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Oct-Dec2004-12(4)
EDITORIAL
Medicalisation of 'legal'
killing: doctors' participation in the death penalty
Amar Jesani
Societal support to the death penalty in India was
high during the public debate preceding the hanging of Dhananjoy Chatterjee in
Kolkata. Community hysteria was such that some youngsters died in mock
re-enactments of the hanging, and the hangman acquired the status of a
celebrity. The support base for the death penalty has only expanded over the
years, with increasing violence-sponsored by both civil society and the state.
This cuts across political parties and ideologies, emboldening the judiciary,
law-makers and constitutional heads to use it more often.
In 1980, in Bachan Singh v. State of Punjab, the
Supreme Court, by a four-to-one majority ruled that the death penalty was
constitutionally valid and did not constitute an 'unreasonable, cruel or unusual
punishment'. It should be kept in mind that the terms 'unreasonable, cruel or
unusual punishment' and 'rarest of rare case' are defined not by objective
criteria but subjectively by judges who are influenced by public opinion. This
is also true in the USA (1).
Medical involvement in the death
penalty
In the past decade, the law and judiciary have made
systematic efforts to promote doctors' participation in the death penalty. In
1995, a two-judge bench of the Supreme Court decided on a petition opposing the
stipulation in the Punjab Jail Manual that, after execution, the body of an
executed person be kept hanging for half an hour. The petitioner also demanded
that instead of hanging, potassium cyanide should be used for execution. The
Court did not accept the second demand, but agreed that keeping the body hanging
for half an hour was barbarous and ruled that 'A convict shall remain hanging
only till he is declared dead by the medical officer.' As a result of this
little-known judgment, a doctor must periodically examine the person after the
hanging, to look for signs of life. If the person is found alive, the doctor is
to ask the hangman to continue-to order hanging to kill instead of resuscitating
(2).
Further medicalisation of execution was suggested
in 2003, when the Law Commission of India in its 187th report recommended the
use of a lethal injection (3). It is a matter of time before the Supreme Court
decides-or Parliament enacts a law-that hanging is barbarous, cruel and unusual,
and should be replaced by a lethal injection. The use of a lethal injection is
unique because it simulates the medical procedure; the setting of the execution
looks medical, and due to the condition of the prisoner it often needs a
doctor's assistance to carry out.
Historically, medical professionals have played an
active role in designing execution methods and in helping make existing methods
more efficient. In the eighteenth century, Dr Antoine Louis designed and Dr
Joseph-Ignac Guillotine advocated the decapitating machine as a humane method of
execution that became infamous as the guillotine. Dr Alfred Southwick, a
dentist, helped design the electric chair that was considered 'more humane' for
many years. Medical expertise played an important role in the use of the gas
chamber and even in hanging. Dr Stanley Deutsch, an anaesthesiologist, conceived
of a lethal injection along the lines of intravenous induction of general
anaesthesia. The first 'clinical trial' of the lethal injection was carried out
in Texas in 1982 on a 40-year-old African-American man who was injected with
anaesthetic agents as two doctors watched. He was dead within minutes
(4).
In the process of an execution, doctors are
involved in the care of prisoners awaiting execution, in preparations such as
certifying fitness, procuring chemicals for lethal injection, sedating the
prisoner on the day of execution, advising on or participating in the execution
itself, pronouncing death, certifying death, removing organs for
transplantation, and carrying out an autopsy. Psychiatrists carry out
evaluations of the prisoner's mental state, provide testimony in capital cases
(including 'fitness for execution' determinations) and give or recommend
treatment. Other health professionals may be asked to carry out doctors' roles
when doctors refuse to participate.
Doctors oppose medical participation
In 1980, the American Medical Association (AMA) and
in 1981, the World Medical Association strongly opposed medical participation in
the death penalty. Most other national and international associations of medical
and other health professionals also forbid participation of their members. In
1992, the AMA came out with detailed guidelines on medical acts in the process
of execution that do or do not violate medical ethics (5). Accordingly,
testifying on competence to stand trial, testifying on relevant medical issues
during a trial, testifying during the penalty phase of the trial, witnessing an
execution in a non-professional capacity, relieving acute suffering of the
condemned and certifying death after someone else has already verified the
death, are considered within the framework of ethical conduct. On the other
hand, prescribing or administering tranquillisers or other drugs that are part
of the execution procedure, monitoring vital signs, attending or observing the
execution as a physician, selecting sites for injecting, starting intravenous
lines to administer lethal chemicals, prescribing or administering the drugs,
supervising lethal injection devices or personnel and pronouncing death
(examining the executed person to ascertain life) are considered
unethical.
The AMA guidelines, however, do not deal with
issues such as providing evidence bearing on competence to be executed, treating
incompetent prisoners to restore competence to allow execution, and issues
relating to transplantation of organs following execution. Ethical problems in
these areas are acute and fiercely debated. Interestingly, though the AMA
adopted an anti-death penalty resolution in 1969, it subsequently remained
silent on issues other than regulating doctors' participation. Medical
associations from Europe, with the lead provided by the British Medical
Association, consistently opposed the death penalty and played a key role in
ensuring that it was taken off the law books of most European
countries.
Ethical challenges for health professionals
in India
The 1995 Supreme Court judgment and the Law
Commission's report (2003) pose major ethical challenges for health
professionals in India. The 1995 court ruling demanding that a medical officer
monitor vital signs while the person is hanging severely compromises medical
ethics and must be opposed by the profession. Involving medical professionals in
the death penalty, or demanding that psychiatrists should treat mentally ill
persons to make them fit for execution, puts law and medical ethics on a head-on
collision. The ethics movement must educate the judiciary and law-makers on the
subject. Finally, the Law Commission's recommendation on lethal injection should
be firmly opposed as it tries to give a medical face to an inhuman punishment.
Doctors, who occupy a more powerful position in the medical hierarchy, must
support other health professionals, such as nurses and technicians, forced by
administrative orders to participate in executions.
References
1. Annas G. Moral progress, mental retardation and death penalty. N Engl J Med 2002;347:1814-8
2. Jesani A, Vadair A. The doctor's dilemma: a Supreme Court judgment on death by hanging violates medical ethics. Humanscape March 1995;12-13.
3. Law Commission of India. Consultation paper on mode of execution of death sentence and incidental matters, 2003. Available from URL:http://lawcommissionofindia.nic.in/187th%20report.pdf(accessed on September 22, 2004).
4. Groner JI. Lethal injection: a stain on the face of medicine. BMJ 2002;325:1026-8.
5. Council on Ethical and Judicial Affairs, American Medical Association. Physician participation in capital punishment. JAMA 1993;270:365-8.
1. Annas G. Moral progress, mental retardation and death penalty. N Engl J Med 2002;347:1814-8
2. Jesani A, Vadair A. The doctor's dilemma: a Supreme Court judgment on death by hanging violates medical ethics. Humanscape March 1995;12-13.
3. Law Commission of India. Consultation paper on mode of execution of death sentence and incidental matters, 2003. Available from URL:http://lawcommissionofindia.nic.in/187th%20report.pdf(accessed on September 22, 2004).
4. Groner JI. Lethal injection: a stain on the face of medicine. BMJ 2002;325:1026-8.
5. Council on Ethical and Judicial Affairs, American Medical Association. Physician participation in capital punishment. JAMA 1993;270:365-8.
Amar Jesani,310 Prabhudarshan, 31 S S Nagar, Amboli, Andheri (W), Mumbai
400058, India. e-mail:jesani@vsnl.com