Yale and the Goldwater Rule: The Case of Bandy Lee

[Note: This is a followup to Hank Reichman's earlier post on the AAUP's Academe Blog, where this piece is also cross-posted.]

Hank Reichman’s recent post on the Bandy Lee case at the Yale Medical School raises an important point that deserves some further consideration.  To recap, Dr. Lee has sued Yale for firing her from an unpaid, part-time position in the psychiatry department.  Lee’s offense involved tweeting about the mental health of Donald Trump and Alan Dershowitz, asserting, for example, that they suffered from a “shared psychosis.”

Yale’s psychiatry department chair, John Krystal, notified Lee that she would be terminated if she continued tweeting about Trump’s (or presumably anyone’s) mental health.  Such tweets, Krystal informed Lee, constituted violations of the American Psychiatric Association’s so-called “Goldwater Rule,” which declares it unethical for a psychiatrist to offer a professional opinion or diagnosis “about an individual who is in the light of public attention . . .unless he or she has conducted an examination and has been granted proper authorization for such a statement.”

Lee kept tweeting along the same lines, and Krystal eventually dismissed her for “repeated violations of the APA’s Goldwater Rule” which “raised significant doubts about” her “clinical judgment and professionalism.”

Upon learning of Lee’s dismissal, a group of prominent psychiatrists and psychologists wrote an open letter to Krystal, objecting to Yale’s invocation of the Goldwater Rule and noting that “the validity of the Goldwater Rule has been widely disputed: many professionals consider it a scientifically untenable privileging of corporate psychiatry’s interests over individual psychiatrist’s rights of free speech and expressions of conscience.”

Reichman cautiously tends to agree with Lee’s supporters.  Recognizing the possibly different standards for faculty in professional schools, he concludes that “in Lee’s case,” the violation of a controversial ethical standard should not “justify a finding of lack of fitness.”

I am not a fan of the Goldwater Rule, and I tend to agree that it has outlived whatever usefulness it might once have had.  It is certainly controversial within the psychiatry profession, especially in the age of Donald Trump.  I am more or less inclined to agree with Lee’s defenders, but there is another side that is at least worth considering.

Whatever its virtues or faults, the Goldwater Rule has been reaffirmed over the years by the American Psychiatric Association (to which Lee, it must be noted, does not belong).  Unlike legal ethics and some medical ethics principles, the APA’s rules do not have the force of law.  On the other hand, the Yale Medical School may certainly adopt and enforce its own ethical principles, which was apparently the situation in Lee’s case, of which she was warned.  The fact that there is not an academic consensus about the Goldwater Rule should not be determinative, so long as the principle involved is professionally reasonable, which is evidently true of the Goldwater Rule.  Ethics evolve, after all, and there may be valid and important rules that have not yet achieved, or lost, consensus.

The interplay between professional standards and academic freedom is tricky, as Reichman observes.  For example, I would support disciplining, or potentially dismissing, a clinical law professor who tweeted out a breach of client confidences, even if the speech involved was in the public interest.  Maintaining confidences, of course, is more universally accepted in law than the Goldwater Rule is in psychiatry.  I can imagine, however, a situation in which a law school imposed additional ethical obligations on clinical faculty, beyond the universally accepted rules, making adherence a condition of employment.  Whether such restrictions violate academic freedom would be a question, I think, of degree.

Here is a more concrete example.  Massachusetts has adopted a legal ethics rule allowing (but not requiring) a lawyer to breach client confidences in order to “prevent the wrongful execution or incarceration of another (that is, a non-client),” even if the attorney’s actual client objects.  Illinois and most other jurisdictions have rejected Massachusetts’s exception.  Instead, they follow the traditional rule that client confidences are inviolate, and cannot be revealed even to get an innocent person out of prison or off death row.  Needless to say, many lawyers, and probably most non-lawyers, believe that it should be unethical to countenance the execution of an innocent person simply for the sake of keeping a client’s secrets.

Could a clinical law professor in Chicago be disciplined for ignoring the Illinois rule and following the Massachusetts rule instead?  Could the clinical professor defend such a choice in the name of academic freedom?

Conversely, could a Massachusetts law school continue to enforce the majority rule, as a matter of its own standards, requiring clinical faculty to absolutely maintain confidences, with no exception for freeing the wrongfully convicted?

Dr. Lee herself was not prevented from excoriating Trump and Dershowitz, or otherwise expressing her political opinions, but only from diagnosing them at a distance.  She may have other defenses – some procedural, some based on the actual wording of her tweets – that will have to be addressed in court.

Adherence to some professional standards must be a condition of maintaining a faculty position in a professional school, especially in a clinic.  But which standards, and how are they to be determined?  I fear that the answers are not at all straightforward.

 

Comments

[Bill]

There are medical and legal terms that are also accepted in ordinary everyday language. Somehow distinctions must be drawn about the context in which they are being used. For example, an ophthalmologist who attends a baseball game and says the umpire is blind is not rendering a medical diagnosis any more than the lawyer who sits next to him and says the umpire is a crook is rendering a legal opinion. In my opinion, professional sanctions should not be involved unless and until formal professional positions are being embraced by the professionals. A psychiatrist should have the same freedom to embrace the vernacular as should an average citizen. The same can be said for attorneys. Unless and until it is obvious that both are rendering professional judgements, lawyers should be free to say politicians are crooks and war criminals and psychiatrists should be free to say that politicians are sociopaths or narcissistic fools.

[anon]

Isn't this issue similar to the discussion about Judge Napolitano?

If my memory is correct, you took the position that a retired judge should not be using that title when giving out opinions about legal issues or running for office, because the title suggests some authority that may not be in play. You agreed with authorities that stated:

"“use of the title is misleading because it may be misunderstood by the public ... “to create an unjustified expectation. ..." and went on to state "Fox News describes Napolitano as its “senior judicial analyst,” and the use of his former title is obviously for the purpose of enhancing his credibility.”

Here, you examine a situation described as follows: Dr. Lee was faulted because she used her title as "a psychiatrist" to offer a professional opinion or diagnosis “about an individual ... she ha[d] [not] examin[ed] and [without] proper authorization for such a statement.”

You state: "Dr. Lee herself was not prevented from excoriating Trump and Dershowitz, or otherwise expressing her political opinions, but only from diagnosing them at a distance."

You conclude: "I am not a fan of the Goldwater Rule, and I tend to agree that it has outlived whatever usefulness it might once have had. It is certainly controversial within the psychiatry profession, especially in the age of Donald Trump."

Apparently, attacking the evil orange man trumps any logical and rational and reasonable analysis.

JUst to underline your partisanship, please tell us whether you favor release, today, of medical records by the officers of government, e.g., the Commander in Chief and how you view medical professionals commenting on recent events and observations that might lead them to medical conclusions about same.

[PaulB]

For those of you too young to remember the 1964 election, some background as to where the "Goldwater rule" came from. A magazine called Fact sent letters to all 20,000 psychiatrists in America asking them if they thought Barry Goldwater was a psychiatric danger if he became president. Over 1,000 responded, overwhelmingly giving their professional diagnoses as to why he was a mental danger to be commander in chief. They were not just a bunch of guys saying Goldwater was nuts to their friends at a cocktail party. Once the election was over and the passions generated had subsided, there was a sense within the profession that psychiatry had badly squandered its credibility by so many members using credentials as a medical professional on someone they only knew by watching television and reading newspapers to psychoanalyze. Thus the Goldwater rule by the APA a few months later.

Dr. Lee in her public comments made it clear that she was relying upon her medical training to categorize Trump, and later on, Dershowitz and Trump supporters in general. Does anyone here believe that her comments changed anyone's views on Trump? They resonated with those who already despised him but no one, pro or con, viewed her as a dispassionate analyst.

This was not a matter of academic freedom. Medicine and law are fundamentally different. When a psychiatrist starts making remote diagnoses that by wild coincidence fits with her preexisting political views, it raises the issue of whether the field should even be considered a branch of medicine if this behavior is common within the field.

[anon]

Paul B

Bravo!

And, I would add, and I think Lubet might agree: medical professionals too often "Judge the book by its cover." They make snap judgments based on mere observation of facts which may or may not be relevant, but certainly aren't determinative of anything.

Combine this with the failure of the medical profession generally to understand post hoc ergo propter hoc, and you have a very dangerous mix.

This awful truth came especially to light with respect to the response to COVID, which often involved "triage" based on seemingly not much more than superstition, supposition and cultural tastes, and rejection of long haul COVID (the latter finally is perhaps changing a bit).

[anon2]

my two cents: the prevalence of this fact pattern -- using codes of professionalism to punish speech -- is only growing. for example, in the new BHATTACHARYA case out of the USDC for W.D. Va. (3/31/21), a student questioning a presentation on micro-aggressions suffered severe professional repercussions. the facts are downright creepy.