The essential role of fiduciary duties: Presidential politics, the medical profession, and the Goldwater Rule

This post is one article in a series covering the Goldwater Rule and the debate surrounding its use. The views expressed in this article are those of the author.

I had the honor several years ago of attending a symposium in Nuremberg, held on the sidelines of a European Association of Psychosomatic Medicine meeting, in Courtroom 600—the site of the Nuremberg War Crimes Trials. The famous trials of surviving Third Reich military and political leaders along with the subsequent Doctors’ Trial have been indelibly captured in photographs and movies. The effect these trials had on the establishment of legal precedent to hold leaders accountable for crimes against humanity, crimes against persons in the practice of medicine, and ethical guidelines for medical research may be among their most lasting contributions.

Courtroom 600 is a site where humanity sought justice through due process for the immense crimes of the Nazi era, including those committed by physicians—including psychiatrists. The presence of the dead and those who sought some form of restitution for them through the processes of law continue to be felt in ways that are immediate, powerful, and humbling. This sanctified space stands as a reminder both of the awful things that can and have been done in the name of untrammeled power and of the essential place that law, restraint, and, as the foundational Declaration of Independence states, “a decent respect to the opinions of mankind” must have in comporting our behavior with the limits placed on us by our fiduciary obligations. These critical issues of fiduciary duty, restraint, and obligation are germane to our society today, particularly when those charged with the greatest power are willing to transgress the limits traditionally placed on the exercise of those authorities. These proscriptions are fundamental to the practice of psychiatry but extend well beyond the medical profession to the highest offices of political leadership. Particularly on the contentious issues of presidential removal and inability, psychiatrists must abide by their professional constraints lest they compound the president’s violation of fiduciary duties with violations of their own.

Physicians, when they complete their education, are credentialed in a variety of ways. Among the most foundational is licensure—an individual is granted, in the United States by state authority, a license to practice medicine. With this license comes certain authorities but also important limitations. License, and the fiduciary duties that accompany it, are both a permission to act and an acceptance of certain obligations. And while we usually think of licensure as the authority to perform certain acts or functions, license can also be misconstrued by its other, less attractive definitions. These include “freedom that allows or is used with irresponsibility” (e.g., “Freedom of the press should not be turned into license”) as well as “disregard for standards of personal conduct: licentiousness.”

What is colloquially known as the Goldwater Rule of the American Psychiatric Association (APA) was first issued in the wake of broad public commentary by members of the APA about 1964 presidential candidate Barry Goldwater—hence the eponymous title. This rule— technically Section 7.3 of the American Medical Association’s (AMA) The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatryplaces constraints on media and other overt comments regarding public figures who have not been personally examined by the commenting psychiatrist nor been given permission to speak about them. The rule, which formally applies to members of the APA, has nevertheless been invoked by others as well. Psychiatrists are not the only physicians who operate under such constraints. For example, the AMA Code of Medical Ethics Opinion 8.12 states, inter alia, that physicians should “[r]efrain from making clinical diagnoses about individuals (e.g., public officials, celebrities, persons in the news) they have not had the opportunity to personally examine.” These rules, which are only directly binding on members of the organizations that issue them, may nevertheless at times act as guidelines for the ethical practice of these professions, especially given that not all behavior or circumstances can ever be fully codified.

In the political environment, actions by the Article I branch can lead to removal of political figures. Indeed, while the executive and judicial branches have no role in the removal of members of Congress (a task explicitly left to Congress), the Article I branch has specific authority under the impeachment and removal clauses over executive and judicial branch officials, and in the case of the president, can confirm presidential inability to serve under § 4 of the 25th Amendment.

With this in mind, the notion of fiduciary duty also applies in the highest degree to the president of the United States, whom Alexander Hamilton called the “Chief Magistrate” in Federalist Paper No. 68. The founders were not only well aware of the dilemma of concentrated executive power—indeed they built a system of divided power and checks and balances in large part to control it—but were particularly worried about the problem of tyranny. That concern, as well as corruption of the election process and foreign actors, led in no insignificant degree to the entire constitutional design, including the electoral college. As stated in Hamilton’s Objections and Answers respecting the Administration of the Government (1792):

When a man unprincipled in private life desperate in his fortune, bold in his temper, possessed of considerable talents, having the advantage of military habits—despotic in his ordinary demeanour … when such a man is seen to mount the hobby horse of popularity… It may justly be suspected that his object is to throw things into confusion that he may ‘ride the storm and direct the whirlwind.’

It is precisely because U.S. presidents are inaugurated by taking a specific oath with defined obligations that their behavior has to comport itself with those fiduciary duties and that violation of those duties was one of two ways the founders gave the Article I branch the authority to remove the president. “Treason, Bribery or other High Crimes and Misdemeanors” were understood, along with the enumerated terms, as political crimes—crimes against the body politic itself. The other means of removal was for “inability,” which was originally found in Article II § 1 and later superseded by the 25th Amendment, entitled “Presidential Vacancy, Disability, and Inability.” Importantly, § 4 uses the term “unable” as a predicate for removal of the president from authority. While decisions about political leaders are always in some measure political (most notably in cases of impeachment), removal under § 4 of the 25th Amendment reasonably foresees the involvement of medical professionals. Certainly, if a president is rendered deeply lethargic by a disease or impaired by a severe cardiac or psychiatric illness, then long-term declarations of inability will depend on guidance from medical professionals who have access to the full medical records, an ability to examine the patient, and are known for their probity and lack of partisan bias. The option in § 4 to create the “other body” to replace the cabinet in deciding presidential inability suggests the framers of this amendment considered, at the very least, that the cabinet might not be the ideal group to make such a declaration.

As Stephen Xenakis and I wrote in 2018, Congress not only has the ability to define standards for determinations of inability by establishing the “other body” noted in § 4 of the 25th Amendment, but ultimately that the Article I branch is the final authority in impeachment trials and removal proceedings and in deciding the outcome of a contested declaration of presidential inability. Under the 25th Amendment, Congress serves as the arbiter in instances when the president contests the cabinet’s inability determination (or that of the “other body”). These authorities are purposely hard to exercise, deferring as our constitutional order should to the will of the people as expressed through the electoral process. While it has also traditionally been the role of the electoral process to assess candidates’ character and health, the likelihood of presidential illness and inability requires the professional input of qualified physicians. If those physicians have become partisan or have established opinions based on partial information, it would not be surprising if their counsel were met with a certain skepticism. It would certainly make it harder for those physicians to serve as trusted and impartial experts.

Importantly, nothing in the Goldwater Rule or related ethical opinions would limit the role of psychiatrists from providing their professional opinion or guidance to any duly constituted legal authority, including the vice president, the cabinet, or another body created by statute under the 25th Amendment. The 2017 APA Ethics Committee Opinion, which reiterated the organization’s commitment to the Goldwater Rule, made clear that psychiatrists are permitted to comment on a public figure’s clinical condition and treatment options provided that a diagnosis has previously and formally been reported. Furthermore, psychiatrists can cooperate with and participate in legal processes, such as court hearings and collaborations with national security agencies, to offer their professional opinions. While individuals are entitled to speak out as private citizens, it would constitute a violation of their fiduciary duties if physicians, including psychiatrists, used their position to intentionally dissuade voters or opine about a candidate’s mental fitness. Medical professionals must respect the ethical and professional constraints that are essential to American law and political life.

Both physicians and political leaders occupy important positions of trust and must be held to account for violations of their professional and ethical obligations as well as for breaches of their fiduciary duties. How to manage and reinforce those duties is a task for professional bodies, the law, public opinion, and elections in political environments, and in more serious circumstances, may require the censure or removal of political figures. As a political matter, it was the violation of fiduciary duties, of his obligation under oath to “take care that the laws be faithfully executed,” that arguably led to both of President Donald Trump’s impeachments. In attempting to respond to such violations, physicians should take care to not violate prudent medical judgment or their own ethical standards.

Paul Summergrad, M.D., FRCPsych (Hon), is the Dr. Frances S. Arkin professor and chairman of the Department of Psychiatry and professor of psychiatry and medicine at Tufts University School of Medicine and psychiatrist-in-chief at Tufts Medical Center. In 2014-15, Dr. Summergrad served as the 141st president of the American Psychiatric Association and is a past president of the American Association of Chairs of Departments of Psychiatry. He now serves as the secretary for finances of the World Psychiatric Association. He was elected to the Honorary Fellowship of the Royal College of Psychiatrists, its highest honor, in 2020. Twitter: @paulsummergrad

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