Can a U.S. President's doctor refuse to answer medical-related questions asked by a Congressional committee?

Question

Say that in the event that the 25th Amendment was to be invoked due to the suspicion that the U.S. President was no longer physically and/or mentally capable of performing his/her Presidential duties, can the doctor(s) of the U.S. President be ordered to appear before a Congressional committee to answer questions about the mental and/or physical state of the U.S. President, and if so, can he/she refuse to answer any or all questions perhaps due to HIPAA laws?

Or, would the doctor(s) be allowed to plead the 5th Amendment in order not to answer any medical-related questions about the U.S. President?

Answer 1

The Fifth Amendment would not apply, because nothing in the testimony would incriminate the doctor. Indeed nothing would be at all likely to incriminate the President either, it is not a crime to be unable to carry out Presidential duties.

It is likely in such a case that the President would waive confidentiality. In that case the doctor could testify freely.

If the President insisted on confidentiality, and attempted to prevent the doctor from testifying to Congress, there would be a conflict between the power of Congress to compel testimony, in this case on what is clearly a vital national issue within the scope of the needs of Congress, and traditional doctor-patient confidentiality, let alone the requirements of HIPAA.

I am not sure how this conflict would be resolved. There might be an emergency application to the Supreme Court, but the SC does not usually do very well with truly urgent issues. The Pentagon Papers case and Bush V. Gore indicate some of the problems that can arise.

If the doctor was prevented from testifying, that might incline members of congress to think the testimony would not be favorable to the President, and thus tend to suggest that they should not approve the President resuming or continuing his or her powers and duties. But that is rather speculative.

The 25th has never been invoked, and the detailed procedure that would be followed if it were is not very clear. I am not aware of any similar situation in which medical testimony has been demanded to deal with an urgent issue, but the patient has attempted to block it. I think this case must be considered to be undecided until it actually arises and a court rules.

Answer 2

HIPAA, in particular 45 CFR 164.512 describes circumstances where patient consent is not required for disclosure:

A covered entity may use or disclose protected health information without the written authorization of the individual, as described in § 164.508, or the opportunity for the individual to agree or object as described in § 164.510, in the situations covered by this section, subject to the applicable requirements of this section. When the covered entity is required by this section to inform the individual of, or when the individual may agree to, a use or disclosure permitted by this section, the covered entity's information and the individual's agreement may be given orally.

Standard: Uses and disclosures required by law.

(1) A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.

(2) A covered entity must meet the requirements described in paragraph (c), (e), or (f) of this section for uses or disclosures required by law.

"Required by law" is defined in 164.103 as

a mandate contained in law that compels an entity to make a use or disclosure of protected health information and that is enforceable in a court of law. Required by law includes, but is not limited to, court orders and court-ordered warrants; subpoenas or summons issued by a court, grand jury, a governmental or tribal inspector general, or an administrative body authorized to require the production of information; a civil or an authorized investigative demand; Medicare conditions of participation with respect to health care providers participating in the program; and statutes or regulations that require the production of information, including statutes or regulations that require such information if payment is sought under a government program providing public benefits

It would be "required by law" in the case of "subpoenas or summons issued by a court, grand jury, a governmental or tribal inspector general, or an administrative body authorized to require the production of information". But Congress is not a court, grand jury, inspector general or administrative body authorized to require (Congress cannot require, it can only legislate: the Executive Branch requires).

45 CFR 164.512(e) allows disclosure in the course of any judicial or administrative proceeding, but a Congressional hearing is neither.

Since such disclosure would be in violation of the law and knowing disclosure can result in a a criminal penalty of up to $50,000 and up to one-year imprisonment, the physician cannot be compelled to testify since the doctor has a 5th amendment right to not incriminate himself. Congress cannot grant prosecutorial immunity.

Answer 3

No

The House procedures say:

Objections to Questions: Witnesses may not refuse to answer a question except to preserve a privilege.

The Senate is more complex as they appear to create different rules for each committee.

Doctor-patient privilege is not recognised by the Federal Rules of Evidence so what a patient says to their doctor is not subject to the rule. Doctor-patient confidentially is subject to the law which means that where a doctor is under a subpoena, there is no confidentiality.