The Ethics of the Execution Participation:Why a Physician and Why Not the Jury?
I heard on the news that it would be a physician who is to determine if Stanley Williams is dead after given the IV chemicals. If the news report is correct, this represents the unethical use of a physician. Think.. what happens if the physician finds that Williams is not dead? Then the physician's evaluation is going to be used as the basis to administer more poison to insure death. Thus the physician is not simply confirming death but participating in the completion of the death sentence. It's plain wrong! If the death sentence is a morally correct act then why is it that at virtually every step in the final minutes of the process including the pressing of the three buttons to administer each chemical, a different person is to carry out each step so that no single person can assume responsibility for the end result. If the act was morally virtuous, certainly only one person would be necessary to claim the virtuousness. My other question involves those who are participating beyond the physician. Why is it that the very persons who have legally established that Williams should die, such as the judge, members of the jury and the Governor amongst others shouldn't be the ones to actually perform the execution? Is it really another way to avoid "dirtying" their hands from consequence of their decisions? You can see which way I stand on the whole ethics of this business. ..Maurice.
posted by Maurice Bernstein, M.D. @ 4:19:00 PM
5 comments
5 Comments:
I've often wondered about the physicians who are required to administer the lethal dose, or install the central line, IV, etc. How ethical are any of these actions?
I think this issue also correlates well with end-of-life care, and when the physician can appropriately withdraw treatment or ease pain while at the same time hastening death. Tricky questions, but the problem with capital punishment is that it is state, and not, disease-mandated death.
I will restrict my comments only to the fundamental issue of physician involvement in executions, not the spurious tangent of if a juror/judge should be the one to administer a lethal injection like alluded to in the tail end of the original post. This argument is more than a bit tenuous. That is, if my general practitioner diagnosed me with having a brain tumor should they, the general practitioner, and not a brain surgeon be the one to actually “dirty their hands” when conducting the procedure? If, as it turns out, the general practitioner negligently misdiagnosed the brain tumor and pawned off the dirty work on another surgeon, would this be somehow a way of avoiding the dirtying of her/his hands from the consequences of their decisions? Obviously, no. The brain surgeon is the one qualified to conduct the procedure; similarly, a trained medical specialist, not an “average Joe” off the street (aka juror), is the one qualified and skilled in the arts of selecting injection sites, setting an intravenous line, interpreting vital signs, and certifying death. More on point with the facts and to set the record straight, California explicitly does NOT require a physician to be present at an execution. With that said, I’ll move on to the more relevant discussion sparked from the above initial blog entry.
This intriguing topic brings to mind the executions of Horace Franklin Dunkins in Alabama as well as John Autry in Texas (Google them to understand the particular facts surrounding these executions; a physician present in the former and none in the latter). However, when looking to those facts, particularly of those surrounding the Autry execution, would one consider the most prudent public policy to simply eliminate this ethical dilemma of a physician and outright ban the participation of physicians in executions? I would argue no. The legislature, specifically the California legislature since the original blog entry references the recent execution in California, has made abundantly clear that physician participation in executions is authorized. (however, the legislature has not made clear if such participation is required) “Penal Code section 3605 requires the warden of San Quentin to "invite the presence of two physicians" at the execution. Moreover, it is reasonable to assume that by enacting Penal Code section 3604, subdivision (a), authorizing execution by "intravenous injection of a substance or substances in a lethal quantity sufficient to cause death," the Legislature contemplated direct participation by physicians in the execution process.
The most common legal argument raised is that such physician participation constitutes “unprofessional conduct” which would subject the physician to sanctions by the state licensing board. To arrive at the conclusion that participating in an execution is unprofessional conduct, the only logical argument would be that such participation is unethical “breaches the rules or ethical code of a profession.” (Shea v. Board of Medical Examiners, 1978) To support this argument one would simply look to the AMA, CA Medical Ass’n, World Medical Ass’n, American College of Physicians. All of these organizations have made clear that participating in an execution is unethical because of the very first line of The Oath of Hippocrates, “First, do no harm.” The Oath goes on the explicitly state, “Neither will I administer a poison to anyone when asked to do so nor will I suggest such a course.” It seems pretty clear that if analyzing what is or is not ethical by this statement alone that in fact administering, or even participating in the execution of an individual, such behavior violates this fundamental tenant. However, this alone is not how one must look to see what the California Legislature meant when defining what is or is not unprofessional conduct. I would suggest you take some time to look up what physician’s have actually been sanctioned for when this unprofessional conduct section in raised. I realize most readers have a short attention span and will not go forth and even take the effort, so I’ll sum it up in just a line or two. Such discipline revolves around physician conduct involving: fraudulent billing, tax evasion, knowingly prescribing drugs to a patient to commit suicide, improper sexual relations with a patient, etc. Surely, the Legislature could not have expressly and implicitly provided for physician involvement in executions, and simultaneously subjected participating physicians to discipline or other legal sanctions for engaging in lawful conduct.
Dovetailing on the above, it is frequently argued that a physician’s actions which violate any of the above ethical rules would subject them to discipline since physician involvement in both the healing arts as well as simultaneously in the art of death would erode the trust between physician and patient. An interesting quote from a California Appellate Judge in the First Appellate District stated, “Ethical rules serve a vital purpose. We do not agree, however, that physician participation in executions is likely to erode trust between individual physicians and patients who have not been sentenced to death for a capital crime, or undermine public confidence in physicians or the medical profession as a whole. Indeed, physicians have long participated in and witnessed gas chamber executions in California, yet no showing or assertion that such conduct has in any way affected the trusting quality of the physician-patient relationship for the population at large [has been made].”
I also doubt that physician participation in the carrying out of a death sentence would substantially erode trust by society in physicians and certainly not to the same degree than if physicians were also able to participate in active euthanasia of the ill.
Since it is only through the license to practice set by society that physicians can treat patients, society should be able to establish a non-M.D. specialty of death-row technicians to be the ones to insert an IV line and check for and pronounce death. Maybe it would even cost the state less paying for these services! ..Maurice.
"If the death sentence is a morally correct act then why is it that at virtually every step in the final minutes of the process including the pressing of the three buttons to administer each chemical, a different person is to carry out each step so that no single person can assume responsibility for the end result"
I just wanted to say that this is an intriguing point that you have made.
I also feel that they do this to distribute the gravity of having killed a person. Firing squad executions often involve more than one shooter, but not all the guns are loaded with an actual bullet. One shooter has the actual bullet, while the rest fire blanks. All the shooters know that they are taking part in an execution, yet the reason why they use blanks is so no one person knows that it was their bullet that actually killed the prisoner. Seems like twisted logic to me; if a person is going to commit the action of shooting a person in the heart, why is it so important that he knows that he may not have done it?
So what about organ harvest? You have a flat line patient and get surrogate permission to harvest an organ which for example, the heart, will clearly end the patient's life. You will have terminated a patient's life in order to perform some other good, hopefully in a way that does not cause unnecessary harm/pain/suffering to the donor patient. A death row inmate is just as terminal as a brain dead MVA victim and society feels analogously that there is good to be gained by ending the inmate's life. And a physician is the best insurance for unneccessary suffering in these terminal scenarios, such as organ donations, Dr Kevorkian cases and state executions. Regardless of your political motivations, I do not see how assisting in the termination of a "terminal" inmate goes against being a physician. The strict version of the "do no harm" principle is thrown by the wayside as soon as a discussion of risk/benefit is brought into play, so if we are willing to contort this first maxim for other grey areas of treatment why not this scenario as well?
mike
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