Medical Ethics and Physician InvolvementBehavior of physicians has been guided historically by the ethical tenets of nonmaleficence (the avoidance of causing harm) and beneficence (the affirmative provision of good). For most of medical history, these two principles defined the ethical limits of clinical practice.
Following the egregious violations of medical ethics perpetrated by physicians during the Nazi regime, the World Medical Association (formed in 1947) adopted two documents which embodied the spirit of the Hippocratic Oath as well as the lessons of the preceding decade.45 In the wake of Nuremberg revelations, the WMA sought to update the Hippocratic Oath to condemn physician complicity in the commission of antihumanitarian acts at the behest of the state.
The WMA's Declaration of Geneva states that all members of the medical profession must "maintain the utmost respect for human life from its beginning even under threat" and must not use medical knowledge "contrary to the laws of humanity."46 The International Code of Medical Ethics states that "a physician shall, in all types of medical practice, be dedicated to providing competent medical service in full technical and moral independence, with compassion and respect for human dignity."47 These documents are perhaps the most explicit statements about the medical profession's obligation to elevate medical ethics over contravening state laws or regulations. Physicians are in large measure governed by their own professional ethics, from which they derive the public trust and societal authority to practice medicine.
Physician involvement in the administration of capital punishment is ethically proscribed because it violates the ethical precepts of the profession. Medicine is a therapeutic and compassionate enterprise, and neither of these goals is consistent with physician participation in executions. In this section, we considerthe ethical questions posed by the many roles that physicians are asked to play in the execution process.
The Varieties of Medical InvolvementIncreasingly, penal authorities have employed the medical profession's evaluative skills and therapeutic techniques to prepare prisoners for execution and to legitimate the act of killing. Although some may propose that the physicians' functions ensure a more "humane" execution, on deeper analysis, the goal appears not to reduce pain, but to maximize efficiency. The major forms of such involvement are set out below: Medical Evaluation Physicians have been asked to use their evaluative skills in three ways: clinical assessment of condemned inmates' mental competence for execution, physician examination in preparation for the execution, and clinical monitoring of vital signs during the execution. Psychiatric Assessment of Competence to be Executed For at least 300 years, the notion that insane persons should not be executed has been part of Anglo-American law. However, only in 1986 did the U.S. Supreme Court elevate this idea to the status of a constitutional requirement. In Ford v. Wainwright, the Court held that the execution of an incompetent person violates the Eighth Amendment proscription against cruel and unusual punishment, and that trial-type procedures are constitutionally necessary to determine competence for execution.48 However, the Court neither required that psychiatric testimony be part of such hearings nor set forth criteria for the assessment of competence. The role of psychiatrists in such proceedings is ill-defined in American law and has been vigorously contested by medical ethics commentators.49
Physical Evaluation in Preparation for
Physicians also perform pre-execution
physical evaluation of patients. As we described in Chapter 4, physicians
have provided advice on drugs and helpeddesign protocols for lethal injection
executions. Physicians have examined veins for lethal injections and measured
height and weight for hangings.
This evaluative role continues during
the execution itself. Twenty-three states specifically require a physician
to determine or pronounce death during the administration of capital punishment
as mandated in their state statutes or regulations. [See TABLE 2] In order
to determine or pronounce death, physicians need to monitor vital signs
of the condemned, usually with stethoscopes or electrocardiograms. If the
initial attempt to execute the prisoner fails for any reason, a physician
may be called upon for advice as to whether additional shocks or lethal
chemicals should be administered, or whether the patient should be resuscitated
to await a future execution attempt.
The contemporary ethical prohibition against
medical participation in capital punishment is deeply rooted in the professional
tradition of nonmaleficence. In recent years, physician participation has
been condemned by the World Medical Association, the World Psychiatric
Association, and national medical societies throughout the industrialized
world, including the United States.54
Some opponents of physician involvement base their objections on their
belief that capital punishment is immoral or contrary to international
Many others, including the American Medical Association, take the position
that the morality of the death penalty is a matter of personal conscience
but that physician complicity in its administration is nevertheless unethical.
Medical Care That Does Not Facilitate Execution Ethics authorities and commentators are virtually unanimous in their support for the appropriateness of medical care that has no effect on whether or not an inmate is subsequently executed. The health needs of prisoners, on death row and elsewhere, are too often neglected. Physicians who attend to prisoners often do so under difficult circumstances, with inadequate resources. Prolonged death row confinement is associated with many physical and mental health problems. As long as informed and competent consent is obtained from inmates in a non-coercive manner, clinical care that does not facilitate execution is both ethical and desirable. Interventions That Facilitate Execution Preparation for execution represents a spectrum of involvement from advising correctional officials on the appropriate techniques for execution to actually preparing or administering lethal injections. All of these activities are ethically inappropriate for physicians and should not be tolerated.
Physician involvement in physical assessment to prepare for the execution - e.g., examination of potential sites for lethal injection or measurement of height and weight in preparation for hanging - has been uniformly condemned asunethical. These actions have no conceivable therapeutic purpose. The physician who performs them acts literally as the executioner's assistant. These functions are so closely tied to the act of killing as to be ethically indistinguishable from it.
Physician monitoring of cardiac function, pulse, and respiration during the process of killing has also been uniformly condemned as unethical. Not only does such monitoring lack any therapeutic purpose; it makes physicians into key administrators in the killing process. The monitoring physician's indication that signs of life persist is tantamount to an order for lethal measures to be continued. This intimate causal link between the monitoring of vital signs and the death of the condemned compels the conclusion that such monitoring is unethical for physicians. Areas of Controversy
Psychiatric Treatment that Restores Competence for Execution Treatment that restores death row inmates to competence for execution is widely believed to be unethical. However, some prison psychiatrists contend that it is ethical so long as it is done for the purpose of relieving the psychiatric symptoms, rather than for the purpose of killing the inmate. To proponents of this view, the legal consequences of treatment success are ethically irrelevant. Adherents to this view see themselves as acting within the Hippocratic tradition even when successful treatment leads to the killing of the condemned. In so doing, they distort the Hippocratic commitment into an ethic of indifference to patients as persons. This indifference is underlined by the obviousness of the penal function that such treatment serves. However the treating psychiatrist understands his or her role, the ultimate, public end furthered by clinical "success" is the execution of the condemned. Psychiatric treatment that has the effect of restoring competence for execution should thus, as a rule, be regarded as unethical.
On the other hand, one can imagine circumstances in which an ethic of commitment to patients as whole persons might lead a psychiatrist to consider the legal consequences of therapeutic success and nonetheless decide to treat. For example, a delusional prisoner's self-mutilating behavior or a severely disorganized psychotic inmate's inability to eat invite the judgment that the urgency of relieving agony or forestalling an immediate threat to life outweighs the prospect of execution. This possibility merits an exception to the proscription against treatment that might restore the condemned to competence. But this exceptionshould be sharply limited, to cases of extreme suffering or immediate danger to life.65 Psychiatric Evaluation Bearing on Competence to be Executed The ethics of psychiatric evaluation in this context have in recent years been a subject of bitter controversy. The AMA, the British Medical Association, and many medical ethics commentators have concluded that such evaluations constitute unethical participation in executions. However, some practitioners of forensic psychiatry (defined as the actions of psychiatrists in assisting the law to carry out some of its responsibilities) dispute this view on the grounds that they have no ethical duty to concern themselves with harm that may result from forensic evaluation.66 They assert that the Hippocratic ethic of commitment to patient well-being is irrelevant to their work because, when doing forensic assessments, they do not function as physicians.67
This claim ignores the reality that forensic practitioners derive their authority - their franchise to make legally significant distinctions based upon health status - from their training and status as physicians. Forensic practitioners are physicians in the eyes of the public, the courts, and even their examinees. The lines between therapeutic and forensic work are blurry, both in popular understanding and daily practice. Equally worrisome is the open-endedness of the claim that forensic physicians do not function as doctors. If psychiatrists who evaluate competence for execution can say that they are not acting as doctors, why can't internists who select lethal injection sites say the same?
Clinical assessment of an inmate's competence to be executed is unethical, we believe, because it gives the medical profession a decisive role with respect to the final legal obstacle to execution. The proximity between this clinical role and the act of killing casts doctors metaphorically as hangman's aides. On this basis,clinical examination and testimony bearing on competence for execution can be distinguished from other forensic activities that result in harm to the subjects of evaluation.
45 These were the Declaration of Geneva (1948) and the International Code of Medical Ethics (1949).
46 World Medical Association. Handbook of Declarations 22 (1985).
48 477 U.S. 399 (1986).
49 Bloche MG. Psychiatry, capital punishment and the purposes of medicine. International Journal of Law and Psychiatry (forthcoming).
50 Council on Ethical and Judicial Affairs. Physician participation in capital punishment. Journal of the American Medical Association 1993;270:365-368.
51 Estelle v. Gamble, 429 U.S. 97 (1976).
52 494 U.S. 1015 (1990) (granting certiorari).
53 Perry v. Louisiana, 610 So. 2d 746 (1992).
World Medical Association. Resolution on Physician Participation in Capital
Punishment. In: Handbook of Declarations 22 (1985).
World Psychiatric Association.
Declaration on the Participation of Psychiatrists in the Death Penalty
55 This sentiment prevails in Europe, where most nations have ratified a protocol of the European Convention on Human Rights that calls for the death penalty to be abolished. For a comprehensive discussion of the international legal status of the death penalty, see Rodley NS. The Treatment of Prisoners Under International Law, UNESCO, Paris, Claredon Press, Oxford 1987.
56 Address given by James Todd, M.D., at the opening of the exhibit entitled "The Worth of the Human Being: Medicine in Germany 1918-1945," on November 5, 1992, in Washington, D.C.
57 Thorburn KM. Doctors and executions. American Journal of Dermatopathology 1985;7:87.
58 Council on Ethical and Judicial Affairs. Physician participation in capital punishment. Journal of the American Medical Association 1993;270:365-368.
59 World Medical Association. International Code of Medical Ethics, Handbook of Declarations 22 (1985).
60 United Nations, Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. U.N. Doc. ST/DPI/801, 1982; and World Medical Association, Declaration of Tokyo.
61 Proctor R. Racial Hygiene: Medicine Under the Nazis, 1988.
62 Bonnie R. Dilemmas in administering the death penalty: conscientious abstention, professional ethics, and the needs of the legal system. Law and Human Behavior 67,76; 1990.
63 Resolution 5, on Defining Physician Participation in State Executions, introduced by the American College of Physicians, 1991 Interim Meeting of the American Medical Association's House of Delegates.
64 Council on Ethical and Judicial Affairs. Physician participation in capital punishment. Journal of the American Medical Association 1993; 270:365-368.
65 Anti-psychotic treatment on death row to relieve such suffering is consistent with the emerging consensus that preservation of life should not always take priority over the relief of suffering. See, for example, Council on Ethical and Judicial Affairs. Withholding life-prolonging medical treatment. Journal of the American Medical Association 256:1986.
66 Bloch S. and Chodoff P. Psychiatric Ethics. Oxford: Oxford University Press, 1981.
67 Appelbaum P. The parable of the forensic psychiatrist: ethics and the problem of doing harm. International Journal of Law and Psychiatry, 1990.