Commentary: The Doctor's Dilemma: A Conflict of Loyalties

January 1, 2001

Arguing that participation in any aspect of death penalty cases is an ethical conflict for physicians-and specifically psychiatrists-Dr. Freedman calls for physicians' organizations to join the American Bar Association's goal of a moratorium on executions. The author himself opposes the death penalty.

Physicians in the United States are confronted with an agonizing dilemma in regard to capital punishment (Freedman and Halpern, 1999), which is especially crucial for psychiatrists. For example, an Arizona case reported on Jan. 24, 2000, in the National Law Journal illustrates the conflict facing psychiatrists.

A death row inmate, Claude E. Maturana, was examined by two physicians who concluded that he was so delusional that he was unaware of his crime and the punishment to be administered. He was declared mentally incompetent to be executed and was transferred to a state mental hospital. The hospital psychiatrist prescribed medication that decreased the delusions, but, citing medical ethics, he refused to medicate him to sufficiently restore his competence to be executed.

Since the attorney general of Arizona stated that the law required the hospital to find a "willing" doctor, the medical director of the company providing mental health care to inmates of Georgia's prisons, Nelson C. Bennett, M.D., was brought in. He reported that he found Maturana competent for execution, although he was seriously ill. Further, Bennett maintained that Maturana did not need medication. The Arizona Supreme Court took the case under advisement on Oct. 31, 2000; a decision was expected in December 2000.

This case clearly delineates the problems facing physicians in death penalty cases. The psychiatrist at the hospital resisted demands that he medicate the inmate sufficiently to make him appear competent for execution-in spite of the previous diagnosis. The psychiatrist adhered to the ethical codes that prohibit a physician from treating an inmate on death row in order to restore competence for execution. For example, the American Medical Association's Council on Ethical and Judicial Affairs (CEJA), in an ambiguous and contradictory report in 1995, stated that treatment primarily directed to "restore competence to be executed" not be permitted. Numerous other organizations have similar prohibitions in their ethical codes.

Although the newspaper story does not give all the details, it does illustrate an ethical problem that confronts psychiatrists, namely, determining the competence of a prisoner condemned to be executed. Until very recently, many national and international medical societies made unequivocal statements flatly prohibiting physician participation in legal executions. Implicit in these statements is the notion that psychiatrists should not be involved in the evaluation of competence to be executed. Every edition of the American Psychiatric Association's Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry succinctly states, "A psychiatrist should not be a participant in a legally authorized execution." (For example, see APA [1998]-Ed.)The World Psychiatric Association adopted the Declaration of Madrid in August 1996. It includes the following guideline that makes clear the prohibition of assessment:

Under no circumstances should psychiatrists participate in legally authorized executions nor participate in assessments of competency to be executed.

Given the constraints mentioned above, it would appear that the "willing doctor" from Georgia was clearly in violation of the principles of ethical conduct. It can be argued, however, that the doctor could have found a rationale for his behavior in the ambiguous CEJA report of 1995. This report confuses the propriety of a physician's testimony regarding a defendant's competence to stand trial with the ethically impermissible testimony regarding the competence of a condemned prisoner to be executed. The CEJA report tries to blur this distinction by concluding, "In the end, physician participation in capital cases appears more like than unlike physician participation in other forensic evaluations. Evaluation of competence to be executed, therefore, is not unethical per se." This question of competency arises only after a court sentences a person to death and often after the final decision to execute has been made, as in the Maturana case. At this point the forensic psychiatrist is invited to participate in a legally authorized execution, an act that makes doctors, at least metaphorically, into hangmen's accomplices.

In a number of states, the role of physicians is further complicated by duties physicians and psychiatrists are required to perform that might appear clearly unethical. Thus, in the state of Virginia, three psychiatrists are required to examine death row inmates to determine their competency on the very day those inmates are slated for execution. Does not such involvement by psychiatrists in such close proximity to the actual execution and their unequivocal statement of competence for such execution constitute a violation of the code of medical ethics of all organizations?

In Illinois, an amendment to the Medical Practice Act permits a physician to participate in all aspects of an execution including the administration of the lethal substance since this action "shall not be construed to constitute the practice of medicine." Interestingly enough, it has been reported that physicians who participate in executions in Illinois have been paid in cash. These types of state regulations, which are not confined to Virginia and Illinois, raise the issue of a conflict of loyalties for physicians. It is reminiscent of the situation that existed in Nazi Germany and in the former Soviet Union. During the Nuremberg trials, the principal defense of doctors was that they were complying with the laws of the state and following orders.

If, as reported, Bennett stated that he had found Maturana competent for execution although the prisoner was seriously ill and not requiring medication, Bennett violated even the ambiguous 1995 AMA statement limiting the physician or psychiatrist to making only a clinical statement, with the final decision to be made by the court. We know, however, that in reality such an attempt by a psychiatrist would be followed by a demand on the part of a judge to state unequivocally "competent" or "incompetent." Few psychiatrists, if any, would resist such a question by citing an ethical code. Experience shows that if a psychiatrist declares an individual incompetent too often, as in the Arizona case cited, there is a search for a willing doctor, even if the psychiatrist must be brought in from another state. We do not know what Bennett's rationale was in regard to his actions in the Arizona case; possibly he feels he was obeying the laws of Arizona. Bennett might very well find comfort and justification for his actions in a recent trend initiated by some forensic psychiatrists in the United States. These forensic psychiatrists developed a new position that might be termed "forensic psychiatric exceptionalism." In brief, this new position maintains that a psychiatrist is not a psychiatrist when performing evaluations for the state, including assessments of competence to be executed. In this novel role, the forensic psychiatrist or, as has been suggested, the "forensicist" is not subject to the principles of ethics of the AMA or APA and functions as an administrator or agent of justice (Freedman and Halpern, 1999).

Such reasoning is incorporated in the Illinois legislation cited previously in which physicians are permitted to participate in executions, including injection of lethal substances, without losing their license, because this is not construed to constitute the practice of medicine. Since they are not practicing medicine, they are not subject to the ethical constraints of physicians.

Since the U.S. Supreme Court in 1976 restored the death penalty, enormous efforts have been made by the U.S. Congress and the states to expedite and facilitate executions. Appeals have been abbreviated and habeas corpus has been sharply limited. As a consequence, physicians-especially psychiatrists-have been subjected to various pressures and inducements. Many in medicine consider this involvement unethical and one must consider that in the tortuous rationalizations and cash payments, participants are aware of the conflict between ethical conduct and expediency.

Clearly, a solution to the agonizing dilemma of physicians embroiled in the criminal justice system is to abolish capital punishment. Since abolition of the death penalty is not a possibility at the present time, a more feasible action would be to follow the example set by the American Bar Association (ABA) and ask for a moratorium on death penalty cases. There is promise that such a moratorium may be achieved. This promise was greatly enhanced on Jan. 31, 2000, when Gov. George Ryan of Illinois announced a moratorium on executions in light of overwhelming evidence that the capital punishment system is prone to mistakes. Gov. Ryan was appalled by the state's "shameful" record of convicting innocent people and putting them on death row. Since capital punishment was reinstated in Illinois in 1977, 12 death row inmates have been executed while 13 have been exonerated after their cases were reopened, many with the help of volunteer lawyers and college students. It is noteworthy that Gov. Ryan has been and still is a supporter of capital punishment but also states that he cannot support a system which, in its administration, "has proven to be so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life."

The Associated Press reported that the U.S. Department of Justice has begun examining discrimination and unfairness in death penalty cases. The Nebraska legislature authorized a moratorium, but the state's governor vetoed the bill. Other state legislatures are considering similar actions, and editorials and columns in leading newspapers are calling for a national moratorium.

Here is a way in which the tough choices and criticism of physicians can be equitably resolved. Medical organizations, together with the ABA, should give strong support to the moratorium. In this way, physicians would be relieved of any complicity in regard to capital punishment while the whole issue can be reviewed. Ultimately, with greater wisdom, the death penalty, characterized by the ABA as "a haphazard maze of unfair practices but no internal consistency," will be abolished.

References:

References


1.

American Medical Association Council on Ethical and Judicial Affairs (1995), Physician participation in capital punishment: evaluation of prisoner competence to be executed: treatment to restore competence to be executed. CEJA Report; Section 6-A-95.

2.

American Psychiatric Association (1998), The principles of medical ethics with annotations especially applicable to psychiatry. Available at:

www.psych.org/apa_members/ethics_index.cfm

. Accessed Sept. 5, 2000.

3.

Freedman AM, Halpern AL (1999), The psychiatrist's dilemma: a conflict of roles in legal executions. Aust N Z J Psychiatry 33(5):629-635.

4.

World Psychiatric Association (1996),Madrid Declaration on Ethical Standards for Psychiatric Practice. Available at:

www.wpanet.org/madrid.html

. Accessed Sept. 5, 2000.