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Center for Ethics and the Rule of Law

 


Goldwater Rule • May 08, 2021

Is the Goldwater Rule out of step with medical ethics? How four past APA presidents morally justify the Goldwater Rule

by Claire Pouncey

 

The opinions expressed in this post are those of the author and do not necessarily represent CERL’s official views.

We are approaching the 50th anniversary of the American Psychiatric Association’s (APA) Principles of Medical Ethics with Annotations for Psychiatry, first published in 1973 Section 7.3 of this professional code, popularly called the “Goldwater Rule,” prohibits individual psychiatrists from making diagnostic statements or using psychiatric descriptors in public comments about public figures. Although the inclusion of Section 7.3 was one of the motivations for psychiatry to have its own code of ethics rather than continuing to use the American Medical Association’s (AMA) unannotated version, it always differed from other sections in wording and intent.

Every section of the Principles expresses one of the core values of medical ethics as originally described in the Belmont Report and elaborated on in Beauchamp and Childress’s 1979 Principles of Biomedical Ethics. The AMA code of ethics provides guidelines for making choices about how best to serve patients, society, and peers and colleagues. All the principles, including Section 7, begin with the phrase “A physician shall…” rather than “it is unethical to…,” which is how Section 7.3 is phrased. The original APA Principles did not provide a moral justification for this obligation nor was any justification provided in the heated debate about Section 7.3 that took place over the past five years. This discussion illustrates how differently four past APA presidents defended Section 7.3, apparently without realizing they were making very different arguments, all of which differ from the core values of medical ethics and the original professional code of ethics. In the end, and despite the attention it receives, Section 7.3 appears to be better conceived as a matter of professionalism than medical ethics.

During the 2016 presidential election cycle many mental health professionals, including psychiatrists, voiced concerns about whether Donald Trump’s inflammatory public remarks and behaviors indicated psychiatric problems that threatened public safety. The president of the APA that year was Maria Oquendo, who warned psychiatrists in her president’s blog that “breaking the Goldwater Rule is irresponsible, potentially stigmatizing, and definitely unethical.” But why? How is it stigmatizing, and to whom? Is it merely irresponsible? Or also unethical, and on what grounds? In the 2016-2017 year of her service as APA president, Oquendo never explained or provided any justification for this statement, just repeated the language of Section 7.3: “It is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.” This is an argument from authority, not a justification.

Jeffrey Lieberman, APA president from 2013-14, was the most vociferous defender of Section 7.3 during and after the 2016 presidential election. Wikipedia now recognizes him as one of the foremost violators of the Goldwater Rule. For these efforts Lieberman argued that since the outwardly observable behaviors by which psychiatric disorders are, in part, diagnosed have been deliberately misconstrued, and persons with differing political opinions have been oppressed and imprisoned in the name of “psychiatric treatment,” psychiatry must wield its power responsibly. (This awareness did not stop Lieberman from tagging “@POTUS” while maligning a colleague on Twitter in early 2018.) His point was that accurate diagnosis requires more than publicly observable behaviors. The problem is that psychiatry requires clinicians to diagnose persons who are uncooperative, incapacitated, or otherwise incapable of participating in their own assessment, especially in emergency and forensic settings. A personal interview with a patient is a diagnostic ideal but not a hard and fast rule. Lieberman does not defend his assumption that individual psychiatrists speaking to the press are committing the same moral wrong done by psychiatrists colluding with totalitarian governments, which seems to be quite a leap. Neither does he argue why the person-to-person interview is essential before speaking to the press but is nonessential in many clinical situations.

Paul Appelbaum, who served as APA president in 2002-03, takes a third approach. Appelbaum has been articulately making consequentialist defenses of Section 7.3 for decades. In one recent article he states that making public statements in diagnostic language about public figures discourages people who need it from seeking psychiatric care. For Appelbaum, an individual psychiatrist who opts not to observe Section 7.3 necessarily creates a state of affairs that is worse than the current state of affairs, and according to him does “real harm.” The harm is not real, however; it is merely predicted. The actual moral rightness or wrongness of an individual psychiatrist speaking publicly about a public figure will depend on some indeterminate measure of damage actually done to an unidentified set of future persons whose choices are causally determined by that psychiatrist’s act. By this logic, it is equally reasonable to posit that in some subsequent state of affairs that psychiatrist’s action creates more good rather than less, which would make the choice to speak out the morally right thing to do. Consequentialism also entails that a psychiatrist who has expertise and insight into a public figure’s words and behaviors may create a worse state of affairs by remaining silent, meaning that it may be morally blameworthy to uphold Section 7.3 as well as to violate it. It all depends on future outcomes, how we choose to measure “the good” in them, and at what point in time we take those measures. Possible harms are not “real” harms, and consequentialism does not provide guidance for a psychiatrist deciding how to act in the present.

Another way to put this is to say that Section 7.3 is not defensible in terms of act utilitarianism, where the rightness or wrongness of a specific action is judged by its consequences. But Section 7.3 might be defensible in terms of rule utilitarianism, in which the existence of the rule or dictum is what eventually leads to greater good, and thus is morally right. Appelbaum drops hints along these lines: If psychiatrists are known to speak diagnostically about public figures they have never met, then to the public, psychiatry looks like an “unscientific discipline whose practitioners are prone to drawing conclusions on the basis of fragmentary information or their personal opinions.” The argument might continue like this: if psychiatry appears to be unscientific and capricious, people who would benefit from treatment will not seek it from psychiatrists. Willingness to seek and participate in psychiatric treatment is good. Including Section 7.3 in the APA Principles promotes willingness to participate in treatment. Hence, having Section 7.3 in the APA Principles of Medical Ethics is good.”

I have no interest in defending the soundness of this argument, which is certainly disputable. But something like it would have to be in play for any consequentialist defense of Section 7.3 to make any sense. However, using any consequentialism, even rule consequentialism, to justify Section 7.3 departs from the approach taken in medical ethics in general.

Paul Summergrad served as APA president from 2014-15 and spoke as a discussant for the panel “The Goldwater Rule: Pro and Con” held at the APA’s annual meeting in 2017. In his remarks, while vigorously defending Section 7.3, Summergrad proposed that it is a matter of professionalism that psychiatrists refrain from using diagnostic language to characterize public figures they have not examined. I agree that psychiatrists need to be conscientious about how we represent the profession, though not how we represent the APA. I am not sure that Summergrad appreciates, however, that considering Section 7.3 as a matter of professionalism takes the matter beyond mere ethical proclamations.

Professionalism and professional ethics both provide constraints on what is permissible, but whereas ethics considers evaluations of right and wrong actions, professionalism considers undesirable behaviors. There is much to say about where professionalism and ethics overlap and where they differ. The point I want to emphasize here is that medicine considers professionalism to be a constantly evolving competency, a standard of conduct we strive to uphold as a system, even as we modify those standards. In ethics, when individuals fail to choose well, we evaluate those choices as moral failures of persons. In professionalism, when individuals fail to choose well, we evaluate those choices as failures of systems.

Treating Section 7.3 as a value reflected in psychiatric professionalism would mean formally training junior psychiatrists how to engage in teaching the public about psychiatric matters and how to communicate with the press responsibly. Our profession would also be able provide more informal teaching, including continuing medical education, for how to express both psychiatric and political opinions in ways that effectively deliver a psychiatrist’s intended message. There will always be psychiatrists whose circumstances direct them to speak about public figures, sometimes using diagnostic language, but most will not, as the last 50 years have shown.

Ironically, despite Section 7.3’s strong wording and the APA’s bluster about the importance of upholding it, violations are punished only with educational efforts. The national APA and its past presidents express great moral disapprobation for psychiatrists who might be tempted to violate Section 7.3. Actual wrongdoers, however, so adjudged by local APA district branches, are treated respectfully, as peers, as fellow moral agents who may have misunderstood, miscommunicated, or simply been unable to respect a particular professional value given their own personal commitments at the time they acted. This is much more consistent with professionalism than the wording and placement of Section 7.3 would suggest.

Using the language of professionalism would allow psychiatry to follow philosopher Bernard Williams in recognizing that consequentialism fundamentally disregards the personal commitments of individuals and undermines personal moral agency. I argued a version of this as a member of the 2017 APA panel for which Summergrad served as discussant and expressed the wish that my professional organization would trust me as a moral agent capable of making my own choices according to my own commitments, which include respect for my profession, my colleagues, and our patients. After I spoke, Paul Appelbaum, a fellow panel member, told the room, “’Trust me’ only works as an argument if you know everyone in a society, otherwise it’s an argument for chaos.”

This is not so. Trusting one another as professional colleagues and fellow moral agents is a fact of our social, moral world. It is not something we choose and refusing to acknowledge that members of our guild will disagree about what constitutes the best course of action for a given moment deprives us of the opportunity to keep a more open dialogue about how and when to speak publicly about public figures.

It is sufficient for the APA to disclaim the use of diagnostic terminology to describe public figures as something other than formal diagnosis and say that the organization does not condone doing so. The rule consequentialist argument for Section 7.3 is the best moral justification offered so far but accepting Section 7.3 in the Principles of Medical Ethics is inconsistent with the attitude and the wording of all the other principles and would be better considered part of professionalism, a behavioral competency, rather than part of psychiatry’s code of ethics. The good news is that the actual punishment for this apparently egregious ethics violation already is in keeping with the gentler standards of professionalism. All that follows is to articulate the values that underlie Section 7.3 more clearly and take the overstated imperative itself out of the APA’s code of ethics.

Claire Pouncey is a psychiatrist and a philosopher of science. She is a past president of the Association for the Advancement of Philosophy and Psychiatry. She has been writing and speaking on the Goldwater Rule since 2007, among her other philosophical projects. She competed the combined MD-PhD program at the University of Pennsylvania.

 

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