Clinical Ethics in Anesthesiology. A Case-Based Textbook

6. Anesthesiologists, the state, and society

49. Physician participation in executions

Gail A. Van Norman

The Case

RB, a 53-year-old US prison inmate is scheduled for execution by lethal injection. His crime is heinous: the abduction, rape, and stabbing death of a 14-year-old girl. There is no doubt of his guilt. DNA profiling confirms he is the murderer.

On execution day, after several hours’ administrative delay, the execution team commences placement of intravenous catheters, which is complicated by the prisoner’s long history of IV heroin use. The session drags on for more than 2 hours. Members of the prison team take turns, making more than two dozen unsuccessful insertions. After the only successful acquisition of a vein, the IV infiltrates. Team members take multiple breaks due to stress. The prisoner at times appears to be crying, and offers to “help” the IV team, requesting at one point to place his own IV. He moves tourniquets, attempting to locate veins himself.

Eventually, all attempts are terminated and the exhausted execution team retires for the day. The prisoner is returned to his cell with a promise that his execution will be resumed one day the following week. Internet commentary regarding the botched execution includes a renewed call for anesthesiologists to provide execution services.

In the US, physician organizations have consistently held that physician participation in executions is unethical, yet up to 41% of physicians state they would agree to participate in executions.1 Physician involvement in euthanasia and executions concerns anesthesiologists in particular; their skills appear to make them ideal candidates for duties that involve killing. To date, there are no reported cases of disciplinary action against a physician or expulsion from a professional society for such involvement.

Medicine, retribution, and executions

For much of human history, executions have been designed to extract humiliation, remorse and dread in addition to the life of the prisoner. Ritual and even “religious” overtones were intentionally incorporated into the execution process by the state in order to unite the community in virtue. Until several hundred years ago, executions also often incorporated protracted torture (drawing and quartering, impaling, breaking on the wheel), intended to exact retribution from the prisoner, and to inspire horror as a means of criminal deterrence.

Since 1608, around 20 000 judicial executions have been carried out in territories now known as the US,2 which remains one of the very few Westernized countries that still wields the death penalty. Until the mid-nineteenth century, US executions were conducted as public spectacles. With the development of “mechanistic” forms of execution such as electrocution and the gas chamber, the public spectacle all but disappeared, and the concept of execution acquired a detached and almost “civilized” tone.

Recent execution methods evolved largely at the hands of physicians, who developed increasingly “humane” methods of killing, including the guillotine (Drs. Antoine Louis and Joseph Ignace-Gillotin), hanging (Dr. Samuel Haughton) and the gas chamber (Dr. Allen McLean Hamilton). The inventor of the electric chair, to be complete, was a dentist. When macabre aspects of many modern execution methods rendered them repugnant to public sensibilities, Jay Chapman, a medical examiner, and Dr. Stanley Deutsch, an anesthesiologist, introduced a recipe for “humane” executions via intravenous injection of a cocktail consisting of a hypnotic, a paralytic agent, and high-dose potassium. This concoction was first used in 1982 and has become the preferred method of execution in most of the US. With lethal injection, capital punishment has acquired a sterile, almost benign, medical veneer, and physicians have increasingly been seen by judicial authorities to be its logical administrators.

In weighing whether physicians should ethically be involved in executions, we should consider several questions: (1) Is it consistent to accept that physician aid-in-dying may be within the scope of professional integrity, but that physician participation in executions is not; (2) does respect for autonomy support physician participation in executions; (3) do harms outweigh the benefits if physicians become executioners; and (4) should the moral acceptability of physician involvement in executions take into account the moral acceptability of the death penalty itself – in other words, can actions ever be legitimately separated from the context in which they are carried out?

Physicians, the Hippocratic Oath, and the question of killing

Ethical arguments against physician participation in killing usually begin with a recitation of one of the many versions of the Hippocratic Oath: “I will neither give a deadly drug to anybody if asked for it, nor give advice to that effect.”3 Interestingly, this is not an argument based in principles of beneficence or nonmaleficence, but one centered in professionalism – an argument that killing violates behavioral standards that distinguish physicians from other professionals.

The ancient oath must now be reconciled against a modern culture. Physicians participate in abortions, physician-assisted suicide, and in some cases even euthanasia. We no longer restrict teaching the discipline of medicine to only our teachers’ sons. Some of us have become surgeons All of these were forbidden by the Hippocratic Oath. In the context of modern medicine, why is the Hippocratic Oath still so compelling?

Margaret Mead observed that the Hippocratic Oath, apart from being one of the first statements of moral conduct for physicians, represented a breakthrough from primitive concepts in which physicians and sorcerers were one and the same.

He with the power to kill had the power to cure … He with the power to cure would necessarily have the power to kill….With the Greeks, the distinction was made clear. One profession, the followers of Asclepius, were to be dedicated completely to life…regardless of rank, age or intellect – the life of a slave, the life of the Emperor, the life of a foreign man, the life of a defective child.4

The Oath of Hippocrates is compelling, because it describes the emergence of the modern physician from the chrysalis of an ancient shaman. It represents, quite literally, the defining moment of The Physician. Any challenge to the principles of that oath therefore redefines what it means to be a physician, and should not be undertaken without solemn consideration.

Autonomy, beneficence, and nonmaleficence

Arguments for physician involvement in execution often invoke principles of beneficence (relieving or preventing suffering during execution) and respect for autonomy (of a prisoner who requests death by lethal injection). Arguments against invoke principles of nonmaleficence (harms to persons and the profession) and professionalism (erosion of trust in physicians and corruption of the physician in the execution process).

Beneficence

Anesthesiologists Truog and Waisel use the principle of beneficence to argue that physician participation in execution is acceptable because it prevents prisoners’ suffering.*5 But Caplan points out that announcing a duty to alleviate the suffering of condemned prisoners is nonsensical if we don’t also acknowledge a duty to minimize their suffering prior to execution. 6 In order to accept a beneficence argument even in the narrow context of preventing suffering only during the execution, we must first believe two critical assumptions: (1) that suffering is indeed prevented or relieved by lethal injection; and (2) that such relief or prevention can only be accomplished by physicians, and that therefore physicians’ professional skills are uniquely necessary to humane executions.

As with other methods of execution invented by well-meaning physicians, lethal injection has its own set of complications that cause considerable documented physical suffering in a substantial number of cases. Ironically, these complications are familiar to most anesthesiologists because they also occur during anesthesia care: complications of obtaining IV access, unintended awareness, and suffocation due to respiratory muscle paralysis in the absence of adequate airway support.

Many condemned prisoners have poor options for intravenous (IV) access because of prior drug abuse, obesity, and terror. Attempts to establish IV access have sometimes persisted for hours, and at times have had to be terminated because of lack of success, with the prisoner thereafter returning to his cell to dread future execution attempts. At least one study demonstrated that, in 43% of executed prisoners, inadequate blood levels of the hypnotic were achieved to guarantee unconsciousness throughout the duration of the execution.7 A legal review in California showed that a majority of prisoners were not apneic when the paralytic agent was administered,8 raising questions about the depth of anesthesia achieved. Many prisoners may have regained consciousness after administration of the paralytic agent, and it is likely that at least some have suffered an agonizing death of suffocation while being paralyzed and aware. It is worthy of note that the American Veterinary Medical Association considers the administration of paralytic agents during animal euthanasia to be unethical because it might cause or mask suffering.9

Both legal and medical authorities have argued that “botched” executions are proof that physicians are needed to prevent these complications. But there is no evidence that many if not most “botched” executions would not also occur in the hands of physicians, particularly since similar complications occur in the course of anesthetic administration. Physicians do not have a monopoly on skills in accessing veins and administering IV substances, and lethal doses of the agents involved are not a “trade secret.” Inadequate training or experience among non-physicians can be remedied by appropriate training, and is therefore not a compelling argument for physician involvement. The special training of anesthesiologists is not needed, nor even appropriate, if the goal is to produce unconsciousness and subsequent death.

Clearly, current execution methods cannot be guaranteed to be “humane.” But suppose we could eliminate all of the complications of lethal injection – would that be sufficient to vacate ethical objections to physician participation in executions? Oral administration of lethal medicinal cocktails has been closely studied and is highly effective as well as virtually complication free in places where physician-assisted suicide is legal. Can we eliminate ethical objections to physician participation in executions by simply using the same method that is considered ethically and legally acceptable by many at the end-of-life due to disease? Or are there important ethical distinctions between physician-assisted suicide and participation in state-sponsored executions that transcend methodology?

Respect for autonomy at end of life

Physicians now embrace the promotion of the comfort and dignity of patients during the dying process – even if such comfort measures might hasten death. But in order for physicians to use their skills to enable death and yet not violate the professional distinctions that set physicians apart, there must be clear, compelling, and distinguishing ethical criteria that tell us when and why such actions are acceptable.

Brody and others suggest that the (rare) legitimacy of a physician’s role in physician aid-in-dying or euthanasia has two critical elements, both of which must be preserved in order that the physician does not violate the integrity of his or her professional ethic: (1) the request for aid-in-dying must be autonomous; and (2) the physician must have no realistic means to reduce or relieve the suffering from which the patient seeks release.10

Some argue that participation in lethal injection fulfills a prisoner’s “autonomous” request for aid-in-dying, analogous to patients’ requests for physician-assisted suicide. But this argument confuses the presence of a “choice” for the presence of “autonomy.” Many choices are made in the presence of manipulation and coercion, but are then not “autonomous,” because autonomy requires absence of coercion or manipulation. Picture a robbery victim, for example, who is told to hand over her purse or be killed. Presumably, she considers both options to be bad and would not choose between them if she were not forced to do so. The robber coerces her and makes a choice, but her choice is not an autonomous one.

A dying patient differs from the robbery victim in that no one is intentionally “forcing” the choice. Strictly speaking, disease cannot “force” or “manipulate.” Disease is merely a set of circumstances, within the framework of which human beings make choices, such as whether to pursue or forgo therapy. However, a prisoner choosing between methods of execution is being forced to do so by the state, which represents human intentions. The prisoner can’t simply “not choose,” because refusal to make a choice results in “default” to an execution method that is predetermined. In this case, the prisoner is more like the robbery victim than a patient. The “choice” does not represent an act of autonomy and is not ethically analogous to an end-of-life decision by a dying patient. In fact, when prisoners seek the death penalty, it is usually argued that they suffer from limited capacity due to mental illness and therefore they cannot be autonomous.

Nonmaleficence – are physicians harmed by participation in executions?

Moral disengagement among participants in executions

Moral disengagement is a process by which individuals “turn off” aspects of moral self-regulation while participating in activities that may violate some of their internal moral standards. Mechanisms of disengagement occur at four sites in an action: (1) characterization of the action (the “locus of behavior”); (2) minimizing the responsibility of the actor (the “agent” of the action); (3) minimizing the outcomes of the action; and (4) recharacterization of the recipient of the action. Some specific mechanisms include moral justification, minimizing consequences, dehumanization of victims, and displacement or diffusion of responsibility (Table 49.1).

Moral disengagement plays a facilitative role in injurious conduct by individuals and groups, and is systematically used to manage adverse psychological consequences to the participants as well as to maintain loyalty. Examples of situations in which moral disengagement is used include antisocial pursuits (crime), international terrorism, and support for military action in international conflicts. The penal system formally and intentionally incorporates methods of moral disengagement (such as diffusion of responsibility) to decrease guilt among participants in executions and to enable members of the execution team to carry out future executions (Table 49.2).

A study of moral disengagement during executions among prison guards, support personnel (persons providing support and spiritual guidance to the prisoner and family members) and the actual executioners at several US penitentiaries found moral disengagement at all levels.*11 Executioners were found to have the highest levels of moral disengagement, and support personnel the lowest. Most disturbing was the fact that participation in more executions not only progressively inured executioners to their actions, but had even more marked effects on support personnel, converting them from “moral engagers” to “moral disengagers.” Behaviors of moral disengagement that were demonstrated in the study, such as demonizing and dehumanizing the prisoner and deflecting personal responsibility to others would appear to be particularly antithetical to the professional ethics and demeanor of physicians.

Concerns regarding the moral legitimacy of the death penalty

While physician professional organizations have carefully avoided making pronouncements about the morality of the death penalty itself, ethicists are not as silent on the issue. In the words of Caplan, when physicians participate in executions that are carried out “capriciously” or for “immoral reasons”, even if their personal motivation is one of mercy, “[they] grant such systems ethical legitimacy and are complicit in the unethical killing of sometimes helpless, hapless, and vulnerable persons.”12 Physicians, in other words, have an obligation to examine the morality of a process before becoming a part of it.

How is the death penalty applied? Globally, the death penalty has been all but eliminated in Western nations, and it is prohibited throughout the European Union. The five countries carrying out the most executions in the world in 2008 were China, Iran, Saudi Arabia, Pakistan and the US. In addition to “heinous crimes,” the death penalty is imposed for reasons as varied as tax fraud, political protest, bribery, homosexuality, adultery, minor drug offenses, and the importation of alcohol. Six nations permit the execution of children (defined as persons under 18 years of age).13

Capital punishment is unevenly applied across race and social groups in the US.14 Almost all studies demonstrate that the death penalty does not deter crime.15 Capital punishment is more expensive in the US than lifelong incarceration, largely due to a protracted and costly appeals process. This fact has fueled objectionable proposals to curtail existing judicial “safeguards” – the appeals process – to cut such costs.16 There is no evidence that it provides emotional “closure” to victims’ families.17 To date, 139 condemned US prisoners have been freed from death row by DNA or other evidence, suggesting that innocent victims have almost certainly been wrongly executed by the state.18 Finally, the death penalty in the US is seen by many to be an impediment to foreign relations.19

Professional statements

The American Medical Association (AMA) states that physician participation in executions is unethical. Physician participation includes, but is not limited to:

Prescribing or administering tranquilizers and other psychotropic agents and medications that are part of

Table 49.1. Mechanisms of moral disengagement

Table 49.1.

Table 49.2. Fractionalization of responsibility during executions to diffuse responsibility

Table 49.2.

(Note: not all institutions have identical execution processes, so these examples may not be universal)

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.20

The American Society of Anesthesiologists (ASA) also states that capital punishment in any form is not the practice of medicine, and agrees with the AMA’s position on physician involvement in capital punishment.21

In February of 2010, the American Board of Anesthesiology announced that an anesthesiologist’s participation in an execution by lethal injection is inconsistent with the ABA’s Professional Standing Policy, and diplomats of the ABA who participate in lethal injection may be subject to disciplinary action including revocation of their ABA diplomate status.22

Key points

• Physician professional organizations consistently state that it is unethical for physicians to be involved in executions.

• Arguments for physician participation in lethal injection usually rely on principles of beneficence (relieving suffering) and respect for autonomy (of the prisoner).

• Lethal injection is plagued by complications that cause physical suffering in a substantial number of cases.

• Arguments that lethal injection respects a prisoner’s “autonomy” are flawed, in that they confuse “choice” with “autonomy.”

• Physician aid-in-dying for patients suffering from medical disease, is ethically distinct from execution of condemned prisoners. Dying patients suffer from adverse circumstances, and are not manipulated by an intentional third party. Condemned prisoners, on the other hand are being coerced by human actors.

• Participation in executions leads to moral disengagement by members of the execution team; methods of moral disengagement such as dehumanizing the prisoner or deflecting responsibility for actions, are antithetical to the professional ethics of physicians.

• The morality of participation in executions cannot be divorced from the morality of capital punishment. Global characteristics suggest that the death penalty is applied capriciously, unequally, and does not fulfill the public’s expectations for security and emotional closure.

• Anesthesiologists who participate in lethal injection in the US now risk professional sanctions.

References

1 Farber, N.J., Aboff, B.M, Weiner, J.et al. (2001). Physicians’ willingness to participate in the process of lethal injection for capital punishment. Ann Intern Med135, 884–8.

2 Espy, M.W. and Smykla, J.O. (2003). Executions in the United States, 1608–1991: The Espy file. 2002. Retrieved from The Inter-University Consortium for Political and Social Research.http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/8451?archive=ICPSR&q=espy

3 The Hippocratic Oath. http://en.wikipedia.org/wiki/Hippocratic_Oath.

4 Levine, M. (1972). Personal communication quoted in Psychiatry and Ethics, New York. George Braziller, p324.

5* Gawande, A.Denno, D.W.Truog, R. and Waisel, D. (2008). Physicians and execution – highlights form a discussion of lethal injection. New Eng J Med385, 448–51.

6* Caplan, A.L. (2007). Should physicians participate in capital punishment? Mayo Clin Proc82(9), 1047–8.

7 Koniaris, L.G.Zimmers, T.A.Lubarsky, D.A., and Sheldon, J.P, (2005). Inadequate anaeshtesia in lethal injection for execution. Lancet365(9468), 1412–14.

8 Gawande, A. (2006). When law and ethics collide – why physicians participate in executions. New Eng J Med354, 1221–9.

9 American Veterinary Medical Association Guidelines on Euthanasia. June 2007. http://www.avma.org/issues/animal_welfare/euthanasia.pdf.

10* Brody, H. and Wardlaw, M. (2008). Two gorillas in the death penalty room. Am J Bioethics8(10), 53–4.

11* Osofsky, M.Bandura, A., and Zimbardo, P. (2005). The role of moral disengagement in the execution process. Law Human Behav29(4), 371–93.

12 Caplan, A. L. (2007). Should physicians participate in capital punishment? Mayo Clin Proc82(9), 1074–8.

13 The Death Penalty Information Center. http://www.deathpenaltyinfo.org/.

14 Phillips, S. (2008). Race disparities in the capital of capital punishment. Houston Law Rev45(3), 807–40.

15 Radelet, M.L. and LaCock, T. (2009). Recent developments: do executions lower homicide rates? The views of leading criminologists. J Criminal Law Criminology99(2), 489–508.

16 In the Senate of the United States; 109th Congress, 1st Session. 2005. S1088. “Streamlined Procedures Act of 2005.”

17 Goldberg, M. (2003). The ‘closure’ myth. Salon.com. January 21, 2003. http://dir.salon.com/news/feature/2003/01/21/closure/index.html.

18 The Death Penalty Information Center. http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row, accessed Feb 15, 2010.

19 Warren, M. (2004). Death, dissent, and diplomacy: the US death penalty as an obstacle to foreign relations. Wm and Mary Bill Rights J13, 309–38.

20 American Medical Association Code of Medical Ethics. Opinion 2.06. Capital Punishment. http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion206.shtml.

21 American Society of Anesthesiologists’ Statement on Physician Nonparticipation in Legally Authorized Executions. Approved by House of Delegates October 18, 2006.http://www.asahq.org/publicationsAndServices/standards/41.pdf.

22 Anesthesiologists and capital punishment; professional standing. February 2010, American Board of Anesthesiology. Raleigh, NC. http://www.theaba.org/Home/notices#punishment.

Further reading

Annas, G.J. (2008). Toxic tinkering – lethal injection execution and the Constitution. New Eng J Med359, 1512–18.

Freedman, A.M. and Halpern, A.L. (1996). The erosion of ethics and morality in medicine: physician participation in legal executions in the United States. NY Law Sch Rev41, 169–88.

Osofsky, M. and Osofsky, H. (2002). The psychological experience of security officers who work with executions. Psychiatry65(4), 358–70.

Ragon, S. (1994). A doctor’s dilemma: resolving the conflicts between physician participation in executions and the AMA’s code of medical ethics. U. Dayton Law Rev20, 997–1008.

Wilkinson, D.J. and Douglas, T. (2008). Consequentialism and the death penalty. Am J Bioethics8(10), 56–8.

 


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