by Gerald Dworkin
Recently a ghastly case of capital punishment by means of lethal injection was featured in the news. A convicted murderer and rapist, Clayton Lockett, died 43 minutes after his execution began. He was described by many witnesses as writhing in pain and struggling to speak.
After administering the first drug, “We began pushing the second and third drugs in the protocol,” said Oklahoma Department of Corrections Director Robert Patton. “There was some concern at that time that the drugs were not having the effect. So the doctor observed the line and determined that the line had blown.” He said that Lockett's vein had “exploded.”
The execution process was halted, but Lockett died of a heart attack.
A somewhat bizarre aspect of the story was that Lockett had been taken for routine x-rays at 5 am that morning. When he refused to be restrained for the procedure he was tasered. I leave it as an exercise for the reader why the protocol for x-rays is in place. (1)
For me one of the features –the participation of physicians in the execution–was of particular interest since I had published an article opposing such participation in 2002. (2) In this article I began by assuming for the sake of argument that capital punishment is a legitimate mode of punishment. I did so, not because I accepted this, but because I wanted to focus on the much narrower issue of physician participation.
My main argument relied on a principle about when the use of medical skills and training are appropriate. It says that such skills and training are illegitimate when they run counter to the health interests of the patient, or are counter to the wishes of the patient. It is important that all three factors be present: use of medical skills, adverse effect on health interests, and non-consent. (3)
I then argued that since the use of medical skills would result in the death of the prisoner, and the prisoner did not wish to die, the participation of a physician was illegitimate.
This it should be noted is the position of the American Medical Association. In a cynical mood I sometimes thought this ought to worry me.
My idea is that a doctor ought to always remain an ally of the patient. And, as I have argued elsewhere, this is compatible with medically-assisted dying even if the doctor intentionally kills his patient , when and only when, the patient wishes to die, and death is in the interest of the patient.
Let me now return to the botched Lockett execution. At the time of the execution the “authorities claimed that Lockett's executioners had been forced to insert an IV line into the inmate's femoral vein—a painful place for the insertion and also a risky one that requires serious medical expertise—after running into difficulty finding another suitable vein. They also suggested that dehydration or another medical condition might have led to Lockett's botched execution.” (4)
However a medical examiner, retained by Lockett's lawyers, determined that the IV was never inserted into a vein in his arms, and that the veins in his arm were not such that the injection into the femoral vein was required. Further he was not dehydrated.
In addition there was confusion as to whether the person who inserted the IV was a phlebotomist ( as the governor claimed) or an EMT ( as the state protocols required). Neither is a physician.
All of this makes me wonder whether my original argument was mistaken. For consider the following objections. If the argument that physician participation in lethal execution is impermissible is sound, then someone is going to have to understand which drugs to use, in what order. Someone is going to have to find a vein and insert it correctly. (5) This person is going to need some medical education and training–whether it be a phlebotomist ,an EMT, or some other category.
Why are these people allowed to use their medical skills against the patients wishes not to die, but physicians are not? And, given the horrible suffering that patients such as Lockett undergo, why is the physician not the patients ally in the sense that while the patient does not wish to die, if he is going to be killed he has an interest in it being done in a manner that is swift and painless.
One physician puts the matter this way: “poorly done executions needlessly hurt the condemned…the problems…center on establishing and maintaining intravenous access and assessing for anesthetic depth…it is honorable for physicians to minimize the harm to these condemned individuals.” (6)
To further bolster this argument participation could be limited to those prisoners who request a physician be present, thus insuring the consent part of my earlier principle.
I actually , briefly, considered this objection in the earlier article but dismissed it by using the analogy of doctor participation in torture. Suppose a doctor knew of a medication which would weaken the prisoner's resistance to disclosing information. This would make the torture shorter thus producing less pain and suffering. This is a permissible function of medicine and so the doctor ought to participate.
I then simply appealed to my intuition that such participation is not justified. That our understanding of the duty to relieve pain and suffering does not extend to weakening people's resistance to disclosing information even if it is foreseen that this will lead to less pain and suffering in the future.
There is a problem with this analogy. Unlike capital punishment, one cannot assume that the practice of torture is legitimate. So the issue becomes one of complicity with an unjust practice and that is what explains the impermissibility of the doctor's participation. It is therefore not relevant to appeal to this case in an argument about physician participation in capital punishement when it has been assumed, for the sake of argument, it is permissible.
For those who want to think about the cases of complicity with an unjust institution here are two cases which raise issues about whether physician participation in such practices might sometimes be permissible.
1) Suppose you are a doctor in a state which uses amputation as a punishment for theft. Let us assume, what I believe, that this is barbaric and wrong. The amputation could be done in two ways. In the public square by an official with no training and without anesthetic. Or it could be done by a surgeon, in an operating theatre, with anesthesia. Would it be permissible for the surgeon to participate in the latter?
2) Suppose you are a doctor in a state which uses torture to secure information. Let us assume, as I do, that this is barbaric and impermissible. You are brought in to a patient who has been shocked repeatedly by electricity. He is in great pain which can be relieved, and his injuries healed over time. The patient requests treatment. Both doctor and prisoner know that when he recovers sufficiently he is likely to be tortured again. Is it permissible for the doctor to treat the patient?
* * *
 To insure the prisoner is in good health when he is killed? To rule out “prior” conditions?
 “Patients and Prisoners: the ethics of lethal injection”, Analysis , April 2002
 I leave it to the reader to think about whether this principle is consistent with a surgeon removing the kidney of someone who wishes to donate it to a relative.
 Stephanie Mencimer, “Autopsy shows just how Royally Oklahoma Screwed up Clayton Lockett’s Execution”, Mother Jones, June 13, 2014.
 Remember, I am assuming the legitimacy of capital punishment.
 Physician Participation in Capital Punishment,” Mayo Clinic Proceedings 82, no. 9(2007). Waisel.