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As a clinical psychologist and lawyer applying internet and health
law to the issue of the publication of psychoanalytic clinical case
material, I find it timely to address the new realities presented by the
dissemination through cyberspace of articles previously available only
to those with access to psychoanalytic journals.
Anna O. on the Internet
For anyone interested, the
discovery of the true identity of Anna O. would take merely a matter of
minutes on today's world wide web. This was not an issue for Freud, and
he and subsequent analysts published their casework with impunity.
However, the possibility now exists that many current patients may
become identified by their histories and other details at any time,
perhaps even while still in treatment with the author of the article.
The publication of professional journals on the Internet greatly
increases the probability that patient identities could become public
knowledge.
Patient confidentiality and the internet
With the wide
dissemination of clinical case material over the internet, merely
altering the key identifiers of the patient, such as their age, their
livelihood, or where they live may be grossly inadequate to maintain
their anonymity. Some of the subtle nuances that breathe life into
clinical case material may be readily recognized by the patient or
people who know the patient intimately. Prior to publication on the
Internet, few non-professionals would ever see this case material.
However, the modern searchable database allows anyone to look through
practically all professional publications. It is no longer realistic to
assume patient anonymity will be maintained merely because neither the
patient nor anyone who knows the patient will ever read the material.
Informed consent
Given the fact that patient anonymity is
ever more impossible to guarantee, the need for obtaining informed
consent from the patient becomes more critical. Publishing clinical
case material without informed consent places the author at risk of
being liable to the patient for invasion of privacy and could expose the
analyst to a malpractice claim for negligent breach of confidentiality.
Invasion of privacy
A clinician who has not obtained
informed consent to write about a patient risks serious legal
consequences should the clinical material become publicly exposed and
identified. It is considered an invasion of privacy to
publicly disclose private facts about an individual. Placing clinical
material on the Internet risks wide public disclosure, which is
understandably alarming to both patient and therapist. Should the
identity of a patient become widely known, the therapist could be
exposed to a claim for invasion of privacy.
Negligence
A lack of informed consent could
lead to a malpractice liability if the patient discovered they had been
written about without consent. Maintaining confidentiality and
obtaining informed consent are well established aspects of basic
professional conduct. A disclosure of any clinical information about
the patient without informed consent would fall below the required
standard of care and could constitute a liability for the analyst.
Informed consent
Informed consent by definition must be
both voluntary and knowledgeable. Voluntary consent is only obtained
where there is no undue influence placed upon the patient. A patient
who is asked to give consent while in treatment could claim to be under
the undue influence of the analyst. Merely obtaining verbal permission
from a client might not be considered adequate assurance against an
undue influence claim. It is advisable that the consent be in writing,
and it is also recommended that there exist a reasonable delay between
when consent is requested and when it is actually obtained.
"Voluntariness" is determined by the patient's feeling truly free to say
no to the request. Given the special nature of the relationship between
analyst and patient, it would fall upon the analyst to show that the
patient voluntarily consented.
The consent must be truly knowledgeable, requiring disclosure of all
the facts that a patient might consider relevant in giving the consent.
The traditional assurance from the analyst that the patient will remain
anonymous is no longer adequate in the age of the Internet. The patient
should be informed that the article may well be published on the
Internet and that it is conceivable that anyone can, or may in the
future, obtain access to the article. The content of the article and
the specific details that are going to be published should be disclosed
to the patient. Additionally, the analyst must disclose that the
publication of the clinical material may further the professional
advancement of the analyst. The patient has the right to know that the
analyst's interest in the treatment includes a personal benefit. Not
only is this a point of law, but it is also a clinical issue that always
impacts the course of treatment, whether implicitly or explicitly.
The requirements for truly informed consent are high and stringent.
Historically, there was less risk of breach of confidentiality, and
adherence to these requirements may have been minimized with little
risk. The dissemination of information is accelerating exponentially,
and whereas it may have taken fifty years or more for the community to
learn who Anna O. was, access to the Internet drastically reduces the
gap between publication and potential discovery.
Participatory collaboration
The challenges of obtaining
informed consent present an opportunity to deepen the analytic
relationship. One option is for both the analyst and the patient to
participate and collaborate in the development of the clinical material
that is to be presented. Although each dyad will articulate this
process uniquely, the need to be transparent is elemental. The
transparency of informed consent requires that the clinical material
emerge from the relational matrix. Both the analyst and the patient
become vulnerable and empowered through a new level of mutuality.
Interest in the relational nature of the therapeutic relationship is
at an all-time high, and the new requirements for transparency in
presenting clinical case material can be a vehicle for enhancing that
exploration. Patients long to apprehend the subjectivity of the
analyst, and analysts strive to apprehend the subjective experience of
the patient. The analytic community is eager to learn from clinical
case material that is lived and visceral. A participatory and
collaborative stance to the publication of clinical case material sets
the stage for a new transparency in the presentation of clinical case
material.
One hundred years ago Freud expanded the collective consciousness
with the publication of The Interpretation of Dreams, which
allowed individuals to reflect upon the inner world of others in order
to gain an understanding of their own inner world. Today the
transparent presentation of clinical material may afford individuals an
opportunity to see relational transactions with a new and deeper
appreciation of the way in which relational contexts shapes lived
experience.
Sietze VanDerHeide, Psy.D., J.D., is a member of
the IAPSP and a clinical psychologist in private practice in Beverly
Hills, CA. He is also a graduate of Concord Law School where he focused
on Health Law, Administrative Law and Internet Law.
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