Capital punishment and the medical profession

The last person to have been executed in Australia was forty year old man Ronald Ryan for the murder of prison guard George Hodson during a prison escape in 1967. He was executed by hanging in Pentridge Prison. Under Commonwealth law, the death penalty was abolished in 1973 by Section 4 of The Death Penalty Abolition Act.

The etymology of “capital punishment” comes from the Latin word “caput”, meaning “head”; in reference to decapitation as a method of execution. The term has since come to refer to state sanctioned executions in general. Although decapitation is still used as a form of capital punishment in some nations, there has been a worldwide trend toward less other less gruesome methods including electrocution, gassing, and particularly lethal injection.

Within Australia, the ethical dilemma faced by the medical profession towards execution is thankfully moot. However, the same is not true for doctors within the United States where the death penalty is still used. Of the methods of execution available, the Eighth Amendment to the US Constitution is notably relevant:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Since the 1976 case of Gregg vs. Georgia where the US Supreme Court legalised capital punishment, lethal injection has been the most commonly used method and in the current day is probably the only one which satisfies the Eighth Amendment requirement of “nor cruel and unusual punishments”. Lethal injection “medicalises” the process. Indeed, of the 38 states which allow the death penalty, 35 explicitly allow for physician participation and 17 require it.

Regrettably this is in direct contradiction to the American Medical Association’s (AMA) Code of Ethics. States Article 2.06 (excerpts):

“A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prisoner.

Physician participation in an execution includes, but is not limited to, the following actions: prescribing or administering tranquilizers and other psychotropic agents and medications that are part of the execution procedure; monitoring vital signs on site or remotely (including monitoring electrocardiograms); attending or observing an execution as a physician; and rendering of technical advice regarding execution.

In the case where the method of execution is lethal injection, the following actions by the physician would also constitute physician participation in execution: selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; and consulting with or supervising lethal injection personnel.”

Despite these professional prohibitions, there are nevertheless physicians willing to participate in executions in a professional capacity. In March 2006, Professor Atul Gawande of Harvard Medical School and Harvard School of Public Health published an excellent article exploring the history and ethics of physician involvement in executions. Exceptionally eye-opening are the number of interviews that Gawande relays within the article.

Whenever someone within a debate tries to invoke the “slippery slope” argument, I have always viewed it with suspicion. Nevertheless, one of the interviews within the article demonstrates the danger of the “slippery slope”:

“The warden complained of difficulties staffing the prison clinic and asked Dr. A if he would be willing to see prisoners there occasionally. Dr. A said he would. He'd have made more money in his own clinic … but the prison was important to the community, he liked the warden, and it was just a few hours of work a month. He was happy to help.

Then, a year or two later, the warden asked him for help with a different problem. The state had a death penalty, and the legislature had voted to use lethal injection exclusively. The executions were to be carried out in the warden's prison. He needed doctors, he said. Would Dr. A help? He would not have to deliver the lethal injection. He would just help with cardiac monitoring…

…he [Dr. A] felt torn… “I do not have a very strong conviction about the death penalty, but I don't feel anything negative about it for such people either. The execution order was given legally by the court. And morally, if you think about the animal behaviour of some of these people.” … Ultimately, he decided to participate, he said, because he was only helping with monitoring, because he was needed by the warden and his community, because the sentence was society's order, and because the punishment did not seem wrong.

At the first execution, he was instructed to stand behind a curtain watching the inmate's heart rhythm on a cardiac monitor. Neither the witnesses on the other side of the glass nor the prisoner could see him. A technician placed two IV lines. Someone he could not see pushed the three drugs, one right after another. Watching the monitor, he saw the sinus rhythm slow, then widen. He recognized the peaked T waves of hyperkalaemia followed by the fine spikes of ventricular fibrillation and finally the flat, unwavering line of an asystolic arrest. He waited half a minute, then signalled to another physician who went out before the witnesses to place his stethoscope on the prisoner's unmoving chest. The doctor listened for 30 seconds and then told the warden the inmate was dead. Half an hour later, Dr. A was released. He made his way through a side door, past the crowd gathered outside, and headed home.

In three subsequent executions there were difficulties, though, all with finding a vein for an IV… The technicians would stick and stick and, after half an hour, give up … Dr. A had placed numerous lines. Could he give a try?

OK, Dr. A decided. Let me take a look.

This was a turning point, though he didn't recognize it at the time. He was there to help, they had a problem, and so he would help. It did not occur to him to do otherwise.

…In one [patient] … he could not find a vein … He felt responsible for the situation … The doctor decided to place a central line.

...Only one case seemed to really bother him. The convict … weighed about 350 pounds. The team placed his intravenous lines without trouble. But after they had given him all three injections, the prisoner's heart rhythm continued… the team looked to Dr. A. His explanation of what happened next diverges from what I [the author] learned from another source. I was told that he instructed that another bolus of potassium be given. When I asked him if he did, he said, “No, I didn't. As far as I remember, I didn't say anything. I think it may have been another physician.” Certainly, however, all boundary lines had been crossed. He had agreed to take part in the executions simply to pronounce death, but just by being present, by having expertise, he had opened himself to being called on to do steadily more, to take responsibility for the execution itself. Perhaps he was not the executioner. But he was darn close to it.”

The narrative is all the more chilling as it is not only real, but seems perfectly understandable.

Professor Gawande concludes in his article:

“The public has granted us extraordinary and exclusive dispensation to administer drugs to people, even to the point of unconsciousness, to put needles and tubes into their bodies, to do what would otherwise be considered assault, because we do so on their behalf – to save their lives and provide them comfort. To have the state take control of these skills for its purposes against a human being – for punishment – seems a dangerous perversion. Society has trusted us with powerful abilities, and the more willing we are to use these abilities against individual people, the more we risk that trust…

The doctors’ and nurse’s arguments for competence and comfort in the execution process do have some force. But however much they may wish to be there for an inmate, it seems clear that the inmate is not really their patient. Unlike genuine patients, an inmate has no ability to refuse the physicians’ “care” – indeed, the inmate and his family are not even permitted to know the physician’s identity. And the medical assistance provided primarily serves the government's purposes – not the inmate’s needs as a patient. Medicine is being made an instrument of punishment. The hand of comfort that more gently places the IV, more carefully times the bolus of potassium, is also the hand of death. We cannot escape this truth. The ethics codes seem right.”

Despite that I have some differing background thoughts on the use of capital punishment, I am forced to agree totally with Professor Gawande’s above conclusions. The professionalism of the medical fraternity is predicated by the observance of agreed and universal ethical standards. These are not flexible and cannot be conveniently ignored for the sake of political and social expedience. Though there may be some compelling arguments for physician participation in execution in those states and nations where it is legal, it nevertheless breaches several core ethical principles. States the AMA Code of Ethics under the “principles of medical ethics”:

“(I) A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights…

(III) A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient…

(VIII) A physician shall, while caring for a patient, regard responsibility to the patient as paramount…”

Regardless of the debate and social acceptance of capital punishment, the medical profession must not be subsumed into the role of a de-facto executioner.

Source articles:
The New England Journal of Medicine: Gawande, Atul. When Law and Ethics Collide – Why Physicians Participate in Executions. Volume 354:1221-1229, March 23, 2006
Australian Institute of Criminology: Trends & Issues in Crime and Criminal Justice, No. 3, Capital Punishment
Wikipedia: Ronald Ryan
AMA: Code of Ethics, E-2.06, Capital punishment
AMA: Code of Ethics, Principles of medical ethics