By Donald C. Kern, MD, MPH, CCHP, and Lynn F. Sander, MD, CCHP, FSCP
Posted on September 8, 2008 – This article is adapted from a presentation made at the 2nd Annual Academic and Health Policy Conference on Correctional Health Care.
The United States is one of 60 nations worldwide to legally allow and use the death penalty for ordinary crimes. (An additional 34 countries retain capital punishment as a possible sanction for ordinary crimes, but have not used it in at least 10 years, and 11 countries reserve it for extraordinary circumstances.) Currently, the federal government, the military, and virtually all the 37 states that have the death penalty, use lethal injection as the method of implementation.
Because lethal injection involves methods and substances (in therapeutic doses) used in medical practice, some legal authorities perceive lethal injection as a quasi-medical procedure. For this reason, some courts and legislatures have become interested in the possibility of having physician involvement in administering the sanction of lethal injection. Indeed, in California, a U.S. District Court judge mandated that the state must have an anesthesiologist personally supervise lethal injections.
In the recent Supreme Court case Baze v. Rees, the plaintiffs argued that a widely-used three chemical protocol is unconstitutional because it causes torturous, excruciating pain. At one point, the plaintiff’s attorney said the risk of pain could be eliminated if medically trained personnel, rather than the prison warden, monitored the anesthesia. Fortunately, the Court did not mandate medical involvement in lethal injection. The Court decided that any alternative method had to be feasible, readily implemented, and be able to significantly reduce any risk imposed by the current method.
Indeed, Justice Alito wrote a concurring opinion specifically addressing the issue of possible involvement of health care providers in lethal injection. Alito stated, Objections to features of a lethal injection protocol must be considered against the backdrop of the ethics rules of medical professionals and related practical constraints. Assuming, as previously discussed, that lethal injection is not unconstitutional, it follows that a suggested modification of a lethal injection protocol cannot be regarded as feasible or readily available if the modification would require participation—either in carrying out the execution or in training those who carry out the execution—by persons whose professional ethics rules or traditions impede their participation.
Unfortunately, there is no consensus among professional organizations about health staff participation in lethal injection. SCP has taken an unequivocal stand. The organization’s code of ethics specifically states that the correctional health professional shall not be involved in any aspect of the execution of the death penalty.
The American Medical Association holds that physicians must ethically limit their involvement to the prescribing of a sleep aid the night before an execution and the signing of the death certificate. Similarly, the American Nurses Associa-tion and the National Association of Emergency Medical Technicians also consider their members’ involvement in execution to be unethical. However, the American Pharmaceutical Association says that pharmacist involvement in lethal injection is ethical.
The National Commission on Correctional Health Care and the American Correctional Association both create standards for the operation of correctional facilities. NCCHC’s prison standards includes a standard on the topic that states correctional health services staff do not participate in inmate executions. By contrast, ACA has no position statement or standard restricting health professionals’ involvement in executions.
These organizations are trying to balance three competing ethical principles. The first is the principle of nonmaleficence, the injunction to do no harm, or as Sydenham famously rendered it, primum non nocere. This principle clearly stands against physician involvement in capital punishment.
The second ethical principle is that of beneficence, which enjoins physicians to act to benefit the patient, but it also charges physicians to act to benefit society. Clearly these two aspects of beneficence are in conflict here.
The third ethical principle is that of fairness. The fairness principle requires that physicians act toward all relevant parties in an equivalent manner, or as Aristotle wrote, giving to each that which is his due. Again, physicians may be conflicted in how to balance being fair to their patient while also being fair to the legal authority.
A survey of community physicians was published in 2001, reporting on their possible willingness to participate in lethal injection for capital punishment. Respondents were asked if they would perform any of 10 possible actions, only two of which are considered ethical by the AMA. Overall, 41% indicated that they would be willing to perform at least one action that would be considered unethical by the AMA and SCP. Interestingly, a large proportion said they would not perform the two actions that are considered ethical. (Roughly 55% would not prescribe a sleep aid the night before, and approximately 45% would not sign the death certificate.)
In summary, SCP considers the involvement of correctional physicians in administering capital punishment to be unethical. However, other organizations, a number of legislatures, several courts, and various physicians practicing in the community may not agree. Further litigation around this issue may be expected.
Drs. Kern and Sander are both members of the SCP board of directors and work as correctional health care consultants. Readers may contact them at scp@cordocs.org.
