Tuesday, February 01, 2011

The D.C. Court of Appeals and the APA's Goldwater Rule

The Code of Professional Ethics of the American Psychiatric Association prohibits a psychiatrist from offering a professional psychiatric opinion about an individual without first having examined the individual and having obtained permission for the publication of that psychiatric opinion.  The precept in question is the so-called Goldwater Rule.

In Freedman v. D.C. Dept. Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998) the D.C. Court of Appeals (on appeal from the D.C. Superior Court) was presented with a situation in which an employer allegedly had an ex parte consultation with a psychiatrist who advised the employer that, based on the facts presented by the employer, an employee appeared to suffer from the "disorder" ideas of reference and that such persons might become violent.  The psychiatrist did not examine the employee personally: in fact, had never met the employee, and the employee did not consent to the publication of the psychiatrist's opinion.

The psychiatrist's conduct appears on its face to violate the so-called Goldwater rule in that the psychiatrist did not examine the employee and the employee did not consent to the publication of the psychiatrist's professional opinion.  The attorney managers who sought the psychiatric opinion -- both licensed professionals -- suborned a fellow licensed professional, a medical doctor, to commit an act prohibited by the ethical precepts of her profession.

Incidentally, the Goldwater Rule now has the force of law in the District of Columbia.  As of the filing of the complaint in the Superior Court proceedings, in October 1995, and at all times thereafter, it was unlawful under the laws of the District of Columbia for a psychiatrist to offer a professional psychiatric opinion about an individual without benefit of personal examination as is strongly recommended by the American Psychiatric Association's Principles of Medical Ethics. The D.C. Code in its latest revision makes it unlawful for a physician to "[fail] to conform to standards of acceptable conduct and prevailing practice within a health profession." See D.C. Code 2-3305.14(26). This provision was added to the District of Columbia Health Occupations Revision Act by D.C. Law 10-247, enacted on March 23, 1995. The Court of Appeals expressly found that the professional psychiatric opinion offered by the psychiatrist to the employer amounted to the diagnosis of a "disorder." See No. 96-CV-961 at 4.

The D.C. Court of Appeals was silent as to the legal consequences of the physician's breach of the Goldwater Rule and the attorney managers' subornation of that breach.  In the Brief on Appeal I offered the Court the following arguments concerning the actions of the employer and the physician:
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Assuming that Lassman and Race in fact consulted Dr. Ticho, it is questionable whether two experienced attorneys such as Lassman and Race, knowledgeable about the factors that might detract from the weight of a professional opinion, could credibly have believed that a complaint of harassment by an employee--with no preexisting record of prior behavioral problems--could be attributed to a psychiatric symptom associated with a risk of violence that rendered the employee not suitable for employment: and then, simply on the basis of a brief telephone conversation with a psychiatrist who never examined the employee personally.

Recognizing the questionable reliability of psychiatric opinions offered without benefit of personal examination, the principles of ethics of the American Psychiatric Association ("APA") state that "it is unethical for a psychiatrist to offer a professional opinion about [a] specific individual unless he/she has conducted an examination and has been granted proper authorization for such a statement." See THE PRINCIPLES OF MEDICAL ETHICS (WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY) 9 (Washington, DC: APA 1995) [hereinafter cited as PRINCIPLES]. The APA's Ethics Committee "cautions against drawing clinical conclusions based upon information gleaned outside the clinical setting." OPINIONS OF THE ETHICS COMMITTEE ON THE PRINCIPLES OF MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY 58 (Washington, DC: APA 1995) [hereinafter cited as OPINIONS].

Appellant was not personally examined by Dr. Ticho 19/ [Rec. 62, 122-123], and the employer does not allege, and DHR did not find, that Dr. Ticho based her professional opinion on a review of appellant's medical records, which would be ethically acceptable per Section 7, Annotation 3 of the PRINCIPLES. See OPINIONS at 57.

A professional opinion made by a psychiatrist about a specific individual without benefit of a personal examination, or not based on a review of medical records or other unbiased or complete information, is deemed unreliable by the APA, as evidenced by the above-referenced annotations and opinions of the APA's Ethics Committee.

Whether or not the employer's attorney managers were aware of the APA's position concerning psychiatric opinions offered without benefit of personal examination, DHR's finding that the employer's attorney managers--skilled in the art of impeachment of expert witnesses and therefore sensitive to the limiting circumstances that can bias an expert professional opinion--could have reasonably concluded, on the basis of the employer's restricted consultation with Dr. Ticho, that appellant's complaint of harassment was attributable to a psychiatric symptom associated with a risk of violence that rendered appellant not suitable for employment is simply "unworthy of credence." See Burdine, 450 U.S. at 256.

FOOTNOTE 19:

19/ It is noted that under case law in some jurisdictions the publication of a psychiatric opinion offered without benefit of a personal examination may, in certain circumstances, be deemed defamatory, regardless of the opinion's seeming reliability or authenticity. See, e.g., Goldwater v. Ginzburg, 261 F. Supp. 784 (S.D.N.Y. 1969), reh. denied, 397 U.S. 978 (1969).

The Superior Court in the proceedings below determined that the adequacy of the employer's investigation of appellant's harassment complaint cannot negate the credibility of the employer's asserted reasons for the termination, which were deemed by the court to be nondiscriminatory [Sup. Ct. Rec. 38-39]. While even an inadequate investigation might pass muster for Title VII purposes, there remains a question as to whether the employer's investigation--even if conducted in good faith--was sufficiently thorough so as to permit a psychiatrist to make a reasoned judgment, consistent with the APA's principles of ethics, about appellant's mental state and potential for violence, thereby rendering a professional psychiatric opinion based solely on information gleaned from that investigation nondefamatory. See OPINIONS at 57 (a psychiatrist, acting in the capacity of consultant, may base a professional opinion upon a review of reports and information gathered about an individual [provided proper authorization has been granted for such a psychiatric review]). The inadequacy of the employer's investigation [Rec. 262-266] might have impaired or precluded a reasoned psychiatric assessment of appellant's complaint of harassment. A psychiatrist, for example, might find evidence of Robertson's racial animus relevant to appellant's complaint of anti-Semitic harassment. See, e.g., The Prejudicial Personality: Racism and Anti-Semitism, 65 J. PERSONALITY ASSESSMENT 270 (1995) (discussing the significant correlation between the personality profiles of racists and anti-Semites). Yet, because of the inadequacy of the employer's investigation, evidence of the supervisor's racial animus, which was well-known to black employees in the supervisor's department [Rec. 58-59]--and, according to the psychological literature, relevant to appellant's complaint of anti-Semitic harassment by that supervisor [Rec. 145]--was not uncovered by the employer. See McNeil, D.D.C. no. 93-0477 at 7-8 (supervisor, Robertson, engaged in racially-inappropriate conduct unknown to senior management [as of the time of appellant's termination in October 1991]). Evidence of the supervisor's racial animus, therefore, could form no part of the consulting psychiatrist's assessment of appellant's harassment complaint and associated risk of violence--an omission that may be relevant to a consideration of the defamatory nature of the published professional opinion.

2 comments:

Gary Freedman said...

Text of the APA's so-called Goldwater Rule:

Section 7.3 of the APA Code of Professional Responsibility

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.

Gary Freedman said...

The purpose of footnote 19 was to preserve an issue for appeal to the U.S. Supreme Court. I was going to allege that I was defamed by a state agency -- a civil rights violation under Paul v. Davis, etc. Of course, I needed an injury. I guess I didn't think of that.