Two Rooms a Physician Should Never Enter

“Keep far away from a bad neighbor.“-Talmud (Pirke Avot 1:7)

“Medicine has not yet solved the problem of how to balance the particular good of the identified patient against the general good of the unidentified masses. We lose our practical ethical guideline when we try to serve such greater good.“ –Alan Stone, MD¹

There are 2 rooms a physician should never enter, or even go near: the executioner’s chamber and the interrogator’s cell. I’m speaking figuratively, but I have very concrete circumstances in mind. Indeed, in recent years, psychiatrists have been drawn into controversies related to both these “rooms”-one involving the physician’s role in capital punishment cases; the other, in cases related to the interrogation of suspected terrorists.

The Executioner’s Chamber
The issue of capital punishment is emotionally-charged and legally complicated. I recognize that there are well-meaning individuals who sincerely believe that capital punishment is justified under certain circumstances. I happen to oppose the “death penalty” on ethical grounds; for example, I am unwilling to risk killing a potentially innocent person, when permanent incarceration of the “death-row” inmate would provide adequate protection to society. But such personal views are beside the point. The American Medical Association (AMA) has clearly ruled that a physician’s involvement in an execution is not ethically permissible. The AMA states that:

“A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prisoner.” --Opinion 2.06 - Capital Punishment

And yet, in a recent letter to The New York Times (December 20, 2009),  2 psychiatrists argue that the AMA has not gone far enough. Abraham L. Halpern, MD, is professor emeritus of psychiatry at New York Medical College and former president of the American Academy of Psychiatry and The Law. His son, John H. Halpern MD, is assistant professor of psychiatry at Harvard Medical School. Together they write that:

“If doctors and nurses did not participate in the death penalty, there would be practically no executions at all. Unfortunately, this can’t happen because it is virtually impossible to discipline health professionals who are involved directly in the execution or in the training of technicians to do the killing…The American Medical Association’s Council on Ethical and Judicial Affairs [CEJA]…refuses to remove the ambiguities in its ruling that prohibits physician participation in executions.“  --The New York Times, December 20, 2009

I contacted Dr John Halpern and asked him what “ambiguities” he and his father had in mind. He called my attention, first, to a statement in the CEJA’s Opinion 2.06 that reads:

“When a condemned prisoner has been declared incompetent to be executed, physicians should not treat the prisoner for the purpose of restoring competence unless a commutation order is issued before treatment begins.” (Paragraph 5 Section 2.06)

But Dr Halpern then pointed out a problem with the CEJA’s ruling. In the same paragraph, the ruling states that:

“No physician should be compelled to participate in the process of establishing a prisoner’s competence or be involved with treatment of an incompetent, condemned prisoner if such activity is contrary to the physician’s beliefs. Under those circumstances, physicians should be permitted to transfer care of the prisoner to another physician.” (italics added) (See CEJA’s Opinion 2.06)

Both Dr John Halpern and Dr Abraham Halpern believe that this “transfer” option opens the door to unethical behavior. Their interpretation is that the CEJA “. . .is approving the involvement of “another physician,“ thereby sanctioning physician participation” in the overall process of capital punishment. Thus far, their attempts to elicit clarification from the CEJA have not met with success.

Not all experts are convinced that “. . .if doctors and nurses did not participate in the death penalty, there would be practically no executions at all…” After all, the state could probably find, or train, non-physician “executionists” to take over any matters now in the purview of physicians. (My colleague Alan Stone, MD, a scholar in this area, believes that medical technician phlebotomists are already involved in executions; personal communication, 1/5/10). But predictions aside, I agree that Halpern and Halpern have identified a genuine “ambiguity” in the AMA’s ethical code.

The AMA spoke more clearly in their amicus curiae brief, filed in a capital punishment case before the Supreme Court of North Carolina. The AMA’s brief noted that:

“Physicians are fundamentally healers, not instruments of death. . . when they mix those roles, the perception of the profession changes and patient trust erodes. And when that trust erodes, the physicians’ ability to care for the patient is diminished. Physician participation in executions, even if legally sanctioned, interferes with the ability to care for patients in wholly different settings.“

I would venture even further than this. In my view, psychiatrists would be well-advised by their professional organizations to refrain from offering any opinions on a prisoner’s “competence to be executed,“even though such opinions may be sought and sanctioned by the legal system. I believe our role in capital cases should be limited solely to clinical diagnosis and treatment; that is, to the identification and mitigation of suffering and incapacity. In this role, we are within proper ethical bounds when providing the legal system with our diagnostic assessment and treatment recommendations, so long as our doing so is (a) intended to reduce the suffering and incapacity of the prisoner-patient; and (b) not used by the legal system to further the goal of executing the prisoner. If the latter condition requires a commutation order, so be it.

But wait. . . isn’t there an argument to be made for psychiatric involvement in “competence to be executed” determinations, if-at least potentially-lives can be saved? Suppose, for example, that a psychiatrist in the prison system sincerely believes, on the basis of a professional evaluation, that the condemned individual would not meet legal criteria for “competence to be executed“? (Although the precise definition of “competence to be executed” is still in flux, a recent US Supreme Court decision [Panetti v Quarterman, 127 S Ct 2842 (2007)] emphasized that the condemned prisoner must evince a “rational understanding” of both the nature of the punishment and the reasons why it is being applied; see Applebaum, 2007²). Would it not be legally and morally incumbent on that psychiatrist to express that judgment-thus preserving the prisoner’s life, or at least delaying an execution?

Under our current legal system, I think the answer is yes. After all, as my colleague Dr Alan Stone rightly points out, medical ethics “. . . is a mix of deontology and consequentialism.” (personal communication, 12/24/09). That is, medical ethics invokes both “duty-based” (cf. deon, Gk. “duty”) and “consequence-based” judgments. Dr Stone argues specifically that “. . . once declared incompetent, prisoners are rarely executed” (personal communication, 12/24/09). Thus, given the aforementioned scenario, a consequentialist view of medical ethics might urge psychiatric involvement in the “competence to be executed“ process on humanitarian grounds-but this is not to endorse the existing policy of psychiatric involvement in such determinations. On the contrary, I believe it is bad medical ethics and bad public policy to drag psychiatrists into any aspect of the capital punishment process in the first place. In the long run, prohibiting such involvement on the part of physicians will nullify the consequentialist argument.

Yet another argument asserts that psychiatric involvement in “competence to be executed” determinations is fundamentally no different than our offering an opinion on, say, whether a patient is competent to refuse medical treatment, such as antipsychotic medication. Indeed, to invoke linguist Noam Chomsky’s terminology, the “superficial structures” of the phrases, “competence to refuse medication” and “competence to be executed” are quite similar. But, from a moral and existential standpoint, these 2 determinations have radically different “deep structures.”

This may be revealed by trying to reformulate the 2 phrases as, “competence to make medication decisions” and “competence to make execution decisions.” When psychiatrists engage in determinations of whether a patient understands the risks and benefits of taking an antipsychotic agent, they are indeed assessing the patient’s ability to make informed medication decisions. But when we participate in “competence to be executed” determinations, we most certainly are not assessing the prisoner’s ability to make informed execution decisions! Rather, we are assessing-solely at the behest of the potential executioner-whether the prisoner is cognizant of the impending execution and why society has justified it.

As my colleague James Knoll, MD, points out (personal communication, 1/4/10), the “. . . ability to understand the relevant legal constructs” is one legitimate sense of the term “competence”-which is fundamentally a legal, not a psychiatric, term of art. But this is not at all the sense embodied in competency determinations pertaining to medical treatment. Judged by the usual operational definition of “competence”-namely, “the mental capacity to make a decision in accordance with the patient’s goals, concerns, and values”³-the phrase, “competence to be executed” is a linguistic somersault of Orwellian perversity.

The reason for this is not hard to discern. The determination of competence to refuse treatment has, as its underlying ethical basis, the safeguarding of the patient’s autonomy and the potential for restoring the patient’s psychic and bodily integrity. In contrast, the determination of competence to be executed is indifferent or antithetical to the prisoner’s autonomy, and has the potential for literally annihilating the prisoner’s psychic and bodily integrity. The deep structures of these 2 kinds of “competency” determinations could hardly be more different. To put it in more concrete terms: If a patient is not competent to make antipsychotic medication decisions, a “substituted judgment” is rendered by the court, aimed at determining what the patient would desire if he or she were competent. But if a patient is deemed not competent to be executed, nobody renders a substituted judgment as to what the patient would wish (“Let’s see . . .would Joe want to be executed or not?”) if he were competent.

Yes-we must acknowledge that these are extremely complex issues, and that humane and reasonable individuals will differ in their conclusions.⁴ Nobody should luxuriate in a sense of self-righteous certitude on these matters. But my personal take as a non-expert remains simply this: The executioner’s room is a “bad neighborhood” for physicians, and we should keep far away from it!

The Interrogator’s Cell
At first glance, the interrogation of prisoners-such as those held at Guantanamo Bay-may seem to be in a different moral category than the execution of prisoners. After all, such interrogation, in cases involving national security, may be aimed at preventing injury or death on a massive scale-as has been argued in the now-famous (or infamous) “ticking bomb” scenario. And yet, the ethical rationale for avoiding any involvement in interrogations is essentially the same as that prohibiting the physician’s involvement in executions: Physicians are fundamentally healers, not support staff for military or civilian interrogators. Nonetheless, as Professor John Thomas describes in Psychiatric Times, both psychologists and (initially) physicians have been involved to varying degrees in the interrogation of suspected terrorists. (The physicians, evidently, were not considered cooperative enough, and were dropped from the “team” after 2004, as Professor Thomas describes).

Let me be clear: I mean no disrespect to military or civilian authorities charged with investigating crime or suspected acts of terror. Indeed, preventing mass casualties-as might well occur with an act of terror-is clearly an ethically defensible goal. The use of non-coercive interrogation techniques, consistent with the Geneva conventions, represents a vital tool in law enforcement’s armamentarium. However, the lawful goals of police, professional interrogators, and military personnel are not necessarily commensurate with the ethical responsibilities of the physician.

Indeed, in my view, our moral imperatives require that physicians stay “far away” from the neighborhood of the interrogator. This means that no psychiatrist should cooperate in any non-medical matter, with respect to any kind of military or police interrogation-coercive, non-coercive, or otherwise. Aside from providing general scientific information to appropriate authorities regarding specific psychiatric disorders or undertaking the diagnosis and treatment of a detainee’s psychiatric symptoms to relieve suffering, psychiatrists should have nothing to do with either military or civilian interrogations. As the APA states in its position statement:

“Psychiatrists providing medical care to individual detainees owe their primary obligation to the well-being of their patients, including advocating for their patients, and should not participate or assist in any way, whether directly or indirectly, overtly or covertly, in the interrogation of their patients on behalf of military or civilian agencies or law enforcement authorities.”

Moreover, as Halpern et al argue:

“…not only forensic psychiatrists, but all psychiatrists, must remain constantly alert to the danger of being drawn into unethical conduct in the service of an elusive and not infrequently unjust “justice.“ It has long been recognized that in countries where misuse of psychiatry has been, and in some countries still is, rampant, such as the former Soviet Union, China, Romania, South Africa and others, psychiatrists justified their unethical conduct on the grounds that they were furthering the interests of their countries’ justice.“

Physicians are healers. Psychiatric physicians are ethically bound to ensure the well-being of their patients. We need to keep far away from neighborhoods in which we are urged to violate or compromise that obligation.

Acknowledgments: The author wishes to thank James Knoll, MD, Alan Stone, MD, Eugene Kaplan, MD, Howard Zonana, MD, John Halpern, MD, and Abraham Halpern, MD, for their comments, criticisms, and suggestions. However, unless otherwise noted, the author alone is responsible for the views expressed in this editorial.

References:

References
1. Stone AA. The ethical boundaries of forensic psychiatry: a view from the Ivory Tower. http://www.jaapl.org/cgi/content/full/36/2/167 [originally published in The Bulletin of the American Academy of Psychiatry and the Law (Bull Am Acad Psychiatry Law. 1984;12:209-219)].
2. Appelbaum PS. Death row delusions: when is a prisoner competent to be executed? Psychiatr Serv. 2007;58:1258-1260.
3. Simon RI, Shuman DW. Clinical Manual of Psychiatry and Law. Arlington, VA: American Psychiatric Press; 2007:64.
4. Zonana HV. Competency to be executed and forced medication: Singleton v. Norris. J Am Acad Psychiatry Law. 2003;31:372-326.