The Case

The psychiatry consult service was requested to evaluate an elderly female patient on the cardiology service for suspected depression. The patient was determined to have pseudobulbar affect — a neurological condition featuring uncontrolled laughing and/or crying — rather than depression. This patient had poor insight regarding her mood and was not concerned by the symptoms. Collateral information obtained from the patient's spouse revealed that the patient had several other neuropsychiatric symptoms: irritability, impulsivity, increasingly poor judgment (insulting colleagues in professional settings, taking spouse and friends to a strip club for dinner), impaired comprehension/memory, getting lost in familiar settings, anosagnosia (ignorance of cognitive deficit), and spending significant portions of the day playing a gambling simulation game. The patient was a retired judge but was still active on the bench when called to serve. Although the patient's colleagues did not formally report it, they had previously informed the patient's spouse that she was confused during court hearings; for example, asking her secretary what she was supposed to do, which documents to sign, and other tasks by using the judgments of colleagues instead of exercising individual, independent analysis and evaluation of the issue at hand. The spouse pleaded with the patient not to drive or serve on the bench anymore, but she did not appreciate any problems with her behavior or judicial performance.

Professionalism and Public Trust

The concept of a “profession” is premised upon a person's capacity and qualifications to provide an essential societal service, which includes earning the public's trust and support to enable this service to be performable and available.^{Reference Hall1} Professionalism is commonly perceived as the foundation of a social contract that creates reciprocal expectations and permissions between society and professionals.^{Reference Cruess and Cress2} Mark Hall et al. describe dimensions of such public trust in professionals to include fidelity, competence, honesty, confidentiality, and global trust.³ Part of what enables this trust are systems of accountability for professionals that provide various safeguards, which function as checks and balances.

The service that judges provide to the public enables provision of a social justice system in exchange for the professional permissions and authority granted to judges by the public. Some skills that enable a judge to fulfill her role include seasoned judgment and critical thinking, attention to details in facts and logical reasoning, clear cognition with ability to recall precedent from the legal canon. Vital components also include impartiality, independence, introspection, and self-regulation of behavior to comport with a formal standard. In the above case, there was significant evidence to predict that the patient could have violated the public trust in the judge's “competence” and “global trust” if her performance was made transparent to the public. Such a case compels reconsideration of what regulations are in place to ensure judges maintain the requisite mental capacity in order to protect the public and ensure fair and just application of the law.

Judiciary Standards in the United States Constitution

As early statesman and Constitutional interpreter Alexander Hamilton noted, the faithful performance of the administration of justice is an arduous duty; therefore, the Constitution serves to ensure that the judiciary remains an independent body.^{Reference Hamilton and Rossiter4} Individual judges should strive to remain immune from external pressure and political partisanship, and so all judicial officers, enumerated in Article III of the United States Constitution, are assigned the professional privileges of life tenure, salary protections, and a very difficult removal process (impeachment). Article III further safeguards individual citizens' rights by guaranteeing that every person accused of a crime has the right to a fair trial before a competent judge and a jury of one's peers.⁵ The Fifth and Fourteenth Amendments additionally act to safeguard individuals from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.

It is imperative to note that threats to judicial independence and the loss of individual rights may arise from within the judiciary itself. Cognitive impairment, as demonstrated in the case above, can compromise the ability of judges to execute complex mental tasks necessary to carry out their duties, including remaining impartial while vigorously presiding over a trial to ensure its fairness. However, there has been little formal guidance as to what constitutes requisite cognative abilities, particularly when it comes to assessing the threshold of cognitive impairment that precludes competency. Though the Constitution does provide for involuntarily removal of federal justices through formal impeachment proceedings, a successful showing requires evidence of serious wrongdoing. Historically, such situations had little to do with cognitive impairment, which does little to instruct what factors should be considered in the removal proceedings of cognitively incompetent judges.

An often overlooked but crucial starting point for any ethical analysis is to precisely define what is meant by “good behavior”⁶ in a professional role, especially as it is the sole condition for a judge's life tenure. The Framers borrowed this language directly from English law, which had successfully served to insulate judges from the King's arbitrary wrath.^{Reference Shartel7} As Walter Pratt describes, a review of early English and Colonial cases reveal that “disability alone was never held to be cause for forfeiture of an office with good behavior tenure,” and the removal mechanism was only triggered by engaging in more serious, criminal offenses.^{Reference Pratt8} It would seem, then, that so-called misbehavior warranting impeachment or resignation, if occurring when a judge suffers from mental and/or physical impairment, goes against the spirit of the United States Constitutional law, and indeed of the nature of fairness itself. However, it is arguable that professionals with fiduciary duties do not exhibit “good behavior” if they knowingly allow an individual to sit on the judiciary bench, who lacks the requisite ability to perform the arduous duty of overseeing justice in a fair and equitable manner.

Self-Regulation of Judges

In the United States, entry into the judicial profession is heavily regulated.^{Reference Fischer9} In order to ensure competency, licensure requirements in the legal profession are closely regulated. Judges initially must obtain a Juris Doctor (JD) degree, pass a state bar exam and obtain licensure through the State Bar Association (SBA), which ensures an initial level of competence and a basic screen regarding other dimensions of professional conduct. The public is able to report concerns to the SBA, and legal charges are possible.^{Reference Walker10} Under the Judicial Conduct and Disability Act of 1980,^{Reference Greenberg11} complaints against a federal judge for violating the Code of Judicial Conduct are filed with the nearest Circuit Court of Appeals, which communicates the complaint to the Chief Judge of the circuit and the judge under review. Discipline measures enforced by the SBA may range from admonishment to disbarment.

Judges represent an intraprofessionally regulated profession, and such self-regulation has been highly defended by the rationale that judges are optimally suited to self-regulate.¹² The preamble to the recently revised ABA Model Rules of Professional Conduct emphasizes the importance of self-regulation:

The above statement invites intraprofessional confidence that self-regulation is sufficient, but this system has been contested as insufficient by some outside of the profession. As judges are individuals with power and influence, fear of negative consequences or wishing to continue valuable collegial benefits, or quid pro quos, may generate resistance of judges to regulate one another. Below, we provide further reason for concern for this confidence in self-regulation.

Cognitive Impairment Vulnerability of the Geriatric Judge Population

Canon three of the Code of Conduct for United States Judges holds that a judge “should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court personnel.”¹⁴ While it may seem intuitive, it is important to clearly define cognitive impairment as an illness that can rise to the level of impairment that would preclude discharge of administrative responsibilities and obligations.

Several reasons should temper the surprise that the judge have a higher prevalence of professionals who continue to practice in their geriatric years. Judges are typically not elected early in their practice because they first need to establish themselves as lawyers with proven track records that engender trust and build positive reputations. Once a lawyer submits for judge-ship, he or she must be appointed or elected, then accomplish further specific training. According to a survey conducted by ProPublica,^{Reference Goldstein15} the average federal judge in 2010 was in his or her 50s, but about 12% of the United States' 1,200 sitting federal district and circuit judges were 80 years or older; 11 judges were over 90 years, and one was over 100 years (Judge Wesley Brown served in Kansas until dying at 104 years old).

While anyone is susceptible to cognitive impairment, the geriatric population is at a higher risk of cognitive impairment due to neurodegenerative diseases such as Alzheimer's dementia, which affects 11% of persons in the United States over 65 years old, and 32% of persons 80 years or older.^{Reference Herbert, Weuve, Scherr and Evans16} Neurodegenerative cognitive impairment of judgment, insight, attention, or concentration could easily preclude a judge from performing his or her duties, which may rise to the level of public endangerment. For example, impaired performance could potentially harm the general public in life or death circumstances (life/death sentences, medical decisions), through negative personal consequences (ownership, responsibilities, financial effects, imprisonment, other punishment), and by development of problematic case law. Some states do have mandatory retirement standards for judges (in most states at ages 70-75 years old, Vermont at 90 years old), though federal judges and Supreme Court judges do not have such requirements.¹⁷

One public example demonstrating negative impact of an impaired judge is in the appeal of Deere v Cullen, where Judge Fred Metheny was challenged by defendant Ronald Deere's lawyer under the assertion that Metheny was incapacitated during a hearing for consideration of a death sentence. Judge Metheny was stated to be demonstrating confusion, making up details, and arguing with lawyers. Further investigation demonstrated attestation by other lawyers of several previous episodes of Metheny's erratic court behavior and confusion, as well as atypical rationale for decisions. Judge William Fletcher's dissent in this unsuccessful appeal stated:

In this case, the record demonstrates that Judge Methany was long suspected of incapacity by his peers, yet mere reliance on self-regulation was insufficient to protect the public. It is possible that professional enmeshment, conflict of interest, and/or insufficient training to evaluate the signs of cognitive impairment contributed to this intraprofessional failure. No previous literature describes the possible role of physicians, such as cognitive specialists, to act as an impartial safeguard to assist in the determination of a judge's cognitive capacity to perform the requisite tasks of the profession. To examine the possible responsibilities of a physician when treating an incapacitated judge, a useful analogy is the situation of a physician caring for an impaired or incapacitated physician.

Breaches in Clinical Confidentiality in the General and Physician Patient Population

Physicians are also intraprofessionally regulated. Similar to judges, a professional degree and licensure must be obtained, with professional oversight of a state-level professional entity, the State Medical Board (SMB). Also similar to judges, a mechanism exists for public input to SMB, though regulation of practice also occurs via litigation and restrictions or input from hospital administration, insurance companies, and the government. The SMB enforces the professionalism of physicians with actions ranging from reprimand and restrictions to full revocation of physicians' licenses in practicing medicine in a particular state. Reports of professional misconduct or physician impairment (from mental illness, physical condition, or substance abuse) leading to disciplinary proceedings are infrequent,¹⁹ though some screening is performed at initial licensure, license renewal, and application for licen-sure in another state. For this latter screening opportunity, the establishment of the National Practitioner Data Bank, via the Health Care Quality Improvement Act of 1986,²⁰ provides a protection in the setting of physician competence and interstate movement.

In the general patient population, there are several instances where public trust and social contract mandates or permits physicians to break patient confidentiality for matters deemed to be in the public's best interest (law varies per state). These include suspicions of child and elder abuse, stab wounds and gunshot wounds, suicidal and homicidal intent, medical emergencies, various sexually transmitted infections, infectious diseases posing a public hazard, and driving privileges of those with epilepsy and dementia, or other “impairments of consciousness” and “cognitive function.”²¹ The American Medical Association's Code of Medical Ethics enumerates these permissive or mandatory breaches of patient confidentiality and state law contain legal precedent.²² In these situations, the benefit of protecting the public is determined to outweigh the harm accrued to the patient resulting from the breach of confidentiality. In Jeffrey T. Berger and Fred Rosner's examination of the conflict of breaching patient confidentiality in the realm of driving impairment resulting from epilepsy and/or dementia, the authors propose that such patient confidentiality breaches can only be justified if:

When a physician cares for another physician, a conflict in the patient-physician relationship is the innate, nebulous addition of intraprofessional responsibilities to the standard fiduciary responsibilities. Several cases in the literature describe instances of this conflict. Song and Terry describe a case of a pedophilic pediatrician, ^{Reference Song and Terry24} in which the patient's medical team felt obligated to protect future patients by disclosing confidential information to the SMB, though no specified individual was in clear harm akin to the Tarasoff standard.²⁵ Keating and Ackerman discuss the case of a physician patient regularly abusing cocaine and behaving erratically.^{Reference Keating and Ackerman26} Though his treating physician did not have any clear evidence that the impaired physician's patients were endangered, it was decided that conclusive evidence was not required, and disclosure of confidential information was made to the state's impaired-physicians program. Another example is in Ronald Schoten's description of a neurologist patient struggling with mania featuring paranoid delusions in which his patients were purposely infecting him with needles.^{Reference Schouten27} Despite early benefits from psychotherapy and psychopharmacological interventions, the physician continued practicing when delusions resumed and while suffering memory impairment, confusion, and distractibility. The patient physician disclosed to his treating psychiatrist that he planned to move his practice to another state, citing the desire for a new start and dismissing the risk of harm to his patients if he continued to practice. The psychiatrist determined that the patient physician's future patients would be at risk, given the level of impairment and lack of insight, and so reported concerns to the SMB.

Interprofessional Input into the Regulation of Judges with Dementia

Interprofessional regulation by physicians is not a norm, though there is reason to consider its potential value in select scenarios. Seasoned reasoning, and hence the cognitive ability called “executive function,” is one of the the primary skills that a judge utilizes to provide her service to the public. Severely impaired judgment or change in personality may become clear to the general public or a judge's colleagues over time, but often the meaning and impact of less obvious impairments will be best, and perhaps only, detected and understood by cognitive specialists, namely psychiatrists and neurologists. Furthermore, cognitive deficits in high intellect persons who rely on these mental faculties, such as judges, are often difficult to initially detect, given the person's high ability to compensate and cover deficits. These subtler deficits may still be uncovered with objective cognitive testing.

Interestingly, the ABA's Committee on Ethics and Professional Responsibility issued a formal opinion stating that a “lawyer may be impaired by senility or dementia due to age or illness or because of alcoholism, drug addiction, substance abuse, chemical dependency, or mental illness,” but “because lawyers are not health care professionals, they cannot be expected to discern when another lawyer suffers from mental impairment with the precision of, for example, a psychiatrist, clinical psychologist, or therapist.”²⁸ This article contends that the same obligation for a lawyer to report another impaired lawyer ought to extend to judges suffering from cognitive impairment, as well. In fact, due to the power imbalance between a lawyer and a judge, there may be an even more compelling reason to institute uniform reporting requirements not necessarily from legal colleagues, but from medical professionals.

Unlike a judge's colleagues, cognitive specialists are trained in, and experienced, with objective evaluation of a person's cognitive abilities and limitations. These specialists are skilled in performing cognitive evaluations with validated assessment tools and have access to obtaining more comprehensive neuropsychiatric testing if warranted. Additionally, clinicians are better suited to integrate the context of identified cognitive deficits, and are potentially able to identify and treat reversible causes. The value of cognitive specialists' expertise regarding evaluations of cognitive abilities seems to be recognized by utilization of cognitive specialists as expert witnesses in cases regarding a defendant's cognitive abilities.

If a geriatric judge, such as the patient described in the preceding case, is determined by a cognitive specialist to have severe cognitive illness (frontotemporal dementia, Huntington's disease, Alzheimer's' dementia, dangerous delusions), there is currently not specific descriptive data to confirm that the public has trust that a cognitive specialist treating the patient will serve as a layer of protection to the public. Physician authority to protect the public is given in select situations, such as the examples listed in the above section, but protection of the public via breaking confidentiality in a relationship with a cognitively impaired patient judge is not mandated, nor clearly condoned; therefore, a physician has no clear legal precedent to rely on for indemnity.

However, drawing on analogous situations wherein physicians suspect a patient may pose a risk of harm to self or others, and thus triggers mandatory and permissive reporting schemes, it could be concluded that a similar system is justified in cases of cognitive impairment in order to ensure public safety and uphold the integrity of the judiciary.

Though we do not call for a normative permission for such a breach, we do think this ethical conflict and potential responsibility deserves open consideration and that this “open secret” is made more transparent. More specifically, we suggest discussion be aimed at considering whether the public agrees that it is the purview of cognitive specialists to serve as a safeguard against the potential harm of impaired judges, and whether the risk of harm of impaired judges rises to the level of warranting disclosure of cognitive specialists' concerns to the SBA. The AMA code of ethics, state policies, and academic literature do not adequately clarify the responsibilities and limitations of cognitive specialists' authority regarding cognitively impaired judges, nor do they provide guidance regarding to whom such clinical information should be disclosed, which results in uncertain ethical obligations and the absence of legal protection if patient confidentiality is breached.

In the absence of such guidance, we propose a voluntary physician reporting scheme similar to those regarding impaired drivers, which shields physicians from civil or criminal liability who, acting in good faith, report an impaired driver. For example, the Texas Health and Safety Code provides that any physician who is licensed to practice in Texas may inform the Department of Public Safety (DPS) of a patient whom the physician has diagnosed as having a health condition that may interfere with the safe operation of a motor vehicle.²⁹ Once the report is received by DPS, the driver is notified in writing and is required to provide medical information from his or her personal physician. Once the medical information is received, the case is then referred to the Medical Advisory Board for its recommendation and opinion, which is then issued to DPS. The final decision to issue, renew, restrict, or revoke a license rests entirely with the DPS, ³⁰ and reporting physicians cannot be held liable for their reports.³¹

The consequences of breaching patient-physician confidentiality are not to be taken lightly, and when such a breach leads to removal from the bench, the patient risks losing his or her professional reputation, salary, and sense of self-worth. However, the consequences of allowing incapacitated judges to serve also carries great significance that stands to violate not only public trust, but a violation of the sacred duties of the judiciary which are enshrined in the Constitution itself. By instituting a permissive reporting system that relies on medical expertise and a series of processes intended to facilitate respectful and impartial final adjudication, we have an opportunity to balance a patient's right to confidentiality with the provider's obligation to protect the health and well-being of both the patient and society.