Lori H. Kels, MD, MPH

As a result of technology, data to which individuals have long had a legal right of access are now easily accessible. The advent of secure online portals has converted what was once largely a hypothetical proposition – i.e., ready patient access to clinical records – into the increasing reality of open notes. Unsurprisingly, this movement toward greater transparency carries special implications and complexities for mental health professionals concerned with balancing patient autonomy and safety.¹

In setting clinician expectations for incorporating clinical note-sharing into patient care, it is important to clarify the already robust legal rights of patients to obtain copies of their treatment records, including in the mental health context. For example, the provision of access to one’s own health information is one of the rare circumstances in which the HIPAA Privacy Rule compels, rather than merely permits, health care organizations to disclose records to external parties.² This requirement accords with a prevailing principle of medical ethics that records should be furnished to patients or their designees upon request.³

While HIPAA provides mechanisms for denying individuals access to their health records when a licensed health care professional determines that such access is “reasonably likely” to jeopardize someone’s life or physical safety, this standard sets a high bar of physical endangerment. A psychiatrist or other physician’s concern that sharing clinical notes would be therapeutically suboptimal, discomforting, emotionally harmful, confusing, or deleterious to the doctor-patient relationship would not constitute sufficient legal grounds for denial of access.⁴

Moreover, because access is framed as a patient right, denial on the aforementioned safety grounds implicates due process requirements to include a written explanation and appellate review by a designated disinterested official. Importantly, this federally mandated right of access would preempt or override any contrary state law classified as less protective of patient prerogatives.

Contrary to popular misconception, mental health notes are not necessarily entitled to a greater degree of secrecy vis-à-vis patients than records pertaining to physical health. The HIPAA Privacy Rule, for example, generally does not distinguish between medical and mental health information, nor does it provide special rules for the latter.5 Specifically, patients’ access rights remain unchanged regardless of whether the requested record is classified as medical or psychiatric.

One narrow exception involves “psychotherapy notes,” but the legal definition of this term is considerably more restrictive than in common psychiatric usage. Psychotherapy notes under health privacy law include therapists’ private, desk-drawer notes on counseling sessions intended for personal use as memory joggers.They explicitly exclude any discussion of treatment modalities, diagnosis, or clinical progress. To retain their protected status, psychotherapy notes must be kept separate and apart from the patient chart. Indeed, a primary reason why such notes are exempted from patient access is because they have so little legitimate use other than to their creator.

Integrating the proliferation of open notes into practice regimens will likely pose a continuing and growing challenge for mental health professionals. From a medicolegal perspective, however, even psychiatrists who are understandably hesitant about widespread note-sharing would do well to remember that patients’ underlying right of access is generally well established, and is merely being operationalized and automated via web portals. Ultimately, adapting clinical record-keeping to both anticipate patient access – and, where possible, leverage it to improve care – may prove the most effective path forward for practicing psychiatry in the digital age.

Lt. Col. Kels teaches at the U.S. Army Medical Center of Excellence, and Dr. Kels teaches and practices psychiatry at the University of the Incarnate Word School of Osteopathic Medicine, both in San Antonio, Tex. Neither Lt. Col. Kels nor Dr. Kels have any conflicts of interest to disclose. Opinions expressed in this article are those of the authors alone and do not necessarily reflect those of any government agency.

References

1. Lancet Psychiatry. 2020;7(11):924-5.

2. 45 CFR Parts 160 and 164, subparts A and E.

3. American Medical Association. Code of medical ethics, opinion 3.3.1: management of medical records.

4. Department of Health & Human Services. Individuals’ right under HIPAA to access their health information.

5. Department of Health & Human Services. HIPAA privacy rule and sharing information related to mental health.

As a result of technology, data to which individuals have long had a legal right of access are now easily accessible. The advent of secure online portals has converted what was once largely a hypothetical proposition – i.e., ready patient access to clinical records – into the increasing reality of open notes. Unsurprisingly, this movement toward greater transparency carries special implications and complexities for mental health professionals concerned with balancing patient autonomy and safety.¹

In setting clinician expectations for incorporating clinical note-sharing into patient care, it is important to clarify the already robust legal rights of patients to obtain copies of their treatment records, including in the mental health context. For example, the provision of access to one’s own health information is one of the rare circumstances in which the HIPAA Privacy Rule compels, rather than merely permits, health care organizations to disclose records to external parties.² This requirement accords with a prevailing principle of medical ethics that records should be furnished to patients or their designees upon request.³

While HIPAA provides mechanisms for denying individuals access to their health records when a licensed health care professional determines that such access is “reasonably likely” to jeopardize someone’s life or physical safety, this standard sets a high bar of physical endangerment. A psychiatrist or other physician’s concern that sharing clinical notes would be therapeutically suboptimal, discomforting, emotionally harmful, confusing, or deleterious to the doctor-patient relationship would not constitute sufficient legal grounds for denial of access.⁴

Moreover, because access is framed as a patient right, denial on the aforementioned safety grounds implicates due process requirements to include a written explanation and appellate review by a designated disinterested official. Importantly, this federally mandated right of access would preempt or override any contrary state law classified as less protective of patient prerogatives.

Contrary to popular misconception, mental health notes are not necessarily entitled to a greater degree of secrecy vis-à-vis patients than records pertaining to physical health. The HIPAA Privacy Rule, for example, generally does not distinguish between medical and mental health information, nor does it provide special rules for the latter.5 Specifically, patients’ access rights remain unchanged regardless of whether the requested record is classified as medical or psychiatric.

One narrow exception involves “psychotherapy notes,” but the legal definition of this term is considerably more restrictive than in common psychiatric usage. Psychotherapy notes under health privacy law include therapists’ private, desk-drawer notes on counseling sessions intended for personal use as memory joggers.They explicitly exclude any discussion of treatment modalities, diagnosis, or clinical progress. To retain their protected status, psychotherapy notes must be kept separate and apart from the patient chart. Indeed, a primary reason why such notes are exempted from patient access is because they have so little legitimate use other than to their creator.

Integrating the proliferation of open notes into practice regimens will likely pose a continuing and growing challenge for mental health professionals. From a medicolegal perspective, however, even psychiatrists who are understandably hesitant about widespread note-sharing would do well to remember that patients’ underlying right of access is generally well established, and is merely being operationalized and automated via web portals. Ultimately, adapting clinical record-keeping to both anticipate patient access – and, where possible, leverage it to improve care – may prove the most effective path forward for practicing psychiatry in the digital age.

Lt. Col. Kels teaches at the U.S. Army Medical Center of Excellence, and Dr. Kels teaches and practices psychiatry at the University of the Incarnate Word School of Osteopathic Medicine, both in San Antonio, Tex. Neither Lt. Col. Kels nor Dr. Kels have any conflicts of interest to disclose. Opinions expressed in this article are those of the authors alone and do not necessarily reflect those of any government agency.

References

1. Lancet Psychiatry. 2020;7(11):924-5.

2. 45 CFR Parts 160 and 164, subparts A and E.

3. American Medical Association. Code of medical ethics, opinion 3.3.1: management of medical records.

4. Department of Health & Human Services. Individuals’ right under HIPAA to access their health information.

5. Department of Health & Human Services. HIPAA privacy rule and sharing information related to mental health.

As a result of technology, data to which individuals have long had a legal right of access are now easily accessible. The advent of secure online portals has converted what was once largely a hypothetical proposition – i.e., ready patient access to clinical records – into the increasing reality of open notes. Unsurprisingly, this movement toward greater transparency carries special implications and complexities for mental health professionals concerned with balancing patient autonomy and safety.¹

In setting clinician expectations for incorporating clinical note-sharing into patient care, it is important to clarify the already robust legal rights of patients to obtain copies of their treatment records, including in the mental health context. For example, the provision of access to one’s own health information is one of the rare circumstances in which the HIPAA Privacy Rule compels, rather than merely permits, health care organizations to disclose records to external parties.² This requirement accords with a prevailing principle of medical ethics that records should be furnished to patients or their designees upon request.³

While HIPAA provides mechanisms for denying individuals access to their health records when a licensed health care professional determines that such access is “reasonably likely” to jeopardize someone’s life or physical safety, this standard sets a high bar of physical endangerment. A psychiatrist or other physician’s concern that sharing clinical notes would be therapeutically suboptimal, discomforting, emotionally harmful, confusing, or deleterious to the doctor-patient relationship would not constitute sufficient legal grounds for denial of access.⁴

Moreover, because access is framed as a patient right, denial on the aforementioned safety grounds implicates due process requirements to include a written explanation and appellate review by a designated disinterested official. Importantly, this federally mandated right of access would preempt or override any contrary state law classified as less protective of patient prerogatives.

Contrary to popular misconception, mental health notes are not necessarily entitled to a greater degree of secrecy vis-à-vis patients than records pertaining to physical health. The HIPAA Privacy Rule, for example, generally does not distinguish between medical and mental health information, nor does it provide special rules for the latter.5 Specifically, patients’ access rights remain unchanged regardless of whether the requested record is classified as medical or psychiatric.

One narrow exception involves “psychotherapy notes,” but the legal definition of this term is considerably more restrictive than in common psychiatric usage. Psychotherapy notes under health privacy law include therapists’ private, desk-drawer notes on counseling sessions intended for personal use as memory joggers.They explicitly exclude any discussion of treatment modalities, diagnosis, or clinical progress. To retain their protected status, psychotherapy notes must be kept separate and apart from the patient chart. Indeed, a primary reason why such notes are exempted from patient access is because they have so little legitimate use other than to their creator.

Integrating the proliferation of open notes into practice regimens will likely pose a continuing and growing challenge for mental health professionals. From a medicolegal perspective, however, even psychiatrists who are understandably hesitant about widespread note-sharing would do well to remember that patients’ underlying right of access is generally well established, and is merely being operationalized and automated via web portals. Ultimately, adapting clinical record-keeping to both anticipate patient access – and, where possible, leverage it to improve care – may prove the most effective path forward for practicing psychiatry in the digital age.

Lt. Col. Kels teaches at the U.S. Army Medical Center of Excellence, and Dr. Kels teaches and practices psychiatry at the University of the Incarnate Word School of Osteopathic Medicine, both in San Antonio, Tex. Neither Lt. Col. Kels nor Dr. Kels have any conflicts of interest to disclose. Opinions expressed in this article are those of the authors alone and do not necessarily reflect those of any government agency.

References

1. Lancet Psychiatry. 2020;7(11):924-5.

2. 45 CFR Parts 160 and 164, subparts A and E.

3. American Medical Association. Code of medical ethics, opinion 3.3.1: management of medical records.

4. Department of Health & Human Services. Individuals’ right under HIPAA to access their health information.

5. Department of Health & Human Services. HIPAA privacy rule and sharing information related to mental health.

The controversy over psychiatry’s “Goldwater Rule,” specifically as it applies to discussion of President Donald Trump, shows no signs¹ of abating any time soon. In an earlier commentary, we considered the problematic practice of citing a “duty to warn” about the president’s mental state to justify professional assessment from afar. We argued that the Tarasoff principle² presupposes a doctor-patient relationship in which the therapist must break confidentiality to avert imminent harm. Claiming a duty to protect against a politician’s public conduct and utterances is the proverbial square peg in a round hole.

While misapplication of the Tarasoff doctrine persists,³ some outspoken and eminent critics within the psychiatric community have since pursued another line of reasoning: that the Goldwater Rule covers only formal diagnoses and anything short of that is fair game. Here, we consider the argument that applying psychiatric labels to individuals for public consumption, absent examination and authorization, is ethically supportable so long as a definitive diagnosis is avoided. Ultimately, this justification fares no better than the misplaced duty to warn.
 

Explanation or expansion?

Nonetheless, several prominent psychiatrists charge⁵ that the APA has impermissibly broadened the Goldwater Rule since President Trump’s inauguration. These critics⁵ are referring not to any modification of Section 7.3 itself, but to an APA Ethics Committee opinion issued in March 2017 that clarified what constitutes a “professional opinion.”⁶ According to this guidance, a professional opinion includes but is not limited to a diagnosis: “... when a psychiatrist renders an opinion about the affect, behavior, speech, or other presentation of an individual that draws on the skills, training, expertise, and/or knowledge inherent in the practice of psychiatry, the opinion is a professional one.” In an accompanying statement,⁷ then-APA President Maria A. Oquendo, MD, PhD, confirmed that the Goldwater Rule “applies to all professional opinions offered by psychiatrists, not just diagnoses.”

Among psychiatrists and other mental health professionals questioning⁸ President Trump’s fitness for office, the reaction to the ethics interpretation was swift and emphatic. Leonard L. Glass, MD, MPH, resigned from the APA in protest after more than four decades of membership. He and Bandy X. Lee, MD, MDiv, editor of a book assessing the president’s purported instability, wrote in Politico: “By fiat of the APA, the Goldwater Rule has effectively turned into a gag rule.”⁹ Dr. Glass and Dr. Lee reiterated their critique in the Boston Globe,¹⁰ and hinted that the APA’s “federal funding” should be jeopardized as a result. Meanwhile, in a New England Journal of Medicine article, Claire L. Pouncey, MD, PhD, called the APA’s interpretation a silencing mechanism whereby “psychiatrists are the only members of the citizenry who may not express concern about the mental health of the president using psychiatric diagnostic terminology.”¹¹

In light of such heated rhetoric, it is worth taking a step back to consider what, if anything, has changed. A brief historical inquiry shows that the answer is not much. Allen R. Dyer, MD, PhD, a psychiatrist and ethicist who helped draft the Goldwater Rule – and whom one of us (LHK) counts as a professional mentor – recalls originally suggesting the term “professional opinion” instead of “psychiatric diagnosis” in order “to reflect the place of ethics in defining a profession.”¹² What Dr. Dyer meant is that standards of conduct, which are the hallmark of any profession, are not intended to be legal rules, but rather normative guidelines for ethical practice.

A distinction without a difference

Putting aside the historical record, what is the substantive dispute with the APA’s ethics interpretation? In essence, the dissenters contend that even if it remains unethical to offer armchair diagnoses, it should be perfectly acceptable to call someone unstable and dangerous, and to do so as a self-identified psychiatric expert. Dr. Glass and Dr. Lee profess to be “mystified by the lack of recognition” that they aren’t formally diagnosing President Trump.¹³ Instead, they view their actions as performing a public service by illuminating the president’s dangerous psyche.

Yet legalistic parsing cannot delineate ethical boundaries for a profession. Without even addressing the issue of predictive validity when it comes to dangerousness or violence risk, it is clear to many that labeling someone as “dangerous” can be just as, if not more, hurtful than offering an unsolicited diagnosis.¹⁴ Whereas opponents of the Goldwater Rule tend to frame it as organized psychiatry’s response to professional embarrassment,¹⁵ other ethical issues are at play, the foremost being¹⁶ respect for human beings. In other words, psychiatric speculation can cause “real harm to real people.”¹⁷

As Richard A. Friedman, MD, explained long before President Trump emerged as a serious contender on the political scene, the problem with the Goldwater fiasco was not just that psychiatrists offered diagnoses, but that they gave “very specific and damaging psychiatric opinions, using the language and art of their profession, about a man whom they had not examined and who surely would not have consented to such statements.”¹⁸ Indeed, Sen. Barry Goldwater later testified to the toll that psychiatrists’ published comments about his masculinity took on his personal interactions.¹⁹

It is instructive that the survey Fact magazine sent to psychiatrists in 1964 asked20 not for diagnoses, but whether Sen. Goldwater was “psychologically fit” to be president. This question – to which nearly 2,000 psychiatrists replied in the negative – is almost exactly what some members of the profession are asking and answering about President Trump today. There is room for nuanced²¹ debate about what types of pronouncements the Goldwater Rule should cover, but there is nothing nuanced about mounting the pedestal of medical authority to brand someone as unsafe, unfit, and unstable. Doing so is disparaging to the individual and stigmatizing of mental illness in general. Ethical standards cannot condone stopping just short of malfeasance and then claiming to have clean hands.

Education vs. stigmatization

The Goldwater Rule is designed as a caveat, not a prohibition. Section 7 of the APA code affirms that psychiatrists, like all physicians,²² have a responsibility to contribute to the common good. A principal way of doing this is through civic education about mental health and illness. 


The Goldwater Rule is embedded in Section 7 as one of several qualifications for psychiatrists to consider when making public forays. For example, psychiatrists should clarify whether they are speaking for themselves or an organization, avoid blanket statements on behalf of the entire profession, and differentiate between their roles as citizen and physician. Viewed in light of these other less-controversial proscriptions, it should become clear that the Goldwater Rule creates minimal barriers to public education.

Specifically, the Goldwater principle is concerned only with psychiatrists’ statements that are professional, public, and individualized. It has nothing to say about opinions that are political, private, or general.¹⁴ As an APA commentary explains, “a general discussion of relevant psychiatric topics – rather than offering opinions about that specific person – is the best means of facilitating public education.”²³ This is not a gag order but a prescription for maintaining professional integrity when exposed to the media limelight.

There are valid reasons to critique the Goldwater Rule, but they require an honest reckoning. Psychiatrists who feel compelled to assess public figures could argue that it is a matter of etiquette, not ethics, and should be left to personal discretion.²⁴

So far, the morphing rationales for contravening the Goldwater Rule fall short, because they elide the real issues at stake. Ethical behavior cannot hinge on artificial distinctions. Whereas invoking a duty to warn about presidential fitness was dubious, differentiating between a diagnosis and a professional opinion is specious.

Lt. Col. Kels practices health and disability law in the U.S. Air Force. Dr. 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. Psychiatric Times. Mar 19, 2018.

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

3.The Boston Globe. Jan 2, 2018.

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

5. Psychiatric Times. Jul 20, 2017.

6. APA Opinions of the Ethics Committee. 2017 ed. [Q.7b].

7. American Psychiatric Association (APA). “APA remains committed to supporting Goldwater Rule,” Mar 17, 2017.

8. The New York Times. Feb 13, 2017.

9. Politico. Jan 10, 2018.

10. The Boston Globe. Feb 26, 2018.

11. N Engl J Med. 2018;378[5]:405-7.

12. Allen R. Dyer, MD, PhD. “Evolution of the so-called ‘Goldwater rule’: An ethical analysis,” revised Sep 23, 2017.

13. The Boston Globe. Jan 10, 2018.

14. Psychiatric Times. Feb 16, 2018.

15. J Am Acad Psychiatry Law. 2016;44[2]:226-35.

16. Psychiatric Times. Jul 20, 2017.

17. J Am Acad Psychiatry Law. 2016;45[2]:228-32.

18. The New York Times. May 24, 2011.

19. Am J Psychiatry. 2015 Aug 1;172[8]:729-30.

20. Fact. Sep-Oct 1964.

21. Psychiatric Times. Oct 7, 2016.

22. AMA Principles of Medical Ethics. 2016 ed. [VII].

23. APA Commentary on Ethics in Practice, 2015 ed. [3.4.7].

24. J Am Acad Psychiatry Law. 2016;44[2]:226-35.

The controversy over psychiatry’s “Goldwater Rule,” specifically as it applies to discussion of President Donald Trump, shows no signs¹ of abating any time soon. In an earlier commentary, we considered the problematic practice of citing a “duty to warn” about the president’s mental state to justify professional assessment from afar. We argued that the Tarasoff principle² presupposes a doctor-patient relationship in which the therapist must break confidentiality to avert imminent harm. Claiming a duty to protect against a politician’s public conduct and utterances is the proverbial square peg in a round hole.

While misapplication of the Tarasoff doctrine persists,³ some outspoken and eminent critics within the psychiatric community have since pursued another line of reasoning: that the Goldwater Rule covers only formal diagnoses and anything short of that is fair game. Here, we consider the argument that applying psychiatric labels to individuals for public consumption, absent examination and authorization, is ethically supportable so long as a definitive diagnosis is avoided. Ultimately, this justification fares no better than the misplaced duty to warn.
 

Explanation or expansion?

Nonetheless, several prominent psychiatrists charge⁵ that the APA has impermissibly broadened the Goldwater Rule since President Trump’s inauguration. These critics⁵ are referring not to any modification of Section 7.3 itself, but to an APA Ethics Committee opinion issued in March 2017 that clarified what constitutes a “professional opinion.”⁶ According to this guidance, a professional opinion includes but is not limited to a diagnosis: “... when a psychiatrist renders an opinion about the affect, behavior, speech, or other presentation of an individual that draws on the skills, training, expertise, and/or knowledge inherent in the practice of psychiatry, the opinion is a professional one.” In an accompanying statement,⁷ then-APA President Maria A. Oquendo, MD, PhD, confirmed that the Goldwater Rule “applies to all professional opinions offered by psychiatrists, not just diagnoses.”

Among psychiatrists and other mental health professionals questioning⁸ President Trump’s fitness for office, the reaction to the ethics interpretation was swift and emphatic. Leonard L. Glass, MD, MPH, resigned from the APA in protest after more than four decades of membership. He and Bandy X. Lee, MD, MDiv, editor of a book assessing the president’s purported instability, wrote in Politico: “By fiat of the APA, the Goldwater Rule has effectively turned into a gag rule.”⁹ Dr. Glass and Dr. Lee reiterated their critique in the Boston Globe,¹⁰ and hinted that the APA’s “federal funding” should be jeopardized as a result. Meanwhile, in a New England Journal of Medicine article, Claire L. Pouncey, MD, PhD, called the APA’s interpretation a silencing mechanism whereby “psychiatrists are the only members of the citizenry who may not express concern about the mental health of the president using psychiatric diagnostic terminology.”¹¹

In light of such heated rhetoric, it is worth taking a step back to consider what, if anything, has changed. A brief historical inquiry shows that the answer is not much. Allen R. Dyer, MD, PhD, a psychiatrist and ethicist who helped draft the Goldwater Rule – and whom one of us (LHK) counts as a professional mentor – recalls originally suggesting the term “professional opinion” instead of “psychiatric diagnosis” in order “to reflect the place of ethics in defining a profession.”¹² What Dr. Dyer meant is that standards of conduct, which are the hallmark of any profession, are not intended to be legal rules, but rather normative guidelines for ethical practice.

A distinction without a difference

Putting aside the historical record, what is the substantive dispute with the APA’s ethics interpretation? In essence, the dissenters contend that even if it remains unethical to offer armchair diagnoses, it should be perfectly acceptable to call someone unstable and dangerous, and to do so as a self-identified psychiatric expert. Dr. Glass and Dr. Lee profess to be “mystified by the lack of recognition” that they aren’t formally diagnosing President Trump.¹³ Instead, they view their actions as performing a public service by illuminating the president’s dangerous psyche.

Yet legalistic parsing cannot delineate ethical boundaries for a profession. Without even addressing the issue of predictive validity when it comes to dangerousness or violence risk, it is clear to many that labeling someone as “dangerous” can be just as, if not more, hurtful than offering an unsolicited diagnosis.¹⁴ Whereas opponents of the Goldwater Rule tend to frame it as organized psychiatry’s response to professional embarrassment,¹⁵ other ethical issues are at play, the foremost being¹⁶ respect for human beings. In other words, psychiatric speculation can cause “real harm to real people.”¹⁷

As Richard A. Friedman, MD, explained long before President Trump emerged as a serious contender on the political scene, the problem with the Goldwater fiasco was not just that psychiatrists offered diagnoses, but that they gave “very specific and damaging psychiatric opinions, using the language and art of their profession, about a man whom they had not examined and who surely would not have consented to such statements.”¹⁸ Indeed, Sen. Barry Goldwater later testified to the toll that psychiatrists’ published comments about his masculinity took on his personal interactions.¹⁹

It is instructive that the survey Fact magazine sent to psychiatrists in 1964 asked20 not for diagnoses, but whether Sen. Goldwater was “psychologically fit” to be president. This question – to which nearly 2,000 psychiatrists replied in the negative – is almost exactly what some members of the profession are asking and answering about President Trump today. There is room for nuanced²¹ debate about what types of pronouncements the Goldwater Rule should cover, but there is nothing nuanced about mounting the pedestal of medical authority to brand someone as unsafe, unfit, and unstable. Doing so is disparaging to the individual and stigmatizing of mental illness in general. Ethical standards cannot condone stopping just short of malfeasance and then claiming to have clean hands.

Education vs. stigmatization

The Goldwater Rule is designed as a caveat, not a prohibition. Section 7 of the APA code affirms that psychiatrists, like all physicians,²² have a responsibility to contribute to the common good. A principal way of doing this is through civic education about mental health and illness. 


The Goldwater Rule is embedded in Section 7 as one of several qualifications for psychiatrists to consider when making public forays. For example, psychiatrists should clarify whether they are speaking for themselves or an organization, avoid blanket statements on behalf of the entire profession, and differentiate between their roles as citizen and physician. Viewed in light of these other less-controversial proscriptions, it should become clear that the Goldwater Rule creates minimal barriers to public education.

Specifically, the Goldwater principle is concerned only with psychiatrists’ statements that are professional, public, and individualized. It has nothing to say about opinions that are political, private, or general.¹⁴ As an APA commentary explains, “a general discussion of relevant psychiatric topics – rather than offering opinions about that specific person – is the best means of facilitating public education.”²³ This is not a gag order but a prescription for maintaining professional integrity when exposed to the media limelight.

There are valid reasons to critique the Goldwater Rule, but they require an honest reckoning. Psychiatrists who feel compelled to assess public figures could argue that it is a matter of etiquette, not ethics, and should be left to personal discretion.²⁴

So far, the morphing rationales for contravening the Goldwater Rule fall short, because they elide the real issues at stake. Ethical behavior cannot hinge on artificial distinctions. Whereas invoking a duty to warn about presidential fitness was dubious, differentiating between a diagnosis and a professional opinion is specious.

Lt. Col. Kels practices health and disability law in the U.S. Air Force. Dr. 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. Psychiatric Times. Mar 19, 2018.

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

3.The Boston Globe. Jan 2, 2018.

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

5. Psychiatric Times. Jul 20, 2017.

6. APA Opinions of the Ethics Committee. 2017 ed. [Q.7b].

7. American Psychiatric Association (APA). “APA remains committed to supporting Goldwater Rule,” Mar 17, 2017.

8. The New York Times. Feb 13, 2017.

9. Politico. Jan 10, 2018.

10. The Boston Globe. Feb 26, 2018.

11. N Engl J Med. 2018;378[5]:405-7.

12. Allen R. Dyer, MD, PhD. “Evolution of the so-called ‘Goldwater rule’: An ethical analysis,” revised Sep 23, 2017.

13. The Boston Globe. Jan 10, 2018.

14. Psychiatric Times. Feb 16, 2018.

15. J Am Acad Psychiatry Law. 2016;44[2]:226-35.

16. Psychiatric Times. Jul 20, 2017.

17. J Am Acad Psychiatry Law. 2016;45[2]:228-32.

18. The New York Times. May 24, 2011.

19. Am J Psychiatry. 2015 Aug 1;172[8]:729-30.

20. Fact. Sep-Oct 1964.

21. Psychiatric Times. Oct 7, 2016.

22. AMA Principles of Medical Ethics. 2016 ed. [VII].

23. APA Commentary on Ethics in Practice, 2015 ed. [3.4.7].

24. J Am Acad Psychiatry Law. 2016;44[2]:226-35.

The controversy over psychiatry’s “Goldwater Rule,” specifically as it applies to discussion of President Donald Trump, shows no signs¹ of abating any time soon. In an earlier commentary, we considered the problematic practice of citing a “duty to warn” about the president’s mental state to justify professional assessment from afar. We argued that the Tarasoff principle² presupposes a doctor-patient relationship in which the therapist must break confidentiality to avert imminent harm. Claiming a duty to protect against a politician’s public conduct and utterances is the proverbial square peg in a round hole.

While misapplication of the Tarasoff doctrine persists,³ some outspoken and eminent critics within the psychiatric community have since pursued another line of reasoning: that the Goldwater Rule covers only formal diagnoses and anything short of that is fair game. Here, we consider the argument that applying psychiatric labels to individuals for public consumption, absent examination and authorization, is ethically supportable so long as a definitive diagnosis is avoided. Ultimately, this justification fares no better than the misplaced duty to warn.
 

Explanation or expansion?

Nonetheless, several prominent psychiatrists charge⁵ that the APA has impermissibly broadened the Goldwater Rule since President Trump’s inauguration. These critics⁵ are referring not to any modification of Section 7.3 itself, but to an APA Ethics Committee opinion issued in March 2017 that clarified what constitutes a “professional opinion.”⁶ According to this guidance, a professional opinion includes but is not limited to a diagnosis: “... when a psychiatrist renders an opinion about the affect, behavior, speech, or other presentation of an individual that draws on the skills, training, expertise, and/or knowledge inherent in the practice of psychiatry, the opinion is a professional one.” In an accompanying statement,⁷ then-APA President Maria A. Oquendo, MD, PhD, confirmed that the Goldwater Rule “applies to all professional opinions offered by psychiatrists, not just diagnoses.”

Among psychiatrists and other mental health professionals questioning⁸ President Trump’s fitness for office, the reaction to the ethics interpretation was swift and emphatic. Leonard L. Glass, MD, MPH, resigned from the APA in protest after more than four decades of membership. He and Bandy X. Lee, MD, MDiv, editor of a book assessing the president’s purported instability, wrote in Politico: “By fiat of the APA, the Goldwater Rule has effectively turned into a gag rule.”⁹ Dr. Glass and Dr. Lee reiterated their critique in the Boston Globe,¹⁰ and hinted that the APA’s “federal funding” should be jeopardized as a result. Meanwhile, in a New England Journal of Medicine article, Claire L. Pouncey, MD, PhD, called the APA’s interpretation a silencing mechanism whereby “psychiatrists are the only members of the citizenry who may not express concern about the mental health of the president using psychiatric diagnostic terminology.”¹¹

In light of such heated rhetoric, it is worth taking a step back to consider what, if anything, has changed. A brief historical inquiry shows that the answer is not much. Allen R. Dyer, MD, PhD, a psychiatrist and ethicist who helped draft the Goldwater Rule – and whom one of us (LHK) counts as a professional mentor – recalls originally suggesting the term “professional opinion” instead of “psychiatric diagnosis” in order “to reflect the place of ethics in defining a profession.”¹² What Dr. Dyer meant is that standards of conduct, which are the hallmark of any profession, are not intended to be legal rules, but rather normative guidelines for ethical practice.

A distinction without a difference

Putting aside the historical record, what is the substantive dispute with the APA’s ethics interpretation? In essence, the dissenters contend that even if it remains unethical to offer armchair diagnoses, it should be perfectly acceptable to call someone unstable and dangerous, and to do so as a self-identified psychiatric expert. Dr. Glass and Dr. Lee profess to be “mystified by the lack of recognition” that they aren’t formally diagnosing President Trump.¹³ Instead, they view their actions as performing a public service by illuminating the president’s dangerous psyche.

Yet legalistic parsing cannot delineate ethical boundaries for a profession. Without even addressing the issue of predictive validity when it comes to dangerousness or violence risk, it is clear to many that labeling someone as “dangerous” can be just as, if not more, hurtful than offering an unsolicited diagnosis.¹⁴ Whereas opponents of the Goldwater Rule tend to frame it as organized psychiatry’s response to professional embarrassment,¹⁵ other ethical issues are at play, the foremost being¹⁶ respect for human beings. In other words, psychiatric speculation can cause “real harm to real people.”¹⁷

As Richard A. Friedman, MD, explained long before President Trump emerged as a serious contender on the political scene, the problem with the Goldwater fiasco was not just that psychiatrists offered diagnoses, but that they gave “very specific and damaging psychiatric opinions, using the language and art of their profession, about a man whom they had not examined and who surely would not have consented to such statements.”¹⁸ Indeed, Sen. Barry Goldwater later testified to the toll that psychiatrists’ published comments about his masculinity took on his personal interactions.¹⁹

It is instructive that the survey Fact magazine sent to psychiatrists in 1964 asked20 not for diagnoses, but whether Sen. Goldwater was “psychologically fit” to be president. This question – to which nearly 2,000 psychiatrists replied in the negative – is almost exactly what some members of the profession are asking and answering about President Trump today. There is room for nuanced²¹ debate about what types of pronouncements the Goldwater Rule should cover, but there is nothing nuanced about mounting the pedestal of medical authority to brand someone as unsafe, unfit, and unstable. Doing so is disparaging to the individual and stigmatizing of mental illness in general. Ethical standards cannot condone stopping just short of malfeasance and then claiming to have clean hands.

Education vs. stigmatization

The Goldwater Rule is designed as a caveat, not a prohibition. Section 7 of the APA code affirms that psychiatrists, like all physicians,²² have a responsibility to contribute to the common good. A principal way of doing this is through civic education about mental health and illness. 


The Goldwater Rule is embedded in Section 7 as one of several qualifications for psychiatrists to consider when making public forays. For example, psychiatrists should clarify whether they are speaking for themselves or an organization, avoid blanket statements on behalf of the entire profession, and differentiate between their roles as citizen and physician. Viewed in light of these other less-controversial proscriptions, it should become clear that the Goldwater Rule creates minimal barriers to public education.

Specifically, the Goldwater principle is concerned only with psychiatrists’ statements that are professional, public, and individualized. It has nothing to say about opinions that are political, private, or general.¹⁴ As an APA commentary explains, “a general discussion of relevant psychiatric topics – rather than offering opinions about that specific person – is the best means of facilitating public education.”²³ This is not a gag order but a prescription for maintaining professional integrity when exposed to the media limelight.

There are valid reasons to critique the Goldwater Rule, but they require an honest reckoning. Psychiatrists who feel compelled to assess public figures could argue that it is a matter of etiquette, not ethics, and should be left to personal discretion.²⁴

So far, the morphing rationales for contravening the Goldwater Rule fall short, because they elide the real issues at stake. Ethical behavior cannot hinge on artificial distinctions. Whereas invoking a duty to warn about presidential fitness was dubious, differentiating between a diagnosis and a professional opinion is specious.

Lt. Col. Kels practices health and disability law in the U.S. Air Force. Dr. 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. Psychiatric Times. Mar 19, 2018.

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

3.The Boston Globe. Jan 2, 2018.

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

5. Psychiatric Times. Jul 20, 2017.

6. APA Opinions of the Ethics Committee. 2017 ed. [Q.7b].

7. American Psychiatric Association (APA). “APA remains committed to supporting Goldwater Rule,” Mar 17, 2017.

8. The New York Times. Feb 13, 2017.

9. Politico. Jan 10, 2018.

10. The Boston Globe. Feb 26, 2018.

11. N Engl J Med. 2018;378[5]:405-7.

12. Allen R. Dyer, MD, PhD. “Evolution of the so-called ‘Goldwater rule’: An ethical analysis,” revised Sep 23, 2017.

13. The Boston Globe. Jan 10, 2018.

14. Psychiatric Times. Feb 16, 2018.

15. J Am Acad Psychiatry Law. 2016;44[2]:226-35.

16. Psychiatric Times. Jul 20, 2017.

17. J Am Acad Psychiatry Law. 2016;45[2]:228-32.

18. The New York Times. May 24, 2011.

19. Am J Psychiatry. 2015 Aug 1;172[8]:729-30.

20. Fact. Sep-Oct 1964.

21. Psychiatric Times. Oct 7, 2016.

22. AMA Principles of Medical Ethics. 2016 ed. [VII].

23. APA Commentary on Ethics in Practice, 2015 ed. [3.4.7].

24. J Am Acad Psychiatry Law. 2016;44[2]:226-35.

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

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

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

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].