The Oval Office Needs a Clinical Ethics Consultation: I’m Providing One
By M. Sara Rosenthal, Ph.D., HEC-C
In patient care, the most common clinical ethics consultation revolves around decision-making capacity and when to invoke a surrogate decision-maker. In organizational healthcare ethics, one of the most common consultations involves impaired physicians – frequently surgeons – who can no longer reliably operate, but who do not appreciate the extent of their impairment. The Biden Administration is facing both a classic “patient care” clinical ethics dilemma regarding a President’s decision-making capacity and surrogacy options, as well as a classic institutional ethics dilemma over an institution’s moral obligations regarding an impaired professional’s fitness to reliably perform his duties.
Decision-making capacity issues regarding the Office of the Presidency were clearly imagined by the framers, as the constitutional role of a Vice President was a built-in surrogate decision-maker. A more definitive surrogacy document for the presidency was designed via the 25th Amendment, adopted in 1967 in the wake of the assassination of President Kennedy after the iconic image of President Johnson taking the oath of office on Airforce 1 on November 22, 1963. This amendment, is, in fact, a partial “clinical ethics” document expressly designed to deal with incapacity. It was designed to help reduce the chaos that entails when a President does not have the capacity, or does not recognize his own incapacity, to serve anymore. The 25th Amendment deals both with sudden incapacity of a President (recall the 1981 Reagan assassination attempt); anticipated and planned incapacity (as in a planned surgery or anesthesia); or in cases where, objectively, the President cannot meet the “U-ARE criteria” (Understanding, Appreciation, Rationality, [or ability to] Express [or communicate] decisions necessary to fulfill presidential duties. Decision-making capacity– whether psychiatrically-rooted (e.g. delusional thinking and erratic behaviors), which raised concerns during the Trump presidency) or neurologically-rooted (e.g. aging-related cognitive decline), which raised concerns during the Reagan presidency -- are 25th Amendment territory.
Pre-25th Amendment, presidential capacity issues were concealed. President Cleveland had secret surgeryJuly 1, 1893, on a yacht during which time he was fully incapacitated President Woodrow Wilson was fully incapacitated by a massive stroke in 1919 for months and First Lady Edith Wilson served as an unelected surrogate president in collusion with his personal physician. In 1945, President Roosevelt, at the start of a fourth term when in alarming health -- dropped dead April 12, 1945, amidst the most extreme battle of the soul of democracy. He left Harry Truman in the dark about several decisions – including the Manhattan Project, prompting Truman to introduce the Presidential Daily Briefing to include the Vice President and any President Elect. Any modern review of Roosevelt’s health records prior to his run for a fourth term would prompt extreme alarm. His polio aside, pictures of Roosevelt in 1945 reveal a man of only 63, who looked at least 80. He had severe and untreated cardiovascular disease by then. His fourth run for office was ill-advised, and prompted ratification of the 22nd Amendment that limits presidential terms to avoid “FDR 4th term” issues – intended to prevent a president seeking re-election in declining health, prematurely aged, or experiencing accelerated aging by the demands of the Office. In all these historical examples, the licensed healthcare provider of record actively participated in the deception of concealment of the President’s health status– behaviors that violate healthcare providers current professional ethical obligations to the public, given that the President’s health is our business. During the COVID era, physicians concealed the severity of President Trump's pre-vaccine COVID infection as well.
Anyone practicing in the field of clinical ethics recognizes that our 46th President, his family members and advisors, are in dire need of a clinical ethics consultation that can serve as an “honest broker” about available options given the President’s self-evident cognitive decline in health status.
Since his inauguration in 2021, the 46th President of the United States has been dogged by questions about his age and capacity to serve in his role. Voters were calmed by his initial pledge to be a “bridge” President, suggesting he was seeking in 2020 only one term precisely because of his advanced age at the time of his first campaign. The questions became much more acute when President Biden elected to seek a second term at the age of 81. Since he has taken office, objective data and reporting has consistently shown that Americans have been duly concerned about this president’s age, capacity and vitality, but there was not clear evidence that the concern was valid – until June 27, 2024, his first Presidential Debate for the 2024 election. In this debate, the President had no teleprompter as a visual/cognitive aid. In the first few minutes, this debate revealed that the President’s cognitive abilities were in decline, and that he had markedly aged since his 2020 appearances. In my viewing as a practicing clinical ethicist, he seemed unable to demonstrate full decision-making capacity, as he struggled to understand and appreciate many of the questions asked, while lacking an ability to express himself properly or competently, even taking into consideration his speech impediment (stuttering). Within the first few minutes of the debate, viewers were alarmed not by a “poor performance”, or “bad night” but by a clear display of lack of capacity by their sitting President.
Reports are now abounding that what we all witnessed was not a singular event but a recurring pattern of waxing and waning capacity in an elderly person. Indeed, such a person will have mostly, then more, then fewer, “good days” and over time, a few, then more, then mostly, “bad days”, including “good” times of day and “bad” times of day. Unfortunately, strategic planning of presidential appearances to capture President Biden at a “good time” when he meets U-ARE criteria may be politically prudent but is clearly ethically unacceptable.
What are the clinical ethical and moral obligations of the White House team at this juncture? And who decides?
There are three ethical options available to President Biden now. Option One preserves his autonomy and medical privacy; Option Two preserves the President’s autonomy but not his privacy; the third removes the president’s autonomy and privacy in the best interests of the country.
Option 1: the President or his healthcare surrogate (typically his spouse) can make a personal health-related decision to resign and pass the torch to the Vice President. In this option, the President has no ethical or moral obligation to release his health records to the public as the President (or via his personal surrogate) will be voluntarily leaving Office as an autonomous decision with the goal of preserving privacy and dignity.
Option 2: If the President is insistent on staying in office and on the campaign, and his personal surrogates are enabling this choice, then it is ethically imperative that he be “cleared for fitness” by an independent healthcare team, who release a transparent and unedited medical opinion to the public about the President’s health, which includes a full neurological work up and formal capacity assessment by a qualified assessor. In this case, there is a binding ethical obligation for the president’s physicians to be transparent about the president’s health. There is a long recognized “duty to warn” of unfitness, but there is also a presumed ethical “duty to verify” fitness to serve if there are no health issues barring President Biden from fulfilling his duties. In either case, it is ethically permissible to waive HIPAA because of the public’s right to know. Per a 1976 health law case about duty to warn “Privacy ends where public peril begins.” If there is refusal to provide the public with a transparent health assessment, then we are looking at Option 3, an option of last resort:
Option 3: The option of last resort is an organizational ethics action in the best interests of the public. In this option, if the President refuses to release transparent health assessments clearing him for work, institutional and/or constitutional actors surrounding the President can insist on an independent assessment and make a decision about whether to invoke the 25th Amendment, which will likely trigger a constitutional crisis if the President insists on challenging such a decision, which is is right per Section 4 of that Amendment.
In the final analysis, by the time we even need to consider any of these three options, it is likely the President and his team have been practicing “health avoidance” behaviors. There is never a convenient time to confront a serious health problem that affects capacity. But when the health problem involves the American public, there is a moral obligation of transparency about fitness to serve, or else moral actions of last resort.
Dr. M. Sara Rosenthal is Professor and Founding Director of the University of Kentucky Program for Bioethics and Oncology Ethics Program. She chairs the hospital ethics committee and has expertise in bioethics, medical sociology, history of medicine, and American studies.