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Confidentiality in the confessional and psychiatrist's rooms


Psychiatrist's officeThe news that Aurora accused James Holmes  had sought psychiatric help may broaden the Australian discussion of the secrecy of confession.

This debate has generally focused on whether priests can be exempted on religious grounds from the duty of disclosing to the authorities crimes revealed in confession. The inclusion of psychiatrists raises a larger and more important question: can the exemption of certain privileged conversations from the duty of disclosure be justified on the grounds of the public good?

Most arguments made for compelling disclosure do not address this question. They generally appeal to the consequences of the failure to disclose the crimes of, say, a recidivist abuser. The possibility that several more children may be abused, with all the lasting harm caused to them as well as to their families and friends, is simply assumed to outweigh the harm caused by the breach of confidentiality.

That this assumption is not self-evident can be seen if we consider the similarly shaped argument that has been made for torturing terrorist suspects. Some have argued that the lives that might be saved by extracting  information about planned bombings would outweigh the suffering of the person tortured, and so justify its use.

Critics of this position argue, correctly in my view, that the use of torture harms more than the person tortured. It also damages those who apply and approve it, and weakens the respect for human dignity that is fundamental to any decent society. So it should be rejected on the grounds of the public good.

I believe it is also in the public good to offer legal protection for the confidentiality of confession and some other conversations. The public benefit arises from the importance of the intimately personal space in which we consider our lives, reflect on our desires and the fractures in our lives, and deliberate how we feel called to live.

This space of self-reflectiveness is cultivated by many religions and philosophies. It is a space of freedom both in the sense that we give ourselves freely to ideas, to ways of living and to people, and in the sense that it must be free from constraint if our humanity is to flourish.

It is in the public interest to recognise and protect this intimately personal space. Respect for other people, critical for a healthy society, depends on the recognition that others are like us in having a moral centre.

Its importance for society is recognised in the concern for the transmission of values in education and in the importance given to political and religious freedom. It may also be reflected in uneasiness about attempts to manipulate personal attitudes through subliminal advertising, genetic modification or chemicals.

The public importance of the personal space can also be seen in the way we characterise a totalitarian state as one that regards it as its business to discover and penalise wrong thoughts. Humane regimes value the freedom to hold divergent opinions and penalises their expression only when this causes clear harm.

All this suggests that it is important for society that the space in which citizens reflect on their lives and choose how to live should be free from forced disclosure.

I argue finally that some conversations are so inextricably connected with people's intimate personal space that they also require the same protection from forced disclosure. Although confidentiality is a high value in all conversations, most are not absolutely protected. In most conversations we intend to make public our inner selves and measure our communication to the trust we have in our hearers.

But some conversations have a public structure that makes it clear that in them we are articulating our inner selves with the other person there simply as a catalyst. The conversation between priest and penitent is so structured. Both parties agree that it is an inner conversation between the penitent and God in which the priest is simply a channel. The conversation between psychiatrist and patient seems to have a similar character.

My argument is that conversations of this kind — and there may be more of them — should be given the same respect as a person's inner conversation. They should be exempt from compelled disclosure.

The freedom of the personal space of our lives is so central to the good of society that it outweighs the consequences of the failure to disclose. 

Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street


Topic tags: Andrew Hamilton, James Holmes, Aurora, Colorado, Confession



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Existing comments

Much food for thought in this article Andrew, thanks. In the case of a psychiatrist/patient relationship, more than in any other branch of medicine, trust is the key element in that relationship. Likewise, the relationship between a religious leader and congregant. When a person is most vulnerable untold harm, to both parties, can occur if this trust is breached in any way. In "Epic" by Patrick Kavanagh, the poet writes "I have lived in important places, times/When great events were decided." Kavanagh reminds us that to most people their local epics are what counts to them.

Pam | 02 August 2012  

"Whatever in my PROFESSIONAL practice, or not in connection with it, I see or hear in the life of men which ought not be spoken of abroad I will not divulge, reckoning that all such should be kept as secret" The Hippocratic Oath - Hippocrates, 460 BC

john frawley | 02 August 2012  

I must admit that on reading this post I thought of a poor joke and unfairly "this is jesuitical". No argument is really offered merely a series of statements in which psychiatrists are joined to Catholic priests so that it seems to have more general relevance. As individuals we live in communion, in a community and can hardly exist outside it. As such an obligation beyond the individual is owed that harm is not done or threatened to other members of the community. It should be recognised that" people's intimate personal space" should be respected. And defining when this should be breached is extraordinarily difficult. But as stated in essay " Humane regimes value the freedom to hold divergent opinions and penalises their expression only when this causes clear harm." We are surely talking about "clear harm". The special case of private confession is stressed with the priest being called"simply a channel " to God. The priest is really there and has an obligation to prevent "clear harm>' And I grant that this may not be absolutely clear in confessional except in very broad outline. But the obligation does not go away. I do not find any clear evidence for confession to God through a priest in the New Testament. It seems to have become common some 1000 years later. In the early churches "confession" seems to have been very public to the community. Indeed being forbidden communion was a very public act. And indeed in recent times, and probably more than recent, conversations between clergy and other persons of note have been kept silent almost on grounds of claimed seal of confessional. May I also suggest that the ethics of torture, which I wish were clearly against, are not as straight forward as suggested. Any how it is drawing a very long bow to bring it into this argument.

Brian Poidevin | 02 August 2012  

As a parent, and as someone who has been subject to the obscurist, pseudo-legalistic processes of Towards Healing where the protection of the "reputation" of a priest and a bishop was more important than the allegations against them, I am appalled by what amounts to advocacy for continued cover-up and conspiracy in this article. I "confessed" my allegations against a priest, only to have them freely communicated to the priest involved, so that he could be aware that I was "going to go to Towards Healing". His Bishop then set about intimating to key people within the diocese that he was "praying for me, because I was having emotional difficulties, requiring the services of a psychologist". The message remains clear - parents, do not believe that the Catholic Church has any semblence of a decent moral compass if the choice is between protection of your children, or protection of itself.

Michelle Goldsmith | 02 August 2012  

The problem of The One and The Many takes many different forms and nowhere is it more intractable than in that metaphysical divide between the The Individual (the one) and Society (the many). Over time human society has evolved different ways of ensuring its survival and development. Last century that paragon of pragmatic living with internal contradictions, Great Britain, produced a leading lady who said "There is no such thing as society." Today I see individuals held up as personifications of their countries' successful social, economic, political and cultural way of life because .... they can swim faster, jump higher, punch harder etc etc than their fellows. What sorts of conversations do these athletes have with their coach, their medical supervisor, their physiotherapist, their dietician? Are they really individuals? The intimacy of all private conversations can be abused. The secrecy of the confessional can be abused - although it seems to me that if a recidivist pedophile confesses his abuse of children week after week to his confessor, it is not secrecy that is being abused but The Sacrament of Reconciliation. What sort of training do priests receive for dealing with such "clients"? Sports psychologists seem to get more training.

Uncle Pat | 02 August 2012  

As a practicing psychiatrist at a public health inpatient and outpatient metropolitan community hospital in the USA I have clear guide lines. In the first meeting with an outpatient I tell them our communications are confidential EXCEPT, danger to self or other(s). ANd I clarify with them. I am a mandated reporter of any abuse towards dependent adults and children (financial, sexual, physical) and should I be concerned the patient her/him self is in immediate danger of harming him/herself or others I will involuntarily hospitalize and notify others. For inpatients as soon as they are able to process the information I inform them of the limits. I know priests refer patients for medical and in case of addictions to 12 step programs and many are skilled in psychological counselling. But if a pedophile, rapist,or violent behavior keeps confessing the same behavior, I would hope the priest would at least not pray the forgiveness until a firm purpose and changed behavior, possibly mediated through a treatment program is evident. If priests can withhold communion from public figures very publicly, (as they have done in USA)certainly in the confession they can refuse to forgive sinful behavior?!

Mary Margaret Flynn, MD | 02 August 2012  

The seal of Confession must be accepted and absolute. It staggers me that in so few conversations is there reference to the requirement of reparation by the penitent. Let us remember that absolution depends on it. Hence a penitant who promises to abstain from such behaviour cannot keep repeating it but will be sent to seek help. Non-disclosure of shared information is not a rare occurrence--business contracts in process, Government policy in process, patient/ doctor consultations, judicial work etc are not queried regarding privacy, why then the fuss regarding the confessional? Michelle, I feel for you and yes all sorts of people make mistakes some very serious ones, but we cannot judge entire systems by the breakdown of some flawed individuals. To speak out, as you have done, is appropriate and necessary. As community people we need to help each other.

Michelle | 02 August 2012  

"Michelle" - the world-wide, ongoing spectacle of clerical criminality within the Catholic Church at the highest levels are not the "mistakes" of a few "flawed indviduals". The staggering scale of institutionalised, systematic and systemic abuse concealed and condoned by the Vatican are so egregious that human rights lawyers such as Geoffrey Robertson have noted that they amount to crimes against humanity. There is absolutely no point in me or others "speaking out" whilst people within our communities continue to blindly defend this church, despite "feeling for" us. I was effectively shunned by my parish community for causing a scandal. No doubt those doing the shunning "felt" for me! By defending the indefensible you fracture community and enable and perpetuate the abuse of power and sacred trust.

Michelle Goldsmith | 03 August 2012  

These comments are apposite given the Victorian proposals to require priests to divulge criminality in confession. Such a law would obviously miss the point because as soon as it was enacted, penitents would no longer confess criminality to priests, fearing that such information may be passed on to the police. Therefore, the one person who might be able to encourage the penitent to stop that behaviour will not know about it, and no one else will either. Secular authorities also fail to recognise that priests have gone to their death for their failure to break the confessional seal. Do we really want the spectacle of good priests being punished for abiding by Canon law?

Robert Turnbull | 03 August 2012  

I fell off my chair when I read: "The possibility that several more children may be abused, with all the lasting harm caused to them as well as to their families and friends, is simply assumed to outweigh the harm caused by the breach of confidentiality." Simply assumed? I'm staggered that Andrew Hamilton doesn't get it. To go on then to an outrageous false analogy ("similarly shaped" about torture defies understanding. And yet Mr Hamilton can tell us: "respect for human dignity ... is fundamental to any decent society". Apparently the human dignity of victims of rape is less worthy than the human dignity of paedophiles and rapists. I found this article creepy, Mr Hamilton, in its support for the rights of those who commit evil against the most vulnerable in our society - and its abandonment of the "personal space" and "moral centre" . It's no wonder there are so many of us ex-Catholics shaking their heads and lamenting the loss of moral proportion.

Frank Golding | 04 August 2012  

On Tuesday 31 July 180 Perth Anglican priests attended a Pastoral Care in Confession Workshop which was comprehensive and therefore hard to summarise. Before the conference we had received a paper by Charles Sherlock, "Reconciliation -- The Anglican Tradition". During the conference we heard about and discussed Charles' theological ideas about confession and pastoral care and we looked at 15 forms of absolution (mostly general)in our prayerbook and allied documents. Peta Sherlock led us through her challenging paper on "Sins" of the "Profession" (ours). Next we devoted our attendance to a General Synod Document, "Guidelines for the hearing of confessions and the granting of absolution ; and to further guidelines issued by our Australian Bishops in March 2006. I came away with enhanced knowledge about confidentiality in general and about the special seal of confession.

Gerry Costigan | 04 August 2012  

Michelle, living in a strong Catholic community, it was a disgraceful episode. Michelle Goldsmith had the whole diocese to face after the confidentiality had been broken. And it wouldn't be the first time. I recall when the police were beginning to investigate another clergyman, the bishop at the time placed him among the unsuspecting mothers who home schooled their children,knowing full well being traditionalists, they would be aghast at any accusations made against him. It's ingrained, take a look at what's going down in Ballarat and the Melbourne Archdiocese. No need for an Inquiry or Royal Commission of course.

L Newington | 05 August 2012  

In United States law, confessional privilege is a rule of evidence that forbids the inquiry into the content or even existence of certain communications between clergy and Penitents. It grows out of the First Amendment to the United States Constitution, the common law, and statutory enactments which may vary between jurisdictions Regardless of government legislature confessional seal is encased in steel, layered in concrete, inviolable and ducoed in the blood of martyrs.

Father John Michael George | 06 August 2012  

Dr Flynn a priest may refuse communion to a 'public' notorious sinner, but we are dealing with a sinner in the private forum. While you can read your riot act to clients, my penitents know the terms of confessional seal 'carved in concrete', and respected in many global legislations. Be assured Dr Flynn standard perennial confessional manuals clarified that that absolution ought be withheld till eg recidivists show sincere contrition by change of behaviour[that is vastly different from bullying with withheld absolution using requirement that penitents lift the seal themselves[EG by unwillingly going to police.

Father John Michael George | 06 August 2012  

I have changed my views a couple of times on this issue after reading Andy's article and subsequent comments. From a personal perspective - putting doctrines, traditions, Canon Law and priestly purple stoles aside - I can relate to this matter very deeply. I have an acquaintance, I guess a friend, who I know is involved in an illegal activity involving substances and this has impacted my life quite dramatically. Sometimes I feel it would be best for him if I reported this to authorities, but this would be a cop-out and a breach of the trust placed in me. It is a huge dilemma, and I must be honest that my desire to report him is out of anger and selfishness rather than empathy.

AURELIUS | 07 August 2012  

The Confessional can be used as a yardstick.
When a penitant confesses their "sin", and given absolution they are far less inclined to report any clergy, making the mistake of clouding the "human" priest with the Christ in persona he represents in the confessional.
Therein lies the certitude of the Seal.

L Newington | 07 August 2012  

NEWINGTON, I doubt if anyone abused by a priest or anyone, would confuse them for Jesus. That is absurd.

AURELIUS | 10 August 2012  

Well put Aurelius!! To continue your 'reductio ad absurdum'[if a confessor shot last penitent would next absolved penitent confuse him with Christ and not report him even if Father Capone gave penitent penance to "shut his big Gob re murder"? In any case the penitent is not bound by the seal. The "certitude of the seal" resides in heavy censures of canon law approved by Vicars of Christ over centuries and reinforced by many civil statutes and underwritten in blood of martyrs;

Father John Michael George | 11 August 2012  

Father John MG, my comment was merely pointing out that someone who has been abused doesn't immediately become a deluded moron. An abused person is aware of the evil done to them and that it's being inflicted by a sinful human being, not Jesus.

AURELIUS | 13 August 2012  

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