Medical ethics at issue in North Carolina case involving executions

State statutes pit corrections department vs. medical board

Medical ethics is at the center of a case in the state of North Carolina, whereby the state Department of Corrections is at odds with the North Carolina Medical Board (NCMB) over physician participation in executions.

An executive protocol adopted by the DOC requires that a physician monitor the body functions of the condemned inmate and alert officials if he or she suspects suffering, according to an article in Prognosis, a publication of the North Carolina Bar Association and the N.C. Society of Healthcare Attorneys in May of this year. However, the NCMB position statement adopted prior to the executive protocol does not allow participation of attorneys, other than to certify death after the inmate has been declared dead by someone else.

Wallace C. "Chuck" Hollowell III, a partner with Nelson Mullins in Raleigh, NC, who wrote the article in Prognosis, suggests in his amicus curiae brief filed on behalf of the American Medical Association (AMA) in Chicago for the NCMB that the disagreement between the state DOC and the NCMB actually is a matter that should be decided by the North Carolina General Assembly rather than in a court of law.

Physicians stand firm that judicial executions are no place for physicians.

In the amicus curiae brief filed on behalf of the AMA, Hollowell references the North Carolina Medical Board's stance from its position statement on physician participation in executions by focusing on the physician-patient relationship as follows:

"The Board believes the interests and health of the people of North Carolina are best served when the physician-patient relationship, founded on patient trust, is considered sacred, and when the elements crucial to that relationship and to that trust . . . are foremost in the hearts, minds and actions of the physicians licensed by the Board."1

The fact that many states have now transitioned to execution by lethal injection rather than other methods has initiated the need for medical professionals to participate in executions.

"The inclusion of physicians in lethal injection medicalizes capital punishment by moving a process that has always been a function of the penal system into the domain of medicine," wrote Lee Black, JD, LLM, and Robert M. Sade, MD, in a 2007 article in the Journal of the American Medical Association (JAMA). Sade is a former chair of the AMA's Council on Ethical and Judicial Affairs. His term ended in June 2007.

Each of the state agencies in North Carolina is acting in accordance with state statute, Hollowell says. If one of the agencies had violated a statute or the constitution, only then could it be determined that they had not performed their jobs according to law.

"From our perspective, that's certainly not the case; what it really boils down to is a policy issue," he says. "And our position would be that given the consistent and long-standing positions take by these medical organizations, in terms of medical ethics, then it's clear that this is a very core principle with medical ethics."

And the requirements of medical ethics and physicians in executions, Hollowell says, "should not be overridden lightly by either the courts or the General Assembly.

Given that oral arguments still must be delivered, Hollowell expects it will be six months to a year before a decision is rendered. And even then, there is likely to be no legal impact on a national basis, because what is being considered in the North Carolina case is state law.

"Perhaps the nationwide impact could potentially be a persuasive authority to the extent that this comes up in [other states] than North Carolina and [another state could] say, 'Here was a similar issue and here's how they handled it," Hollowell says.

Ethical implications of participation

Oddly enough, the mostly commonly used method of execution, lethal injection, was developed by a physician. Due to legal challenges to the method of lethal injection, physician participation in executions has been "publicly exposed," according to the JAMA article.2

Anesthesiologists, in particular, have been outspoken against physician participation in executions, Sade tells Medical Ethics Advisor, which is likely because they have been seen as those most likely to be needed in executions involving lethal injection.

"Anesthesiologists are the logical candidate for penal systems to seek to be the physicians who participate, because they are they ones who commonly manage those drugs, and presumably can use them more safely and more effectively than other physicians might," he says.

According to Sade, 38 states permit the death penalty, and 35 of those states discuss physician participation in executions; 17 of those require physician participation, and another 18 of those state permit physician participation, although they don't require it.

"Those that require it have trouble finding physicians to actually manage the IV or administer the drugs or measure out the drugs," Sade says. "There are various levels of participation — all of which the AMA considers to be unethical, so there are several states that have passed laws specifically to protect physicians."

Sade says in the North Carolina case, the DOC maintained to the court that while executions require medical knowledge and medical skills, an execution is not the practice of medicine. Therefore, the NCMB should have no authority to punish physicians who do participate in executions in that state.

"During the time that I was with the council, we took the position that physicians are required to act ethically, in the bounds of medical ethics, even when they [are] acting outside the practice of medicine," Sade tells MEA. "So that whether or not participation in lethal injection is considered medical practice, physicians still are ethically bound not to participate."

Some states also have passed law to protect not only physicians, but anyone else who participates in executions. Still, the names of three physicians who participated in executions in Georgia, North Carolina and in Missouri are known. The Missouri physician's name also was made public following an investigation by a journalist, according to Sade.

Following that incident, Missouri passed a law that would allow people who participate in executions to file civil suits if their names were made public, Sade says.

Chronology of the case

First, the NCMB issued a position statement on the matter in January 2007, according to the article in Prognosis, and it based that statement on the American Medical Association Code of Medical Ethics. That was followed by an Executive Protocol for executions issued by the DOC the following month, which required physicians to participate in lethal injections in that state – something strictly prohibited by the AMA's Code of Ethics and the NCMB's position statement.

Hollowell wrote that the DOC also in 2007 secured an injunction from the Superior Court which prohibited the NCMB from punishing physicians who participated in executions.

The DOC filed a petition to have the North Carolina Supreme Court consider the case, prior to it being heard by the North Carolina Court of Appeals, with the DOC suggesting that the case was likely to end up in the state Supreme Court ultimately, Hollowell tells Medical Ethics Advisor.

Most recently, in July, the NCMB filed a brief with the Supreme Court presenting its side of the argument, Hollowell says.

According to Hollowell, the next step that will occur is that the DOC will file its arguments in response to the NCMB brief in the Supreme Court. At some point after that brief is filed, the Supreme Court will hear oral arguments from both sides.

References

  1. Hollowell, C. Physician participation in capital punishment in North Carolina. North Carolina Bar Association Health Law Section and the N.C. Society of Healthcare Attorneys. Prognosis 2008; 24(3): 3-6.
  2. Black, L., Sade, RM, MD, "Lethal injection and physicians: State law vs. medical ethics." JAMA 2007; 298 (23): 2779-2781.

Sources

For more information, contact:

  • Wallace C. "Chuck" Hollowell, Partner, Nelson Mullins Riley & Scarborough LLP, Raleigh, NC. Phone: (919) 877-3803. E-mail: chuck.hollowell@nelsonmullins.com.
  • Robert M. Sade, MD, Professor of Surgery and Director, Institute of Human Values in Health Care, Medical University of South Carolina, Charleston. Phone: (843) 792-5278. E-mail: sader@musc.edu.