Consenting and Assenting to Psychoanalytic Work

Earlier Analytic Contributions to the Subject of Informed Consent

Before developing this idea further, let us look at contributions from writers of quite different theoretical orientations who have considered the risk of misunderstandings about consent. Lacan’s warnings about the analyst’s imaginary position in the transference as the subject-who-is-supposed-to-know (1964) remains a valuable guide in these matters. In order to be able to listen carefully to manifestations of the unconscious in the dyad’s work, the analyst needs to separate herself in her own mind from the analysand’s idealized projections of superior knowledge and mastery, which can easily lead to the latter’s unconscious submission. Similarly, Kohut (1971) pointed out the clinical virtue of respecting the patient’s idealization while reserving the right to eventually interpret it. On yet another continent and in another language, José Bleger (1967) argued that “there are actually two settings: one which is proposed and maintained by the psychoanalyst, and accepted consciously by the patient, and another, that of the ‘phantom world’ into which the patient projects” (p. 233). ⁷ It was “the desire to put thinking to death” that concerned Aulagnier (1979) when both partners in treatment want to put the analyst’s theories on a pedestal. In the alienation she observed in certain patients coming for second analyses, she found a total lack of awareness of the violence done them in the first analysis by virtue of an uncritical introjection of the former analyst’s socially trendy theory. This outcome is possible if informed consent is assumed to be a straightforward process of intellectual acquiescence and the analyst is not looking for warning flags of unconscious incomprehension or unease in the patient about beginning treatment. Other French writers (Laplanche 1992; Green 2005; Donnet 2001) have pointed out the trap of the analyst’s substituting her thinking for that of the patient. If the analyst merely “recommends” an analytic treatment with a list of requirements, and awaits a global agreement, is there not a chance that the analyst is substituting her thinking for that of the patient? In the U.S., the views of Arnold Goldberg (2001, 2004) on insufficiently elaborated moral and technical tenets of the framework are both pertinent and provocative: “There should be little doubt that many if not all of the tried and true principles of psychoanalysis may profit from being subjected to periodic re-examination and scrutiny to see if their status remains as telling and relevant today as it did when first developed and observed” (2004, pp. 301–302).

Here is an example from my own experience. Having in my own analysis cheerfully borne the cost of missing sessions due to the vagaries of life, and proud of my enlightened attitude, I achieved a less defensive and idealized appreciation of the representational value of some form of “rule of indenture” (Eissler 1974) for financial responsibility for missed sessions when shaken by transferential explosions in our own practice. Confronted by patient rebellion against me as analyst, I realized that a belated reworking of my hitherto unrecognized ambivalence about this aspect of the frame was in order (Furlong 1992). As I now see it, periodic recasting of one’s assent to the analytic setting is a necessary part of the process of self-inquiry and acquiring self-knowledge in the relationship with one’s analyst.

Other than an initial minimal setup, Freud paid scant attention to other aspects of the frame, such as conflicts of interest, confidentiality, informed consent, third-party payment, record-keeping, and various administrative offshoots of clinical work. As his international reputation increased, most of Freud’s patients came having read some of his writings and with an explicit request for “psychoanalysis” from the now famous man, a request that could be—and indeed was—taken at face value. In the spring of 1921, Freud accepted Anna G. into analysis without having met her or having evaluated the appropriateness of her request. He based his agreement entirely on letters of recommendation by two Swiss colleagues and on the patient’s written agreement to abide by his conditions of time and fee (see May 2009). We know that this was the way he proceeded at the time with other patients (p. 267). In the early decades of the psychoanalytic movement, patients seem to have more or less submitted wholesale to the conditions of analysis as it was explained to them. It was only gradually, painfully, and on occasion tragically that the first generation of analysts came to appreciate the ethical and clinical implications of the details of framework management for their own internal frameworks and those of their patients. A more rigorous procedure seemed called for and, once established, became almost sacrosanct in some institutes, with candidates regularly instructed on how to assess the analyzability of prospective patients and warned about the pitfalls of anti-analytic parameters. While there were authors who, as we shall see, questioned the legitimacy of this approach, on the whole a broad cultural agreement seems to have existed (at least for a time in the mainstream North American psychoanalysis familiar to us) about the strict framework that analysts were expected to impose. Patients “knew” (or at least thought they did) what they were getting into in consulting a psychoanalyst: use of the couch, the analyst’s relative “reserve,” free association, confidentiality, expectations of interpretation rather than advice, payment for missed sessions, avoidance of social interaction outside the office, etc.

This consensus about the analytic setting has buckled under the scrutiny of the latest generation of analysts, both from those purporting to extend the Freudian vision and those who have found it wanting in various ways. But the psychoanalytic situation also finds itself increasingly out of sync with ethical, legal, and administrative standards developed in nonanalytic fields of practice. While focusing on informed consent, I would like to consider, from a psychoanalytic framework, the latest professional norms in medicine and psychology. In the perspective to be presented here, it is assumed that the frame is not just a helpful container for analytic work but an integral part of the method’s associative-digestive-thinking apparatus. The concern about proper technique among second-generation analysts may have inadvertently externalized the issue of consent and displaced it onto to evaluations of patient analyzability, thus bypassing the patient’s self-reflective participation in the decision. One hears and reads of analysts “recommending” psychoanalysis, as though placing themselves in a position of medical expertise, with the patient seemingly in the passive position of acceding more or less globally to their suggestion. There is merit, therefore, in the opinion of a recent commentator (Dailey 2014) that “analyst practice on the initiation of psychoanalytic treatment is in urgent need of review and revision” (p. 1123). We have a responsibility (Wilson 2016) to try to explain to ourselves (and if need be to our patients, though that may not be necessary if we understand ourselves) why the usual conditions of informed consent in other fields feel so uncomfortable for us.

What does the Patient Understand?

In any cure, though it is not usually cast in this manner, various dimensions of the framework itself—considered here as they contribute to informed consent—require periodic analysis. We have been slowly appreciating, as mentioned earlier, that the interpretive approach can miss the mark for patients of subneurotic structure, whose subjective assumption and mentalization of drive and emotion are insufficient. I recall my experience as outside reader of a candidate’s fourth-year clinical case study. In the report a patient had been persuaded to move from face-to-face psychotherapy to a classical psychoanalytic position on the couch, thereby qualifying as a training case. There was little description of how this transition had been handled, yet it was clear from the detailed clinical material that though ostensibly agreeing with the change, the patient had reacted with a great deal of anxiety. The analyst-in-training’s efforts to understand this anxiety in terms of the patient’s history seemed to be having little effect. Moreover, though the patient repeatedly referred to the new setting as causing her malaise, the analyst did not take up the possibility that the patient had agreed to the new situation not really understanding its rigors and not being psychologically ready. Perhaps in her wish to please her therapist, she had not fully appreciated the psychological implications of the new setting and the archaic fears it would mobilize. One could argue that her consent had not been adequately “informed” and that it might have been more helpful to address her new wave of disquieting transference as it related to the change of setting, which had been requested (unconsciously required?) of her. ⁸ In this project of an analytic cure, the analyst may have failed to realize that he had not created “the conditions in which free association proves to be practicable, interpretable and beneficial” (Donnet 2001, p. 129).

Undertaking a rare empirical study, Saks and Golshan (2013) found that there was extremely wide variation among analysts with respect to the proper scope of informed consent and that many did not obtain even a modicum of informed consent. They concluded that, generally speaking, informed consent is inadequately handled by the psychoanalytic community. Analysts would thus appear to be out of step with the model currently informing ethical codes for most biomedical treatment and research, which require potential subjects to “be adequately informed of the aims, methods, anticipated benefits, and potential hazards” of any medical intervention (p. 14). Saks and Golshan are well aware of the myriad ways full disclosure of risks and benefits according to the contemporary medical ethical model “may violate the norms of analytic neutrality, abstinence, and anonymity, considered by some to be crucial to the treatment” (pp. 40–41). Yet in the name of patient autonomy, Saks and Golshan contend that the reasonable patient would want more information than currently gets disclosed, including the risk of intense transference feelings, malignant regression (particularly to psychosis), and self-destructive acting out).

It is difficult to gauge the meaningfulness and scope of such a startling recommendation of disclosure. Saks and Golshan do not consider how the intellectual awareness of such risks is of more than cognitive value to prospective analysands. One reviewer of the book (Tillinghast 2015) believes that “engaging a patient in substantive discussions about the risks and benefits of treatment, and possible alternatives, can substantially strengthen the therapeutic alliance, by making the patient feel respected and valued as a collaborator with a healthy side” (p. 368). Yet Tillinghast seems to sidestep the psychoanalytic question whether ego-to-ego exchanges of this sort should be favored over a position of carefully listening for the patient’s unconscious doubts as they come up over time.

It is true that numerous individual case studies, both historical and current, are available that illustrate the categories of negative therapeutic reaction (intense transference feelings, malignant regression, particularly to psychosis, and self-destructive acting out) mentioned by Saks and Golshan (e.g., Aulagnier 1979; Gabbard 1977; Freud 1923; Pontalis 2014; Rosenblum 2005); Sandell et al. 2000; Winnicott 1954, 1967). Moreover, we know that countertransference complications must also be counted as potential negative side-effects of psychoanalytic treatment. As Freud pointed out, since one cannot destroy someone in effigy (1912, p. 108), we are forced to work with “highly explosive forces” (1915, p. 170). Understanding intense transference and countertransference reactions is considered an essential aspect of psychoanalytic training, but our ability to predict them is limited. Ultimately, however, the argument against disclosing documented negative reactions to psychoanalysis must be based on the fact that any analysis is a totally unique experience, emerging from the intersubjective dynamic developing in the intimate relationship of two personalities, each with a partly unknown unconscious component.

For this reason, I propose that the best way to assess “risk” is to attend to the analysand’s capacity to scrutinize what comes to light in the experience of the psychoanalytic setting itself. From the psychoanalytic viewpoint, what the patient needs to be informed about is already a part, an unconscious or split-off part, of herself, perhaps emerging in the initial meeting as a dread of catastrophe. Making a distinction between manifest and latent content not made by Saks and Golshan, Ogden (1992) observes that the sense of danger mobilized in both patient and analyst is the “prospect of a fresh encounter with one’s inner world and the internal world of another person” (p. 227; see also Crick 2014). Developing an awareness of the conflict within oneself about beginning a psychoanalytic treatment is another pathway toward informed consent, and integral to the intrasubjective and intersubjective exploration that frames the decision to begin analysis. Being able to perceive and address this conflict is part and parcel of the “analytic process of transformative investigation,” as Donnet (2001) so nicely puts it (p. 129).

To make matters more complicated, contemporary psychoanalytic thinking about informed consent would want to take into account the patient’s unconscious perception of the analyst, and whether or not the dyad can make some sense of this. Perhaps Freud did not stress sufficiently the extent to which unconscious conflict poses a barrier to the perception of the external reality of others, in this case the analyst, or the fact that resistance can be generated by the unique bipersonal field that develops in a particular practitioner’s office. The capacity to perceive and mentalize unconscious conflict and/or deception on the part of significant others is another part of access to relational truth. ⁹ Beyond the resistance of “discourse itself,” Lacan (1955) zeroed in on the resistance that can emanate from the analyst’s ego. We know that aspects of the patient’s communications can be indirect commentary on unconscious perceptions of the analyst. Van Lysebeth-Ledent (2016) gives an example of what she calls the dream’s metabolization of a real impact on a patient of a session in which the analyst was “psychically absent” due to illness, an “event” that had been “perceived” but not consciously acknowledged by the patient.

It would seem integral to a psychoanalytic ethic to help patients develop their own risk assessment abilities rather than having the analyst enumerate them in a preemptive, paternalistic manner. How could an analyst opine, for instance, that “there is an x percent chance that you will regress, or become psychotic” when no specific probability can likely ever be affirmed with respect to this unique dyad? The “holding” capacity of the “field” can vary considerably not only from couple to couple, but also from session to session, even from moment to moment, and in ways that cannot always be anticipated. Explaining risks and benefits to patients, which is so helpful in making decisions in other medical fields, can in the psychoanalytic situation easily fall into the spiral of intersubjective permutations noted by Freud (1905) in the joke about one Jew responding to an inquiry by another as to his destination. When he replies that he is going to Cracow, his questioner accuses him of trying to deceive by telling the truth. “Is it the truth,” inquires Freud, “if we describe things as they are without troubling to consider how our hearer will understand what we say?” (p. 115).

The point is not to minimize the ethical challenge experts like Saks and Golshan put before us, but to deepen it, to make it more complex. Even before the patient calls an analyst for a consultation, he or she may be misled about a fundamental premise of psychoanalytic treatment if analysts take the pathway a number of mental health organizations encourage by inviting members to indicate “areas of expertise” in their dealings with the public. One might indicate, on one’s website or in the registry of the organization, expertise in the handling of specific diagnoses, such as anxiety and obsessive-compulsive disorders, problems of sexual impotence (male and female), sexual orientation issues, insomnia, attention disorders, and capacity for violence. Despite the fact that the public may seek the security of consulting an acknowledged expert in a specific category of complaint, this kind of professional presentation contravenes in three ways long-standing technical and ethical principles in psychoanalysis: (1) by departing from a position of benevolent neutrality to accede to the patient’s wish for the imaginary authority decried by Lacan; (2) by implicitly setting a specific treatment goal (of freeing the patient from a manifest symptom, before knowing what role it plays in the patient’s unconscious economy); and (3) by implying that symptoms share commonalities across individuals that an analyst can know and treat based on a priori knowledge. This is, quite simply, false advertising. Wilson (2016) expresses it clearly: “the psychoanalyst is always interested in the particular, the singular, the first-person point of view. We are anti-generalists” (p. 1191; Warren Poland made the same point to me in a personal communication in 2012).

Interestingly, Freud seems to have drawn attention to the rigors of analytic treatment more often than to its risks. Exemplary is this quote from “On Beginning the Treatment” (1913): “I consider it altogether more honourable, and also more expedient, to draw [the prospective patient’s] attention—without trying to frighten him off, but at the very beginning—to the difficulties and sacrifices which analytic treatment involves” (p. 129).

It is enlightening in this context to double back to José Bleger’s classic 1967 article, “Psycho-Analysis of the Psycho-Analytic Frame,” in which he claimed that in every analysis, even one with an ideally maintained frame, the frame itself must become an object of analysis. The very steadiness of the frame makes it the perfect depository for the “psychotic part of the personality which is the undifferentiated and unresolved part” (p. 242). Bleger’s work is pertinent as a counterpoint to well-meaning interventions based on reassuring the patient about the right to be informed or on sustaining a therapeutic alliance by engaging in intellectual discussion of the patient’s fears of treatment, or by providing information about alternative treatments, or explanations about what psychoanalysis entails, or how much expertise one has with this or that particular expression of psychic suffering. All these interventions can induce subtle intersubjective muddles as the patient feels invited to ask for clarification. Yet on all these fronts, the analyst has the opportunity to enter into shared reflection with the patient about the phantom world, as Bleger terms it, that has been brought to the consultation as an expectation of the analyst and of the frame, the patient’s ego-syntonic expectation, tacit and as yet unreflected-on, that reality conform to certain infantile wishes for protection and nondifferentation. There is no doubt that avoiding the risk of collusion with this archaic part while not prematurely disrupting the patient’s narcissistic integrity requires adroit technique and a subtle countertransference double-mindedness. In these areas, less experienced analysts perhaps struggle the most, for what is required of the analyst is keeping in mind multiple levels of reality, in particular respect for where the patient is at in his or her personal evolution without sacrificing the fulcrum that will permit addressing later, at a more opportune moment, these fragile zones of mental functioning. Bleger outlines the considerable skill in technique, timing, and tact that is required:

The analyst needs to accept the setting brought by the patient . . . because within it will be found in summary form the primitive unresolved symbiosis. However, we need to state at the same time that accepting the patient’s . . . setting does not mean giving up the therapist’s own, as a function of which it is possible to analyse the process and the setting itself when this has been transformed into process [p. 239; emphasis added]. ¹⁰

This is a tall order, to say the least. How in the world is the analyst supposed to manage this delicate and paradoxical management during the evaluation stage and beginning of treatment? How to transform into process the question of consent?

Does the Existence of the Unconscious Prevent Informed Consent?

Earlier I mentioned that many analysts feel we must be reserved about the possibility of informed consent in our work. The notion of the rational, autonomous subject is turned upside down by both the patient’s suffering and the existence of the unconscious. In an essay in these pages a few years ago, Anne Dailey (2014), a legal and psychoanalytic scholar, contended that “informed consent to psychoanalysis may simply not be possible in any meaningful sense. Consent appears to be the navel of psychoanalytic treatment, the moment from which all psychoanalytic treatment springs, but which itself remains opaque to analytic understanding and insight” (p. 1129).

Not many analysts, however, would follow Dailey to her conclusion that a “founding departure from neutrality” (p. 1130) is called for. Unable to decide for him- or herself, the patient should rely on the analyst’s guidance in contemplating and assessing the risks and benefits of psychoanalytic treatment. Dailey is aware of the aporia she has reached: “The informed consent process thus becomes a decidedly unanalytic moment that sets the analytic treatment in motion even as it threatens the integrity of the treatment that follows” (p. 1131). We “confront a . . . contradiction: that analytic treatment comes into being through a fundamentally unanalytic moment of supportive guidance” (p. 1132).

Nevertheless, Dailey’s essay joins the concerns of other analysts in inviting us to take a fresh look at an old controversy: does the existence of an unconscious make informed consent impossible in any walk of life? Positing the question this way immediately moves the argument beyond the relatively limited area of patient consent to the much larger issue of free choice for any human being, since the Freudian conception of unconscious life is a universal. Speculation about the contribution of the Freudian oeuvre to the conundrum of free choice is not new. Freud himself indirectly broached this question in his “Expert Opinion in the Halsmann Case” (1931), where he commented on an alleged parricide. It is noteworthy that Freud was doubtful about referring to an unconscious complex in assessing responsibility: “Precisely because it is always present, the Oedipus complex is not suited to provide a decision on the question of guilt” (p. 252).

The whole vista of free will is too enormous to tackle here, though it needs to be addressed at least briefly in any serious discussion of the topic of consent. The reader will have already noted threads in another line of reasoning being sketched here as a way out of the apparent contradiction, one familiar to many psychoanalytic practitioners as fundamental to the value of their work. To begin with, there are Freud’s contributions to facing this conundrum. The obligation to complete candor on the part of both patient and analyst is a point that Freud made many times, but he also warned against suggestion, such as encouraging the patient to speak of a specific content. On more than one occasion, he addressed the puzzling ownership of unconscious thoughts, each time rejecting a split in moral responsibility (1900, 1916–1917, 1925). For example:

Unless the content of the dream . . . is inspired by alien spirits, it is a part of my own being. . . . if, in defence, I say that what is unknown, unconscious and repressed in me is not my ‘ego’, then I shall not be basing my position upon psycho-analysis [1925, p. 133].

Freud seems to distance himself from a conclusion of abject lack of autonomy:

The physician will leave it to the jurist to construct for social purposes a responsibility that is artificially limited to the metapsychological ego. It is notorious that the greatest difficulties are encountered by the attempts to derive from such a construction practical consequences which are not in contradiction to human feelings [p. 134].

Yet what he had written more than a decade earlier, when commenting on the part played by the patient’s “unobjectionable” positive transference in treatment, revealed a more complex view of the role of suggestion:

To this extent we readily admit that the results of psycho-analysis rest upon suggestion; by suggestion, however, we must understand . . . the influencing of a person by means of the transference phenomena which are possible in his case. We take care of the patient’s final independence by employing suggestion in order to get him to accomplish a piece of psychical work which has as its necessary result a permanent improvement in his psychical situation [1912, p. 106; emphasis added].

Let us recall that possession of an unconscious mind is completely democratic; it infiltrates the psychic experience of every human being and is not confined to conditions of abject suffering. For every person, autonomy in the intrapsychic sense is surely the broadening of the ego’s capacity to integrate within its purview the unknown and unrepresented domains already at play within the psyche in the larger sense. It is this goal of inner freedom, however incremental, fragile, or temporary, that has traditionally been the focus of psychoanalytic work (see, e.g., Bibring 1943; Friedman 1965; Rangell 1969; Smith 1978). It is this increased modicum of inner freedom emerging from knowledge-of-self acquired in the analytic situation that is likely to increase the patient’s ability to detect and decide, at any point in the treatment, the risk and the benefit to self of the psychological strain of the moment. Does the accomplishment of this “piece of psychical work” have to piggyback on the analyst’s suggestion?

Dailey no longer answers yes to this question. Having absorbed broad swaths of psychoanalytic literature since her 2014 essay, she has published a full-length book (Dailey 2017) on the contribution psychoanalysis can make to the law. The apparent conflict between free will in the legal sense and the reality of unconscious life, she writes, is “simply wrong” (p. 74); “psychoanalysis recognizes and fosters a capacity for human agency of its own, more constrained but nevertheless central to its portrait of the psyche” (p. 74). Dailey’s analysis is at times marred by her tendency to make sweeping statements regarding the opinion of “psychoanalysis,” as though it were a unitary point of view, despite the fact that on many occasions she demonstrates a sensitivity to distinct theoretical strands in contemporary thinking. However, her overall position that it is “through some measure of self-reflection that the individual intervenes in the mind’s causal trajectory and becomes an agent of his or her own life” (p. 87) is one that Freud and present-day analysts of many theoretical stripes share as an underlying goal of their analytic activity.

Criticism—though it may not be fatal to her project—can be levied against her adoption of what might be considered the pre-1920 Freudian view of the unconscious as a form of meaning that “make[s] perfect sense when subjected to reasoned investigation” (p. 91). Current thinking about the post-1920 Freudian model of the mind, with its unrepresented drives pressing for actualization and the technical challenges this lack of repression and representation creates with regard to certain patients, is absent from her discussions. With respect to this unconscious, reasoned, self-reflective inquiry does not cut it. It appears to be frequently via non-reasoned, countertransferential sensitivity that images or words can be found to construct a meaning for the forces in play. To reach a position of full assenting, the process of informed consenting must confront not only resistances to self-awareness (the early Freudian model of repression of “incompatible ideas”), but equally the force of unrequited and unintegrated drives (the post-1920 model of the id).

One might be tempted to resort to the language of “agency,” as Dailey does, in trying to grapple with these complexities. Yet let’s face it: even when the “I” speaks, it is often in the name of another part of the mind (like Freud’s rider pretending to go where the horse takes him): “what is proved is not the existence of a second consciousness in us, but the existence of psychical acts which lack consciousness” (1915, p. 170). Lawrence Kahn (2004, p. 74) is not alone in contending that Freudian determinism confronts us with an irreducible break between agency, actor, and author in the psychoanalytic view of the mind.

In the French literature, one is more likely to read about “subjective appropriation” or “subjectivation” (Cahn 2002; Kirshner 2012; Wilson 2014). I prefer the terms “subjective appropriation” and “subjective adoption” because they include the notion of the ego taking in something from the outside, which is other and retains otherness, like unconscious sexual desire or unconscious masochism. Part of the drive remains resolutely nonsubjective, experienced but not mastered by the ego, possibly “owned up to” but never completely owned. The subject of an analysis comes to realize that he or she is not “one.” The process of informed consenting and the becoming of good-enough assenting should aim at a recognition of this universal paradox. “The unconscious is not that part of being to be reduced at any price, but a perpetual companion with which we must deal and include within ourselves as much as possible” (Cahn 2002, p. 190; translation mine). So perhaps we should speak of “subjective appropriating” (using the gerund form to indicate an ongoing, ever-being-undone process) in informed consenting and assenting.

The Initial Interview

It is evidently inappropriate to suggest that there is but one way to handle this ethical challenge. Fortunately, there is no longer a dearth of reflection on these issues. Pertinent to the question of informed consent is the vigorously renewed attention the initial interview has been receiving in the psychoanalytic literature over the past decade or two (see, e.g., Ehrlich 2004, 2010, 2013). There has been a sea change, a shift from the traditional goal of evaluating the suitability for analysis of prospective patients to using the consultative process to initiate them into a psychoanalytic frame of mind. There is also increasing realization that the anxieties mobilized in both patient and analyst during assessment can diminish the latter’s capacity to sustain a psychoanalytic stance. It is now widely recognized that an “emotional storm” (Reith et al. 2018) is inevitable in psychoanalytic consultation, creating a draw toward “unhelpful enactment” (Crick 2014). All stages of a prospective patient’s movement, from first contact through entering into an analysis, are receiving careful intersubjective scrutiny. Eight years ago a collection of papers (Reith et al. 2012) was published by the Working Party on Initiating Psychoanalysis of the European Psychoanalytic Federation. This was followed by a second collection in 2018 by some of the same researchers under the title Beginning Analysis (Reith et al. 2018).

This concerted thinking on initiating psychoanalysis has not led to Dailey’s 2014 pessimism about informed consent. Contemporary ethical thinking in psychoanalysis casts the issue in terms of asymmetry (Chetrit-Vatine 2014; Wilson 2014) rather than of subjection to the unconscious. The analyst’s ethical responsibility arises from the presumption—based on his or her personal analysis and training—that he or she is more de-alienated with respect to psychic pain than the patient. The analyst’s tutelary duty of care and caring derives from this (sometimes slight) advantage. In 2016 this journal published an entire section on the “ethical implications of the analyst as person.” Although all five articles (Kite 2016; Morris 2016; Wilson 2016; Kattlove 2016; Moss 2016) are helpful reading as background to the ethics of informed consent from a psychoanalytic perspective, I find particularly illuminating the approach taken by Kite. Her conclusion is just as paradoxical as Dailey’s but does less damage, I would argue, to patient autonomy. Referring to what she describes as “the fundamental ethical ambiguity of the analyst as person,” Kite contends that ethics for analysts “is not a ‘thing’ or a code. It is quite simply taking responsibility for our largely unconscious impacts on patients, and theirs on us” (p. 1161). We have to “remain alive to what we don’t know in ourselves, . . . the [analyst’s] ethical unknown” (p. 1168).

Ogden’s observations in the first Reith et al. volume (2012) can illustrate an approach to informed consent that avoids the pitfalls of paternalism, suggestion, and the position of established expertise. Ogden’s starting point is that there is no difference between the analytic process in the first meeting and the analytic process of any other analytic meeting. Everything the analyst does in the first face-to-face session is intended as an invitation to the patient to consider the meaning of his experience and the possibility of new significance. Ogden eschews referring to the first meeting as an “evaluation period” or “assessment phase,” both because this would convey the idea that the patient is to be relatively passive in this enterprise and also because in Ogden’s mind (1992) the “nature of the interaction is not simply that of one person evaluating another or even of two people evaluating one another.” Instead it is “an interaction in which two people attempt to generate analytic significance, including an understanding of the meanings of the decision-making process that is involved in the initial meetings” (p. 229; emphasis added).

Ogden insists on the value of sustaining, not reducing, anxiety in the analytic setting: “Since maintaining psychological strain is not only something we demand of ourselves but is also part of what we ask of the patient, it makes no sense to begin the analytic relationship with an effort at dissipating psychological strain” (p. 231). The risks and benefits of treatment that are at stake are the unconscious explanations of the patient as to why she feels that analysis is a dangerous undertaking and why it is bound to fail. “Everything the analysand says (and does not say) in the first hours can be heard in the light of an unconscious warning to the analyst concerning the reasons why neither the analyst nor the patient should enter into this doomed and dangerous relationship” (p. 236). Borrowing and displacing a term used by Ella Freeman Sharpe (1943), Ogden calls these unconscious fantasies “cautionary tales.” Rather than guiding the patient through a cognitively informed consent process of potential advantages and disadvantages, Ogden illustrates the psychoanalytic way of enlisting the patient’s observing ego to address the patient’s own unique anxieties in the transference as they are revealed by his speech and behavior in the initial sessions. In this, the analytic frame of mind of the first interview is no different from that at any other moment in the analytic process. Ogden applies the same analytic method of listening and voicing unconscious anxiety and conflict with seriously disturbed patients as he does with persons in the neurotic register who have consulted him about analytic treatment.

Ogden’s perspective dovetails with my thesis here: It is in articulating what can be gleaned of the particular patient’s fears about treatment, rather than referring to “possible” upheavals (to qualify them as “risks” would imply that they should not be part of the process) noted in some other cases, that the analyst facilitates the patient’s capacity to make an informed decision for him- or herself. We can expect that the “reasonable” patient who consults an analyst wishes to learn more about the hidden obstacles lying within. Rather than founding the therapeutic alliance on cognitively apprehended potential risks, it is more consonant with the psychoanalytic setting to use initial interviews to test the patient’s ability to use tactful observations regarding unconscious contradictions popping up in his pursuit of help. Ogden’s argument is consistent with a position often defended by André Green (2005):

Let us recall that it is customary, in French psychoanalytic circles, to interpret as close as possible to the ego, sometimes making use of ellipsis or allusion, proceeding by limited touches, stimulating the associative work, counting on the participation of the patient, the main actor of the analysis who has “to do his analysis” rather than being analysed passively by his analyst [p 85].

So far, without minimizing the criticism about laxity in the approach to informed consent among analysts (noted by Saks and Golshan), there are cogent objections to the application, at least literally, of current medically derived professional models to the psychoanalytic situation. Most analysts, in fact, would agree that consent is not confined to the beginning of treatment, but—in the form of unconscious resistance and new après-coup transference motions—can be an ongoing or sporadic calling of the treatment into question, which if tactfully handled revitalizes the treatment project. Resistance itself might fruitfully be reconsidered as a manifestation of the unconscious withdrawal of consent. Patrick O’Neill (1998), a psychodynamic therapist and researcher, made the notion of periodic renewal of consent the central theme of his book, Negotiating Consent in Psychotherapy (for a review, see Furlong 2003). It is a powerful idea, perhaps obvious in retrospect, that merits far more attention than it has so far received in the psychoanalytic literature. ¹¹ But it is also very much an old idea, insofar as it is a perfect extension of psychoanalytic readiness to examine with scientific curiosity every twist and turn in the relationship. Nevertheless, timing is everything and the stakes can be high. In his work, Bleger also stresses analyzing the setting “at the right moment” (1967, p. 237). What is especially interesting about Bleger’s classic study is his ironic insight that the patient’s very consent to the frame can serve to avoid a certain reality and that the analyst’s disruption of it (vacations, cancellations, missed or incomplete sessions) can introduce a “crack” (p. 235) that is catastrophic for the patient.

There is another intersubjective kink to this issue, which I have hinted at. What do we do about the fact that analysts can be imperfect in their ability to listen to the unconscious concerns of their patients and that the latter may well pay the price? Though Saks and Golshan deliberately exclude the risks entailed by the unavoidable “personal factor” of the analyst himself, Tillinghast (2015), in her review of their book, mentions a number of ways in which this can be infelicitous. Tillinghast refers to Fairbairn’s opinion that “most people would rather feel like sinners in the hands of god than worry about being in the hands of a flawed, careless, or potentially harmful caretaker” (p. 370). To make matters worse, and despite Freud’s transmission of an analytic ideal of benevolent neutrality and his own personal claim that “an abuse of ‘suggestion’ has never occurred in my practice” (1937, p. 262), the phenomenon of unconscious suggestion is a well-documented factor, for better and for worse, in many situations, analysis included (see, e.g., research on the placebo or “meaning effect,” and on the role of suggestion in the formulation of survey questionnaires and marketing strategies, in recovered and implanted memories, in police interrogations, and in guided imagery).

As a thought experiment, one can imagine a full disclosure mentioning all the problems potentially arising from the side of the analyst:

Your analyst is human. Despite her credentials, she may fail you in a number of ways: out of incompetence (temporary, partial, episodic); out of a personal blind spot that was not treated in her personal analysis; out of unforeseen erotic or negative countertransference; out of carelessness, neglect, or even exploitative behavior; or because she has allowed herself to continue practicing despite being compromised by illness, personal problems in her private life, or old age. It is equally likely that another analyst might disagree with the interpretations your analyst has been giving you or dispute her overall formulation of the main axes of your personal dynamic or yet again introduce a theoretical backdrop from another psychoanalytic school that could substantially reframe the analyst’s way of working with you. It is the opinion of many in the field that an objectively correct treatment is an illusion. Each analysis is a product of a unique interpersonal field formed by you and your analyst that can aim only at establishing an open-ended, lifelong engagement with and reassessment of one’s life rather than at reaching symptom-free happiness.

All of these caveats are well taken, and yet it is hard to conceive how an avowal of this kind would protect the patient against the derailment of unethical, incompetent, or merely run-of-the-mill patchy analysis.

Similar doubts can be asserted about other aspects of modern professional practices whose aim is to enlighten the patient about the kind of therapy being offered. Whether advertising one’s areas of expertise, the provision of written contracts, or explicit caveats about the “limits” of confidentiality before beginning treatment, these gestures activate the same clinical-philosophical disquiet about the analyst’s open-ended benevolent neutrality. The analyst is drawn into “explaining” as the “subject who really knows” risks and alternatives that he or she has presented to the patient for consideration. The analyst is sending enigmatic messages that—like the sorcerer’s apprentice—he assumes he can “manage.” Tillinghast (2015) ends up musing that “it may be that the law is not an adequate tool for addressing this problem” (p. 373). My position is more affirmative. It is improbable that the risks in analysis can be alleviated by the informed consent guidelines so far developed by legal scholars and professional regulatory bodies. Moreover, one could declare that some psychoanalysts have accepted too readily the legal “reasonable patient” way of looking at the matter.

With the proviso that no clinical vignette can independently demonstrate a theoretical argument, the reader may find the following description evocative. Baffled by symptoms of anxiety after years of feeling fairly content and productive, Mr. X requested analysis though he expressed misgivings about me and the setup. It was the “antipodes of the enveloping environment” he was longing for. However, he agreed with my proposal that what had suddenly brought his life to a standstill was the reawakened terror of a maternal monster from his childhood. It was the first time he would be consulting a woman, a prospect that was frightening but which he thought might be helpful in getting to the bottom of his childhood fear. After some hesitation, he agreed to start twice-weekly sessions on the couch.

He had been coming several months when a nasty flu forced me one evening to cancel—by text message—all of the following day’s sessions. Still under the weather at the end of the next day, I cancelled everyone for a second time. Mr. X, remembering that he had noticed and worried about me coughing in our last session together, texted back, asking me to reassure him that the diagnosis was not pneumonia. I did so in a brief return message. He later left a voice message, as well as texting to ask for confirmation about whether I would be working the subsequent day. These entreaties were not answered: on the one hand, I was put off by the extra attention being solicited and, on the other, I was convinced that all he had to do was rely on the protocol already established, that is, if I were not going to be there, I would let him know, as I had done the previous two evenings. On the third day, a Friday, he was the only patient not to show up at his regular time. Shortly after this missed session, he wrote to find out if I was returning to work the following week. I texted back that I had already returned. A few hours later, he pointed out that I had not returned his messages asking about my plans. Later still, I answered in another text message that my other patients had attended their sessions and that if it had not been for his anxiety, he would have known the answer to his query.

Needless to say, in the wake of the triple breach in the frame introduced by the double cancellation and my inappropriate counterattack on his anxiety-ridden dependency, Mr. X arrived for his next appointment distraught and enraged. He refused to lie down, accusing me of making an interpretation that made him entirely responsible for having missed the last session. He began to wonder whether we were a good fit. He was hurt: I had not been reassuring; I had chosen rigidity over suppleness. He compared the situation to videos of children disturbed by their mothers’ abruptly blank faces. He had not brought his end-of-the-month check because he did not want to pay for the missed Friday session. I acknowledged that my “interpretation” had been out of line, especially in text form, as well as wounding for him. But I also wondered whether rather than a question of fit, what was at stake was being able to talk to my face about his criticism. When he spontaneously associated to elements of repetition in his reaction, I suggested that he consider paying for half of the missed session in recognition of his part.

On one level, the analysis was derailed for a full month, as Mr. X called off sessions to consult another analyst (male) or asked for phone sessions instead. Nevertheless, at the same time, a lot of psychic work was undertaken by both of us. I accepted only one session by phone, during which I expressed my belief that if he quit his work with me, he would be taking an intact maternal monster with him. He had created-and-found this persecutory object in me. It was the conviction that I was right about this that eventually persuaded him to continue with me and, in the succeeding weeks, to request increasing the frequency of his sessions. He decided against paying anything for the Friday session, or for sessions he had missed to confer with someone else, though he did assume responsibility during this period for a session he had cancelled at the last minute. I think we both felt that I had been fairly “punished” for my part in the debacle. Since then, I have realized how the acting out of my countertransferential irritation was for him a repetition of the lack of tenderness with which he was often treated by his parents. I have also had occasions to remark upon the hallucinatory quality of the threat of losing the love of people experienced as parental figures, a fear a rational part of him found ridiculous but which was also nourished by his submissive and conflicted undercover attacks on them. Our work has brought to light, moreover, how destructive to his own capacity for thought and play have been his pleas for reassurance (and self-castration) from the flipped-over, sanitized version of the forbidding other.

A few more remarks may be made about this vignette before I conclude. Moments of doubt about the work—if tolerated and worked though—do not always have to be as dramatic as the crisis shared here. However, this example shows vividly how for the patient the person of the analyst is part and parcel of the framework and methodology of psychoanalysis. I have not enlarged upon this facet of consent, though it is probably safe to say that patients do not generally think of consent to psychoanalysis as a category; rather, they undertake and assent (sometimes sooner, sometimes later) to an analysis with a particular analyst. The man in the vignette was psychologically sophisticated. He was aware of how features of his relationship to his mother continued to be replayed in his ties to women. Nonetheless, he had to a significant extent avoided facing the extent of the Medusa fantasy by choosing male analysts and by not realizing, really realizing, the degree to which he carried this figure ready-made within him.

Conclusion

Dialogue between evolving case law and legal theory and psychoanalytic practice and theory can be mutually enriching, but attempts to bind them together, or—as was more common in the past—to impose the law on top of psychoanalytic ethics, should be avoided. The law cannot prescribe “best practices,” though it can integrate itself, or at least engage in dialogue, with contemporary scientific consensus (psychoanalysis is considered here as a scientific study of the unconscious). Psychoanalysis has its own professional response to ethical concerns about patient autonomy: (1) the protection offered by high professional standards of clinical training; (2) the recommended lifelong immersion of analysts in the triangulating experience of interanalytic space (Donnet 2001); and (3) continued psychoanalytic research on the matter. Yet intellectually grasped information does not reach or obviate the real clinical pitfalls. Aspirations to develop general guidelines of informed consent in psychoanalysis are counteranalytic insofar as they lead patients (and analysts) to believe that there are common hurdles and expectable solutions to fundamentally unique and unpredictable intersubjective personal histories and experience. It is the psychic work the analyst guides the patient to undertake (and analysts must perform their own labor to achieve this) that increases his or her capacity for a good-enough assenting or dissenting. Initial consenting, often unconsciously apprehensive, will inevitably be subject to ordeals of doubt and resistance that provide opportunities for growth that widens and deepens the assenting to the process.

The attempt to reconcile legal-regulatory and psychoanalytic points of view on informed consent is worthwhile inasmuch as—and this is the crux of the matter—it encourages analysts to put into words, or to illustrate by their manner of listening and responding, the paradoxical nature of their work. The discussion of risks and benefits can indeed take place, though not in the straightforward, transparent manner envisaged by legal scholars. This discussion takes the form of an exploration where it is assumed that fantasies can be real or imagined or both: where it is possible that the patient might break down or that the therapist might transgress and—at the same time—it might be an unconscious projection by one or the other member of the dyad. It is this paradox that we do not want to reduce too quickly. The patient should be left to freely associate to her uncertainties and eventually make her own judgments. The treasure-hunting permitted within the psychoanalytic framework allows suspension of the need to decide, so that all unconscious derivatives may see the light of the ego’s scrutiny and play. Is there not here a necessary paradox? The patient must have the right to refuse the analytic setup even as he or she accepts it. It is at least partly in this manner that patients can come to making their analyses uniquely and subjectively theirs. The answer of psychoanalysis to the “autonomous subject” is what Donnet has called its “methodic unreason” (2001, p. 82).