Health Care

Duty to Warn?

December 15, 2018  • Institute Staff

Drafted in the aftermath of President John F. Kennedy’s assassination, the 25th Amendment to the US Constitution augmented the presidential succession provisions of Article II. It provides for a temporary transfer of power if the president undergoes a medical procedure or becomes incapacitated. Its Section 4 also provides for situations when the president cannot or will not recognize his or her own inability. That last section has largely been overlooked—until recently, when it captured the public imagination despite not being well understood. The Institute’s Justice and Society Program hosted a discussion with two psychiatrists to get a better idea of this never-used provision with Dr. Bandy Lee, the co-founder of Yale’s Violence and Health Study Group and the organizer of a conference on President Donald Trump’s mental health that resulted in the book The Dangerous Case of Donald Trump, and Dr. Sally Satel, a resident scholar at the American Enterprise Institute and a lecturer at the Yale University School of Medicine.

Bandy Lee: We have responsibilities to our patients and a separate responsibility to society. The 25th Amendment is a political process, but it does not mean the decision to employ it has to be made in an uninformed way. Experts like me make ourselves available for consultation, education, and recommendations. In fact, it’s in our ethical guidelines that we contribute to public service by consulting with the three branches of the federal government. Just as a legal decision on disability, incompetence, or unfitness would be almost inconceivable to make without medical consultation, a political decision is better made with appropriate expert input. I’m here to educate on that importance and what mental-health professionals can offer, because politicians may not be aware of exactly what could be consulted on and what we could be available for.

Mental-health issues are very familiar to us, but interventions at a national scale are not. Politicians, who have the power to intervene at a national scale, by contrast do not know much about mental health. When doctors issue a warning or take steps to protect public health, we’re actually responding to our professional responsibility to society—and here that can mean calling on Congress or the Cabinet, who have the power to act. So I do believe that doctors have a role—and it is not a role that we can abandon—to address our concerns when they get to the point of affecting public well-being and public health and to meet a constitutionally designated responsibility. A public figure is not our patient, and we don’t approach the situation as we would a patient but rather as our responsibility to society.

Sally Satel: It’s one thing to be consulted, but it’s another to be proactive making a diagnosis or an assessment of fitness, which is what you’ve done [with your book]. That’s how you interpret the mandate of the profession. “Duty to warn” is when a doctor has a relationship with a patient and he or she has good reason to think that patient will harm a third party—the duty is to inform that third party and/or officials. To say that it extends to people or figures who are not your patient? I have a much more narrow reading of what professionals should be doing, which is: wait to be asked.

The president is already getting consultations. In the typical role of consultant, we ask three questions about a patient: What is the diagnosis? What is the treatment? And what is the prognosis? To me, it’s that third part, the prognosis, that is most important in the public realm. Whatever it is, is it impairing this person’s capacity to do their job and discharge those duties? That is one of the most relevant things a medical adviser can tell the people in politics, who are the ultimate decision makers here. If you’re a patient, you should want to know what the diagnosis is. But from the standpoint of observing the public figure, diagnosis is irrelevant. What’s the prognosis? We want to know the diagnosis from the standpoint of the individual patient because we have to treat that person. But from the standpoint of whether that patient can discharge their responsibilities, that is based on the symptoms, manifestations, or behaviors we see in front of us—which in the case of character pathology and the media these days is on display for the world to see. No one needs a psychiatrist to come along and say the same things that frankly the public has observed.