Bioethics Forum Essay

Clinical Ethics and a President’s Capacity: Balancing Privacy and Public Interest

The Biden Administration is struggling with a dilemma that has a clinical ethics component. Where does the President’s right to privacy about his health end and the public’s right to know begin? This question has recurred throughout American history and, unfortunately, has often been answered the wrong way–with deception. Clinical ethics norms and recent legal precedent offer important insights for responding to this ethical dilemma with much-needed transparency in a way that respects all parties involved.

Throughout his presidency, President Biden has been compared to both Franklin Delano Roosevelt and Lyndon Baines Johnson in terms of his legislative successes and effectiveness. Ironically, both FDR’s and LBJ’s presidencies led to critical constitutional amendments surrounding a president’s capacity to serve.

In 1951, the 22nd Amendment, which limits presidents to only two terms, was ratified in part to avoid this exact clinical ethics dilemma: preventing a “fourth term Roosevelt” scenario of a president in declining health, seeking re-election. In 1944, the public was alarmed by President Roosevelt’s visible aging when he sought a fourth term. Roosevelt’s oratorical skills were still strong, so he was able to rally the public behind a fourth run for office, but his  appearance at the Yalta conference in 1945 (though he was only 63) revealed his terrible physical condition, prompting further alarm given the consequences of a premature death at a critical moment near the end of World War II. Indeed, Roosevelt died suddenly two months after Yalta, on April 12, leaving his successor, President Harry Truman, in the dark on critical issues, such as the atomic bomb program.

LBJ chose not to run for re-election while in declining health. In addition, the start of his term–in the wake of the assassination of his predecessor, John F. Kennedy–led to the ratification in 1967 of the 25th Amendment to more clearly outline what to do in the event of a president’s sudden death or incapacity.

I published an opinion piece in my newsletter on July 5 about the options available to the Biden Administration and used clinical ethics as a frame, discussing the 25th Amendment as essentially a clinical ethics document. I outlined three options: (a) President Bidenvoluntarily leaves office or steps down as the nominee, which protects his privacy, (b) President Biden is cleared for fitness by an independent medical assessment released to the public with his consent in order to assuage public concern, or (c) the Biden administration veers into 25th Amendment territory by arranging for an independent medical assessment of the President against his wishes.

Since then, an informal capacity assessment of President Biden played out on television screens in an interview the President did on July 6 with journalist George Stephanopoulos. A transcript raised the question whether the President fully understands his debate performance. When asked if he had watched a recording of the debate, Biden responded, “I don’t think I did, no . . .  And so, I just had a bad night. I don’t know why.”

From a clinical ethics perspective, President Biden has the right not to know why he struggled in the debate (or even, as reported, a recurring pattern of cognitive decline), and if he does find out, then he has the right to keep that knowledge private. However, President Biden is not a typical patient. From a governance perspective, there is a good clinical reason for President Biden to find out why he had such a bad night as the implications of an undiagnosed condition may override the President’s personal preference to decline to be assessed at this time. There ought to be limits to a presumptive presidential nominee’s autonomy that could trigger a solution to this dilemma.

Concealment of a president’s health status has some moral defense from a national security perspective, particularly during a war. But this position only works when there are no outward signs of a health problem. If a health condition is on full public display, with objective and overt clinical symptoms, it would be ethically imperative to be transparent about the President’s condition. Some physicians, such as Sanjay Gupta, have called for neurological workups and public disclosure. Ezekiel Emanuel has noted that, even in the absence of any underlying condition other than aging, President Biden has clearly lost some of his cognitive abilities. Investigative reporting led to confusing facts about how often the President was seen by a neurologist, prompting the White House physician to explain these visits in a letter, confirming that, aside from an annual physical, the President has not had any recent neurological workup.

Major global consequences resulting from an American president’s illness are part of our history. In 1918, when Woodrow Wilson was negotiating the Treaty of Versailles, he had already likely suffered from several mini-strokes and was ill with 1918 influenza. Historians note that he was compromised in these World War I negotiations, which contributed to the rise of Nazi Germany. FDR was not his optimal self at Yalta in 1945, either; historians wonder whether this led to a suboptimal negotiation about how to divide Europe at the end of World War II.

Currently, there is absolutely no protocol for how White House physicians–including President Biden’s physician–should balance a president-patient’s privacy, mandated by the Health Insurance Portability and Accountability Act (HIPAA), and the public’s right to know the health status of their sitting president. There are circumstances in which there is a clear ethical “duty to warn.” In the clinical context, the legal and ethical duty to warn identifiable third parties of foreseeable harm was established in Tarasoff v. Regents of the University of California, in which the court held that a patient’s confidentiality or doctor-patient “protective privilege ends where the public peril begins.” In Tarasoff, the failure to warn a woman about premeditated homicide by her boyfriend, whohad confided the plan to his University of California psychologist in 1969, led to a new standard for warning third parties who wittingly or unwittingly may be victims when a patient is an agent of harm. This case established the role of mandating reporting in the psychosocial context.

The Tarasoff case provides guidance regarding the ethical duty to warn, which extends into several health contexts, including infectious disease (e.g., partner notification of HIV), genetics (warning at-risk relatives for serious inherited diseases that are autosomal-dominant), and impaired driving. With respect to impaired driving, health care providers can breach HIPAA when they have a duty to warn the Department of Motor Vehicles about medically or cognitively compromised drivers in the interest of public safety. In fact, failure to warn can expose physicians to litigation by a harmed party. The duty to warn rests with the treating physician, but so does the duty to verify fitness to serve.

A president’s annual physical is supposed to verify fitness to serve, but when a president’s condition becomes alarming, an explanation to the public is ethically obligatory. To balance the president’s medical privacy and the public’s right to know, the president should be allowed time to make a decision about public disclosure of a medically disqualifying condition. But should he (or his administration) decline to disclose it, then the president’s physician is ethically permitted to disclose his medical status.

Legitimate ethical questions can be raised about whether any president–as a “celebrity patient”–is actually a more vulnerable patient because physicians may be less likely to tell the patient the truth, order necessary tests, or refer the patient for appropriate further evaluation due to VIP syndrome and subjective political considerations. VIP syndrome can also lead to conflicts of commitment or conflicts of interest. In 2018, White House physician Dr. Ronny Jackson actually told the public that the President might even live until he was “200 years old.” In 2024, new reports confirm that Kevin O’Connor, the current President’s physician, is a friend of the Biden family.

Throughout American history, there has been a longstanding pattern of physicians deceiving the public about presidents’ health. Examples include Grover Cleveland’s secret cancer surgery in 1893, Woodrow Wilson’s massive stroke in 1919, FDR’s cardiovascular disease, John F. Kennedy’s health issues and his “Dr. Feelgood”, Ronald Reagan’s early signs of dementia, and Donald Trump’s declining oxygen levels when he had Covid. The Biden Administration should end this practice of concealment by providing the public with a truthful assessment of the President’s health status given the staggering consequences of this election and the potential peril facing the country.

M. Sara Rosenthal, PhD, is Professor and Founding Director of the University of Kentucky Program for Bioethics and Oncology Ethics Program and Chair of the UK Healthcare Ethics Committee.