Psychiatrist Involvement in Capital Cases: a Need for Strong Ethical Leadership

In light of Florida Gov. Ron DeSantis’ decision earlier this year to lower the legal bar for executions, this is an appropriate time to reevaluate the role of psychiatrists in capital cases. Psychiatrists are involved in capital cases at several different points of the legal process. They can take on the role of clinician or forensic evaluator, with the former providing treatment to restore competency and relieve suffering and the latter assessing for competency or providing expertise regarding the insanity defense. Forensic psychiatrists have grappled with the ethics of their specialty for decades, with psychiatrists such as Alan Stone, M.D., Paul Applebaum, M.D., and Ezra Griffith, M.D., helping to create a distinct ethical framework to distinguish between physicians acting as forensic evaluators from those working as clinicians. While evaluating for competency for execution remains a contentious topic, restoring competency for execution presents a clearer ethical dilemma for physicians acting in the clinician role.

Common law has held for centuries that the state should not execute people who suffer from severe mental illness. This was solidified when the Supreme Court ruled on Ford v. Wainwright in 1986, concluding that the 8th Amendment barred states from executing prisoners who don’t understand their punishment. In other words, condemned individuals need to be competent. Further cases have helped clarify the standard for competency to be executed, but the question of what to do once an individual on death row has been found incompetent remains contentious. Decisions in state-level cases in South Carolina and Louisiana have held that forced medications solely to make someone fit for execution are illegal, although higher courts have not weighed in. Also, providing such treatment remains ethically dubious even if patients voluntarily accept it.

From the standpoint of our traditional four pillars of medical ethics (autonomy, beneficence, nonmaleficence, and justice), clear ethical concerns arise. Autonomy is directly threatened when forcing medications on individuals who have been sentenced to capital punishment. Voluntary treatment is less problematic, although one wonders if someone facing life imprisonment can freely choose to accept a medication that would lead to an early death. Since temporary relief of symptoms cannot possibly justify the adverse effect of imminent death, the concepts of beneficence and nonmaleficence are at odds with restoring competency for execution. While the morality of the death penalty overall is beyond the scope of this article, the well-documented issues involving racial disparities in the application of the death penalty raise justice concerns for the treating psychiatrist.

The influential bioethicist Edmund D. Pellegrino, M.D., argued that medicine has an internal morality, not dependent on societal influence, with the primary moral end being “right and good healing action and decision.” Healing with the goal of killing, rather than relieving suffering, cannot be thought to be healing at all. Further, he argued that treatment must aim for the “good for humans,” which includes ideas such as maintaining dignity and treating people as ends rather than means. Since executions inherently treat people as means to the purported societal good, treatment that leads to executions would be at odds with the human good.

Both the AMA and APA have positions on capital punishment against restoring competency without a commutation to a lower sentence. In addition, APA addresses capital punishment in its Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry and the APA Commentary on Ethics in Practice. Section 1, Annotation 4, is clear: “A psychiatrist should not be a participant in a legally authorized execution.” The commentary states: “Psychiatrists should not participate in a legally authorized execution and may not assume roles that lead them to facilitate, implement, develop or monitor any techniques involved in execution. When a condemned prisoner has been declared incompetent to be executed, psychiatrists should not treat the prisoner for the sole purpose of restoring competence unless a commutation order is issued before treatment begins. However, the psychiatrist may treat the incompetent prisoner, as any other patient, to relieve suffering.”

A stance without consequences, however, is not enough. In 2010, the American Board of Anesthesiologists (ABA) approved a policy that physicians participating in lethal injections will face revocation of their board certification. Given the arguments above, there does not seem to be a significant moral distinction between delivering the injection and making the patient suitable to receive the injection.

A similar policy by the American Board of Psychiatry and Neurology may be difficult to enforce, given that incompetent patients on death row may require medications to relieve suffering and secondarily to improve competency. However, a policy stance would at least provide the national guidance that the courts have not given. To quote the ABA, physicians are “healers, not executioners.” ■