If an infantry company commander had concerns about the mental or physical fitness of one of his platoon leaders, he could ask a military doctor to evaluate him and report his findings to the commander. The doctor couldn’t assert a doctor/patient privilege or medical confidentiality rules because the fitness of military officers to perform their duties is vital to the effectiveness of the unit. That’s why there’s no doctor/patient privilege in either federal law or military law.

But what if the one with questionable mental or physical abilities is not a platoon leader but the commander-in-chief? Can the doctor refuse to disclose the president’s medical condition? Are the national security implications of the president’s fitness for duty less important than a platoon leader’s? That’s the question that is headed to a showdown between Dr. Kevin O’Connor, former President Joe Biden’s White House doctor, and Rep. James Comer, chair of the House Oversight and Government Reform Committee.

After news reports, books, and media pundits disclosed information almost daily from White House insiders about the fitness of President Biden to run for reelection or perform the duties of president, Republican members of Congress called for an investigation. Rep. Comer invited several close Biden aides to appear for depositions. Dr. O’Connor, through his lawyer, declined and asserted doctor/patient privilege and medical ethics as reasons why he could not disclose medical information about President Biden.

Rep. Comer then issued a subpoena commanding Dr. O’Connor to appear before the committee on June 27, 2025. While the appearance date on the subpoena is only a few weeks away, don’t expect this controversy to be resolved any time soon. Even though the law supporting Dr. O’Connor’s claim of privilege is extraordinarily weak, it may take years to resolve the issue.

The Doctor/Patient Privilege

The simple response to a claim of doctor/patient privilege in this setting is there isn’t one. Neither federal common law, federal statutory law, nor the Federal Rules of Evidence recognize a doctor/patient privilege.

In the absence of a federal doctor/patient privilege, Dr. O’Connor may claim the Code of the District of Columbia provides a privilege to refuse to testify. Such an argument will fail. An investigation by the Article I branch of government in furtherance of its oversight powers is not an inquiry governed by the municipal code of the District of Columbia. Federal supremacy considerations govern.

But even if the D.C. Code did apply, it would not help Dr. O’Connor. The D.C. Code establishes a rule of evidence that allows the holder of the privilege to refuse to disclose information in judicial proceedings in federal courts in D.C. and in D.C. courts, not a broad confidentiality rule authorizing withholding of information subject to properly issued subpoenas by congressional committees.

Medical Ethics

As a physician licensed in the District of Columbia, Dr. O’Connor may assert medical ethics rules that protect patient confidentiality. A physician practicing in the District of Columbia may face professional discipline if he “[w]illfully breaches a statutory, regulatory, or ethical requirement of confidentiality with respect to a person who is a patient or client of the health professional, unless ordered by a court.”

The American Medical Association’s Principles of Medical Ethics requires physicians to “safeguard patient confidences and privacy within the constraints of the law.” AMA Medical Ethics Opinion 9.7.1 expands on that limited confidentiality provision by informing physicians their duty to safeguard patient privacy can be overcome when a physician is “authorized or legally compelled to disclose the information.”

Valid subpoenas and court orders are ways in which the legal system compels witnesses, including physicians, to appear and reveal their knowledge.

Mental Health Information

Many of the questions surrounding Biden’s fitness for office revolve around his apparent cognitive decline. As noted, there is no general doctor-patient privilege that shields Dr. O’Connor from testifying before the Oversight Committee. But there are both common law and statutory provisions that protect mental health records to some degree.

The Supreme Court recognized a federal common law psychotherapist-patient privilege that protects the interactions between a licensed psychotherapist and the patient. Dr. O’Connor, however, is a family practice physician, not a licensed psychotherapist. The scope of the privilege simply does not encompass Dr. O’Connor’s treatment of President Biden.

Furthermore, to claim this privilege, Dr. O’Connor would have to assert that President Biden was undergoing psychotherapy and that the medical records and information Dr. O’Connor has relates to Biden’s psychotherapy treatment. Considering the politics involved, that is something that neither Dr. O’Connor nor the former president would like to argue.

The federal Health Insurance and Portability Accountability Act (HIPAA) also provides special protections for health information, including mental health information. Enforcement of HIPAA protections falls under the Department of Health and Human Services. The White House Medical Unit, including Dr. O’Connor as the president’s personal physician, is likely not a “covered entity” under HIPAA. Furthermore, HIPAA provides that release of health information pursuant to legal process is not a violation of the confidentiality rules.

The Likely Next Steps

The lines seem to have been clearly drawn. Dr. O’Connor and his legal counsel believe his knowledge of President Biden’s medical treatment is protected from disclosure. Rep. Comer believes his committee is entitled to the information and the committee’s subpoena is sufficient to compel Dr. O’Connor to answer questions.

Congressional subpoenas are not self-executing. While Congress does have the inherent authority to place a recalcitrant witness in custody and keep them there until they divulge the information, exercise of that authority is rare and not likely in this matter.

Rep. Comer will, more likely, seek a contempt resolution from the full House and refer the matter to the Department of Justice for prosecution as the J6 Committee did with Peter Navarro and Steve Bannon. Alternatively, the House could authorize Rep. Comer to file a lawsuit against Dr. O’Connor to compel his testimony.

Of course, Dr. O’Connor could seek a protection order from a federal judge. But all three of those routes place the ultimate resolution in the hands of a federal judge. And once the judge decides, the loser can appeal. And once the appellate court rules, the loser can seek review by the Supreme Court. And the court may take months to decide whether to hear the case. And if it does hear the case, it will take many more months for a decision.

And somewhere along that timeline the 2026 midterm elections will decide whether the Republicans maintain control of the House. If the Republicans lose control, the investigation into President Biden’s health and mental fitness will end, along with the subpoena of Dr. O’Connor.

But even if the Republicans maintain control after the 2026 midterms, the time it takes for the judicial process to run its course will be measured in years. Neither the Oversight Committee nor the American people are likely to learn the details of President Biden’s health during his term of office any time soon.