Proposal for an Archive for the 

Preservation of Psychotherapy

By Barney McDowell, LCSW

For a moment, consider the healing arts as an archetypal activity as much as gathering plants or observing stars. From this perspective, medicine and therapy belong to the commons. Untold numbers of people rely on herbs and folk medicine for healing. Even in the highly industrialized U.S., there’s an enduring interest in studying nutrition, herbs, and exercise; and six hundred millions visits were made to “alternative” healers in 1997. This interest isn’t an aberration or an intrusion on the domain of contemporary medical science. Rather, it demonstrates the critical importance of people’s need for a creative relationship to their own health and healing, a central feature of human activity across cultures for centuries on end. However, contemporary economics increasingly distort that relationship.
     
The medical sector of the world’s economy now accounts for 7-14% of gross national production across the globe. A “major finance capital/medical complex” has emerged which dominates that market. To protect economic positions, powerful financial entities seek to control how healing is defined. Modern medical interventions emerge from scientific research only in theory. In reality, medical practice is increasingly defined by profit driven corporations that impose “quality control” standards, create definitions of “medical necessity”, choose procedures or medicines on the basis of “cost/benefit analysis”, and dictate continuing medical education curriculum, etc.. The results of those imposed standards, definitions, and processes are in turn, encoded into “orthodox standards” and case law regulating medical and psychotherapy practice.

Who Controls Quality Control & Who “Owns” Clinical Practice Guidelines
     
Over the last decade, concentrated corporate interests intensified their efforts to control “quality control”. For example, the National Committee on Quality Assurance [NCQA], a so-called private “non-profit”, positions itself as the certifying body for most of the nation’s HMOs. Actually, it is sponsored by a small group of pharmaceutical companies that have an even narrower base of institutional ownership by major “finance capital” players with powerful influence over medical and mental health practices. A recent Managed Health Network bulletin serves as a case in point. Citing the NCQA, it advises clinicians to get more education if they can’t recognize that a client’s refusal to sign a release of information is really the client’s “anxiety”—needing to be addressed as a clinical issue. Perhaps less surprising, another HMO suggests that cognitive therapy with anti-depressants is THE way to treat depression. But the problems run much deeper.
     
In a similar vein, there is increasing pressure by the medical/finance complex to establish standardized “best practices” backed by “empirically supported treatments” (ESTs). Donna Shalala, the former Secretary of Health and Human Services, advocates this approach. These institutionally determined treatments invoke the name of science and promise freedom from malpractice as a bonus for complying with the ESTs. Several authors , warn that these “clinical practice guidelines” in “behavioral” health may leave many types of therapy (gestalt, psychoanalysis, etc.) illegal, not merely ineligible for third party reimbursement.
     
Ironically, champions of “empirically supported treatments” would be hard pressed to find examples of research (of the kind deemed “empirical”) that isn’t seriously compromised before research even begins. Virtually the same corporate interests “sponsoring” the NCQA also fund 85% of research in the US, control most of the continuing education courses in the medical field, own “medical information provider” companies outright, and shepherd the development of practice guidelines. About 50% of research contracts reserve rights to refuse publication and/or delete information to the discretion of the drug company footing the research bill. A 1998 study published in the New England Journal of Medicine reported that researchers approved a drug 96% of the time when paid by drug companies but only 37% when they’re not on the payroll.
     
Of course, there are many more complex arguments for and against ESTs . For this brief essay, suffice it to note that historians of science recognized long ago that knowledge is never independent of power relationships. ESTs constitute only a small part of the erosion of integrity in healing practices by corporate encroachment. However, the push for ESTs underscores how finance capital isn’t satisfied to simply determine whether payment should be made for certain medical procedures. Increasingly corporate claims spread towards nothing less than the operational ownership of diagnostic algorithms and treatment protocols. JAMA reported very specific evidence of this in a recent study of doctors who author “clinical treatment guidelines” [CPGs] for conditions such as diabetes and depression. 87% had relationships with pharmaceutical companies. On average, each author had ties to 10.5 drug companies. While 58% received “financial support” for research and 38% were employees or consultants to drug companies, only 2 of 37 CPG projects registered any information about their fiduciary relationships to drug companies. On a broader scale, note that one half of the companies represented on the intellectual property rights committee of the World Trade Org are either “sponsors” of the NCQA or on their Board of Directors. But there is only so much to gain by indicting corporate practices, the time is long overdue for psychotherapists to stop the professional abandonment of the healing arts.
     

Let’s Create an Archive Of Healing Practices

Recently, the Colorado State licensing board proposed a rule that psychologists must give every client a diagnosis and keep records of clients’ identities along with notes on the content of each session. Of course, such notes are expected by insurance companies and by the so called “privacy” rules of the Health Information Portability and Accountability Act [HIPAA]. Under HIPAA, “diagnoses”, “themes of therapy sessions”, “progress notes”, “treatment plans,” and much more are required “at a minimum” and “always placed in the patient’s medical record” (these items are specifically excluded from “psychotherapy notes”). Also under HIPAA, diagnoses, identity etc., will be made available for the use of companies marketing products that “may” possibly be beneficial to the patient. (If someone complains of depression after receiving a diagnosis for herpes, they will receive multiple mailings for anti-depressants, condoms, and anti-viral drugs.) While professionals scramble to respond to HIPAA, health insurers and their allied finance capital interests have successfully asserted their “right” to detailed data about treatment, the most private information about our lives. There’s been a continental scale drift from what confidentiality used to mean and what it has become under the pressures of insurers’ “need to know”--to determine payment or eligibility for health coverage.

According to the account of Ivan Miller of the Boulder Psychotherapists’ Guild, the Colorado Psychologists’ Ad Hoc Committee on Record Keeping objected to that proposal of their licensing board and mailed a letter to all licensed Colorado psychologists. Of almost 2,000 psychologists, 27% signed a petition endorsing the right for clients to forgo a diagnosis and to have their identity and information recorded in way that is not review able by a third party. The licensing board dropped the proposal, but such a petition may seed something considerably more generative--a strategy to preserve psychotherapy as a healing art, independent of the forces that want to reduce care to manualized treatment, make information available for marketing, etc.. Much case law supports treatment endorsed by a “respectable minority”. In another words, rigorous confidentiality may be raised to an orthodox standard of practice via the Colorado petition. Can that strategy be extended to other states and other aspects of therapy?

The Legal Principle of “Respectable Minority”

In some cases, using the principle of “respectable minority ”, the courts have upheld the treatment methods of just a handful of practitioners. In a much longer article cited below, I outlined the context for the value of a democratically maintained archive to protect appropriate therapy from corporate power. Now, I propose a very modest beginning. Let’s extend Colorado’s petition on confidentiality to other states. This could be done by mail and/or eventually on the web. Obviously, there are many details to work out. I envision that project as evolving into an “archive”. The first phase might be a grassroots, state by state effort to petition professionals by mail about the confidentiality issue just as in Colorado—why argue with success. Each state keeps the results (initially in a shoebox, a vault, or the web) but also sends copies of each signed petition to a national location as well.

If the project grows into an “archive”, then I imagine such a site would best serve if 1) democratically maintained, 2) protected from copyright ownership (something like the Linux operating system), 3) requiring full disclosure rather than restricted to licensure classes, and 4) hyper-cross indexed (if on the web) to a variety of categories like government, licensure, non-licensure, theoretical orientation, research, funding sources, etc.. We currently have the address: www.ArchiveforthePreservationofPsychotherapy.org, within the national American Mental Health Alliance web site www.AmericanMentalHealth.com as a place where practitioners could register their endorsements, download petitions and so on.
     
Ensuing projects might include petitions or on-line registrations or forums sanctioning different types of therapy now endangered by “best practices”: Gestalt, Jungian therapy, psychodrama, psychoanalysis and a variety of other therapies. Or perhaps, a better strategy in the short run would be to take on specific issues related to the definition of “medical necessity” or HIPAA’s rules regarding “psychotherapy notes”. I would like to invite a dialogue of psychotherapists towards taking our collective responsibility to legally define therapy via petitions or an Archive--rather than leave it to corporate boardrooms. I suggest that with widespread cooperation, it would be extremely difficult for courts to outright dismiss a large group of professionals’ signed statements in favor of certain practices, especially if collated and registered in an on-line archive. Imagine if 35 states had signed petitions like the one in Colorado.
     
Please feel free to circulate this article/idea. I am interested in your responses, ideas, and suggestions on the theme that may better serve the purpose outlined here.
     
Please send any feedback to healingart@hotmail.com or write to me at Bernard McDowell, 2700 SE 26th Avenue, Suite D, Portland, OR 97202; 503-234-9904.

Citations

1. Mc Dowell, Bernard, Who Controls Quality Control
2. Shalala, Donna, Press Release, 1997
3. Hyman, Marvin Scenarios for Psychoanalytic Practice
4. Duncan, Barry, Psychotherapy Networker
5. Valenstein, E. S., Blaming the Brain. The Free Press, NY 1998. p.192.
6. Beutler, L.E., Empirically Based Decision Making In Clinical Practice, Prevention Treatment, Volume 3, Article 27, 9-1-2000