Abstract
In the United States, a critical controversy is taking place in regard to psychiatrists' and other physicians' participation in legal executions. Under pressure from the criminal justice system and legislatures to expedite executions, some forensic psychiatrists have succeeded in loosening traditional prohibitions against such participation. Further, there has been a weakening of the prohibition against treatment designed to facilitate immediate execution of those condemned to death. The rationale offered for these departures from current psychiatric ethical codes is the novel notion that when a psychiatrist acts in the court or criminal justice situation, that individual is no longer a psychiatrist and is not bound by psychiatric ethics. Rather, the forensic psychiatrist, termed a ‘forensicist’, serves as an assistant in the ‘administration of justice’ or ‘an agent of the State’ and thus works in a different ethical framework from the ordinary psychiatrist. This justification has similarities to the rationale offered by physicians involved in human experiments and other criminal acts in Nazi Germany, as well as psychiatrists in the former Soviet Union who explained their involvement in psychiatric abuse as a result of being agents of the State and thus not responsible for carrying out orders. Clearly, this controversy could be eliminated by a campaign for the abolition of capital punishment, characterised by the American Psychiatric Association as ‘anachronistic, brutalizing [and] ineffective’. Such a campaign should serve as a call for psychiatrists and other physicians to join in the struggle to uphold ethical and moral principles.
In recent years, there has been an erosion of moral and ethical standards in the practice of medicine in general and psychiatry in particular, especially in the United States [1]. Although there are ethical problems in other areas such as the confidentiality of medical records, the critical controversy is about physician participation in legal executions. In many respects, it is astonishing that this topic should even be raised, but to illustrate the intensity of the argument, at the annual meeting of the American Psychiatric Association (APA) in San Diego in 1997, a day of debate was actually held that vigorously addressed the topic, ‘Is it ethically permissible for psychiatrists to participate in a competency evaluation of a prisoner to be executed?’ The contending positions are presented in a recently published Forum [2].
Ever since the end of World War II, and in all probability stimulated by the trial just over 50 years ago of the Nazi doctors for the enormity of their crimes, national and international medical organisations have passed resolutions and then reaffirmed them, defining guidelines in regard to many areas of conduct, such as human experimentation and also including prohibitions against participation of physicians in legal executions. To mention only a few, these organisations include the World Medical Association, American College of Physicians, British Medical Association, American Public Health Association and the World Psychiatric Association (WPA). The General Assembly of the WPA, meeting in Madrid in August 1996, unanimously adopted the Declaration of Madrid, which included the following guideline: ‘Under no circumstances should psychiatrists participate in legally authorised executions or participate in assessment of competency to be executed’ [3]. Since 1981, every edition of the APA's Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry, including the most recently published 1998 edition, succinctly states: ‘A psychiatrist should not be a participant in a legally authorised execution’ [4]. It is noteworthy that the Code of Ethics of the Royal Australian and New Zealand College of Psychiatrists (RANZP) prohibits psychiatrist involvement in executions (Principle 5, annotation 5).
One must immediately ask why this position, which seems so fixed in the ethical principles of medical organisations, including the psychiatric, and unchallenged outside the USA, has even become debatable. Following the restoration of the death penalty by the US Supreme Court in 1976, most States have opted for lethal injection, which often requires the use of physicians to do cut-downs and other procedures in order to insert a catheter into a vein. Moreover, in the face of the increase in the number of death-row inmates, Congress has attempted to expedite the march from sentencing to execution by imposing limitations on appeals and other legal restraints that might delay carrying out executions. But above all has been the clamour by the public for the restoration and rapid implementation of the death penalty throughout the country. Regrettably, the pressure from the public has been so directed that candidates for office, such as the previous Governor of New York State, have been defeated largely because of their opposition to the death penalty. The pressure to make haste and avoid obstacles or delay has also brought about legislation to facilitate the utilisation of physicians, for example, in Illinois, which will be described later [5].
This unfortunate chain of events resulting in the erosion of long-standing ethical standards is of recent origin. Although it was the unqualified position of the American Medical Association (AMA) that declared physician participation in legal executions to be unethical [6], in 1995 a greatly altered report emerged largely under the influence of certain forensic psychiatrists who dominated the APA Council on Psychiatry and Law [7]. Many of the arguments contained in the 1995 AMA Report making it ethically permissible for psychiatrists to participate in legal executions are troublesome if not fallacious. It also introduces novel concepts that erode the prohibition against participation and may thrust the physician into a position of moral complicity with execution. For example, the AMA document confuses the propriety of a physician's testimony regarding a defendant's competence to stand trial: that is, a defendant who has not yet been found guilty, let alone sentenced, with the ethically impermissible testimony regarding the competence of a condemned prisoner to be executed. The question of competence to be executed arises only after a court sentences a person to death and not infrequently after the final decision to execute has been made. It is at this point that the forensic psychiatrist is invited to engage in the ethically prohibited participation in a legally authorised execution. The proximity of this participation and the act of killing has doctors, metaphorically, as hangmen's accomplices [8].
Many of us hold that clinical assessment of an inmate's competence to be executed is unethical because it gives the medical profession a decisive role with respect to the final legal obstacle to execution. Clinical examination and testimony bearing on competence for execution because of the proximity of this clinical role and the act of killing can and should be distinguished from other forensic activities. In fact, physicians should heed the AMA Report's strong directive concerning the application of medical knowledge to capital punishment which states that: ‘Physicians must not use their professional knowledge and skill to help cause the death of prisoners’ [7]. The Report also acknowledges that psychiatric testimony concerning competence for execution may ‘prove to be the decisive factor’ [7].
Another very troublesome issue that negates the long-standing prohibition against involvement in legal executions is the ambiguous statements concerning psychiatric treatment that restores competence to be executed. The AMA Report [7] is indeed contradictory. The only clearly stated proscription in this regard is limited to the prohibition of treatment primarily directed to ‘restore competence to be executed. ‘However, the Report also states that treatment is justified in cases of ‘extreme suffering.’ ‘Extreme suffering’ should be more rigorously defined, since relief from suffering could be facilely invoked by psychiatrists or prison physicians to effectuate the restoration of competence and facilitate execution. In 1992, the Royal College of Psychiatrists published a guideline for this situation where the necessity of intervention and treatment are compelling in which it was stated, ‘On no account should the psychiatrist agree to state, after treatment, that the person is fit for execution’ [9]. In the State of Maryland, the sentence of a seriously mentally ill deathrow inmate who requires treatment is commuted to life in prison without parole [10]. This is a wise procedure that should be made universal. The AMA Report is further weakened and rendered ambiguous by the blanket assertion that when death-row inmates ‘lack competence to provide informed consent to treatment, therapeutic intervention, including the use of psychotropic medication, can be provided in accordance with ethical principles and State law’ [7]. It is clear that an inmate who is incompetent to give informed consent would certainly be incompetent to be executed. Thus, the pathway is open to provide pharmacological therapy, restoring competence and hastening execution.
One must wonder what was the rationale, particularly of those forensic psychiatrists who persuaded the AMA to change its previous position that strictly prohibited physician participation in executions. The seachange that had occurred can be illustrated by the complete reversal of the position of one of the leading forensic psychiatrists of the United States, Dr Paul Appelbaum, although he was not alone in this turnabout.
At the annual scientific meeting of the APA in May 1987, Dr Appelbaum upheld the affirmative in a debate entitled, ‘Resolved: It is unethical for psychiatrists to diagnose or treat condemned persons in order to determine their competency to be executed’. As reported by Professor R.D. Miller [11], Appelbaum argued that clinician involvement in evaluations of competency to be executed is problematical because (unlike other competency evaluations in the criminal justice process) it does not aid in the determination of justice, since the sentence has already been determined. He opposed such involvement because it would lead to psychiatrists being perceived as agents of the State in the execution process and would relieve the judicial burden of decision-making. Further, Dr Appelbaum argued that participation in the evaluation process presents psychiatry as an ally of the punitive forces of the criminal justice system.
Commenting on the same debate, Professor E. Tanay [12] wrote that Dr Appelbaum asserted that psychiatric ethics required a psychiatrist to function as a healer and that this role was not compatible with determining that someone was competent to be executed. The role of consultant to the criminal justice system is secondary, and it has to be subordinated to the role of the healer; in rendering an opinion in favour of execution, the physician allows his secondary role to dominate his primary role. Appelbaum held at that time that an evaluating psychiatrist is ‘directly involved as one could imagine, short of flipping the switch, when he serves in this role’. Although we applaud this 1987 statement, sadly by 1990 Appelbaum had reversed his position and has continued to this day to favour lifting prohibitions to physician participation in legal executions in so far as the determination of competency to be executed is concerned.
In a widely quoted paper in 1990, Appelbaum had developed a position to justify his drastic change that might be termed ‘forensic psychiatric exceptionalism’. [13] His ideas were incorporated very clearly in the 1995 AMAReport as follows:
Physician participation in the process can be justified on the basis of the importance of having physicians assist in the administration of justice. Physicians' participation in the proceeding assists society in assuring that individuals are treated fairly and punished only when it is appropriate. The important principle in this situation is that the physician is acting as an advocate of justice, not as a source of punishment. The physician is acting as an expert advisor providing important information that assists in the pursuit of a just result [7].
The above leads to the concept incorporated in the AMA Report that a psychiatrist is not a psychiatrist when performing evaluations for the State particularly in the case of deciding competence to be executed, and that psychiatrists have no ethical duty to concern themselves with the possibility that their actions may cause harm to the prisoner they are assessing. As has been pointed out, the notion that a psychiatrist is not a psychiatrist in the forensic setting is a recent development in the American psychiatric literature, and is based on a 1990 article by Dr Appelbaum which is a major if not the major reference in the AMA Report [13]. In this article Dr Appelbaum states: ‘The forensic psychiatrist in truth does not act as a physician…If the essence of the physician's role is to promote healing and/or to relieve suffering it is apparent that the forensic psychiatrist operates outside the scope of that role…were we to call such a person a “forensicist” or some other similar appellation, it might more easily be apparent that a different nonmedical role with its own ethical values is involved’. The article further states ‘…psychiatrists operate outside the medical framework when they enter the forensic realm, and ethical principles by which their behaviour is justified are simply not the same’. In an address in 1996, he further elaborated in a statement ‘Forensic psychiatrists, however, work in an entirely different ethical framework, one built around the legitimate needs of the justice system’ [14]. He maintains that in a forensic role in the venue of the courts, the forensic psychiatrist is not subject to the principles of ethics of the APA. But this flies in the face of the realisation that the sole reason forensic psychiatrists are invited to testify in court is that they are trained psychiatrists, not administrators or agents for ‘justice’. If psychiatrists who evaluate competence for execution can say that their acts are not those of a doctor, then surgeons who select lethal injection sites or make the injection themselves might also claim to be exempt from current prohibitions against participation. The disastrous consequences of such thinking has already been realised in Illinois as well as in other States in the United States. In Illinois, legislation was passed that permits physicians to participate in executions, including injection of lethal substances, without losing their license because ‘The administration of the lethal substance or substances required…shall not be construed to constitute the practice of medicine’ [5]. Thus, since they are not practising medicine, they are not subject to the ethical constraints of physicians.
Readers of this article might look upon this discussion as one limited to the parochial confines of the United States. However, is not the discussion of the rationale of forensic psychiatrists evocative of the rationale that has emerged particularly in the studies of physicians in Hitler's Germany and in the Soviet Union? The rationale of physicians in Nazi Germany has probably been studied most extensively, particularly in such works as Lifton's The Nazi Doctors [15] and in the series of articles in the British Medical Journal (BMJ) of December 1996 [16]. In the BMJ articles it becomes evident that it was not a small extremist group of doctors that intimidated the bulk of German physicians to comply with the various regulations that were promulgated. It turns out that the German physicians not only complied but willingly embraced the regulations authorising the slaughter of psychiatric patients, retarded individuals and children as well as experimentation on humans. In certain instances, for example, in arrangements for transfer of individuals in the above categories to sites where they could be summarily executed, the physicians were so zealous that they exceeded the quotas that had been assigned to them. The notion has been developed ever since the end of World War II that the corruption of the German physicians had a very small beginning, began like a slide on an incline, one event leading to another until eventually things got out of hand, balance was lost, an accident occurred and people were hurt. This has become known as the slippery slope argument, dovetailing with the sudden subversion concept prevalent inside Germany that new masters materialised overnight and then in an act of rape subjugated German medicine which thus became Hitler's first and most immediate victim. However, this slippery slope and rape concept, while offering comfort to many German physicians, is not supported by a study of German medical journals from late 1932 to late 1933 as reported in the BMJ. These articles make a strong argument that the medical crimes against humanity presented at the doctors' trial in Nuremberg in 1946 were the result of changes in German medicine that did not evolve gradually over several years but happened largely within a distinctly brief period during early to mid 1933. Changes which today are interpreted as causing the downfall of the German medical community, were at that time warmly welcomed by the widest segments of that highly educated biomedical and scientific elite. They derived from the active and deliberate contributions of its nationally and internationally renowned representatives, for example, Professor Planck and Doctors Haedenkamp, Stauder and Rudin. All the luminaries of the profession, its associations and the biomedical community at large were able to act rationally right from the start and all appeared thrilled not to have it any other way. The documents indicate that physicians were not dragged against their wishes into acts they did not like or taking steps along a path on which they did not wish to tread.
The BMJ articles present extensive documentation of these latter concepts. However, one must wonder how members of one of the world's outstanding medical communities could have embraced and participated in such crimes against humanity? In his important work The Nazi Doctors, Robert Lifton presents the concept of ‘doubling’: ‘The division of the self into two functioning wholes, so that a part shall act as an entire self’ [15]. In his development of the doubling concept Lifton points out that ‘The individual Nazi doctor needed his Auschwitz self to function psychologically in an environment so antithetical to his previous ethical standards. At the same time, he needed his prior self in order to continue to see himself as humane physician, husband, father’. As he states elsewhere, ‘working as part of the Nazi project in the camps meant abnegation of medical responsibility’.
This all-too-brief presentation of Lifton's concepts suggests that a necessary prerequisite for the behaviour of the Nazi doctor was the development of the notion that when being involved in killing in Auschwitz, for example, a physician is no longer a physician but an agent of the State program of liquidation of undesirables. Is this not similar to the argument that a forensic psychiatrist when working in the venue of the court is not a psychiatrist but an advocate of justice or an assistant in the administration of justice or as was termed by one of our most prominent American psychiatrists, the forensic psychiatrist functions as ‘an agent of the State’? [17] In that role the forensic psychiatrists depart from psychiatric ethics. However, they all have professional lives outside of the court in which they function as clinical psychiatrists and will state that they adhere to the ethics as promulgated by the APA. The German physician in his doubling indeed parallels the rationalisation of the forensic psychiatrist and this is what is frightening about this trend in American psychiatry. Once departure from psychiatric ethics is permitted, then further subservience to the court or the State will follow.
Such thinking and behaviour was not just confined to Nazi Germany alone, although in no place carried out with such efficiency and enormity. The abuse of psychiatry in the Soviet Union was also rationalised since the psychiatrists were acting as agents of the State and the justice system [18]. As a matter of fact, medical students in the former Soviet Union were required to take an oath upon graduation in which they pledged to devote themselves exclusively to the needs of the State, which would have the highest priority. In this way, they could rationalise making spurious diagnoses of people who were dissidents and had been declared enemies of the State.
The United States has not been free of acts of inhumanity, such as the experiments on syphilitic patients in Tuskeegee [19]. In the latter, beginning in the 1930s, a group of black patients with primary syphilis was not treated but followed to study the natural history of syphilis in a population. It was not until after 30 years or so that the experiment was revealed. Of course, a number of patients had died or were in the throes of tertiary syphilis. We are not familiar with any studies carried out of the physicians who were involved in this experiment but one can certainly speculate that they did not consider themselves as physicians, particularly physicians of those individuals in the experiment. If anything, they eschewed the role as physicians but defined themselves as epidemiologists who were serving the needs of the State to learn what the natural history of syphilis would be even at the cost of the lives of the experimental population. It is evident that the anticipated and unanticipated consequences of the concept that in certain situations a physician or psychiatrist is not a physician or psychiatrist can have a tragic outcome. Psychiatrists today are indeed torn between traditional ethical principles and strong pressures from society (particularly certain segments of the legal profession) to compromise in regard to their ethics and become collaborators with the demands of the law or the State. Whatever the motivation, significant voices in psychiatry are urging a retreat from centuries-long ethical standards to new rationalisations that define forensic psychiatrists as exempt from such principles in which they are being characterised as ‘agents of the State’. As indicated above, the history of the 20th century gives us many examples of how compromises and weakening of ethical standards can lead to disaster.
Rather than look for compromises, one must return to traditional concepts. Medicine and psychiatry are, at heart, a profession of care, compassion and healing. This is a time for the restatement and proclamation of resolutions such as that passed by the WPA. Psychiatrists cannot avoid the consequences of their actions. There is a tendency in the profession to evade responsibility and justify actions by stating that the psychiatrist only advises but as we have seen, even the AMA Report states that psychiatric testimony may well prove to be the decisive factor. There are reasonable solutions, such as the one instituted by the State of Maryland, although for many of us capital punishment in itself is barbaric and outrageous and should be abolished.
Although the death penalty seems enshrined in the beliefs of the majority of the American people, there are important movements that give promise of a more rational approach to punishment for serious crime.
Noteworthy has been the call by the American Bar Association (ABA), our distinguished organisation of lawyers for a moratorium on capital punishment in the United States [20]. The ABA's position statement draws attention to the grossly inadequate legal representation of defendants, the racially discriminatory application of the death penalty and the restriction on appeals.
Within the APA, there has been a vigorous movement not only to replicate the action of the ABA but also to request the abolition of the death penalty in the US [21]. This action is a renewal of an effort dating back to 1969 when the Board of Trustees adopted a resolution to be included in the APA amicus curiae brief in the death penalty case. The Resolution states:
Resolved: That the APA, through its Board of Trustees, opposes the death penalty and calls for its abolition. The best available scientific and expert professional opinion holds it to be anachronistic, brutalizing, ineffective and contrary to progress in penology and forensic psychiatry [22].
Although this resolution was referred to the appropriate components of the APA, no action was taken and the resolution remained in limbo.
However, the issue would not die. It is noteworthy that in recent years two retired Justices of the US Supreme Court, Justice Lewis F. Powell Jr [21] and Justice Harry Blackmun [21], publicly expressed regret for having voted to support the death penalty in cases before the Supreme Court and declared in retrospect that they should have voted in opposition.
As mentioned above, currently in the APA there is an active campaign to review the 1969 resolution and call for the abolition of the death penalty. This resolution is receiving widespread support and is moving ahead in the appropriate components of the APA. An Action Paper written by the authors of this article is the focus of this campaign [21].
Similarly, a campaign is being launched in the American Medical Association to do away with the death penalty. This effort will be carried to other psychiatric and medical associations.
This campaign against capital punishment and participation by physicians in legal executions should serve as a call for psychiatrists and other physicians to join in the struggle to uphold ethical and moral principles or they will in time reap the whirlwind of public condemnation and severe impairment of their practice. Unfortunately, there is no unanimity in the ranks of physicians. Therefore, at the present time, a number of physicians and psychiatrists will act as agents of the State and play a role in legally authorised executions. Nevertheless, the conclusion is compelling that such actions, despite the rationalisations, still remain as immoral and unethical behaviour.
Likewise, for the United States, the best resolution of the dilemma of some physicians and psychiatrists would be resolved by doing away with the death penalty and casting it in ‘the dust bin of history’.