Notes from the Academy

The Ethics of Ethics Committees

Lynne G. Tenbusch, Ph.D.

At the recent meeting of the International Federation for Psychoanalytic Education, a panel on ethics committees was presented. It consisted of two very different approaches to the “management of ethics” within psychoanalytic institutions. The Academy for the Study of the Psychoanalytic Arts embraces this topic as a vital area of discourse, given our commitment to situating ourselves within art, humanities and philosophy as opposed to biology, medicine and the natural sciences. One might argue that biology and medicine render themselves more readily to decisions about right and wrong than art, humanities and philosophy. The two papers summarized below seem to reflect different perspectives. Dr. Jeff Sandler, M.D., carefully but willingly assumes the position of authority in administering the task of the ethics committee. Sue Saperstien, M.A. is less willing to position herself as the author of right and wrong.

In 1998 the International Psychoanalytic Association directed all member institutes to establish ethics committees Following that lead the American Psychoanalytic Association has required its member institutes to have similar mechanisms in place since about 2001. This seems reflective of the pervasive quest for certainty manifesting itself throughout the world generally and in the United States in particular since September 11, 2001.

The daunting task for members of the Academy and other similar minded psychoanalysts is how to maintain the freedom of inquiry (and freedom from moralistic dictates) while existing in the larger world. The two papers discussed below address this question with profound commitment and serious consideration. They end up in very different places.

Dr. Jeff Sandler is chairperson of the Psychoanalytic Institute of Northern California’s ethics committee, which consists of analysts, a candidate, and an attorney. His paper explores the relationship between the idealistic strivings and pragmatic necessities in the establishment and functioning of an ethics committee.

Sandler writes that idealism informs the pursuit of ethical standards and members of an ethics committee attempt to reflect their own highest ideals in the committees’ formulations. Toward that goal both positive expressions of ideals and negative expressions of prohibitions will be articulated. Positive locution will include adherence to confidentiality, continuing education, scientific responsibility and informed consent while the negative side will be articulated as prohibitions against exploitation of patients (his word), dual relationships, or sexual involvement. He also writes that “Aspirations engender motivation and striving to do the best that is possible while recognizing perfection is unattainable. Prohibitions on the other hand tend to invite contempt and rebellion.”

Sandler believes that professional guidelines provide analysts with a moral container within which to engage in the psychoanalytic enterprise “which is remarkably prone to moral ambiguity.” I note that many of us would not find it remarkable that the psychoanalytic discourse is fraught with ambiguity. Rather we would assume that ambiguity is the theme of the field.

Sandler goes on to state that ethical guidelines are a frame of reference within which to begin a discussion between parties that have lost the capacity to address a conflict. These guidelines express the ideals of the community at large as well as the analytic community. He emphasizes the need to be flexible in the application of such guidelines.

Sandler continues his paper with a sensitive explication of how an ethics complaint can hinder the analyst, the patient submitting the complaint, and all the patients being seen by the analysts during the investigation of the complaint. He also emphasizes that members of an ethics committee must never assume that either party is behaving honorably, noting that powerful forces can motivate either side to misrepresent “pertinent facts.” “The regularity with which ethics committees encounter misrepresentations generates the need for many of the pragmatic dimensions that ethics committees must incorporate.”

He then considers the question of whether an ethics committee should be the first recourse for an analyst when confronted with an ethical complaint. While reference to courts of law or professional boards might present a bigger hurdle for the complainant, Sandler feels that both sides would be deprived of having the issue evaluated by analysts with particular sensitivity to “what generally falls within or outside the bounds of commonly accepted analytic practice.” Additionally he feels that the goal of returning the parties to the clinical realm is best served by ethics committees.

Sandler then addresses the fact that ethics committee members, complainants, and the accused are all subject to transferential dynamics in their approach to resolution. He writes of his own fantasy of “confronting the perpetrators, forcing them to admit their wrongdoing and to take account of the rationalizations and self-deceptions they have employed in justifying their misbehavior.” He also admits to limited success in achieving even modestly satisfying outcomes.

Sandler then goes on to discuss the ubiquitous countertransferencial phenomenon of ethics committee members, defined as their unconscious fantasies and motivations. He comments on the tendency to either identify with the analyst or the accuser and explores some of the factors contributing to each tendency. His feeling is that analysts adopt comfortable neutrality in relation to their peers and thereby abandon their responsibilities to enforce ethical standards with regard to their peers. Sandler further states that this attitude allows analysts to hide behind neutrality when learning of an unorthodox” behavior of our analytic brethren. Rather than acknowledging our moral disapproval, we take cover behind an attitude of neutrality, emphasizing the real limits of what we know of the facts of the situation.” This last paragraph provides rich food for thought. What constitutes unorthodox behavior? When is it appropriate, if ever, to express moral disapproval? When can we know the “facts?” Is there such a phenomenon in a psychoanalytic space situated in the arts, humanities and philosophy?

Ethics committees are necessary, writes Sandler, in order to “counteract this tendency towards denial and rationalization.”  He believes that an established ethics committee whose members are respected and considered fair minded allows a space in which the above concerns can be addressed. This is a bit confusing in view of Sandler’s earlier emphasis on the pervasive unconscious fantasies of all members of ethics committees. Does the state of fair-mindedness quell unconscious motivation?

Finally Sandler examines the need for ethics committees to consider whether the complaint articulates the collapse of the symbolic nature of treatment. Once again he emphasizes that ethics committees are in a unique position to address such matters and finds this another compelling reason for the establishment of such committees. In closing Sandler describes his position as shifting and inexact while located somewhere between idealism and pragmatism.

Sue Saperstein, M.A. is the Co-Chair of the Psychoanalysis and Ethics Committee for the International Federation for Psychoanalytic Education as well as a member of the ethics committee of her home institute. She begins her paper by wondering what aspect of her identity she is contradicting by being in the position of ethics committee member. Finally toward the goal of settling with herself as an ethicist and analyst, Saperstein locates herself between or in relation to “the Other and the One, the One who knows the truth.” She found it necessary to create these positions for herself as she realized that ethical complaints are filed against analysts for the ostensible purpose of determining the “truth.”

Saperstein was interested in how her attitude toward a complaint might alter her relationship with the analytic dyad being considered. Specifically she wondered if assuming an attitude of inquiry as opposed to investigation would facilitate the process and allow her to feel more consistent with her own values. She believes that all members of the ethics committee did, indeed, assume an inquiring posture and that this distinction went beyond semantics. She writes “If we are being asked to consider an offense or violation or failure in the analytic dyad and the complainant is seeking a third, namely the ethics committee, I was curious how an ethics committee might be used to essentially reconstitute or restore an analytic process for each individual, even if the outcome was that the analytic dyad did not continue as an analytic couple, or the analyst was sanctioned by the Institute.”

Saperstein continues on to explain that she felt drawn to construct her own identity as an ethicist in the above manner because of the stereotype of ethicist as moral police. In this paper she offers a perspective “that considers ethics in the culture of psychoanalysis as a practice that stands outside the logic that proceeds from moral justice, that challenges the law of the land and the positivistic logic in which we have been acculturated.”  Saperstien joins with Kavanaugh whom she cites as perceiving ethics in psychoanalysis as “the forbidden questioning of the why of our Truth, and the ethics of what is—rather than a matter of morality, or thinking the right thought, or facilitating a better adaptation, or knowing the Truth.”

Saperstein references Frued’s Civilization and Its Discontents in which she understands Freud to be addressing the issue of psychoanalysis and ethics when he comments on the contradictions between cultural values and the law vs. the practice of psychoanalysis. Freud understood the laws of civilization as a representation of the symptoms resulting from moral restraints. This view informs Saperstien’s understanding of the anxiety and internal pressure inherent in a psychoanalytic encounter regarding knowledge and truth and justice. She believes that patients want the analyst “to know” or they envy what they think the analyst knows. Similar pressure can derive from within the analyst’s superego, which demands that the analyst know. Saperstein understands that patients want justice, the good, the knowledge, the Truth.

Saperstein maintains that the same contradictory tensions extend beyond the analytic encounter into the current political and cultural environment wherein she believes that President Bush acts as “Moral Police” for the world. From this perspective righteous indignation informs culture, politics, ego and superego. Righteous indignation was the stance of both analyst and complainant in the ethical situations brought to her committee. Both sides were righteously indignant that their Truth was in question.

Saperstein is clear that as licensed health professionals we are constrained by the laws of our state and regulations of our licensing boards but she believes that “psychoanalysis occupies and is occupied with another territory.” The work of psychoanalysis, as the work of the unconscious, is subject to other laws. For Lacan it would be the Law of the father, and for Bollas, the Law of the mother. In short, psychoanalysis lies within the purview of the “primary repressed unconscious” and thus cannot be subject to the laws that govern civilization, which dictate right and wrong, good and bad.

Saperstien contends that the ethics of psychoanalysis reinstates the fundamental law of psychoanalysis and thus lies outside standard categories of right and wrong behaviors. That is, she maintains that the analytic enterprise operates beyond the laws ascribed by civilization. She explains that the fields of inquiry in this profession are the “beyond.” Psychoanalysis engages in the exploration of excess of desire, including pain and pleasure. There is a necessity for restraint without which there is no space for the analytic work, but this restraint becomes a problem. The analytic endeavor creates a need for acceptance of restraint without renunciation of desire and the necessity of restraint elicits the questioning of authority.

Saperstein’s ethical inquiry is informed by this query of authority. She asks herself what authority she has in relation to the authority of another psychoanalyst. Both Saperstein and all the analysts being investigated ask what authority she has to investigate, inquire, or restrain them.

As I read Saperstein, investigation implies authority and authority implies morality or right vs. wrong. Saperstein argues that morality has no place in psychoanalysis. She conceives of morality as a collapse in thinking, like a logical argument positing One Truth. She maintains that moral, medical, and legal approaches are informed by a logic that cannot apply to psychoanalysis because the latter has an ethic that is not amenable to the same logic. Psychoanalysis has logic of its own and it is the illogic of inquiry without restraint.

After consulting the works of Lacan, the Dalai Lama, and Foucault, Saperstein articulates that her job as ethicist demands her engagement in “an ethical inquiry of the analytic act and each analytic discourse.” Saperstein refers to “ethical inquiry” several times in her paper but never adequately delineates her meaning. I am left with the sense that she means the assumption of an attitude of openness to all information, sensitivity to the role of power and each person’s relationship to power. However I may be misrepresenting her here.

Lacan’s writing suggests to her that not only is the analytic discourse an ethical discourse but that ethical problems enter from the side of both the analyst and the analysand. The ethics of the analytic situation then, is the relation between or the conflict between analyst and analysand.

For the ethicist investigating another analyst, “morality becomes the essence of the problem or what we recognize as the essential nature of conflict.” Again from the perspective of Freud, Saperstein writes that those who regulate aggression embody the problem they are trying to regulate. As quoted by Saperstein, Bersani maintains that psychoanalysis reveals not the capacity for human adjustment, but the very fact that humans are unfit for civilized life. Lacan posits that since there is no ethically neutral position, the best we can do, if we remain within psychoanalysis, is “adapt to that which makes us incapable of adaptation. To go any further would be to cure ourselves of being human.”

Lacan’s ethics, according to Saperstein, relate action to desire and traditional ethics radiate around the idea of the Good and explores how different goods compete. But Lacan’s psychoanalytic ethic perceives the Good as an obstacle to desire. Hence the analyst must not desire to do good or cure and must deny any appeal of the analysand for good or moral justice. Lacan’s analysis is based on respect for the patient’s right to resist domination, including interpretations.

Saperstein  appreciates the complexity of being an ethicist. Regarding  Sandler’s statement, “When isn’t there an ethical violation for it to come to a formal complaint to an ethics committee about an analyst?” she understands him to be speaking about the aggressiveness necessary for someone to file a complaint. This aggression is informed by the frustration of the analysand who believes he/she has not been heard or has not been delivered the Good and Moral. Saperstein believes the analysand may want to dominate the analyst who says No.

Saperstein closes this section with her contention that the arena of psychoanalysis is the ethics of desire. She then proceeds to discuss how the Dalai Lama helped her with the concepts of compassion and oneness. Foucault’s work articulated for her the idea of a conversation between the elements of truth and power and the myriad forms of relationship that can be assumed between the two in relation to oneself and others.  Saperstein, while functioning on the ethics committee, situated herself in relation to the complainant, the analyst being investigated, other committee members, and the committee Chair. Such a committee, Saperstein writes, is faced with the formidable task of addressing “impossible and contradictory truths that analyst and analysand represented.” In some cases both sides have thoroughly documented their positions.

An ethical inquiry, Saperstein concludes, requires maintaining a relationship to all the contradictory data and holding the two sides while each presents their data as the One Truth. This for Saperstein was the ultimate game of truth, which included elements of truth, power, and the power of both the institute and the culture, all in a variety of positions to one another.  The basic substance of the matter of being an ethicist for Saperstein is being aware of the “game of truth, the relations of power and our relations to each of them.”

Saperstein concludes her paper with some questions. How might an ethical committee fail? How might they succeed and, if so, what would be accomplished? What would prevent the committee from reenacting what is being acted out in the disputed analytic relationship? What does an ethics committee have to offer the complainant and analyst? When is a decision about ethics not a subjective position? How does one measure one subjectivity (Truth) against another? 

Saperstein feels that the committee on which she serves with Sandler was able to make determinations regarding sanctions and/or dismissal or lack thereof.  Despite her concerns, she feels that she was up to the task. Ultimately, Saperstein aligns herself with Foucault, who enjoins us to take care of the self and develop an ethics within.

Sandler and Saperstein presented very different relationships to Truth. Sandler seems more comfortable deciding where and what it is.  Saperstein explored many ideas about how we cannot possibly commit psychoanalysis to the world’s logic and formulate the Truth. In the last analysis, each was willing to decide the truth (Truth?). Their tasks were executed with gravity, sensitivity, and commitment.

Very few people reading this article believe in One Truth. Our life work is in the realm of the many truths of analytic inquiry. Nonetheless we live within the larger context of culture including regulatory bodies and ethics committees.  Most of the world functions within the assumption of One Truth.  Our judicial system is founded upon the positivistic belief in logical creation of Truth. Jury systems decide the Truth about the accused’s actions.  Ethics committees hand down the Truth of the analyst’s behavior. It is incumbent upon us to educate regulatory bodies about this lack of Truth.

I am thankful to both Jeff Sandler and Sue Saperstein for their generosity in sending me their papers. LGT