“The world may construe according to its wits. But this Court must construe
according to the law.”
St. Thomas More, arguing during his treason trial why his silence in the face of the King’s command to affirm the Act of Supremacy could only be construed as innocent in light of the common law principle that “silence imports consent”.
By this point in human history, most people in American society either personally know, or at least know of, an elderly person who has been stricken by mentally incapacitating dementia. I have personally known two such persons; both persons suffered and have suffered from this irreversible condition for several years.
For wise reasons, the Cardinals of the Roman Catholic Church traditionally elect a holy man, who has decades of experience, as the Roman Pontiff. As do all of us, however, our Popes age. Have you ever considered what could happen to the Roman Catholic Church during a time period, which could last years, in which a Roman Pontiff were stricken with incapacitating, permanent dementia as part of Alzheimer’s or Parkinson’s diseases? In such a situation, the Pope could not resign, as being incompetent, he could not form the moral or legal intention to do so. What should the Roman Catholic Church do in such a situation which, statistically, is bound to occur sooner or later? Who should be trusted to handle such a serious situation?
As a lawyer, your Grand Knight believes that the Church should systematically address this issue by creating Canon Law norms to govern this inevitable problem. The matter should not be left even to the Cardinals and Bishops to deal with according to their wits as the situation arises; solid, well-reasoned legal provisions should be enacted in advance. The following is a rationale for, and language constituting, a Canon Law solution to the problem of a Pope who is permanently incapacitated with a mental condition such as Alzheimer’s or Parkinson’s dementia.
PERMANENT MENTAL INCAPCITATION OF THE POPE: A RATIONALE
AND NORMS FOR INVOLUNTARY RETIREMENT
When a man is elected Pope, his life and even his name immediately change forever. By tradition, however, there is at least one thing upon which the newly elected Roman Pontiff can depend: he will remain Pope until death. Although resignation from office is not unknown in the history of the papacy, it is rare. The last Pope to resign was Gregory XII in 1415 during the Western Schism. There is no provision in Church law for removing the Pope from office without his consent. Thus, for nearly 600 years, the only path to leaving papal office has been natural death.
In light of advances in medical knowledge, technology and treatment options, however, it is becoming increasingly possible to keep a person alive for an extended period of time even if his ability to exercise morally responsible judgment may be severely or totally impaired. Dementia accompanying advanced stages of Alzheimer’s and Parkinson’s diseases, for example, may destroy all capacity for adult judgment. There can be no guarantee that a present or future Pope will never contract a disease or psychological condition that results in permanent mental incapacitation. Since modern medicine may enable physicians to keep a mentally disabled Pope alive indefinitely, the Catholic Church eventually faces the prospect of facing the world without having a capable leader. And, being mentally incapacitated and incompetent, the stricken Pope could not form the intention to resign voluntarily.
The need of the People of God for effective papal leadership counsels against allowing such a situation ever to develop. Simply waiting indefinitely for an incapacitated Pope to die is no solution. Thus, the Catholic Church should define when the Pope may be removed from office without his consent for mental health reasons, who should exercise such authority, and how such a decision should be made.
The norms promulgated for this purpose must protect the Pope from any faction that would seek to remove him for a reason other than permanent mental incapacitation and must be so objectively fair that an involuntary retirement under those norms would be accepted as legitimate both within the Catholic Church and in the world community. Moreover, since the problems underlying permanent mental incapacitation are essentially medical in nature, participation by medical professionals in the removal process is both desirable and unavoidable.
With respect to when a Pope may be involuntarily removed from office, the Church should include only permanent mental incapacitation and should exclude any scenario involving only physical incapacitation. In the latter situation, the Pope would remain in command of his mental faculties and, therefore, would be capable of deciding, in conscience, whether God wills him to continue in office until death or to resign voluntarily. Such a case presents no basis for changing the status quo.
As to mental capacity, however, the Pope could not perform his duties if completely deprived of the ability to engage in morally responsible judgment. Although the need to protect his office may counsel against involuntarily removing a Pope where the medical evidence suggests that he may recover from a temporary inability to engage in such judgment, the Church could be seriously harmed if a permanently incapacitated Pope continued in office.
The question of who should have the authority to remove a Pope from office without his consent because of permanent mental incapacitation obviously implicates the theology of the office, ecclesiology and history. Only a few brief points are offered here in the interest of suggesting a procedural framework for removing a mentally incapacitated Pope.
The history surrounding the 10th and 11th Century lay investiture controversy demonstrates the dangers inherent in allowing lay persons to control the selection of men to Episcopal office. That unfortunate chapter from the Church’s past suggests that lay persons should not control the removal of a Pope from office either. In earlier centuries, however, the Church selected Bishops after lay persons were consulted about, but did not exclusively control, the appointment process. Particularly where, as here, the question of removing a Pope from office inherently involves medical issues about which lay physicians will have greater expertise than persons holding Episcopal office, it makes sense for duly-appointed medical professionals to be involved in an advisory capacity.
History further shows that, since the 11th Century, the College of Cardinals has had exclusive prerogative to elect the Roman Pontiff. Moreover, as explained by Pope John Paul II in Universi Dominici Gregis (1996), the rules under which Pope Benedict XVI was elected, the College of Cardinals uniquely reflects two aspects of the Petrine office: the Cardinals are specially identified with the Church at Rome and yet, because they come from around the world, the Cardinals as a body reflect the Church’s universal nature. The College of Cardinals is both large enough to be representative of the universal Church, but small enough to be readily accommodated in a single place for confidential deliberations.
Furthermore, since the Catholic faithful and the larger world community associate papal selection with the College of Cardinals, there exists a common sense basis for reposing any limited authority to remove a Pope in that same body. Where the tenure of the Pope is at stake, actions taken by the College of Cardinals are most likely to possess credibility and legitimacy both within the Catholic Church and in the world community.
For norms to remove a Pope to have the best chance of receiving general acceptance, the Holy Father himself should promulgate those rules, just as he does the substantive rules and procedures for electing his successor. The Church certainly should not wait until an emergency appears before having lower officeholders attempt to set the rules in media res.
Indeed, since the tenure of the Pope is at issue, the rules should reflect a level of formality that is on a par with those governing his election. The paramount importance of removal proceedings calls for a solemnity of atmosphere and procedure similar to a conclave. Conducting the proceedings in the Sistine Chapel in Vatican City State would fully convey this sense of seriousness.
To further enhance the credibility and legitimacy of the process, the hierarchy should frankly acknowledge what is occurring. A public announcement that the norms are being invoked is essential.
Furthermore, just as a super-majority of two-thirds of the votes is necessary to elect a Pope, so also that same super-majority should be required to involuntarily remove him. Even in secular governmental structures, certain fundamental changes (e.g., U.S. constitutional amendments) require the approval of super-majorities. A more fundamental change in Church practice than allowing a Pope to be removed without his consent would be difficult to fathom. In addition, the norms should make clear that the collective decision of the College of Cardinals is final and that there is no appeal to any other person or entity.
As the decision facing the College of Cardinals is one about which lay medical professionals will possess greater technical expertise, the norms should systematically provide for formal, advisory input from designated physicians. Since it is the Pope who will be subject to medical examination concerning his mental capacity, he should have the prerogative, in advance, to select the medical professionals who will render advice to the College of Cardinals. Selecting some physicians who practice in the fields of neurology, mental illness and care of elderly persons would be wise.
To protect the Pope from uninformed or even abusive attempts to remove him, the norms should provide that only the designated medical professionals and men ordained to Episcopal orders have the authority to invoke them. Even then, as further protection against abuse, the norms might provide for screening by a committee of senior Vatican officials before the norms could be implemented. Some of these officials should have been selected by the Pope, demonstrating that they are persons in whom he places special trust. Including the Cardinal Secretary of State on the screening committee would contribute to the legitimacy of the process in the eyes of foreign governments. In addition, if the College of Cardinals ultimately were to determine that the Pope does not suffer from permanent mental incapacitation, the norms should require that a reasonable time period must elapse before they may be invoked again.
Respecting the Pope’s privacy in matters of personal health is a longstanding Vatican tradition. Consistent with that tradition, any medical examination of the Pope conducted under the norms and subsequent deliberations concerning the examination should be confidential. Moreover, if the norms are followed and the College of Cardinals decides not to remove the Pope, he would continue in office. Under those circumstances, there would be no basis to depart from the current practice of respecting the Pope’s privacy in medical matters.
Conversely, if the College of Cardinals determines that the Pope suffers from permanent mental incapacitation and must be retired from office without his consent, some public explanation would be necessary for the decision to be accepted as legitimate. One method of providing an explanation, while simultaneously respecting the confidentiality of the Cardinals’ deliberations, would be to publish only the diagnostic opinions of the designated medical professionals. Although the Cardinals and the medical professionals would remain barred from discussing the deliberative process, the physicians’ diagnostic opinions would provide the public with the medical basis for the removal decision.
The model norms presented below are one way in which all of the previously identified concerns could be addressed in practice.
B. PROPOSED NORMS FOR THE INVOLUNTARY RETIREMENT OF THE
ROMAN PONTIFF BECAUSE OF PERMANENT MENTAL INCAPACITATION
Board of Medical Examiners: a committee of five physicians appointed by the Roman Pontiff to conduct Special Medical Examinations and to provide medical advice to the College of Cardinals on the question of whether the Roman Pontiff suffers from permanent mental incapacitation.
College of Cardinals: the Cardinals of the Holy Roman Church who are eligible to vote during the election of the Roman Pontiff according to the rules governing that election.
Extraordinary Session: a meeting of the College of Cardinals in the Sistine Chapel, Vatican City State, for the purpose of determining whether the Roman Pontiff suffers from permanent mental incapacitation.
Involuntary Retirement: the removal of the Roman Pontiff from office, without his consent, by the College of Cardinals solely because of permanent mental incapacitation.
Mental Incapacitation: a mental (but not physical) impairment, stemming from any cause(s), of a degree so severe that the Roman Pontiff is incapable of exercising morally responsible judgment.
Permanent: a condition that will irreversibly exist until human death.
Physician: a person trained in medicine, who graduated from an accredited medical school and who has a license or permission to practice medicine according to the laws of the nation (or political subdivision thereof) in which the person professionally practices.
Roman Pontiff: the Bishop of the Church of Rome, known in common parlance as the Pope.
Screening Committee of Cardinals: a committee of three Cardinals of the Holy Roman Church consisting of the Dean of the College of Cardinals, the Cardinal Camerlengo of the Holy Roman Church and the Cardinal Secretary of State. Should any Cardinal hold two of these positions, then the Cardinal Vicar General of the Diocese of Rome shall serve on the committee.
Special Medical Examination: a medical examination conducted by the Board of Medical Examiners for the sole purpose of assisting the College of Cardinals in determining whether the Roman Pontiff suffers from permanent mental incapacitation.
These norms apply only in determining whether the Roman Pontiff suffers from permanent mental incapacitation. These procedures do not apply to cases of physical impairment, regardless of how severe such impairment may be.
Any other provision of Canon Law notwithstanding, the following procedures shall be used in determining whether the Roman Pontiff should be involuntarily retired because of permanent mental incapacitation.
Within 90 days of being elected, the Roman Pontiff shall select five physicians who consent to serve on the Board of Medical Examiners (“Board”). He may select physicians from anywhere in the world. He may, but need not, appoint his personal physician. The physician-members of the Board serve at his pleasure, provided that a five-physician Board is maintained at all times and that the Roman Pontiff may not dismiss a physician-member of the Board once the Screening Committee of Cardinals (“Screening Committee”) orders a Special Medical Examination. At all times, the Board shall have at least one physician who practices in each of the following fields: neurology, psychiatry and geriatric medicine.
Any Cardinal or Bishop of the Catholic Church or any physician-member of the Board may petition the Screening Committee to order a Special Medical Examination of the Roman Pontiff.
A Special Medical Examination shall occur if and only if the Screening Committee unanimously determines that an objectively reasonable basis exists to believe that the Roman Pontiff suffers from permanent mental incapacitation. The Roman Pontiff’s consent to the Special Medical Examination is not required.
If the Screening Committee determines that a Special Medical Examination is warranted under the above standard, it shall direct the Board, as a team, to commence the examination without unnecessary delay at a suitable medical facility in the vicinity of Vatican City State or Rome, Italy. The physician-members of the Board may order such medical tests as, in their professional judgment, may be necessary or helpful in conducting the examination.
The Dean of the College of Cardinals shall publicly announce that a Special Medical Examination of the Roman Pontiff is to occur. The decision to conduct a Special Medical Examination does not create a vacancy of the Apostolic See.
After the Board has completed the Special Medical Examination, each physician-member shall, in writing, render an advisory diagnostic opinion about whether, to a reasonable degree of medical certainty, the Roman Pontiff suffers from permanent mental incapacitation, as defined. The physician-members of the Board may take such time to conduct the Special Medical Examination and to compose their opinions as they in their professional judgment deem necessary, consistent with avoiding undue delay in such an important matter.
The Board shall transmit the opinions of its physician-members on a confidential basis to the Screening Committee. The physician-members of the Board shall refrain from publicly revealing any aspect of the Special Medical Evaluation process, including but not limited to their respective opinions.
Upon receiving from the Board the opinions of its physician-members, the Dean of the College of Cardinals shall summon the College of Cardinals to Vatican City State for an Extraordinary Session. The Extraordinary Session shall commence in the Sistine Chapel on a date stated in the summons. Beforehand, steps will be taken to ensure that there are no cameras or audio listening devices in the Sistine Chapel.
The Dean of the College of Cardinals shall preside over the Extraordinary Session. Each Cardinal shall take an oath not to reveal any part of the proceedings. All persons other than the College of Cardinals shall then be excluded. Provision shall be made to prevent anyone from having contact with any Cardinal-attendee until the Extraordinary Session has concluded.
No permanent record, in any form, shall be made of the proceedings of the Extraordinary Session. Any notes taken or records made by Cardinal-attendees shall be destroyed at the conclusion of the Extraordinary Session.
The first order of business in the Extraordinary Session shall be for each Cardinal-attendee to read the diagnostic opinions of the physician-members of the Board. The Cardinal-attendees may also review medical records from the Special Medical Examination and any other medical records concerning the Roman Pontiff that may be available. After the Cardinal-attendees have done so, the physician-members of the Board may individually be summoned to appear before the Extraordinary Session to answer any questions that any Cardinal-attendee may ask. Such appearances are not required. If a physician-member of the Board appears at the Extraordinary Session, he shall take an oath not to reveal any aspect of the proceedings. The role of the physician-members of the Board is advisory only.
When any appearance of a physician-member of the Board at an Extraordinary Session has been completed, he shall be excluded from the remainder of the proceedings. When such appearances, if any, have been concluded, the Cardinal-attendees shall conduct one, and only one, secret ballot on the question of whether the Roman Pontiff suffers from permanent mental incapacitation. A Cardinal-attendee may not abstain from voting. The votes shall be counted in the presence of the Cardinal-attendees in the manner which the Dean of the College of Cardinals prescribes. After the votes are counted, the ballots shall be destroyed. The decision of the College of Cardinals is final; there is no right of appeal to any other person or entity.
For the College of Cardinals to find that the Roman Pontiff suffers from permanent mental incapacitation, two-thirds or more of the votes cast are required.
If the two-thirds threshold is not achieved, the Extraordinary Session ends. The Dean of the College of Cardinals shall ensure that all records of the Special Medical Examination, including the diagnostic opinions of the physician-members of the Board, are sealed in the Vatican Archives unless a Roman Pontiff later orders them published. Another Special Medical Examination may not be requested or conducted within six months of the conclusion of an Extraordinary Session.
If the required two-thirds vote is attained, then the Roman Pontiff is immediately placed into involuntary retirement and a vacancy of the Apostolic See occurs. The Extraordinary Session ends and the Dean of the College of Cardinals shall arrange for publication of the diagnostic opinions of the physician-members of the Board so that the medical basis for the decision is apparent to the Catholic faithful and the general public. The physician-members of the Board and the Cardinal-attendees, however, shall permanently refrain from disclosing what occurred during the Extraordinary Session. The Cardinal Vicar General of the Diocese of Rome shall immediately and publicly announce the vacancy of the Apostolic See. Arrangements for the involuntarily retired Roman Pontiff to move to a retirement residence will also be made. If the Roman Pontiff is involuntarily retired, then the College of Cardinals will proceed to select a new Roman Pontiff pursuant to then effective rules governing such an election.
Bernard A. Smith, Esq.
October 15, 2011