What counts as participation in capital punishment? Is it possible for a medical activity to be ethical in one context, but a similar one not ethical in another? Is death different? Are there neat and universal ethical rules that will always guide us wisely, or are there inevitable clashes among various legitimate and important values? Is it ethically possible that a forensic psychiatrist is not a psychiatrist, as Dr. Paul Appelbaum has argued? How strongly should physicians protect their duty to always help and not harm all individual patients in the face of many pressures to do otherwise?
All these questions bear on the current debate as to whether it is ethical for a psychiatrist to perform a competency-to-be-executed evaluation.
My position (a widespread and traditional position [Freedman and Halpern, 1996], is that it is not ethical. Alfred Freedman, M.D., and I argued this point against Paul Appelbaum, M.D., and Ken Hoge, M.D., at the American Psychiatric Association annual meeting last May. Internationally, as evidenced by the positions of the World Medical Association, the World Psychiatric Association, the British Medical Association and others, the position still prevails that it is not ethical. However, Appelbaum and others led an important movement to change this in the mid-l990s, and succeeded in getting a significant and even radical shift of position in the APA Council on Psychiatry and Law, and the APA itself. I find that shift disturbing and interesting. This debate now probably reflects a significant division of opinion among American psychiatrists, and the issues involve some subtlety and facing of value conflicts (Rothstein, 1995).
The position of forensic psychiatrists on this issue is not necessarily the same as the position of the whole field of psychiatry, and that is a problem. Appelbaum, an excellent forensic psychiatrist, has in his writings swept aside much of medical and Hippocratic Oath tradition, and has substituted an ethic of "truth," and a claim that forensic psychiatrists do not function as physicians. I think this is never quite honest, and never ethically possible. As Alan Stone, M.D., said: "The advancement of [justice] is a noble goal, but when doctors give it greater weight than helping their patients or doing no harm, they lose their ethical boundaries." Appelbaum has suggested that this competency debate-dealing with few cases-is really a covert debate to abolish capital punishment. I disagree: One can consider physician participation unethical without wishing to abolish capital punishment. He has also suggested that not participating would mean less patient care. I disagree. It would, I think, mean better, clearer and more care.
Central to our debate is the issue of taking part in capital punishment. It is fairly universally accepted that physicians should not do that. But what is "taking part?" How directly? Treating to restore competence to be executed falls at the edge of that, and is widely considered wrong. Final evaluation falls at the edge, and is, to many of our minds, also wrong, because it is too directly taking part in execution. As Gregg Bloche (1993) points out, "the use of psychiatric skills in this context so compromises medicine's therapeutic and compassionate aims that it ought to be regarded as ethically unacceptable.
I urge readers to consider the inevitable value clashes involved and to agree that it is unethical for psychiatrists to participate in competency-for-execution evaluations.