Psychiatrist-Patient Confidentiality and the Anne Sexton Biography Sharon Carton

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Psychiatrist-Patient Confidentiality and the Anne Sexton Biography Sharon Carton University of Miami Law School Institutional Repository University of Miami Entertainment & Sports Law Review 5-1-1993 The oP et, the Biographer and the Shrink: Psychiatrist-Patient Confidentiality and the Anne Sexton Biography Sharon Carton Follow this and additional works at: http://repository.law.miami.edu/umeslr Part of the Entertainment and Sports Law Commons Recommended Citation Sharon Carton, The Poet, the Biographer and the Shrink: Psychiatrist-Patient Confidentiality and the Anne Sexton Biography, 10 U. Miami Ent. & Sports L. Rev. 117 (1993) Available at: http://repository.law.miami.edu/umeslr/vol10/iss1/7 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Entertainment & Sports Law Review by an authorized administrator of Institutional Repository. For more information, please contact [email protected]. Carton: The Poet, the Biographer and the Shrink: Psychiatrist-Patient Con THE POET, THE BIOGRAPHER AND THE SHRINK: PSYCHIATRIST-PATIENT CONFIDENTIALITY AND THE ANNE SEXTON BIOGRAPHY SHARON CARTON* I. INTROD UCTION .......................................................... 117 II. HISTORICAL BACKGROUND OF SEXTON'S PSYCHIATRIC TREATMENT ............. 118 III. THE CONTROVERSY: REACTION TO THE DISCLOSURE .......................... 121 IV. NATURE OF THE CAUSES OF ACTION AVAILABLE TO SEXTON'S ESTATE .......... 131 V. FIRST AMENDMENT RIGHT TO DISCLOSURE ................ ............... 146 VI. THE DEFENSES OF WAIVER AND CONSENT .................................. 153 V II. C ONCLUSION ........................................... ............. .. 163 I. INTRODUCTION "[M]e, I likes confession..." Anne Sexton.' One could not hypothesize a tougher case to argue breach of the psychiatrist-patient privilege of confidentiality than one con- cerning the patient in this instance, the noted "confessional" poet Anne Sexton. Sexton made it her life's oeuvre to give the public access to the darkest secrets of her years of devastating mental ill- ness that culminated in her suicide. The psychiatrist who arguably violated the privilege, Dr. Martin Orne, was unquestionably re- sponsible not only for motivating Sexton to begin her literary ca- reer, but also for extending Sexton's life by encouraging her to write. Thus, many commentators have argued that Sexton owed Orne both her life and her art. At first blush, one is hard-pressed to find either a victim or a villain in the purported breach. However, in releasing the tapes of Sexton's therapy sessions to her biographer, Diane Wood Mid- dlebrook, Dr. Orne has generated a storm of controversy. Those who have injected themselves into the fray have raised issues rang- ing from the First Amendment to the right of privacy to, less pre- * Professor, Nova University Shepard Broad Law Center; B.A., C.W. Post College, 1976; J.D., Hofstra University School of Law, 1979; L.L.M., George Washington University National Law Center, 1986. The author gives special thanks to research assistant Shelley Zabel for her tireless and invaluable contribution. 1. DIANE MIDDLEBROOK, ANNE SEXTON 215 (1991). 2. See, e.g., L.S. Klepp, Bedlam Bound, ENT. WKLY., Sept. 6, 1991, at 76. Published by Institutional Repository, 1993 1 University of Miami Entertainment & Sports Law Review, Vol. 10, Iss. 1 [1993], Art. 7 ENTERTAINMENT & SPORTS LAW REVIEW [Vol. 10:117 dictably, feminism. A first reading of Anne Sexton's eponymous biography does not inspire any palpable sense of outrage. Middlebrook has not written a sensationalized "tabloid" account, but an account grounded in the sober tone and jargon of literary criticism inter- spersed with the similarly sedate sensibilities of psychiatric evalua- tion. The most lurid events and characterizations of Sexton's life are treated with decorum and arid detachment.' Unfortunately, this is not a case susceptible of easy resolution by visceral reaction. The emotions evoked in the reader should not be determinative of whether Dr. Orne breached a tort or contract duty. Nor should this issue be governed by establishing or at- tempting to establish whether Sexton was aggrieved by Orne's de- cision. Even if Sexton's views can be ascertained from beyond the grave, and even if those views do not condemn the release of the tapes, it must still be considered whether there are rights belong- ing to other potential victims of that action, and whether their rights have been violated. This Article will address several issues raised by Dr. Orne's actions. First, it will examine the background of the controversy, that is, Sexton's treatment by Dr. Orne and the disclosure to Pro- fessor Middlebrook. Second, it will review the different theories of recovery upon which liability might be based. Third, it will address the potential defenses to such liability, most notably consent or waiver and the First Amendment. I. HISTORICAL BACKGROUND OF SEXTON'S PSYCHIATRIC TREATMENT Anne Sexton began psychiatric treatment with Dr. Martha Brunner-Orne, the mother of the psychiatrist who would later be- come Anne's long-term psychiatrist and make the decision, after her death, that gave rise to the present controversy. Anne con- sulted Dr. Martha Brunner-Orne shortly after Anne's second daughter was born in August of 1955, for what the doctor diag- nosed as postpartum depression. Sexton had been experiencing what she called "'terrible spells of depression;' " she was "agitated, disoriented, and subject to fits of feeling 'unreal.'-" The therapy relationship lasted one year, during which time Sexton was hospi- talized temporarily, where she was diagnosed as suffering "'rather 3. Lance Morrow, Pains of the Poet-And Miracles, TxmE, Sept. 23, 1991, at 76. 4. MIDDLEBROOK, supra note 1 at 31. http://repository.law.miami.edu/umeslr/vol10/iss1/7 2 Carton: The Poet, the Biographer and the Shrink: Psychiatrist-Patient Con 19931 PSYCHIATRIST-PATIENT CONFIDENTIALITY prevalent psychoneurotic features, not entirely the picture of true depression.' ",5 Dr. Martin Orne began treating Anne in August of 1956, while his mother was on vacation. It was the start of a rela- tionship that would last for the next eight years.6 Sexton had met and formed a favorable impression of Dr. Orne during her hospital- ization, and liked him so well that he remained her psychiatrist even after his mother returned.7 Dr. Orne later noted that he often lost his temper with Sexton. "She was a very difficult patient; she pushed the world of reality away." 8 In 1960, Dr. Orne grew frus- trated with Anne's tendency to treat the sessions as "self-con- tained vignettes with a beginning, middle and end."' That is, Anne retained no memory of any progress made in any one session, los- ing any sense of continuity from one session to the next. Indeed, Sexton would often close the sessions by falling into a deep trance, "further distancling] the content of the preceding hour from [her] memory."1 o It is difficult to describe the profound inability to respond that marked these states of dissociation . .. Eventually it became clear that she would dissociate when she had not been able to come to the end point of a session . .. Often she was annoyed, or she was feeling too much to stop just then, but she could not really verbalize much of what was troubling her. This symptom interfered with treatment. To some extent, she was aware of what she was doing. At times I couldn't help becoming angry about her lack of response . In an attempt to remedy his frustrations over Sexton's loss of memory, Dr. Orne instructed Sexton to capture the sessions by making notes immediately following each meeting. Later, in 1961, Dr. Orne began to tape record the sessions. He then assigned Sex- ton the task of compiling a written record of each session, request- ing her to return a day later to the office to listen and take notes on the previous session.1" As Dr. Orne put it, he "taped [their] ses- sions ... to help her understand what she was doing [in the ther- apy process]. 13 5. Id. at 34. 6. Id. 7. Id. 8. Id. at 41. 9. Id. at 37. 10. Id. 11. Id. at 44 (quoting Dr. Orne). 12. Id. 13. Id. at 43. Published by Institutional Repository, 1993 3 University of Miami Entertainment & Sports Law Review, Vol. 10, Iss. 1 [1993], Art. 7 120 ENTERTAINMENT & SPORTS LAW REVIEW [Vol. 10:117 Although Sexton was disturbed by the pain of remembering and thus facing her problems and by the fact that her "assign- ments" took time away from her writing, taping the sessions proved a success. 14 Sexton's condition was symptomized, if not caused by, her inablility to care for her children. Middlebrook the- orizes that Sexton's illness lay "in ambiguous diagnostic territory that is only somewhat clearer today than it was in 1956.''15 [A]necdotal evidence of breakdowns on both sides of her family suggests a genetic predisposition to a biologically based illness, a supposition reinforced by Sexton's extreme physiological symp- toms: wildly alternating moods, anorexia, insomnia, waves of su- icidal and other impulses, rages, rapid heartbeat. It is possible that biochemical imbalances throughout her life intensified the underlying psychological vulnerabilities that were the primary focus of her psychotherapy. 6 Particularly problematic for Sexton was her relationship with her daughters, stemming from unresolved feelings about her rela- tionships with the two women who were her maternal figures: her biological mother, Mary Gray, and the great-aunt, "Nana," upon whom Sexton was largely dependent. 17 Also to be factored into di- agnosing Sexton's illness, according to Middlebrook, was the soci- ology of Sexton's time. "The glorification of 'feminine' roles did not offer insight into the rage and guilt aroused by the behavior of small children - women were supposed to be naturally good at mothering.' 1 8 This perspective fed into Sexton's belief that, since she was not "naturally good at mothering," she was good at noth- ing, save perhaps sex, as she portrayed herself to Dr.
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