Login | April 25, 2018

Column: Should Tarasoff trump Goldwater?

Cases and Controversies

Published: May 12, 2017

On Oct. 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. Five years earlier, the leftist Fact Magazine published an article interviewing psychiatrists to prove that Senator Barry Goldwater was dangerously mentally ill. Rules crafted in response to each incident are now colliding in the ongoing debate over the current president’s mental health.

Evan Osner’s piece in the latest New Yorker entitled “How Trump could get fired” notes that questions about President Donald Trump’s mental health have migrated from dubious click-bait sites and leftist blogs to something closer to the mainstream.

Writing last week, George Will reviewed a now standard litany of Trump’s character defects to conclude that he is unfit. Will does not plunge into the question of the president’s psychological fitness, but guides the reader to the brink.

The conversation about the president’s perhaps less-than-very-good mind often pair the observation that he began his term older than any other president with a recent scene of odd behavior like his recent disquisitions about Andrew Jackson and the Civil War.

Osner’s article offers comprehensive reportage on the two constitutional mechanisms by which a sitting president can be forced out of office: The 25th Amendment and the impeachment process, only the second of which concerns a president unable to perform his duties.

The 25th Amendment conversations about the president have become more frequent in part because of experts coming forward to express doubt about the president’s mental health.

In February, 35 psychiatrists, psychologists and social workers cosigned a letter to the New York Times stating that “the grave emotional instability indicated by Mr. Trump’s speech and actions makes him incapable of serving safely as president.”

A Change.org petition declaring that the president is mentally ill and urging his removal purports to have been signed by over 50,000 mental health professionals. Although the nature of such petitions make it impossible to assess how many of the signatories actually hold mental health credentials, the number is surely greater than zero.

These public opinions about the president’s mental health run counter to the so-called Goldwater rule. Adopted in the wake of Goldwater’s libel suit, the rule states that a psychiatrist should not opine regarding the mental health of someone he or she has not personally examined.

The convenor of the Change.org petition, psychologist John Gartner from Towson, Maryland, offered in a web-posted interview his opinion that the Goldwater rule does not apply in a situation where mental health professionals have a duty to warn of danger.

It’s true that the duty to warn, in the states that have adopted it, takes precedence over other strictures that regulate the mental health professionals—most obviously the duty to guard client confidences.

The duty to warn was established in 1976 when the California Supreme Court ruled on the case brought by Tatiana Tarasoff’s estate against her killer’s psychologist. Poddar had informed his psychologist that he intended to kill Tarasoff. The court found that when a mental health professional has reason to believe that a patient poses a risk to another, he or she has a duty to warn that third person.

In plain legal terms, this duty to warn cannot override the Goldwater rule as it only applies to threats posed by a patient. The Goldwater rule and the Tarasoff standard reflect the same basic truth—that a mental health provider gains unique insights into the mind of a patient, but only by spending time in one-on-one contact.

The opinions about the Trump’s stability raise an additional issue that the Goldwater rule addresses. The question of mental stability in this context is not a clearly objective fact that can be discovered independent of stated policy preferences.

For example, Trump’s inconsistent bluster about North Korea may reflect mental instability, or may be the result of a political naïf who cannot effectively reconcile the conflicting opinions of his advisors. But it’s all too easy to say, “that sounds crazy.”

In other words, these statements and petitions run the risk of medicalizing policy differences, which should trouble anyone, regardless of their politics.

Finally, and independently from the Tarasoff/Goldwater tilt, definitive statements about the president’s mental health elide the fundamental truth that we don’t know enough. We currently have only slightly more disclosure of the president’s mental and physical fitness than we do about his finances.

Instead of sloppy mental fitness opinions, experts would do better to point out potential danger and the need for full medical disclosure. Whether or not he is mentally fit, Trump is unlike any president in history. But we should demand transparency and accountability, just as we should do for any president.