From the President

Barry Dauphin, Ph.D.  

I would like to thank all the members that voted in the recent MSPP election. I am privileged to serve as President once again. I was also delighted with the substantial participation of members in this election (nearly 50% voted). I will strive to serve the interests of our society as we continue the career-long process of educating ourselves for psychoanalytic psychology. 

As psychoanalytic thinkers, we often think differently. Sometimes these differences are used against us in ridicule of psychoanalytic theory and practice or in dismissing the relevance of psychoanalysis for current practice. Other times even advocates of other versions of psychology tip their hats to the interesting ways psychoanalytic thinkers view people. In thinking differently today, I have in mind looking outside of our customary debates about classical analysis vs. self psychology vs. relational models vs. yadda yadda yadda. 

State and federal legislators and judges and various members of the executive branches of government think about psychoanalysis as essentially similar to other professions that I (or we) might not consider as bearing a likeness to us. In this column I want to consider the legal issues and regulation that surround professional-client speech. This is becoming an increasingly noticed issue by the legal profession. Recently, UCLA law professor Eugene Volokh wrote about this on his amusingly titled weblog, The Volokh Conspiracy (http://volokh.com). He noted that this is an interesting area of law because of the boundary between such regulations and the First Amendment protections of speech. The work of psychoanalysis (and many other forms of psychotherapy for that matter) is speech. From the standpoint of the law this is not much different from relationships such as, accountant-client, lawyer-client, doctor-patient, etc. He notes, “And yet this communication is often subject to speech restrictions and speech compulsions that would generally be forbidden in other contexts.” (http://volokh.com/posts/chain_1085773062.shtml).  

He notes that these restrictions include, 1) “Many professionals may not advise clients without a government license — something that would be a prior restraint if applied to speech by people other than professionals. 2) The government may impose liability on professionals for negligent advice, not just for negligently false statements of fact, but also for negligent predictions, which would otherwise be generally seen as constitutionally protected opinions. 3) The government may bar professionals from revealing client confidences. This isn't just an implied contract term (which might be defensible under Cohen v. Cowles Media Co.), because under some such rules the obligation can't be disclaimed even if the professional expressly states to the client that he doesn't promise confidentiality. 4) Some professionals, including lawyers and psychotherapists, are barred from having sexual relations with their clients — and it is the professionals' communicating with the clients that triggers the prohibition. Laws that constrain the sexual choices of authors of advice books, or of movie stars who project an image of trustworthiness, would violate the First Amendment (as well as perhaps the sexual autonomy right recognized by Lawrence v. Texas); such laws involve a burden placed on people because of their speech. Yet similar burdens are imposed on some professionals because of their speech. 5) A requirement that doctors give patients certain state-provided information before getting the patient's consent to an abortion was upheld in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (plurality).…” 

He makes one other point that I would like to note: “If the government enacts generally applicable licensing provisions limiting the class of persons who may practice the profession, it cannot be said to have enacted a limitation on freedom of speech or the press subject to First Amendment scrutiny.” The post on his blog was prompted by an interesting case that made the news recently.  

A New Hampshire doctor received a complaint from a patient concerning his advice (or speech). From the Union Leader newspaper: “Dr. Terry Bennett, who practices in Rochester, said he has ‘an obesity lecture for women’ that is a stark litany designed to get the attention of obese female patients. He said he tells obese women they most likely will outlive an obese spouse and will have a difficult time establishing a new relationship because studies show most males are completely negative to obese women. Bennett said he tells them their obesity will lead to high blood pressure, diabetes, heart disease, gastroesophageal reflux and stroke. One patient who Bennett had seen five or six times took offense at the lecture and filed a complaint against Bennett about a year ago with the New Hampshire Board of Medicine.” (http://www.unionleader.com/articles_showa.html?article=59407). The doctor had discussed obesity with this particular patient a number of times and appeared more concerned because she had developed diabetes, reflux and chest pains. When he learned that she was offended, he wrote a letter of apology to her. The case continued nonetheless, as the doctor rejected the Board’s decision that he attend a medical education course and admit he made a mistake. 

So, aside from contemplating Dr. Bennett’s psyche, what’s this got to do with psychoanalysis? I raise this issue to illustrate the direction that regulation of professional-client speech can take. Psychoanalytic  psychologists, psychiatrists, social workers and others routinely make interpretations, comments, observations, etc. that risk offense. At what point might a regulatory body step in? When should it step in? Would psychotherapists need to be mindful about what they say (e.g., when interpreting Oedipal dynamics, hidden rage, fears of abandonment, etc.)?  Is an obesity lecture the proper place for the Medical Board to step in?  These are important questions given the specter of the expanding scope of regulations that Empirically Supported Treatments (can you say that to a patient with this diagnosis?), Prescription Privileges (didn’t you recommend the person seek consultation for psychotropics?) and Continuing Competency (did you fulfill your mandatory education on pain management?) portend. When is a fully licensed psychologist functionally transformed into a limited licensed psychologist? 

Professionals that think about and care about these issues are best advised to become more comfortable talking with the powers that be. Once laws are written and regulations interpreted, there is little wiggle room left. One cannot make a successful argument that the state “can’t” do this, or “I have a right to free speech.” The law is clear that, when acting as a professional, one’s free speech rights have been traded off for a form of professional monopoly (i.e., not just anyone is allowed to be a licensed _______). Therefore, it is desirable for professionals to interact with professional organizations, legislators, bureaucrats, judges and others on these matters. The state will be considered to have the right to do all kinds of things to secure the Public Trust and security. I urge psychoanalytic thinkers to take this discussion outside of our offices and educational meetings for the sake of educating lawmakers and law interpreters of what wise boundaries should exist between the concerns to regulate and the space needed for truly individualized work to take place in. As psychoanalytic thinkers we are accustomed to consider boundaries all the time. Some might worry that to lobby on behalf of one’s views of the proper boundaries between public and private interests is itself a boundary violation of being the “blank screen.” However, if psychoanalytic thinkers are unwilling to educate the powers that be about the nature of this work and the ethical aspirations of our profession, who will?