Volume 54 Number 95
Produced: Wed Jun 13 6:10:23 EDT 2007
Subjects Discussed In This Issue:
Confidentiality of Therapists (5)
[Dr. Josh Backon, Janice Gelb, Leonard Paul, Freda B Birnbaum,
Ari Trachtenberg]
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From: Dr. Josh Backon <backon@...>
Date: Tue, 12 Jun 2007 16:01:19 +0300
Subject: RE: Confidentiality of Therapists
>In a recent posting I cite original Jewish sources showing that breaking
>confidentiality is important in any therapeutic process. Janice doesnt
>agree. She thinks the confidentiality is ABSOLUTELY necessary in order
>to facilitate dialogue.
>So allow me to refute Janice by re-citing the example I previously cited
>in a professional setting. Let us pretend I am a therapist. I have been
>seeing Isaac for two years. Isaac is married to rivkah but has numerous
>problems.
>
>One day Isaac confides that he has had many enjoyable conversations with
>Rachel at Shule Kiddush and likes her taste in clothes. Upon prompting
>he admits he has considered the possibility of an affair with her and
>thinks she is interested.
>
>WHAT SHOULD I AS A HALACHIC OBSERVANT THERAPIST DO? Janice says the
>silence is needed to facilitate communication.
Let's analyze the halachic aspects. Assume the one who hears this is not
a therapist but just a layperson. Since we are dealing with "l'afrushei
m'issura" regarding "erva", according to the ROSH (Makkot Perek Alef
Siman 11), Minchat Chinuch #122 and Noda B'Yehuda (Mahadura Kamma Orach
Chayim 35) the person who hears this is required to testify in a Bet Din
even if he is a single witness (Levush 28, Minchat Chinuch 122 s"k 1).
All this assuming the woman is married and not single.
If she's single, in my opinion the layperson hearing this would not be
required to testify in a Bet Din.
Incidentally, if the client would have been a woman rather than a man,
then her mentioning her having an affair (just mentioning without any
corroboration) would have no halachic ramification since even if the
woman in a Bet Din stated that she had an affair ["nitmeyti"] she isn't
believed (Even ha'Ezer 115:6). Nor would her confession have any
halachic ramification (Noda B'Yehuda , Mahadura Kamma EH 70).
CONFIDENTIALITY
We see from the Darchei Moshe (Tur Choshen Mishpat 28 s"k 1), and the
Shach and S"MA on Choshen Mishpat 28 s"k 1) that one who promises
confidentiality is not permitted to testify in a Bet Din until he
receives permission from the one he made the promise (and by halacha
that person must agree). The question remains: does the Toraitic
requirement for *edut* (testimony) in the case of "l'afrushei m'issura"
with a single witness take precedence over the confidentiality even in a
case of "mitzvah d'rabbim" (if the therapist would break
confidentiality, he would endanger the professional credibility and
cause monetary damage to hundreds of other therapists).
And what is the status of the therapist with regard to "ne'emanut"
(reliability): like a layperson ? Or not ? Does his edut engender
"hefsed mamon" [monetary loss] and thus as a solitary witness he may not
be required to testify in a Bet Din.
To sum up: if the client is male and the woman is single, then in my
opinion the therapist MUST keep absolute confidentiality. If she's
married, the therapist would use "mitzvah d'rabbim" and "hefsed mammon"
as a reason NOT to testify in a Bet Din. In no case would the therapist
be permitted to inform the wife, even if the "other" woman were married
since there isn't imminent damage (nezek) to the wife (as per Chafetz
Chayim Hilchot Rechilut Klal 9).
PEYRUSH RASHI: the therapist has to keep his mouth shut!
Kol Tuv
Josh Backon
<backon@...>
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From: Janice Gelb <j_gelb@...>
Date: Tue, 12 Jun 2007 08:26:06 -0700 (PDT)
Subject: Confidentiality of Therapists
Russell J Hendel <rjhendel@...> wrote:
> Let us carefully explore what might happen. Here is a possible dialogue
> between Isaac and me at our next session: ISAAC: You double crossed me
> and broke my confidence. ME: COrrect. Do you know why? ISAAC: You admit
> it. I have no respect for you. I am going to switch therapists to
> someone I trust. ME: And he would be silent and allow you to have the
> affairs you want. ISAAC: (Silent and thinking). ME: I saved your
> marriage and Rachel's marriage...I protected your confidence...after two
> years I found out you want a good conversationalist and someone well
> dressed..I told that to your wife who wants to please you. ISAAC: Still
> silent. ME: Kindly explain to me how **I** broke your confidence. On the
> contrary I am your friend. I protected your marriage and gave you the
> things you are afraid to ask for. ISAAC: But we cant continue like
> this. You are making highly personal decisions for me. ME: Correct. I
> therefore suggest you start bringing your wife so we can have group
> sessions. Your only problem is that you dont tell her what you want. You
> saw she gave it to you. I think in another month you will not need any
> more therapy and will be all cured provided you bring your wife here for
> a few more sesssions.
>
> Now someone kindly tell me how the above is a violation of Jewish,
> Professional or psychological ethics. I think the above the Torah way to
> behave. I also think the above the Torah way to PROTECT confidence.
This is a completely unrealistic scenario but I'll deal with it
anyway. Why do you say above that the therapist's only choices are to
keep silent or to break the patient's confidences and contact the
patient's wife directly? The therapist could certainly discourage Isaac
from having affairs, or suggest that Isaac be the one to change the way
he relates to his wife, or that both spouses could benefit from
counseling together. There are plenty of ways in which the therapist
could handle this situation without breaking the confidence of a
patient, or have conversations about the patient's treatment with
friends or relatives without the consent of the patient.
I feel sorry for your friends if your immediate impulse if one of them
revealed their desire to have an affair would be to immediately run and
tell their spouse! I am sure you would try to discourage him from doing
so and point out all of the inherent halachic, psychological, and
practical reasons why this would be a bad idea. And that's without even
being bound by professional ethics to protect a patient's privacy and
confidences.
If someone's personal attitudes toward certain behaviors are such that
he or she would interfere in a patient's relationships directly in the
name of halacha, or break a confidence by revealing something told to
him or her in therapy, that person should find another line of work.
-- Janice
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From: Leonard Paul <lenpaul@...>
Date: Tue, 12 Jun 2007 11:26:19 -0400
Subject: Re: Confidentiality of Therapists
As a practicing psychologist, I cannot remain silent. The hypothetical
example described is extraordinarily fraught with potential for
far-reaching harm. Let us follow the recommended plan to Step #1 (The
Breach).
Hendel suggests breaking Isaac's confidence to his wife in shul. If
Rivka becomes upset and cries uncontrollably, others around her, whether
or not they initially overheard what was said, understandably would be
concerned and would want to know what happened. At that point, Isaac and
his wife would be placed in a very difficult and embarrassing
position. Rachel would also likely be humiliated.
As word of the breach of confidentiality spread, others, both within the
shul and beyond, would also have questions about being able to trust
that what was promised to be confidential would remain confidential in a
professional communication.
The "therapist" would likewise be exposed to a civil lawsuit for harm to
{at least} three parties and would also face disciplinary proceedings
from the state licensing authority.
However well intentioned, this would not be a good idea at all.
Leonard Paul
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From: Freda B Birnbaum <fbb6@...>
Date: Tue, 12 Jun 2007 22:15:22 -0400 (EDT)
Subject: RE: Confidentiality of Therapists
Russell Hendel's piece is quite interesting.
In the example he cites, it just might be marginally conceivable that
the actions he describes might possibly be not too bad if done by a
friend, or by some spiritual advisor with whom one had explicitly waived
one's expectation of confidentiality, but for a therapist to do what
Russell describes is totally outside of professional ethics as defined
in this country.
As it says somewhere or other, you can't serve two masters: if you can't
or won't abide by the principles of a profession, you need to find
another profession. You may be RIGHT in your own principles, but it's
dishonest to bring them into a playing field where the rules are
different.
The professions of psychology and medicine and law and social work, to
the best of my knowledge, have strict standards regarding
confidentiality. (There are exceptions if you "know" that someone is
about to do bodily harm to someone else: duty to warn trumps
confidentiality.)
As I occasionally say to friends, if telling them something I don't want
passed on, "Seal of the professional!" -- bad pun on "Seal of the
confessional.
Freda Birnbaum, <fbb6@...>
"Call on God, but row away from the rocks"
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From: Ari Trachtenberg <trachten@...>
Date: Tue, 12 Jun 2007 10:05:26 -0400
Subject: Re: Confidentiality of Therapists
> ... Your only problem is that you dont tell her what you want. You
> saw she gave it to you. I think in another month you will not need any
> more therapy and will be all cured provided you bring your wife here for
> a few more sesssions.
>
> Now someone kindly tell me how the above is a violation of Jewish,
> Professional or psychological ethics. I think the above the Torah way to
> behave. I also think the above the Torah way to PROTECT confidence.
This is, of course, the wildly optimistic scenario. However, the reason
that the ends don't always justify the means is because of the alternate
(and, in my view, more likely) scenario - Isaac and Rivkeh divorce very
quickly, with the custody battle made extremely bitter due to the
intended adultery and with their children caught in the crossfires,
possibly scarred for life.
Ari Trachtenberg, Boston University
http://people.bu.edu/trachten mailto:<trachten@...>
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End of Volume 54 Issue 95
