the material with this in mind.“ ● Example 4: “In order to protect the confidentiality of my patients, I have relied on amalgams of several patients, mine and those of my supervisees, in the clinical illustrations used in this paper. To avoid introducing an extraneous factor into their analyses, I have not asked any of these patients for permission.“ ● Example 5: “I feel that the analyst’s transparency about his or her motives and possible conflicts of interest are essential in an authentic psychoanalytic relationship. Therefore, I always discuss with my patients the possibility of my writing about them and my wish to enrich the literature with what I have learned from our work together. Each patient referenced here has read and approved the material included herein.“ Although in the views imagined above there are differing attitudes towards the notion of ‘informed consent’, we may suppose that all psychoanalysts would acknowledge its complexity. Whereas in most other professions the ethical requirement of informed consent is relatively straightforward, in psychoanalysis it is anything but. Freud’s discovery of unconscious resistance, the fact that patients are unconsciously opposed to treatment and to getting better, and his realisation that resistance needed to be identified, understood, and worked through rather than admonished, entailed a paradigm shift in his therapeutic model. The object of analytic inquiry, the unconscious, complicates any notion of informed consent within the transferential field. Neither the analysand nor the analyst can be immediately aware of all the unconscious motives that impel permission for the sharing of clinical material and neither of them can predict the future après-coup impacts of such a decision. There is therefore an inherent ethical uncertainty about informed consent in psychoanalysis, given the always-only-partial knowability of transference and countertransference. We know that patients can give consent to share clinical material and still feel that the analyst has breached their trust, with potentially serious consequences for their treatment. As mentioned above (see 2.7), apart from the option of not sharing clinical material at all, every alternative at the analyst’s disposal has its limitations and risks. It is not reasonable to expect that an analyst will always detect or correctly predict a patient’s reactions when information is shared (Anonymous, 2013; Aron, 2000; Brendel, 2003; “Carter”, 2003; Kantrowitz, 2004, 2005a, 2005b, 2006; Halpern, 2003; Robertson, 2016; Roth, 1974; Stoller, 1988). Some analysts believe that the interactive engagement triggered around the request for consent is on the contrary the ethical action to take with therapeutic benefits and enhanced scientific accuracy accruing from adding the patient’s point of view. These analysts (Aron, 2000; Clulow, Wallwork & Sehon, 2015; Crastnopol, 1999, LaFarge, 2000; Pizer, 1992; Scharff, 2000; Stoller, 1988) are less reluctant to disturb the treatment with a request for permission. Given the multitude of complex clinical situations that occur in different phases of psychoanalytic therapy, and the differing ethical positions regarding
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each of them that can be taken by analysts of separate theoretical persuasions, it is not feasible for the IPA to devise a standard procedure for presenting and publishing clinical material that would be ethically sound and generalizable to all analysands. Our ethical responsibility to protect our patients and their treatment goes beyond strict legal liabilities. Even when patients’ anonymity is respected so that they are not recognizable to others, their self-recognition may have distressful repercussions on their views of their analysts, of themselves, and of the treatments, whether ongoing or concluded. Because of these limitations in our capacity to be confident about our particular ethical choices, in addition to our ethical responsibility as individual practitioners we are proposing a community-of-concern approach (Glaser, 2002) in which safeguards are introduced at several points in the development and presentation of clinical material, and responsibility for their effectiveness is held by all involved. The aim is to foster a culture of confidentiality in which protection of the patient´s privacy and dignity becomes a paramount concern at every point in the development, sharing, and presentation of clinical material. 3.2 Reducing potential and experienced harm to patients induced by the profession's scientific, technical, and ethical needs to share clinical experience The presence of unconscious mental life in every human being, and its intense mobilization during treatment in both analyst and patient in a mutually activating and intertwined spiral, makes it impossible to pretend that any clinical presentation is either exhaustive or exempt from unknown unconscious strivings on the part of the author. Moreover, the clinical material selected as the subject of a presentation is always to some extent a construction created by the analyst. This observation makes the sharing of clinical material with peers or supervisors both a professional necessity and a constant call to scientific modesty. We simply cannot know everything that we may be unconsciously communicating when we write about or orally present our analysands to others. And we cannot reliably predict what the impact on them will be, either immediately or long afterwards, of discovering that their analyst has written about them, whether their permission has been obtained or not. So we are forced to conclude that our ethical responsibility is a paradoxical one: we are responsible for the impact on our patients of our sharing their clinical material with others, despite the fact that we cannot fully predict or control this impact, or even know what aspects of it may have eluded our perception. The tension between confidentiality and the analyst's need to share is captured in legal advice commissioned by the IPA from the UK barrister, Anya Proops QC. On the one hand, she concludes that "In general, it is difficult to see how the disclosure of effectively anonymised data would amount to a misuse of private information at common law". On the other hand, this advice is subject to the following caveat: "if in practice, patients are given to understand that no aspect of what they say of their treatment will be divulged to any third
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party .. . then inevitably psychoanalysts may be exposing themselves to viable breach of confidence claims if they do disclose any information generated in the course of the treatment process, even on an anonymised basis" (Proops, 2017, pp. 15-16). One practical suggestion relating to confidentiality of clinical presentations would be to encourage authors presenting clinical material in scientific presentations or publishing clinical material to make a statement of the kind illustrated by the imaginary examples above (see 3.1). This might be thought of as analogous to the disclosure of conflicts of interest that has become mandatory in medical reporting. The purpose would be twofold: on the one hand, such statements might motivate their authors to make a more thorough assessment of the balance between confidentiality and scientific sharing, and, on the other hand, they might provide patients who find out that their confidentiality has been breached with an explanation of the reason and a possible occasion for further analytic work. Since internet search by author's name is the easiest and most common access patients and others have to publications which may contain private information, one way to protect confidentiality is to publish or present anonymously or with a pseudonym. An example of the community-of-concern approach would be to encourage consultation with one or more colleagues before including any material in a presentation. 3.3 At the institutional level: teaching Not all institutes currently include in-depth discussions of confidentiality issues in training. The importance of confidentiality in psychoanalytic treatment requires that candidates be made aware of this issue early in their training, by identifying it as a key point in our practice. The following proposals could help to place confidentiality as a central aspect in psychoanalysis from the first steps of the training: ● Include a seminar about confidentiality as part of the training which would have the following goals: (a) to make candidates aware of this issue early in their training; (b) to keep the issue alive in our minds whenever we talk about analysands; (c) to promote the presentation and discussion of clinical material in which the protection of confidentiality would be challenging; (d) to facilitate discussion of the advantages and disadvantages of different ways in which confidentiality might be protected in the sharing of clinical material (disguise, informed consent from a psychoanalytic point of view, amalgamated case material, multiple or anonymous authorship, etc.); (e) to facilitate discussion of the local legal and professional regulatory environment with scenarios about how to proceed when there is or could be a conflict with psychoanalytic confidentiality. ● Make the protection of confidentiality an issue of regular and collective concern each time members or candidates present clinical material in society meetings, seminars, working groups, supervisions, etc. Analysts’ personal analyses will remain
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confidential places where free association is encouraged. In all other contexts, clinical material should be anonymised. ● Encourage each society to find a way to make thinking about the challenges of protecting confidentiality into a continuous learning project. This might, for example, take the form of the occasional workshop about the issue. The IPA could publish regular bulletins with case discussions from the different regions problematizing this issue, starting with examples drawn from the literature. 3.4 Presentations of clinical material in congresses & other scientific events Analysts need to be aware that clinical material, whether written or oral, once presented has a potentially unlimited audience. Although the risks of recognition may be judged to be low, any such risk raises the crucial issue that it is not only the reality of a consequent breach that is of concern, but also any perception that there has been or could be a breach. The following guidelines represent the Committee’s view of ‘best practice’ when presenting clinical material in congresses and other scientific events: 6 ● Prepare a statement about confidentiality in calls for papers. Presenting analysts should be alerted to some of the documented negative consequences of poorly controlled confidentiality on patients and analysts. Since research has shown (Kantrowitz, 2004, 2006) that analysts may not always be sensitive to the negative impact of their scientific activities on their patients, they could also be advised to consult their peers early on about their wish to share clinical material in the congress setting. One way of reducing the risk of leaking sensitive clinical material in group presentations would be to avoid circulating this material in written or digital form, either before or after the scientific event. ● Review submitted papers carefully. The scientific committee should vet particularly carefully each submission containing clinical material and – when in doubt – ask for feedback from a select team of advisors about the protection of confidentiality. Since these members may not know the author and his or her milieu, consultation at the local level may be an alternative form of protection. When clinical material cannot be changed, as in the narration of a dream, disguise, anonymization, or a carefully considered asking for permission might be used to protect the patient. ● Include a statement on confidentiality in the printed programme if there is one. Some examples of such statements are given in Appendix B. ● Have chairs read a statement aloud before every panel or workshop. Chairs of events in which clinical material will be shared could be asked to read aloud a statement such as the one that was proposed for the 2017 IPA Congress (see Appendix B). ● Announce that some details of the material have been omitted and/or changed to preserve patient confidentiality. 6 A preliminary version of some of the guidelines in 3.4 was accepted by the Officers on behalf of the Board in June and July 2017 before the Buenos Aires congress.
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● In large groups and any other groups in which not everyone knows everyone else, ensure that special precautions have been taken to protect confidentiality. ● Although informed consent is always complicated by transferential implications, in some jurisdictions, the presentation of clinical material may be legally safe only with the written consent of the patient. Legal safety might not, however, fully discharge our ethical responsibility towards the patient and the treatment. When informed consent is proposed as an option, the presenting analyst should consider, if possible in consultation with colleagues, the possible impact of such consent upon an ongoing or completed treatment. ● Minimize the biographical details of the patient, revealing only what is necessary to illustrate the ideas of the author. In smaller gatherings where everyone knows everyone, this by itself may be adequate, and is certainly advisable. There should be an evaluation, preferably with colleagues, in cases in which the aspects of interest could even conceivably identify the patient. ● Disguise clinical material. This should be done so thoroughly in all clinical presentations that the likelihood of the patient being identified is remote. ● Ask each presenting analyst for a brief statement justifying the strategy chosen for protecting confidentiality within his or her ethical framework (see 3.2, penultimate paragraph). ● Have chairs announce that non-authorized audio or audio-visual recording of presentations containing clinical material is not allowed. ● Candidates are especially vulnerable when their personal analyses are spoken or written about by their analysts, given the risk of recognition by the candidate or by someone in the candidate’s professional and social circles. Possible consequences include undermining a candidate's identification with psychoanalysis as a future career and even adversely affecting a candidate's opportunity to pursue analysis as a career if, for example, those hearing the material take it to indicate a serious problem with the treatment. Presenting clinical material about a candidate could thus border on becoming a reporting analysis by another name. Similar considerations apply to the analysis of professional colleagues. 3.5 Publications in psychoanalytic journals and e-journals A number of psychoanalytic journals already have editorial policies in place for protecting confidentiality. It would be valuable to survey these systematically and to formulate proposals for enhancing their effectiveness, but we have not yet done this. The presence of clinical material on psychoanalytic e-journal sites and publications is a particular cause for concern. Increasingly, e-versions of articles become available at the same time as the print edition or may be republished electronically at a later date. Protection and control of this material is often seriously inadequate, while its readership is
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global and unlimited. The ethical commitment of e-journal administrators to the protection of patients needs to be heightened and monitored. Some examples of current notices for authors which attempt to deal with this problem are given in Appendix B. 3.6 Psychoanalytic research Research involving human subjects, as it is called in the social science and humanities research community, gives rise to a need for protection of confidentiality. Like other research funding bodies, the IPA has procedures in place for protecting the confidentiality of research subjects. The IPA’s Research Committee, the body within the IPA that provides research funding, requires that every applicant for a research grant involving human subjects (normally, analysands) have obtained ethical approval for the proposed research before receiving any funding from the IPA. The approval must be obtained from what the Research Committee calls an Institutional Review Board (IRB), also known (e.g. in North America) as an Ethics Committee or Research Ethics Committee. Every agency that funds research using human subjects, including every research university in the industrialized world, requires approval by an IRB or has an equivalent requirement in place. As a further safeguard, the IPA requires also that all grant-holders work through a research institution. Approval by an IRB invariably requires that no subjects be identified by name or other identifying feature in the research, but only by an arbitrary number. The list connecting numbers to names and contact information is then held under tight restrictions, and usually only the principal investigator or research administrator has access to it. IRBs also require that data be reported only in aggregated form whenever possible. Psychoanalytic research on human subjects takes broadly two forms: multi-subject research, in which individual results are aggregated and no individual information is presented; and studies of either a single case or a small number of cases involving the presentation of information about individuals. For multi-subject research, approval by a reputable IRB is widely considered to be an appropriate form of research ethics clearance and for such research, the requirement of IRB clearance is, in our view, sufficient. For studies of individual cases or a small number of cases involving presentation of information about individuals, in our view there should be a further requirement. Such research proposals should further be required to have in place the protections of confidentiality in the use of clinical material identified in sub-sections 3.2 to 3.5, above. We recommend that the Research Committee be asked to add to their application process a requirement that applicants have demonstrated that these protections will be in place.
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4 CONFIDENTIALITY WHEN USING TELECOMMUNICATIONS, INCLUDING FOR REMOTE ANALYSIS & SUPERVISION 4.1 Introduction Modern telecommunications, including voice telephony, video telephony or videoconferencing ( e.g. Skype) 7 , and email, are being increasingly used by psychoanalysts for communication with patients and with colleagues. Communications with patients include both occasional and regular consultations by telephone or Skype (or similar), and communications with colleagues include telephone consultations about patients, clinical supervision and seminars conducted by telephone, and the exchange by email of process notes and other clinical material. Psychoanalysts are currently exposed to increasing economic and cultural pressures to normalise these new forms of communication and to use them ever more widely in their clinical work. Conducting psychoanalysis by means of telecommunications (referred to variously as ‘remote analysis’, 'teleanalysis', 'distance analysis', and ‘Skype analysis’) is currently a subject of much debate among psychoanalysts. Many colleagues hold strong views either for and against this practice, with ethical and technical arguments being put forward on both sides. The depth of polarisation in the debate is evident in some of the feedback received by the Committee concerning the draft version of this report (see section 10, below). It is important to note that the scope of the debate about remote analysis is much wider than confidentiality, whereas this report is concerned with remote analysis only insofar as it relates to confidentiality. The inherent insecurity of telecommunications means that remote analysis, like all of the practices mentioned above, involves risks to patient confidentiality. The IPA has already issued guidance which emphasises that psychoanalysis is conducted “in the room - in person” and that other forms of analysis should be pursued only in exceptional circumstances (IPA, 2017). It points out that there are “issues regarding security, privacy protection and confidentiality over all form of telecommunications”, and it states that “Analysts must satisfy themselves that the technology they are using is secure and protects the patient's confidentiality” (IPA, 2014-17, paragraph 7). We explore below the risks to confidentiality inherent in the use of telecommunications for psychoanalytic consultation, and the implications for the IPA and its members. 4.2 Privacy in the classical setting In the classical setting of the psychoanalytic consulting room or office, when social and political conditions have been favourable, our relative physical control of the offices or 7 Also e.g .: FaceTime, WhatsApp, GoToMeeting, VSee, WebEx, Zoom, etc. The following independent website provides detailed comparisons between about 60 alternative platforms: https://www.telementalhealthcomparisons.com/private-practice
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consulting rooms in which we work, together with our reasonable assumptions and our tacit knowledge (Polanyi, 1967) about their acoustic properties, historically enabled us to maintain the privacy of consultations, and thereby to protect their confidentiality. This protection has never been absolute, and in cases where there is targeted surveillance by the state of individuals who are suspected of terrorism or other serious crimes, it can be broken without our knowledge or consent. Nevertheless, in countries where covert local surveillance by means of microphones or cameras planted in buildings is not considered normal, psychoanalysts and their patients have been able to rely on tacit knowledge, everyday experience and common sense to assure themselves that their in-person conversations are private. In countries where covert local surveillance is a fact of everyday life, privacy has always been more difficult to achieve. For psychoanalysis to be possible at all, however, it must be the case that psychoanalysts and patients are able to find local ways of avoiding surveillance and creating private spaces in which to work. 4.3 Loss of privacy in telecommunicative settings Modern telecommunications are inherently vulnerable to electronic interception and eavesdropping without the need for separate local access to premises, access being provided by the telecommunications device itself (i.e. the telephone or computer). From information made public by Edward Snowden in 2013, we know that telecommunications are subject to routine surveillance on a massive scale and that the contents of many private conversations are stored for potential use in protecting national security, fighting terrorism, etc. 8 In addition to routine surveillance by the state, telecommunications are increasingly vulnerable to various kinds of criminal interception for financial, political, or personal motives, including by individuals who are known to the person who is being targeted. Privacy in telecommunications can be protected to some extent by careful use of encryption, although it is unclear whether any of the currently available methods of encryption are completely secure. 9 Many software packages and hardware devices offering encrypted communication are also either known or suspected to have ‘backdoors’ which allow access to decrypted contents by the suppliers, or by police or security services, and which are potentially vulnerable to others. A particularly intractable problem, and one that is widely overlooked, is ‘endpoint security’: the need to ensure that communications are not being intercepted before they are 8 Greenwald, G., MacAskill, E., Poitras, L. (2013). See also: MacAskill, E., Dance, G. (2013); WikiPedia (2018a); University of Oslo Library (2013-17); Snowden Surveillance Archive (2018); The Internet Archive (2015). 9 There is continual conflict between government agencies seeking potential access to any communication, and those who, for commercial, political, or ethical reasons, seek to preserve privacy by means of encryption (see Abelson et al., 2015). The FBI-Apple encryption dispute of 2016 was an example of this conflict breaking out in public (see Wikipedia, 2018b).
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encrypted, or after they are decrypted. If a telephone or computer used by either a psychoanalyst or a patient has been compromised, unencrypted data may be being copied to a third party by malware that has been installed without the user’s knowledge. Thus, even if ‘end-to-end’ encryption across the network is good enough, the security of the communication system as a whole can be vitiated by inadequate endpoint security at either end. A chain is only as strong as its weakest link. It is unclear whether it would be possible for anyone to make a telecommunications system that could absolutely guarantee privacy. In a corporate, military or governmental organisation, with strict regulation of hardware and software, it is possible to provide a relatively high degree of privacy. For example, clinicians who work in hospital environments or for large healthcare organisations, and who use only devices supplied and controlled by the organisation, are sometimes able to benefit from this. The fact that breaches occur regularly even in such organisations, however, demonstrates that the privacy achieved is still limited. Clinicians who work in relative isolation, for example in private practice, might in principle be able to achieve comparable results, but they would need sufficient technological resources, both they and their patients would need to maintain a rigid discipline in using their devices, and they would need to acquire a high level of specialist technical knowledge of computer security, which would need to be constantly updated. Psychoanalysts do not generally possess, and are typically reluctant to acquire, the technical knowledge they would need to establish or maintain such systems. Nor are our professional culture and practice compatible with the kind of social regulation that would be required to use them. Even if we could acquire and maintain such a system, it would involve a substantial financial outlay, and we would be obliged to subject both our patients and ourselves to extremes of discipline and control in using it. Patients would be required to set up, and presumably pay for, expensive specialist equipment, and to learn how to use it effectively. Perhaps the most serious difficulty for many psychoanalysts is that the discipline and control required would hardly be compatible with a psychoanalytic setting. Whenever and wherever modern telecommunications form part of the means of communication, the assurance of privacy historically afforded by the classical setting is therefore no longer available. 4.4 Loss of privacy in the classical setting Much of the above discussion implicitly assumes that the classical setting today is continuing to offer relative privacy in comparison with telecommunicative settings, but the extent and severity of the risk of eavesdropping even in the contemporary classical setting is uncertain. When analyst and analysand are physically co-present in the consulting room or office, and if one or both parties has a phone or other device in the room, or nearby, there is still a degree of risk. If a phone has been compromised by malware, for example because its owner has unknowingly responded to a 'phishing' message, it may be being remotely
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accessed without the owner's knowledge. There is some uncertainty about whether in some circumstances a cellphone can be covertly activated from a power-off state (Scharr, 2014). How extensively cellphones can be compromised, how widely distributed are the means and expertise for doing this, and whether it is economically feasible to do this on a mass scale or only for a limited number of selected ‘targets’, are all matters of current research (see e.g. Marczac et al., 2018, on the recent use of Pegasus spyware). As well as being vulnerable to surveillance by government agencies, mobile phones are increasingly targeted by so-called 'stalkerware' or 'spouseware' deployed by partners, family members, and others (for a series of reviews, see Motherboard, 2018), as well as by commercial organisations, employers, and generally by any users of suitable 'crimeware'. 4.5 Long-term consequences Once information has been acquired by surveillance we should assume that it will be stored by whoever has acquired it for as long as possible. The extent and duration of this storage will be limited only by technological and budgetary constraints. Recent developments in techniques such as automatic speech recognition, steady growth in the processing power and storage capacity of computers, and falling costs of storage, strongly suggest that verbatim content of at least some telecommunications may now be being preserved indefinitely. Being preserved indefinitely, it also remains vulnerable indefinitely to further theft and distribution. There is therefore a real risk that a recording of a psychoanalytic session will one day be posted on YouTube or elsewhere, and that it could subsequently ‘go viral’. Even in a country where privacy of communication is afforded some degree of legal protection, there remains a real possibility that at some point in the future an authoritarian and undemocratic regime will achieve power. Such a regime would probably inherit information gained from past surveillance and be able to use it for arbitrary and repressive measures against individuals and groups. Stored information obtained by surveillance is also vulnerable, through leaks and/or hacking, to acquisition by anyone with an interest in turning it to some purpose, which could include journalists, actuaries, criminal organisations, malicious pranksters, terrorists, and foreign governments. Regardless of any legal or other safeguards currently in place, mass surveillance of telecommunication thus creates risks to confidentiality which potentially extend far into the future, over the entire lifetimes of patients and those of their families, friends, and associates. Different psychoanalysts will make different estimates of the magnitude of the risk, but the fact that the risk exists is not in doubt. 4.6 Implications for the IPA and its members The IPA therefore faces a dilemma. On the one hand it is seeking to expand the profession, including into new geographic areas, whilst maintaining high professional standards, a task
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