From The New England Journal of Medicine
American medicine increasingly faces such questions, and psychiatrists (and other mental health professionals) are often on the front lines. Third parties want to know what people tell their psychotherapists -- and what therapists think about the needs, capabilities, and prognoses of their patients. This is hardly surprising. People tell therapists things about their actions, experiences, and finances that they tell nobody else. Mental health professionals' diagnostic and predictive judgments, in turn, serve many nontherapeutic purposes. Clinical judgments bear on decisions about criminal responsibility, tort liability, insurability, career advancement, and myriad other responsibilities, rights and opportunities. Litigants, insurers, employers, and public officials thus commonly ask psychotherapists to reveal things that perhaps "ought not to be spread abroad."
When presented with such requests, therapists and other health care professionals typically look to the law to tell them what they should do. The American Medical Association's code of ethics permits physicians to disclose confidential clinical information whenever they are "required to do so by law." Other ethical codes applicable to mental health professionals contain similar language.
As Ralph Slovenko shows compellingly in Psychotherapy and Confidentiality, the law's stance toward clinical confidentiality in the mental health sphere is less than solicitous. Slovenko's book is the most comprehensive review yet published of the legal duties of mental health professionals to keep and reveal clinical secrets. From a therapeutic perspective, the legal landscape he surveys is bleak. In the first half of his book, Slovenko examines the scope and limits of the psychotherapist-patient and physician-patient privileges, which are meant to reassure patients that what they say in the clinic or in the therapist's office is beyond the reach of judges, jurors, and litigants. He demonstrates that this assurance is largely illusory. Through its many exceptions, the law of therapeutic privilege subordinates confidentiality to the need, in the law's quaint phrase, for "every man's evidence." In criminal proceedings, child-custody cases, and, to a lesser extent, tort and contract litigation, clinical confidences are better protected by the tests of relevancy that courts apply to all potential evidence than by the porous rules of therapeutic privilege.
As Slovenko shows in the second half of the book, the law's lukewarm treatment of clinical privacy extends beyond the realm of testimonial privilege. The law requires clinicians to tell public authorities or potential victims about myriad dangers that psychiatric patients might pose, and at times the law allows therapists to reveal clinical confidences to a patient's employer on the grounds of their relevance to job performance. Unlawful breaches of confidentiality are often made with impunity, since patients are reluctant to risk further embarrassment by going to court. Slovenko reports that therapists are less likely to be sued for violating patients' confidences than for failing to reveal clinical information to third parties who claim injury.
The largest gap in the law's protection of clinical confidences may be the carte blanche it gives to disclosure once patients have given their "consent." Third parties such as health insurers and employers routinely offer services or opportunities on the condition that consent to the release of clinical information be provided. Withholding consent in such circumstances is often not a realistic choice, yet the law typically treats this consent as voluntary. Although some question the extent to which the law should regard such consent as uncoerced and thus valid, Slovenko takes its legitimacy as a given.
More generally, Slovenko parses the law of clinical confidentiality in a largely descriptive fashion and is uncritical of the developments he chronicles. His encyclopedic book is a valuable reference for health care professionals, especially psychotherapists, who are interested in what the law of medical privacy minimally requires, but it encourages reflexive deference to the law as the arbiter of what health care professionals ought to do. In so doing, the book gives short shrift to their therapeutic, patient-oriented perspective as a distinct moral factor that is relevant to decisions about keeping secrets in the ambiguous situations that lead clinicians to consult the law. Too often, the law offers no clear answers, and clinicians can serve their patients and influence the law's course by making and defending patient-oriented ethical judgments.
Psychotherapy and Confidentiality suffers from another, more peculiar fault: it indulges prejudices from a bygone era that are irrelevant to the book's focus. Slovenko suggests that socializing with "homosexuals" constitutes "acting out" against "the rules of society," and he approvingly cites Karl Menninger's characterization of homosexuality as "an illegal type of gratification."
This problem could be remedied in a revised edition and should not distract readers from the book's value to clinicians when third parties ask about matters that perhaps "ought not to be spread abroad." Beyond this, Slovenko's book does a public service by demonstrating the law's failings as a guarantor to patients that their confidences will be kept.
Reviewed by M. Gregg Bloche, M.D., J.D.
