Psychotropic Treatment of Patients on Death Row: An Ethics Dilemma

A psychiatrist working in a correctional institution confronts a dilemma: to treat or not to treat a psychotic patient on death row. The patient had previously been declared incompetent to be executed due to severe mental illness, but the psychosis has deteriorated such that the psychiatrist now believes it is unethical not to treat the individual to relieve his suffering. The patient is so markedly paranoid and delusional that he has stopped eating for fear of being poisoned and wears himself out by continuously pacing in his cell in a heightened state of agitation. The psychiatrist has sought guidance from the literature and from relevant ethics opinions of major medical and psychiatric organizations, but remained conflicted. Her dilemma? Being incompetent to be executed has saved her patient from execution, but treatment to relieve suffering could render him competent to be executed. The psychiatrist worries that she would be inadvertently participating in a court-ordered execution of a human being.

Medical ethics’ prohibition against participating in the killing of a patient is as old as the practice of medicine itself. The ethics principles centralize the role of a physician as a healer and not a killer, as exemplified by the Hippocratic Oath, “I will keep them [the sick] from harm and injustice” and “Whatever houses I may visit, I will come for the benefit of the sick. … I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan.” In this equation, the ultimate harm a physician can cause patients is their death, a reality that undercuts debates by some physicians proposing “humane” application of lethal injection to individuals on death row as ethical because it decreases their suffering as they are being killed.

While acknowledging this debate, Opinion 9.7.3 of the AMA Code of Medical Ethics makes clear that “as a member of a profession dedicated to preserving life when there is hope of doing so, a physician must not participate in a legally authorized execution.” Although physicians have multiple obligations, the primary obligation is to act in the best interest of patients’ health and well-being. This is emphasized by Principle VIII of the AMA Principles of Medical Ethics: “A physician shall, while caring for a patient, regard responsibility to the patient as paramount.” Where there are state laws that require physician participation in capital punishment, Principle III enjoins physicians to “respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.”

APA has adopted the AMA’s statement on capital punishment. However, how do these pronouncements relieve the correctional psychiatrist’s concern about participating in her patient’s execution if treatment causes the patient to become competent to be executed? What are the contours of participation? Her conundrum was deepened by the World Psychiatric Association’s (WPA) declaration: “Under no circumstances should psychiatrists participate in legally authorized executions nor participate in assessments of competency to be executed.” Of note, APA does not subscribe to the WPA’s ethics injunction regarding participation in competency to be executed evaluations. APA notes that “testifying as to medical diagnoses as they relate to the legal assessment of competence for execution” does not constitute participation in execution. Testifying that an individual is competent to be executed is a clinical opinion presented to the judge, who makes the final legal decision regarding execution.

Likewise, APA’s principles state, “If the incompetent 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. 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 personal beliefs. Under those circumstances, physicians should be permitted to transfer care of the prisoner to another physician.” A notable distinction is treatment for the sole purpose of restoring competence to be executed. That is unethical, while treatment to relieve suffering is not.

The correctional psychiatrist’s dilemma is real. However, she should be reassured that it is ethical to treat a patient on death row to relieve psychological suffering, much as it would be to treat an acute medical condition. There is always a risk that such treatment may also cause the patient to become competent to be executed. That would be an incidental occurrence rather than the goal of treatment. A further recommendation would be to ask the patient, once he recovers the capacity for informed consent, whether he would like to continue treatment now or in the future even in the throes of severe psychosis. A valid informed consent to refuse treatment in the context of capital punishment respects the patient’s autonomy and provides guidance for the psychiatrist. ■

Charles C. Dike, M.D., M.P.H., is chair of the APA Ethics Committee and former chair of the Ethics Committee of the American Academy of Psychiatry and the Law. He is also a professor of psychiatry; co-director of the Law and Psychiatry Division at the Yale University School of Medicine; and medical director in the Office of the Commissioner, Connecticut Department of Mental Health and Addiction Services.