The cost of conflation: Avoiding loose talk about the duty to warn

 

The campaign, election, and administration of President Donald Trump have reinvigorated debate over rule 7.3 of the American Psychiatric Association (APA) code of ethics. Known as the Goldwater Rule for its historical roots in a magazine profile and subsequent libel suit by the 1964 Republican presidential nominee,¹ this standard deems it unethical for a psychiatrist to offer a professional opinion of a public figure without conducting an examination and obtaining authorization.² The American Psychological Association similarly provides that assessments must be based on adequate examination of the individual.³

Growing controversy

Shortly after President Trump’s inauguration, a group of 35 mental health professionals penned a letter in the New York Times stating that he was “incapable of serving safely as president.” Importantly, the writers couched their conclusions in professional expertise and specifically criticized the Goldwater Rule as having subjected their colleagues to self-imposed silence.⁴ A prominent psychiatrist, Allen J. Frances, MD, responded the following day to caution against “psychiatric name-calling” as a substitute for political action.⁵

Since then, psychiatrists classifying the APA ethics position as a “gag rule” preventing them from performing a public service have garnered considerable press coverage. When the American Psychoanalytic Association (APsaA) reiterated this summer that only APA members are bound by the Goldwater Rule, Boston Globe Media’s STAT news outlet misreported it as a license for psychiatrists to disregard the standard. Amid the ensuing media storm, the APsaA was forced to clarify that it was not countenancing defiance of psychiatry’s flagship organization and that its own longstanding policy remained unchanged.

Among those chafing against the Goldwater Rule in the current political environment, a call to arms has been the profession’s supposed “duty to warn” the public of the president’s mental health. This rationale was made explicit in an eponymous online movement and town hall forum hosted by Bandy X. Lee, MD, MDiv, a member of Yale University’s psychiatry faculty. According to these critics, an inherent tension exists between the Goldwater Rule’s prohibition on volunteering professional opinions from afar and the imperative to warn about the dangers posed by a leader with mental illness.
 

The duty to warn

Clinicians’ obligation to warn third parties when patients make credible threats or pose a high risk of harm emanates from various state laws, court decisions, and professional ethics rules. In the seminal Tarasoff case, a patient divulged in the course of psychotherapy his plan to murder a fellow student who had rejected his romantic overtures; campus police were alerted, but the intended victim was not. After the plan came to fruition, the California Supreme Court held that therapists must exercise reasonable care to protect “foreseeable victims” where they know or should know that a patient poses a serious danger.⁶

Although a controversial and massive expansion of tort liability 40 years ago, the basic tenets of Tarasoff have since been adopted by numerous courts, state legislatures, and professional organizations. The American Medical Association (AMA) recognizes an exception to confidentiality to mitigate serious threats of harm to the patient or other identifiable individuals.⁷ To enable health care professionals to operate in a way that is consistent with these standards, the HIPAA Privacy Rule expressly permits doctors to disclose protected health information, including psychotherapy notes, if the disclosure “is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public.”⁸

In terms of both professional ethics and privacy law, the duty to warn is framed as a limited and enumerated exception to the general rule that patient communications must be kept in confidence. In the absence of a clinician’s being privy to personal details about a patient via interview and examination, the duty to warn loses all coherence. It is precisely the intimacy of the doctor-patient relationship that gives rise to the fiduciary duty of confidentiality, which in turn must yield to public safety in rare situations where a credible threat is issued against an identifiable victim.
 

Origins of a misconception

Unlike the duty to warn, the Goldwater Rule is neither premised on nor a departure from the dictates of confidentiality. The rule is codified under the section of the APA ethics standards dealing with community and public health activities, not patient privacy. In nearly all cases where the Goldwater Rule could be invoked, the fundamental issue is that no examination has occurred. If it had, informed consent would be required for treatment, and appropriate authorization would be required for disclosure. Moreover, talking with the media – as opposed to alerting law enforcement, family members, or the subject of a threat – would almost never qualify as an appropriate outlet for discharging a physician’s duty to warn.

 

Whatever its merits, the Goldwater Rule is intended to distinguish between educational activities – in which psychiatrists share their expertise with the public and shed light on mental illness – and professional opinion wherein psychiatrists offer diagnoses or prognoses unsolicited by the individual.⁹

Today’s critics often point to psychological profiling commissioned by government agencies as a reason for the Goldwater Rule’s obsolescence. During the first Gulf War, Jerrold M. Post, MD, a pioneer in this field, compiled a detailed profile and offered Senate testimony on Iraqi dictator Saddam Hussein’s “malignant narcissism.” Dr. Post cited a Tarasoff-inspired justification for his actions, maintaining that his psychiatric expertise could save lives.¹⁰

The APA has since clarified that the Goldwater Rule does not prohibit “psychologically informed leadership studies” so long as they maintain scholarly standards and do not specify a clinical diagnosis. When appropriately conducted as academic research, including acknowledgment of inherent limitations, psychological profiles do not implicate the Goldwater Rule by drawing clinical conclusions outside clinical practice.

The duty to warn is inapposite where there is no confidentiality to be breached. It also defies logic where the physician, far from being the only one who can alert another to danger based on clinically derived insight, is working solely from public sources and may actually know less, not more, than others.

Ultimately, the debate over the Goldwater Rule pits concerns over professional standards and respect for persons against the ability of psychiatrists to apply the expertise and language of their profession according to their own best judgment, without running afoul of an ethical norm. The premise that the Tarasoff principle overrides the Goldwater Rule is a red herring that does a disservice to both. There may be valid reasons to reevaluate the Goldwater Rule, but the duty to warn is not one of them.
 

Lt. Col. Charles G. Kels practices health and disability law in the U.S. Air Force. Dr. Lori H. Kels teaches and practices psychiatry at the University of the Incarnate Word School of Osteopathic Medicine in San Antonio. Opinions expressed in this article are those of the authors alone and do not necessarily reflect those of the Air Force or Department of Defense.

References

1. Goldwater v. Ginzburg, 414 F2d 324 (2d Cir 1969), cert denied, 396 US 1049 (1970).

2. APA Principles of Medical Ethics, 2013 ed. [7.3].

3. American Psychological Association Ethical Principles of Psychologists and Code of Ethics, 2016 ed. [9.01b].

4. The New York Times. Feb. 14, 2017.

5. The New York Times. Feb. 15, 2017.

6. Tarasoff v. Regents of University of California, 551 P2d 334 (Cal. 1976).

7. AMA Code of Medical Ethics, 2017 ed. [3.2.1(e) Confidentiality].

8. 45 Code of Federal Regulations 164.512(j)

9. JAMA. 2008;300(11):1348-50.

10. Psychiatr Clin North Am. 2002;25(3):A635-A46.

11. APA Opinions of the Ethics Committee, 2017 ed. [Q.7.a].

 

The campaign, election, and administration of President Donald Trump have reinvigorated debate over rule 7.3 of the American Psychiatric Association (APA) code of ethics. Known as the Goldwater Rule for its historical roots in a magazine profile and subsequent libel suit by the 1964 Republican presidential nominee,¹ this standard deems it unethical for a psychiatrist to offer a professional opinion of a public figure without conducting an examination and obtaining authorization.² The American Psychological Association similarly provides that assessments must be based on adequate examination of the individual.³

Growing controversy

Shortly after President Trump’s inauguration, a group of 35 mental health professionals penned a letter in the New York Times stating that he was “incapable of serving safely as president.” Importantly, the writers couched their conclusions in professional expertise and specifically criticized the Goldwater Rule as having subjected their colleagues to self-imposed silence.⁴ A prominent psychiatrist, Allen J. Frances, MD, responded the following day to caution against “psychiatric name-calling” as a substitute for political action.⁵

Since then, psychiatrists classifying the APA ethics position as a “gag rule” preventing them from performing a public service have garnered considerable press coverage. When the American Psychoanalytic Association (APsaA) reiterated this summer that only APA members are bound by the Goldwater Rule, Boston Globe Media’s STAT news outlet misreported it as a license for psychiatrists to disregard the standard. Amid the ensuing media storm, the APsaA was forced to clarify that it was not countenancing defiance of psychiatry’s flagship organization and that its own longstanding policy remained unchanged.

Among those chafing against the Goldwater Rule in the current political environment, a call to arms has been the profession’s supposed “duty to warn” the public of the president’s mental health. This rationale was made explicit in an eponymous online movement and town hall forum hosted by Bandy X. Lee, MD, MDiv, a member of Yale University’s psychiatry faculty. According to these critics, an inherent tension exists between the Goldwater Rule’s prohibition on volunteering professional opinions from afar and the imperative to warn about the dangers posed by a leader with mental illness.
 

The duty to warn

Clinicians’ obligation to warn third parties when patients make credible threats or pose a high risk of harm emanates from various state laws, court decisions, and professional ethics rules. In the seminal Tarasoff case, a patient divulged in the course of psychotherapy his plan to murder a fellow student who had rejected his romantic overtures; campus police were alerted, but the intended victim was not. After the plan came to fruition, the California Supreme Court held that therapists must exercise reasonable care to protect “foreseeable victims” where they know or should know that a patient poses a serious danger.⁶

Although a controversial and massive expansion of tort liability 40 years ago, the basic tenets of Tarasoff have since been adopted by numerous courts, state legislatures, and professional organizations. The American Medical Association (AMA) recognizes an exception to confidentiality to mitigate serious threats of harm to the patient or other identifiable individuals.⁷ To enable health care professionals to operate in a way that is consistent with these standards, the HIPAA Privacy Rule expressly permits doctors to disclose protected health information, including psychotherapy notes, if the disclosure “is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public.”⁸

In terms of both professional ethics and privacy law, the duty to warn is framed as a limited and enumerated exception to the general rule that patient communications must be kept in confidence. In the absence of a clinician’s being privy to personal details about a patient via interview and examination, the duty to warn loses all coherence. It is precisely the intimacy of the doctor-patient relationship that gives rise to the fiduciary duty of confidentiality, which in turn must yield to public safety in rare situations where a credible threat is issued against an identifiable victim.
 

Origins of a misconception

Unlike the duty to warn, the Goldwater Rule is neither premised on nor a departure from the dictates of confidentiality. The rule is codified under the section of the APA ethics standards dealing with community and public health activities, not patient privacy. In nearly all cases where the Goldwater Rule could be invoked, the fundamental issue is that no examination has occurred. If it had, informed consent would be required for treatment, and appropriate authorization would be required for disclosure. Moreover, talking with the media – as opposed to alerting law enforcement, family members, or the subject of a threat – would almost never qualify as an appropriate outlet for discharging a physician’s duty to warn.

 

Whatever its merits, the Goldwater Rule is intended to distinguish between educational activities – in which psychiatrists share their expertise with the public and shed light on mental illness – and professional opinion wherein psychiatrists offer diagnoses or prognoses unsolicited by the individual.⁹

Today’s critics often point to psychological profiling commissioned by government agencies as a reason for the Goldwater Rule’s obsolescence. During the first Gulf War, Jerrold M. Post, MD, a pioneer in this field, compiled a detailed profile and offered Senate testimony on Iraqi dictator Saddam Hussein’s “malignant narcissism.” Dr. Post cited a Tarasoff-inspired justification for his actions, maintaining that his psychiatric expertise could save lives.¹⁰

The APA has since clarified that the Goldwater Rule does not prohibit “psychologically informed leadership studies” so long as they maintain scholarly standards and do not specify a clinical diagnosis. When appropriately conducted as academic research, including acknowledgment of inherent limitations, psychological profiles do not implicate the Goldwater Rule by drawing clinical conclusions outside clinical practice.

The duty to warn is inapposite where there is no confidentiality to be breached. It also defies logic where the physician, far from being the only one who can alert another to danger based on clinically derived insight, is working solely from public sources and may actually know less, not more, than others.

Ultimately, the debate over the Goldwater Rule pits concerns over professional standards and respect for persons against the ability of psychiatrists to apply the expertise and language of their profession according to their own best judgment, without running afoul of an ethical norm. The premise that the Tarasoff principle overrides the Goldwater Rule is a red herring that does a disservice to both. There may be valid reasons to reevaluate the Goldwater Rule, but the duty to warn is not one of them.
 

Lt. Col. Charles G. Kels practices health and disability law in the U.S. Air Force. Dr. Lori H. Kels teaches and practices psychiatry at the University of the Incarnate Word School of Osteopathic Medicine in San Antonio. Opinions expressed in this article are those of the authors alone and do not necessarily reflect those of the Air Force or Department of Defense.

References

1. Goldwater v. Ginzburg, 414 F2d 324 (2d Cir 1969), cert denied, 396 US 1049 (1970).

2. APA Principles of Medical Ethics, 2013 ed. [7.3].

3. American Psychological Association Ethical Principles of Psychologists and Code of Ethics, 2016 ed. [9.01b].

4. The New York Times. Feb. 14, 2017.

5. The New York Times. Feb. 15, 2017.

6. Tarasoff v. Regents of University of California, 551 P2d 334 (Cal. 1976).

7. AMA Code of Medical Ethics, 2017 ed. [3.2.1(e) Confidentiality].

8. 45 Code of Federal Regulations 164.512(j)

9. JAMA. 2008;300(11):1348-50.

10. Psychiatr Clin North Am. 2002;25(3):A635-A46.

11. APA Opinions of the Ethics Committee, 2017 ed. [Q.7.a].

 

The campaign, election, and administration of President Donald Trump have reinvigorated debate over rule 7.3 of the American Psychiatric Association (APA) code of ethics. Known as the Goldwater Rule for its historical roots in a magazine profile and subsequent libel suit by the 1964 Republican presidential nominee,¹ this standard deems it unethical for a psychiatrist to offer a professional opinion of a public figure without conducting an examination and obtaining authorization.² The American Psychological Association similarly provides that assessments must be based on adequate examination of the individual.³

Growing controversy

Shortly after President Trump’s inauguration, a group of 35 mental health professionals penned a letter in the New York Times stating that he was “incapable of serving safely as president.” Importantly, the writers couched their conclusions in professional expertise and specifically criticized the Goldwater Rule as having subjected their colleagues to self-imposed silence.⁴ A prominent psychiatrist, Allen J. Frances, MD, responded the following day to caution against “psychiatric name-calling” as a substitute for political action.⁵

Since then, psychiatrists classifying the APA ethics position as a “gag rule” preventing them from performing a public service have garnered considerable press coverage. When the American Psychoanalytic Association (APsaA) reiterated this summer that only APA members are bound by the Goldwater Rule, Boston Globe Media’s STAT news outlet misreported it as a license for psychiatrists to disregard the standard. Amid the ensuing media storm, the APsaA was forced to clarify that it was not countenancing defiance of psychiatry’s flagship organization and that its own longstanding policy remained unchanged.

Among those chafing against the Goldwater Rule in the current political environment, a call to arms has been the profession’s supposed “duty to warn” the public of the president’s mental health. This rationale was made explicit in an eponymous online movement and town hall forum hosted by Bandy X. Lee, MD, MDiv, a member of Yale University’s psychiatry faculty. According to these critics, an inherent tension exists between the Goldwater Rule’s prohibition on volunteering professional opinions from afar and the imperative to warn about the dangers posed by a leader with mental illness.
 

The duty to warn

Clinicians’ obligation to warn third parties when patients make credible threats or pose a high risk of harm emanates from various state laws, court decisions, and professional ethics rules. In the seminal Tarasoff case, a patient divulged in the course of psychotherapy his plan to murder a fellow student who had rejected his romantic overtures; campus police were alerted, but the intended victim was not. After the plan came to fruition, the California Supreme Court held that therapists must exercise reasonable care to protect “foreseeable victims” where they know or should know that a patient poses a serious danger.⁶

Although a controversial and massive expansion of tort liability 40 years ago, the basic tenets of Tarasoff have since been adopted by numerous courts, state legislatures, and professional organizations. The American Medical Association (AMA) recognizes an exception to confidentiality to mitigate serious threats of harm to the patient or other identifiable individuals.⁷ To enable health care professionals to operate in a way that is consistent with these standards, the HIPAA Privacy Rule expressly permits doctors to disclose protected health information, including psychotherapy notes, if the disclosure “is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public.”⁸

In terms of both professional ethics and privacy law, the duty to warn is framed as a limited and enumerated exception to the general rule that patient communications must be kept in confidence. In the absence of a clinician’s being privy to personal details about a patient via interview and examination, the duty to warn loses all coherence. It is precisely the intimacy of the doctor-patient relationship that gives rise to the fiduciary duty of confidentiality, which in turn must yield to public safety in rare situations where a credible threat is issued against an identifiable victim.
 

Origins of a misconception

Unlike the duty to warn, the Goldwater Rule is neither premised on nor a departure from the dictates of confidentiality. The rule is codified under the section of the APA ethics standards dealing with community and public health activities, not patient privacy. In nearly all cases where the Goldwater Rule could be invoked, the fundamental issue is that no examination has occurred. If it had, informed consent would be required for treatment, and appropriate authorization would be required for disclosure. Moreover, talking with the media – as opposed to alerting law enforcement, family members, or the subject of a threat – would almost never qualify as an appropriate outlet for discharging a physician’s duty to warn.

 

Whatever its merits, the Goldwater Rule is intended to distinguish between educational activities – in which psychiatrists share their expertise with the public and shed light on mental illness – and professional opinion wherein psychiatrists offer diagnoses or prognoses unsolicited by the individual.⁹

Today’s critics often point to psychological profiling commissioned by government agencies as a reason for the Goldwater Rule’s obsolescence. During the first Gulf War, Jerrold M. Post, MD, a pioneer in this field, compiled a detailed profile and offered Senate testimony on Iraqi dictator Saddam Hussein’s “malignant narcissism.” Dr. Post cited a Tarasoff-inspired justification for his actions, maintaining that his psychiatric expertise could save lives.¹⁰

The APA has since clarified that the Goldwater Rule does not prohibit “psychologically informed leadership studies” so long as they maintain scholarly standards and do not specify a clinical diagnosis. When appropriately conducted as academic research, including acknowledgment of inherent limitations, psychological profiles do not implicate the Goldwater Rule by drawing clinical conclusions outside clinical practice.

The duty to warn is inapposite where there is no confidentiality to be breached. It also defies logic where the physician, far from being the only one who can alert another to danger based on clinically derived insight, is working solely from public sources and may actually know less, not more, than others.

Ultimately, the debate over the Goldwater Rule pits concerns over professional standards and respect for persons against the ability of psychiatrists to apply the expertise and language of their profession according to their own best judgment, without running afoul of an ethical norm. The premise that the Tarasoff principle overrides the Goldwater Rule is a red herring that does a disservice to both. There may be valid reasons to reevaluate the Goldwater Rule, but the duty to warn is not one of them.
 

Lt. Col. Charles G. Kels practices health and disability law in the U.S. Air Force. Dr. Lori H. Kels teaches and practices psychiatry at the University of the Incarnate Word School of Osteopathic Medicine in San Antonio. Opinions expressed in this article are those of the authors alone and do not necessarily reflect those of the Air Force or Department of Defense.

References

1. Goldwater v. Ginzburg, 414 F2d 324 (2d Cir 1969), cert denied, 396 US 1049 (1970).

2. APA Principles of Medical Ethics, 2013 ed. [7.3].

3. American Psychological Association Ethical Principles of Psychologists and Code of Ethics, 2016 ed. [9.01b].

4. The New York Times. Feb. 14, 2017.

5. The New York Times. Feb. 15, 2017.

6. Tarasoff v. Regents of University of California, 551 P2d 334 (Cal. 1976).

7. AMA Code of Medical Ethics, 2017 ed. [3.2.1(e) Confidentiality].

8. 45 Code of Federal Regulations 164.512(j)

9. JAMA. 2008;300(11):1348-50.

10. Psychiatr Clin North Am. 2002;25(3):A635-A46.

11. APA Opinions of the Ethics Committee, 2017 ed. [Q.7.a].