Does the Insurrection End the Debate on the Goldwater Rule?

 

I think it does and both sides lose.

As a refresher take a look at my earlier comments on the Goldwater Rule at this link.  More briefly, the Goldwater Rule was implemented by the American Psychiatric Association (APA) as ethical guidance to its members following an incident where a 1964 magazine survey of psychiatrists concluded that the Republican candidate Barry Goldwater was “psychologically unfit” to be President of the United States.  As you can see from the ad in this previous post, there was a strong implication by the Lyndon Johnson campaign that a Goldwater presidency would put the country on a path to nuclear war.  Goldwater subsequently sued the magazine and was awarded damages – three years after he lost the election.

In the meantime, the APA included the following section in the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry.

Section 7.3

On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, 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.

Since I wrote the original post, I have queried many colleagues who are also APA members and as far as I know no member has ever been sanctioned by the APA or any of its district branches for violating the Goldwater Rule.  There has been a lot of intense debate about it and that debate has never been as intense as during the recent Trump administration.  Beyond the debate there are unequivocal examples of psychiatrists ignoring the Goldwater Rule and, in some cases, criticizing the APA about it. The rhetoric extends to the point that the APA invented the rule because it was embarrassed about the original Goldwater incident and it was suppressing the free speech rights of its members who felt an ethical duty to use their skills to either warn or protect the United States from President Trump.  While some have found that rhetoric to be admirable, I do not. First, APA membership is completely voluntary and the obvious way to escape its long reach into First Amendment rights is to not be a member.  The predictable response to that suggestion is that all of the benefits of membership will be not be available and that might put non-members at a disadvantage.  Having been an APA member for over 30 years, I can attest to the fact that there are minimal advantages to being a member primarily as discounts to publications by the organization.  Even then, the American Medical Association (AMA) membership fee is much lower and includes free access to many more publications.

A second consideration is the context of what is happening.  In my previous post, I pointed out that psychiatrists are trained to assess problems in a particular context.  During years of training that comes down to a face-to-face discussion with the patient about problems that were either identified by the patient or someone else.  Collateral information is considered and that can be exhaustive. A diagnosis and problem formulation follows. Until the profiling of political leaders, criminals, and historical figures came into the scene in the past few decades there was no suggestion that psychiatrists could assess people at distance with any degree of accuracy. In fact, criminal profiling is generally done these days by trained law enforcement personnel suggesting that no psychiatric qualifications are necessary at all.  It all seems predicated on a folk psychology model that personality features and patterns of behavior are constant over time and dependent on past behavior. Some of the commentators on this issue have identified themselves as forensic psychiatrists. Forensic psychiatrists are paid to do even more exhaustive interviews and review of collateral information than clinical psychiatrists. They may take 15-20 hours to do an assessment compared with a clinical psychiatrist who probably has 60-90 minutes at the most. The idea that forensic psychiatrists endorse assessments at a distance seems even more incongruous to me.

Focusing only on the conclusory article (1) post insurrection it is clear why psychiatric opinion adds nothing to the political mix.  In the first paragraph, the authors conclude that Trump is “clearly mentally unbalanced and unable to grapple with a reality that threatens his inflated and fragile ego.”  They suggest that only reason that people would not believe their statement is that they ascribe his behavior to “puckish idiosyncrasy or creative disruption”.  That gives their statement way too much explanatory power. How about the obvious political considerations and Trump’s previous behavior as a businessman?  He is clearly a guy who is used to steamrolling over people and often uses the legal system to do it.  He demonstrated that in the primary and the debates.  He demonstrates it on a weekly basis toward anyone who he thinks is being disloyal – irrespective of their track record. He threw his Vice President under the bus for adhering to the Constitution that he was sworn to uphold. Who would describe that behavior as puckish?  Any objective observer would see that President Trump is a negative force and somebody that you do not want to deal with and hopefully would never be employed by. In political terms, he is an autocrat that deals in propaganda and he knows the power of propaganda. By definition, that is dangerous to any democratic republic but once again – it has nothing to do with psychiatry or the special training of psychiatrists.

The preamble in that conclusion: “clearly mentally unbalanced” is also rhetorical.  He has tens of millions of followers who all believe the propaganda. The authors themselves acknowledge that if Trump was a private citizen they would not be concerned and that their concern is only based on the fact that he was the President. This would be the first case of mental illness based on the condition of Presidency. The additional evidence in this article that Trump was “delusional”, “impulsive”, vengeance seeking, or “deranged” is non-existent and it can easily be argued that deficiency occurs as a direct result of not having personally examined him to ask him for direct explanations.   All of the examples cited are consistent with the behavior of a highly self-interested politician or businessman who will do anything to win. In the event that the authors have not noticed there are tens of thousands of these people walking around in American society. Possibly hundreds of thousands and none of them are being treated by psychiatrists.

The authors previous argument that they have an ethical responsibility to warn the public about Trump’s dangerousness based on a presumptive personality disorder falls apart under that scrutiny.  If there is no clear evidence of a diagnosis there seems to be no basis for the authors to base their actions on. Further Trump’s recent statement on the day of the insurrection and even since are no more radical than many of his colleagues or followers. Why are psychiatrists needed when there is nothing to base a professional opinion upon?

Early in the course of the Trump presidency, the issues arising with the Goldwater Rule were analyzed by Kroll and Pouncey (2).  After considering all of the variations their conclusion was that the Goldwater Rule was based on the need of the APA to prevent embarrassment to the profession by making statements similar to the statements made by psychiatrists during the original Goldwater controversy. That assumes that the APA as a guild is successful in preserving and promoting the interests of psychiatrists in the USA.  The track record there is very sketchy.  The APA and medicine in general has been completely unsuccessful in preserving a practice environment conducive to quality care.  At many levels it has facilitated that transition most notably by a near complete lack of opposition to managed care tactics and legislation and more recently collaborative care initiatives.  The APA has not been successful in advocating for patients with the most severe forms of mental illness. There has also not been any success in advocating for reasonable infrastructure to help the severely mentally ill avoid homelessness and incarceration. That string of failures is potentially more embarrassing than whether or not a few psychiatrists look foolish on the evening news.  I think there is an ethical basis for the Goldwater Rule that extends far beyond embarrassing the many by the few.

One of the key dimensions that I have not seen anyone comment one is that most psychiatrists are liberal Democrats. Psychiatry is the only medical specialty where that is true.  That is a clear bias when assessing a President from the opposite political party.

The insurrection itself clearly illustrates that psychiatric intervention in a Constitutional crisis is not possible or advisable.  I am basing that on the fact that for 25 years I participated in thousands of civil commitments, guardianships, and conservatorships.  I know all the legal requirements for these proceedings in both Minnesota and Wisconsin.  There is no court in any county in either state that would accept a legal proceeding against the President based on his current public behavior.  A typical argument against my position would say it is a utilitarian argument and therefore limited on those philosophical grounds. I don’t think it is at all.  If you are arguing that psychiatrists need to be involved, the question needs to be asked: “What for?”  The psychiatrists who have been the most vocal that President Trump is dangerous or irrational and, in some cases, claim that they are being stifled by the APA and the Goldwater Rule need to have an endpoint.  Every day psychiatric practice dictates that if you are seeing a dangerous individual you have to enact a plan to protect the patient and others. I don’t think that level of evidence exists – it certainly does not rise to the level of court intervention. The next step would be approaching members of Congress and asking for Impeachment or invoking the 25^th Amendment. They don’t need psychiatrists for that.  So what mysterious psychiatric intervention do the Goldwater Rule deniers want to see happen?  Should psychiatrists sitting in arm chairs call someone in the White House and tell them to remove the President based on his most recent outrageous statements?  That clearly would not work.  The concern that he has access to the nuclear briefcase also does not work. The evidence at this point is very clear, his cabinet had the opportunity to enact the 25^th Amendment and they declined.  Vice President Pence declined even after he was publicly berated by the President. Limits were set by the Department of Justice, the Joint Chiefs of Staff, social media companies, the National Guard and law enforcement on the ground.  President Trump had an unorthodox exit from the White House but he did leave.  Several days later the public was informed that he left a letter for President Biden.

The Republic survived without psychiatric intervention and none was indicated. The Goldwater Rule did not prevent some psychiatrists from making rhetorical statements from both the right and the left.  Nobody was sanctioned because from a practical standpoint it is ethical guidance – and I think it is good ethical guidance.

Is there a role for psychiatrists in these situations apart from making a speculative guess about the mental status of the Commander-in-Chief?  I think there is and that is in an advisory capacity about some of the group dynamics and containment of violence that occurred. It is absolutely critical to notice when propaganda is being used to incite violence or in this case an insurrection. Propaganda is not a “shared delusion” it is emotionally charged speech that can lead to fixed irrational positions.  It has to be recognized and countered in order to prevent the mass level of dysfunction associated with the denial of systemic racism, pandemic denial, mask denial, climate change denial, and the denial that the Presidential election was free and fair.  All of those levels of denial associated with the Trump administration occur in the context of longstanding denial that there is a serious problem with firearms in this country.  If psychiatrists want to be politically involved – those are the hard problems that need to be addressed.

There is much to be said for psychiatrists’ experience with containing violence and aggression.  When I witnessed what happened on January 6, I had many concerns about Inauguration Day.  My primary concerns were whether there would be adequate force to stop a similar attack and minimize the risk of injury to the police or demonstrators.  As I saw the barriers erected my concern was whether they was a plan in place to keep large groups away from the fences and avoid a violent confrontation.  Was there intelligence about the possibility of foreign actors taking advantage of the situation? And most of all – did the police and National Guard have clear rules of engagement to contain escalating violence and aggression and avoid serious injuries.  It turns out that everything except the rules of engagement were handled well. 

My advice about the Goldwater Rule either way is straightforward.  Forget about debating the President’s mental status in public.  The standard for Presidential capacity is a lay standard and not specified by any statute.  Psychiatric opinion is and will be remain unnecessary.  And if an APA member decides they want to bring an ethics complaint based on a violation of the Goldwater Rule – that is a waste of time as well. Stay focused on your own medical professionalism and remember that being a psychiatrist does not necessarily make you immune to emotional reasoning, political rhetoric, or propaganda. There are probably many more friends, neighbors, and relatives that need to get back on track to carry on the more mundane work of democracy.  

 

George Dawson, MD, DFAPA

 

References:

1:  Leonard L. Glass,  Edwin B. Fisher, Bandy X. Lee.  Trump’s Danger is now Undeniable.  He is clearly mentally unbalanced and unable to grapple with a reality that threatens his inflated and fragile ego.  Boston Globe January 7, 2021.

2:  Kroll J, Pouncey C. The Ethics of APA's Goldwater Rule. J Am Acad Psychiatry Law. 2016 Jun;44(2):226-35. PMID: 27236179.

Graphics Credit:

1:  Donald J Trump official portrait By Shealah Craighead - White House, Public Domain, https://commons.wikimedia.org/w/index.php?curid=63769676  Downloaded from Wikimedia Commons on 1/29/2021

2:  Barry Goldwater 1960 portrait By United States Senate - https://www.senate.gov/artandhistory/history/common/generic/Featured_Bio_GoldwaterBarry.htm  Public Domain, https://commons.wikimedia.org/w/index.php?curid=79152516

Downloaded from Wikimedia Commons on 1/29/2021

 

Disclosure 1:

Jerome Kroll, MD was one of my professors when I was a resident at the University of Minnesota.  He is a brilliant psychiatrist and wrote one of the best books ever The Challenge of the Borderline Patient.  He was also one of many professors who taught me that you can argue with colleagues and nobody has to take it personally - a good lesson in politics as well. 

Disclosure 2:

In my previous post I pointed out that for the past several decades I have been a small "i" independent.  That has changed with recent events.  I would find it very difficult to vote for a Republican based on their collective behavior and inability to respond to President Trump for the good of the American people.  But I still  do not think that psychiatrists have anything to offer in that area.

Supplementary:

I decided to attach the next several paragraphs based on what I have encountered over the Goldwater Rule into arguments I have heard from deniers and supporters of the rule. The last section are my personal observations (from above) - admittedly not independent of the others

Goldwater Rule Deniers:

1: Psychiatric or mental health experience is necessary in the case where a President may be incapacitated and unable to perform their duties.

2: Psychiatrists are ethically bound to publicly speak out if the President is incapacitated and a potential danger to the country.

3: The only reason the Goldwater Rule exists is to prevent embarrassment of the psychiatric profession.

4:  There may be an element of financial conflict of interest if the Goldwater Rule was recently modified over concerns that the APA may receive less money/tax benefit because of criticism of the President.

4: The APA suppresses the free speech rights of psychiatrists who speak out on the basis of their public assessment of the President.

5.  At least some deniers of the Rule believe that there should be a lower standard for capacity or mental illness if it is applied to the President. In other words, psychiatric opinion is conditional on whether or not the person being observed is the elected President at the time.

6.  The personal interview is not reliable and all of the information necessary to make a diagnosis is already out there in the public domain.

7.  The President's personality or alleged mental illness is the primary problem in what appear to be poorly thought out decisions.

 

Goldwater Rule Supporters:

1:  The Rule is the rule and direct examination of the patient is required to get the assessment out of a purely speculative mode where observations potentially have multiple possible meanings.

2:  The politicization of psychiatry is inevitable with experts for either party.

3:  The politicization of psychiatry potentially impacts patients’ willingness to see psychiatrists for help.

4:  Competency versus capacity – competency requires legal definition, capacity may be informal but that is unlikely in a contested procedure.

5:  Scientific accuracy of predictions of dangerous behavior are not good (Estelle v. Barefoot and APA amicus brief)

6:  Psychiatrists are not immune to rhetoric, propaganda or emotionally charged speech. The original treatment of Goldwater is a good example.

7:  If the issue is dangerousness and we are talking about President Trump there were many more dangerous presidents based on total war casualties that occurred during their terms – including Lyndon Johnson who was elected in part on the alleged dangerousness of his opponent Barry Goldwater.

8:  The President's personality or alleged mental illness is difficult to separate from purely political tactics like intentional misinformation or propaganda that are designed to disrupt and manipulate the electorate. 

 

GD:

1:  The Rule is ethical guidance that has never been enforced.

2:   The Rule is obviously ignored – nobody has ever been sanctioned by the APA or a District Branch in the 50 years it has been in effect

3:   The Rule only applies to APA members so people outside of the APA should not be concerned about it.  If you are really concerned about it don’t be an APA member and comment as much as you like.

4:   Presidential capacity is a lay standard that is not specified in any legal statute. In other words, there are no judicial descriptions of a standard for Presidential incapacity, no standard of proof.

5:  There is no mechanism to remove the President from office based on psychiatric opinion.  There are however political and legal mechanisms (25^th Amendment, Impeachment) to remove the President based on the opinion of his cabinet and in the case of repeated impeachments disqualify from further election eligibility.  A non-psychiatric standard is defined in the 25^th Amendment.

6:  In retrospect, some of the original campaign against Goldwater was propaganda (see ad on nuclear war) and that was reflected in some of the psychiatric opinion at the time.

7:  Psychiatrists potentially have a more significant role at the level of the group dynamics of violence, aggression, misinformation, propaganda, and the containment of violence and aggression.

8:  Several polls have characterized psychiatry as the most liberal medical specialty and the only one where a majority of members are Democrats.  That conflict of interest should be disclosed when commenting on opposition party politicians.