Law & Psychiatry: Whistle-Blowers and the First Amendment: Protecting Public Employees in Psychiatric Facilities

Blowing the whistle on poor-quality care in a state psychiatric facility must sometimes seem foolhardy to staff members. After all, peeved administrators have a variety of means to make life uncomfortable for "troublemakers," including finding ways to relieve them of their jobs. Thus keeping one's head down and accepting the hopelessness of ever making things better is usually taken to be the safer course.

However, for David Springer, a psychiatrist at Delaware Psychiatric Center, it was no longer possible to ignore the conditions at the facility. After eight years of service at the state's only public psychiatric hospital, Springer wrote a memo in late 1999 laying out his concerns, including understaffing, lapses in security, attempted suicides, violations of Medicare regulations, and poor-quality medical care. Springer sent the memo to a list of recipients that included the governor, the director of the state's Division of Alcoholism, Drug Abuse, and Mental Health (DADAMH), the hospital's governing board, and the state's largest newspaper. A series of similar memos followed over the next several months, some with concrete suggestions for how to improve the situation ( 1 ).

Soon thereafter, Springer was informed by the DADAMH director that his contract, which had been renewed yearly since 1991, would not be extended. Although he was told that he could bid for his job in accordance with the state's procurement process, the news arrived just days before the deadline, and Springer was denied an extension of time to complete the application. The state claimed that it was merely enforcing its public bid requirements, but none of Springer's colleagues had faced a similar demand, and no psychiatrist had ever been required to rebid for his or her job in the past. To Springer this looked like clear-cut retaliation for going public about problems at the hospital.

Once more, it might have been easier for Springer simply to walk away. Instead, he filed suit against the state, the DADAMH director, and the state's Secretary of Health and Social Services, alleging that nonrenewal of his contract violated his rights of free speech under the First Amendment to the U.S. Constitution and seeking damages and reinstatement. Springer's suit was brought in federal court in Delaware under Section 1983 of the Civil Rights Act, which forbids persons acting under color of state law from depriving citizens of their federal constitutional rights. In the pretrial maneuvering, claims were dismissed against all defendants except the DADAMH director, who was being sued in her individual capacity.

In response to the suit, the DADAMH director asked the district court to render summary judgment in her favor on the grounds that the First Amendment did not protect the "speech" in which Springer had engaged, namely writing the critical memos; that in any event the nonrenewal of his contract was not due to his having written the memos; and that Springer had suffered no harm as a result of his contract's not being renewed. In reviewing the director's claims, the court had to consider when the speech of public employees falls under First Amendment protection, an issue most clearly addressed by the U.S. Supreme Court in the 1968 case of Pickering v. Board of Education of Township High School ( 2 ).

Pickering was a teacher who, in the wake of the defeat by voters of a school bond proposal, wrote a letter to the editor of the local paper criticizing the school board's use of money (including its support of athletic programs over educational needs) and suggesting that this history was responsible for the electorate's rejection of the requested funding. In addition, he claimed that the superintendent of schools had attempted to prevent teachers from criticizing the proposed bond issue. As if to illustrate Pickering's point, the school board dismissed him for having written the letter. At the subsequent hearing that was required by state law, the board found that Pickering had falsely maligned the board and that his statements were disruptive to the functioning of the schools, promoting "controversy, conflict, and dissention." Gaining no satisfaction by appealing his dismissal through the Illinois courts, Pickering ultimately took his case to the U.S. Supreme Court.

Justice Thurgood Marshall, writing for a nearly unanimous Court, noted that numerous prior decisions had established that teachers could not "be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest," including those matters related to the schools in which they worked. Even inaccurate statements, several of which were made by Pickering, were entitled to similar protection as long as they were not made in a deliberate or reckless manner. Nonetheless, Justice Marshall recognized that the state might have some interest in regulating the speech of its employees, beyond restrictions that could be applied to the public at large. Hence, the Court undertook to find the appropriate balance between the state's interests and Pickering's right to free expression. Where, as in this case, Pickering's statements on matters of policy were unlikely to interfere with his ability to carry out his everyday tasks and in the absence of evidence that he knowingly or recklessly made false statements, the Court concluded that his speech was protected by the First Amendment and that the school board could not dismiss him for having written the letter.

Applying the test outlined in Pickering to the facts of Springer's case, the federal district court in Delaware found that in writing the memos Springer had engaged in protected speech. The issues he had raised about the quality of patient care and safety at the hospital were legitimate matters of public concern, and Springer's memos had no disruptive effect on the operations of the facility. As for determining whether the DADAMH director's decision not to renew his contract and whether he had suffered damages as a result—those were matters of fact for a jury to decide after hearing all the evidence. Moreover, the court rejected the director's claim that she was entitled to qualified immunity on the grounds that she could not have known that she was violating Springer's rights. In contrast, the court found that the right not to be terminated for engaging in free speech was firmly established, and hence the director was not entitled to immunity. Thus the court ordered that the case proceed to trial ( 3 ).

A four-day trial took place in March 2004. The jury found that the DADAMH director had retaliated against Springer by declining to renew his contract, thus violating his First Amendment rights. Springer was awarded $998,895 in damages, including $25,000 in punitive damages. Punitive damage awards can be made only when "the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others" ( 4 ). Ruling on posttrial motions, the court found that the record supported a finding of at least reckless indifference, and perhaps evil intent, on the director's part ( 5 ). Under Delaware law, an award of punitive damages precludes the state from paying any part of a judgment against a state employee, leaving the director to satisfy the judgment on her own. Although the court granted Springer's request for attorneys' fees, it denied his reinstatement to his former position on the grounds that the situation at Delaware Psychiatric Center was now, four years after his contract was not renewed, so different that it was not possible to restore the status quo ante ( 5 ). The U.S. Courts of Appeals for the Third Circuit upheld the district court's findings in 2006, bringing the case to a close almost seven years after Springer penned his first memo ( 1 ).

The implications of the multiple court decisions in this case are of great importance for psychiatrists, other mental health professionals, and nonprofessional staff in public mental health systems. Springer makes clear that speech addressing issues of public concern relating to the operation of public systems—including problems with staffing, safety, and quality of care—is constitutionally protected and cannot serve as the basis for retaliation of any sort. Administrators who violate this rule can be held personally liable for their actions. This should be reassuring to staff members of public systems who want to call attention in a responsible fashion to the inadequacies that are endemic to public mental health in many states.

However, the courts have recognized that states are not without interests as well in the utterances and writings of their employees. If communications appear intended to cause disruption rather than to stimulate informed public discussion (a distinction perhaps not always easy to draw), especially if they interfere with the day-to-day operations of the system, such speech is not protected by the First Amendment. In addition, although the courts have recognized that comments made by employees that are inadvertently inaccurate are also entitled to protection, statements that employees know or should know to be false may entitle the state to take action—up to and including termination—to protect its own interests.

In a decision that postdates Springer, the U.S. Supreme Court imposed a further limitation on employee's free speech rights, excluding from First Amendment protection statements made as part of a worker's official duties. The case, Garcetti v. Ceballos, involved a deputy district attorney who alleged that he suffered retaliation as the result of opinions he expressed in a memo calling into question the accuracy of statements made in an affidavit used to obtain a search warrant ( 6 ). The Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." One ironic result of Garcetti may be to encourage public employees to share their concerns with newspapers and elected officials, as Springer did, rather than to proceed through a chain of command, since the former are more clearly statements made outside the scope of their official duties and thus more likely to be protected.

It is also important to note that the right of free speech does not necessarily apply to nonpublic entities. The Constitution protects citizens only against infringement of their rights by the government. Private organizations can demand fealty from their employees and typically have the discretion to fire those perceived as disloyal. However, the terms of union contracts may offer additional protections to some workers in private facilities, and physicians and other members of a hospital's medical staff may be afforded recourse against arbitrary termination under the bylaws of those organizations. These days, when private entities often contract with state and local governments to provide mental health services, the boundary between public and private sectors can be blurry; greater protections may be available to private employees providing services on behalf of a state or locality.

Notwithstanding the constitutional protections that David Springer was able to invoke, it still takes courage to blow the whistle, even in the face of unconscionable conditions and practices. Springer's road to vindication was long and tortuous, and there must have been times when the outcome seemed doubtful and the potential costs enormous. One can only hope that other staff members in public mental health systems will feel similarly moved to speak out responsibly in defense of the quality of care. As Springer wrote in one of his memos, "Our oaths as physicians require us to strive for the best in patient care," a sentiment that should be shared by everyone in the mental health system, regardless of profession.