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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?

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    Would merely answering yes or no to the question "is the president mentally and physically capable of performing their duties" disclose any protected health information?
    – blues
    Feb 23, 2023 at 12:46

3 Answers 3

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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.

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    The fifth amendment would surely apply because answering questions about the president's health might disclose information about crimes that the doctor committed while treating the president. The 25th has been invoked, but not the provisions for relieving the president of duty without the president's consent.
    – phoog
    Feb 23, 2023 at 0:09
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    @phoog: That only applies if the doctor actually did commit crimes while treating the president. If they did not, they have no Fifth Amendment privilege and must answer the question. In court testimony, the judge can question them in private to determine whether there would be incrimination, and can even order them to say what crime they think they committed; this also is not self-incrimination because it cannot be used against them. I believe the chair of a congressional committee has similar powers. Feb 23, 2023 at 5:55
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    @phoog: This was used to great effect in the McCarthy and HUAC hearings, I believe. A witness would be asked whether they were a member of the Communist Party. If they pled the Fifth, the chairman would order them to answer on the grounds that belonging to the Communist Party was not actually a crime (merely damaging enough to destroy their career). If they still insisted on pleading the Fifth, they could then be charged with contempt of Congress. Feb 23, 2023 at 5:57
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    @Clockwork Yes fixed. Thanks. Feb 23, 2023 at 17:50
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    @NateEldredge: Strictly speaking, not so. The fifth can be invoked by the innocent if they think their testimony makes them look guilty.
    – Joshua
    Feb 23, 2023 at 22:12
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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.

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    Are you sure "Congress cannot require, it can only legislate"?
    – Caleth
    Feb 23, 2023 at 11:46
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    If Congress cannot require, then how can there be "contempt of Congress" if someone refuses a Congressional subpoena?
    – Barmar
    Feb 23, 2023 at 15:54
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    You missed the beginning of the sentence. "Required by law includes, but is not limited to". You need to rely not on the list of examples, but on the definition "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". The Constitution is law, and it mandates Congress to make a use of health information (namely: whether or not the President is medically unfit/incompetent)
    – Ben Voigt
    Feb 23, 2023 at 18:23
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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.

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    Do the federal rules of evidence apply to congressional testimony?
    – phoog
    Feb 23, 2023 at 0:14

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