5 THIRD-PARTY REQUESTS FOR A BREACH OF CONFIDENTIALITY Requests from outside the profession for breaches in confidentiality by psychoanalysts usually take one of three forms: requests that material that has come up in treatment be shared with another party who has a stake in the treatment (insurance companies, government agencies, parents); orders from a legal body (a court or the equivalent) that an analyst testify or produce clinical notes; and requirements to report to authorities suspicions about crimes or harm or risk of harm to self or third parties, such as minors. A court order, for example, might be to testify for the prosecution, for the defence, or for a third party. Such communications will often be experienced as demands having the force of the law, for example when they come from a solicitor, police officer, court official, or government agency. Implicit authority of this kind should always be questioned and guidance sought before making a response. Analysts often envy the legal professional privilege exercised by lawyers on behalf of their clients as being better protected than our own clinical confidentiality but this comparison can be misleading. The “deliberative privilege” which protects the deliberative space of judges’ notes, cabinet meetings, and arbitrator’s notes is a better analogy for the psychological space in our consulting rooms. What matters in psychoanalysis is less a disclosing of conscious information, which may be of more interest to a lawyer, than a progressive uncovering of the quality of psychic life. Nor is it entirely clear how much legal value the notes or testimony of an analyst could have. Lawyers may believe that they are able to evaluate the relevant evidentiary details from the psychotherapeutic relationship but they do not generally appreciate how contextually bound these “details” are to the patient’s free associations while being held by a specifically psychoanalytic listening. The professional integrity and autonomy of psychoanalytic work is essential to its technical and clinical quality. In addition to the “public good” that is defined in terms of the safety of third parties or the protection of minors, there is also a public good in the contribution that psychoanalysis makes to society through its "work of culture" (Freud, 1933, p. 80). When a situation arises in which these have to be weighed against each other, the task of containing and interpreting primitive anxieties can become particularly challenging for the analyst. Current recommendations from the Ethics Committee make a case for what is called “discretionary privilege”, meaning that the who, how, and why of any demand for a breach in confidentiality is considered first and foremost a matter for clinical decision and ethical judgment by the individual analyst, a decision that can be based on what best protects the integrity of treatment and the patient. The draft recommendations below of the Ethics Committee apply specifically to child and adolescent treatments but we endorse the principles that underlie them as applicable to all psychoanalysis. The recommendations read as follows:
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