May 7, 1999

BY ABRAHAM L. HALPERN, M.D.

The American Medical Association's position regarding a prohibition against physician participation in legally authorized executions, which has been endorsed by APA, is causing great concern to physicians in general and psychiatrists in particular.

This prohibition is characterized by ambiguity and has ominous implications in that legislators who want to involve physicians in carrying out the death penalty can use the rationale employed by the AMA to legitimize physician participation.

The AMA Council on Ethical and Judicial Affairs (CEJA) has recommended that psychiatric examinations to determine competency to be executed should not be seen as participation in executions. I believe this position is contrary to the CEJA's explicit rule that "physicians must not use their professional knowledge and skills to help cause the death of prisoners" (CEJA Report 6-A-95, p.2).

A review of such psychiatric participation shows that the proximity of the examinations is so close to the actual carrying out of the death penalty as to constitute participation in the execution. Contrary to the statement in the report that the "provision of accurate medical information is necessary for the judge and jury to make their decision," competency-to-be-executed examinations frequently involve neither judges nor juries.

What happens in Virginia is a case in point. That state mandates that three corrections department psychiatrists examine death row inmates just prior to execution to confirm their "competency" to be executed.

Competency-to-be-executed examinations are akin to certain medical acts that have been declared by medical societies, including the AMA, to be unethical; for example, a physician doing a cut-down to expose a vein into which a nonphysician can inject a lethal substance or a physician prescribing or preparing doses of drugs in jurisdictions where lethal injection is used as a method of execution. If, as the CEJA report states, "[p]hysician participation in the process can be justified on the basis of the importance of having physicians assist in the administration of justice," and "[t]he physician is acting as an expert advisor, providing important information that assists in the pursuit of a just result," and if "[p]hysicians' participation in the proceedings assist society in assuming that individuals are treated fairly and punished only when it is appropriate," then the same line of reasoning will be used by governors and legislatures to require that all physicians have a duty to participate in executions.

The CEJA overlooks the fact that the question of "competency to be executed" has only to do with whether the inmate is aware of his pending execution and the reason for it. This standard is so low that frank psychosis, even voices telling the inmate that he is God, does not mean that the inmate is incompetent. Even Rickey Ray Rector, who had blown away part of his brain in a suicide attempt just after he shot and killed a police officer, was executed in 1992.

Psychiatrists in New York State are faced with a major dilemma because the Medical Society of the State of New York approved a policy statement on May 10, 1990, that included in the definition of participation: "the determination of mental and physical fitness for execution" ("Physician involvement in capital punishment," New York State Journal of Medicine, 91:1, 1991, pp.15-18).

It should be noted also that the World Psychiatric Association, in its 1996 Declaration of Madrid, has specifically prohibited its members (which include APA) from engaging in determinations of competency of death row inmates to be executed. Its ethical guidelines state, "Under no circumstances should psychiatrists participate in legally authorized executions nor participate in assessments of competency to be executed."

I urge APA to call on the AMA to revise Section 2.06 of the AMA Current Ethical Opinions of the Council on Ethical and Judicial Affairs so that as long as our criminal justice system retains the death penalty, the limitations on physician participation are clearly specified. I strongly recommend that the following language be incorporated in Section 2.06:

"The following actions do not constitute physician participation in execution: testifying as to medical history and diagnoses or mental state as they relate to competence to stand trial, testifying as to relevant medical evidence during trial, or testifying as to medical aspects of aggravating or mitigating circumstances during the penalty phase of a case. On no account should a physician give any opinion that states that a person sentenced to death is mentally competent for execution.

"When a condemned prisoner has been declared severely mentally ill, physicians should not treat the prisoner unless a commutation order is issued. However, if the mentally ill prisoner is undergoing extreme suffering as a result of psychosis or any other illness, medical intervention intended to mitigate the level of suffering is ethically permissible. Following such intervention, on no account should a physician agree to state that a prisoner is fit for execution."

Dr. Halpern is professor emeritus of psychiatry at New York Medical College and a past president of the American Academy of Psychiatry and the Law and the International Academy of Law and Mental Health.