Our View: Doctor ethics, death penalty not good mix

Our View: Doctor ethics, death penalty not good mix

Sunday, February 11, 2007

The legal and ethical impasse that has effectively shut down capital punishment in North Carolina got a little weirder last week after the issue was dropped — it now appears — in the lap of the General Assembly to figure out.

It came to that because the governor, Council of State, state Department of Corrections, the judiciary and the N.C. Medical Board have been unsuccessful in agreeing on how the state can continue to hold executions with medical staff present and not create a medical ethics conflict. The answer may lie in another direction.

Granted, it's odd that the subject would come up now, but a federal judge got the ball rolling last year when he ruled that medical staff should be present at executions. He said a doctor must be present to insure that the death penalty protocol is carried out without undue pain and suffering for the condemned — which in itself is a little weird, since it would be highly unlikely that being put to death is anything but a situation in which one, at some point, would experience some physical and/or mental suffering.

Nevertheless, his ruling generated a response from the state medical board, which has adopted a policy making it unethical for a physician to participate in executions.

In the meantime, the DOC tried to find a compromise by creating a new policy in which a nurse or medical technician would monitor a condemned inmate's vital signs. A doctor would observe the execution and sign a death certificate, according to the proposed policy.

With that, the state seemed to be heading for a solution. As it turns out, however, because of a law on the books since 1909, no new policy on execution protocol can be applied without the approval of the governor and Council of State — whose members are split on the issue. Consequently, they want to toss this hot potato to someone else, and that someone else looks like the Legislature.

Handing the matter off to the General Assembly may prove even more troublesome. The additional players are sure to ratchet up the political interests in death penalty and ethics issues.

Already, indications are that things are adrift.

For instance, a bill was filed Thursday that would protect doctors, apparently from state medical board disciplinary action, who participated in executions. Could someone really think that's an answer? Don't solve the problem; stomp on medical ethics. That kind of thinking only makes matters worse.

The state medical board's position on executions is based on the American Medical Association's Code of Medical Ethics. The operative provisions in the code prevent physicians from participating in any aspect of an execution other than to certify death, as a witness in a non-professional capacity or to provide requested tranquilizers in the case where a condemned prison requests it. The policy is central to the professional code of doctors to do no harm, directly or indirectly.

The bill entered last week is a slap in the face to the medical profession and its code of ethics. Heck, if the Legislature were to adopt that position, what would stop it from imposing new conduct rules for the N.C. State Bar Association or other professional organizations?

The Legislature needs to be lethal about this bill: Kill it.

Whatever resolutions the state eventually finds for the dilemma, it should not require bending, changing or eliminating a long-standing code of ethics behind the fundamental beliefs that guide the practice of medicine.

However, there appears to be room for compromise in the protocol changes recommended by the DOC that would limit a doctor's involvement to certifying death. Certainly, prison staff or corrections officials can be trained to manage the apparatus required in executions as well as to determine whether death has been achieved in the process.

With the modern technology that is available, a mandatory requirement for involving a physician in an execution is arbitrary and unnecessary. Yet, true to form, that thinking has already unleashed the worst of the state's legislative instincts.