Orne, M.T. The Sexton tapes. The New York Times, July 23 1991, A21, Op-Ed.
PHILADELPHIA
Few would dispute that a patient's right to confidentiality survives death, but what about a patient's right to disclosure?
In the case of an artist or public figure, issues of posthumous disclosure arise again and again. I would suggest that the patients' right to disclose the details of their therapy also survives death, but here the issue is more complex.
If a patient has consented to release all psychiatric records to a biographer, does the deceased patient's family have any rights to privacy? I believe that a patient's desire for disclosure posthumously must be weighed against the rights of the family executor not to release such records in order to protect the privacy of the remaining family members if that is an issue for them. Thus, while I agree that a patient's right to confidentiality or disclosure survives death, I cannot agree with the statement attributed to Dr. Jeremy A. Lazarus, chairman of the ethics committee of the American Psychiatric Association, that "what the family wants does not matter a whit."
Certainly a therapist cannot accede to a family's desire to have therapeutic material released if the deceased patient did not give consent
Does a patient's family have rights?
or explicitly express a desire that the material be released. However, when a patient requests that the material be disclosed, as was the case with a forthcoming book on the poet Anne Sexton, who committed suicide in 1974, then in my view it is still incumbent on the therapist to insure that the family executor give consent to the release of the confidential material that will now affect the privacy of the family.
I was the therapist who permitted Prof. Diane Wood Middlebrook to review psychotherapy audiotapes in preparing her biography of Anne Sexton. Those tapes were made during four years of therapy sessions so that Anne could study them by herself to help her integrate emotional material that we had discussed. In 1964, when I left Massachusetts, I offered to return all of the therapy tapes to Anne, She asked that I keep them to use as I saw fit to help others, though she retained a few for herself.
Anne knew what she was consenting to disclose because she had studied the tapes and taken extensive notes on them outside of therapy. Those notes were given to Professor Middlebrook as part of the estate that the biographer gained access to before the request to me for release of the tapes. Listening to them allowed Diane Middlebrook to be there while a young mother struggled in the early 1960's to achieve the role of poet.
Anne Sexton chose disclosure of her therapy in keeping with what she stood for as a confessional poet. Indeed, she alluded to my identity as her therapist in her 1960 book.
In the judgment of all who knew her well, Anne definitely would have wanted the tapes released exactly as was done. What others would see as exposure, she saw as honesty. Sharing her most intimate thoughts and feelings for the benefit of others was not only her expressed and enacted desire, but the purpose for which she lived. Privacy was of no concern to her. My concern was that her surviving family members not be harmed by the release, that they give their full consent to the release, and that the person to whom the material was to be released have integrity and the qualifications to judge Anne's literary contributions.
Some may view a biographer's access to therapy tapes as further evidence of the erosion of privacy in an increasingly transparent society. But decisions about disclosure properly rest with the patient -- whose autonomy therapists must hold paramount -- not with therapists or colleagues. After the death of a patient who advocated disclosure and gave consent to it, the consent of the family, in my opinion, is foremost.
As a physician and psychologist, I have a profound respect for the wishes of the patient. I am ethically bound by those wishes. Virtually always this results in continued confidentiality, with disclosure being extremely rare.
After disclosure there is always concern that it may prevent some people from seeking help or prevent some patients from talking openly to their therapists. This concern is not to be trivialized, but it also must not obstruct the legitimate wishes of a former patient from being fulfilled.
Ethical rules of confidentiality are intended for what applies to most cases. Anne Sexton's case was unique. She fully recognized that disclosure would result in an enduring loss of confidentiality for her and her family.
Martin T. Oren is professor of psychiatry at the Univesity of Pennsylvania.