The
issues of capital punishment and physician involvement in capital punishment
have long raised much ethical debate. This essay reviews the arguments in the
context of utilitarian and deontological
ethical theories and the medical ethical principles of non-maleficence, beneficence
and autonomy.
Utilitarianism
is the ethical theory which asserts that no action is intrinsically wrong, but
that the right action to be taken in any given instance is that action with the
best consequences for the majority of individuals. Act utilitarianism proposes
that an act may be ethically justifiable if it has at least as good a
consequence as any other course of action available, while rule utilitarianism
suggests that all individuals should act in accordance with general rules
which, if followed by everyone, would produce the greatest good.
Presumably,
the state could assert that the benefit of capital punishment is solely to
prevent criminals from further harming the public. Act utilitarians would
refute this claim, as the benefit could be achieved less controversially by
providing life imprisonment without parole. Rule utilitarians would also
dispute the ethical reasoning behind this idea, as it would break a common rule,
do not kill. If no-one were to murder anybody else, this would provide the
greatest benefit to the greatest number of people. In the rare case of
execution, the murder of an individual, which would break the rule, would not
provide a strong enough reason to change the rule for all cases. Thus, on the
grounds that the execution of a criminal would prevent this criminal from further
harming the public, both the act and
rule utilitarian would have to oppose capital punishment on ethical
grounds.
Act
and rule utilitarians would be faced with the same arguments if the state were
to assert that the execution of it’s prisoners was ethically justified as it
acted as a deterrent to crime. It cannot be disputed that an effective
deterrent to crime would result in the best consequences for all members of the
state. However, there is currently no evidence that capital punishment in
itself deters other potential criminals (1), thereby eliminating the basis for
act utilitarian ethical justification, as the action does not result in the
best consequences for the majority of individuals.
Rule
utilitarians would again have to consider the rule, do not kill. While the
benefit to society would theoretically be great if an effective deterrent were
found, the evidence does not support this. Regardless, if capital punishment
were found to be an effective deterrent in the future, the benefit in itself
does not provide a compelling enough argument to completely disregard the rule.
Therefore, regardless of the benefits that may be suggested by the state, both
act and rule utilitarianism, from current evidence, would reject any ethical
justification for capital punishment.
The
ethical theory of deontology maintains that an individual will be acting in an
ethical manner if they adhere to the rules and obligations placed upon them by
their societal role or by their profession. Rights-based deontology argues that
an individual who is competent and autonomous has an inherent right not to have
that autonomy infringed. Duty-based deontology would argue the inherent wrong
in defying certain rules and obligations imposed either by the society or the
profession of the individual.
In the
case of capital punishment, a rights based deontologist would acknowledge the
infringement of autonomy perpetrated by the criminal in question, but would not
be able to ethically justify a similar transgression by the state in the name
of punishment. The emphasis here is on the autonomy that another individual
intrinsically holds, which, in no circumstance, can be breached by others. The
duty based deontologists would hold utmost their obligation to society to
refrain from involving themselves in any manner with the death of another human
being. The basic rule or obligation not to kill another would remain paramount.
Hence, for both rights-based and duty-based deontology, the basic nature of the
death penalty, that of killing an individual, can not be reconciled and would
be ethically opposed.
The
issue of the ethical basis of capital punishment is further complicated when
one attempts to justify the involvement of physicians in the practice. To
examine the ethics of physician involvement, the framework by which the actions
of medical professionals are judged must be considered. The four ethical
principles which are regarded central to the practice of medicine, outlined by Beauchamp and Childress
(2), are that of non-maleficence, beneficence, autonomy and justice. These
principles represent a compromise between the major ethical theories of
utilitarianism and deontology. In this discussion, the former three principles
will be addressed; the latter will not be dealt with, merely for the benefit of
brevity. It will be shown that each of
these principles oppose physician involvement in capital punishment.
A
major argument that is raised against physician participation in capital
punishment is the Hippocratic dictum primum non nocere - first do no harm. The
utilitarian would only support non-maleficence if this would result in the best
outcome for the greatest number of people. It is submitted that the act
utilitarian would adhere to this principle for two reasons. Firstly, a doctor
who does no harm to their patients provides a good outcome for the patients. However,
a lack of physical harm does not equate with overall good, so an act
utilitarian may not consider this a reasonable enough explanation to accept the
first do no harm dictum. If the act utilitarian were to consider the outcome if
the principle of non-maleficence were broken, a different picture emerges.
Where the physician does harm to their patients, it is not only physical; the
trust in the physician and the profession is also damaged. This disadvantages
the greatest number of people. For this reason, the act utilitarian would
support the concept of first do no harm. The rule utilitarian would support the
existence of a rule in accordance with non-maleficence and take this at face value. Under both systems of
utilitarianism, the principle of non-maleficence is justified.
Both
rights and duty based theories of deontology support the medical ethical
principle of non-maleficence. A rights-based deontologist would argue that if
the physician were to break the Hippocratic dictum and proceed to harm his
patient, he would infringe upon the patients autonomy and thus behave in an
ethically unacceptable manner. A duty-based theorist would suggest that the professional
obligation of the physician to do no harm, constitutes an duty strong enough
that, if violated, amounts to unethical behavior. The duty here is held
paramount. Thus, both interpretations of deontological theory lend credibility
to the medical principle of non-maleficence.
While
the binding nature of the principle of non-maleficence is assumed, it is
contended that this is not equal to a ban on physician participation in
executions. Some argue "that an execution itself may not be a harm, that
participation by a doctor does not cause harm to the condemned but is in his
interests and that the doctor may owe a duty to society, that is morally more
important than the principle of ‘do no harm’ (3, page 135).
Some
may consider that death is not always harmful. Execution by its nature as a
punishment must constitute harm. In contrast, cases where a patient is
afflicted with immense suffering as the result of a terminal disease, a doctor
who aids in their death is seen to ultimately be preventing harm by allowing a
dignified death. In such cases, death is the least harmful of all possible
consequences. Any assistance given by a physician is merely as an adherence to the
principle of patient autonomy. Physicians cannot use the same reasoning with
respect to an execution, as death is clearly not a lesser harm. If we reason
that the execution should not be seen as a murder, but as a punishment, and
thus not constituting harm, we encounter a simple problem of definition;
punishment by it’s nature is "the loss or suffering inflicted in the name
of discipline (4, page 871)". Unlike the suffering of a terminally ill
patient an execution, where there is no previous significant harm or suffering
of the condemned, death can only result in the greatest harm. Therefore, the
execution of a criminal can be regarded as harmful to that individual and
physician participation in such an act is prohibited by the medical ethical
principle - first do no harm.
Beneficence
is the ethical principle which asserts that one should seek to benefit others
by preventing harm and promoting good (5, page 283). In the case of
beneficence, the act utilitarian cannot argue that the absence of harm does not
necessarily constitute the greatest good; the basis of beneficence is not only
to prevent harm but also to promote good. If all physicians, were acting in
accordance with this principle, it is obvious that the greatest good would
eventuate for everyone, thus the principle must be supported. Again, the
rule-based utilitarian could not deny that a rule, where harm is prevented and
good is promoted, if followed by all physicians, would lead to the greatest
good for the greatest number of individuals, fulfilling their criteria for
ethical justification. Hence, both act and rule utilitarians would support the
principle of beneficence.
The
two understandings of deontological theory allow ethical justification of the
principle of beneficence. The rights-based deontologist states that an
individual has an intrinsic right to be prevented from any harm which would
encroach on their autonomy, and at the same time is entitled to benefits which
promote their autonomy, thus supporting the principle of beneficence. The
duty-based deontologist would regard the societal role of the physician as
‘healer’ as an ethical obligation unto itself. The physician is bound not only
by their professional ethics but by their duty to society to promote good. Thus,
beneficence as a medical ethical principle is justified by the theory of
deontology.
In the
context of capital punishment, some suggest that physician participation benefits
the condemned. These individuals argue that "physicians have a
responsibility to ensure the patient receives proper care and a quick and
merciful death. [They maintain] that if a life must be taken, it should be done
in the most humane way possible" (6, page 18). Therefore, physician
participation is seen as a compassionate act. In support of their arguments, many
articles (3,7) cite examples where, due to a lack of medical expertise, the first
attempt is aborted, necessitating painful ‘ second attempts’ to ensure that the
execution is successful. This pain, say advocates, is not in the best interests
of the patient and can be prevented by physician involvement. Sikora and
Fleischmann (8) suggest that because physicians possess the technical skills to
provide a less painful death, it cannot then automatically be assumed an
ethical pursuit. It is submitted that these skills could be acquired by
individuals who are not physicians, thus eliminating the basis of ethical debate. In any case, the infliction
of direct harm or mutilation of healthy persons without medical benefit,
regardless of intent and societal goals, is not part of the ethical practice of
medicine and should not be condoned by the medical practitioner (9).
The
ethical dilemma of physician involvement in capital punishment is further
complicated by the situation where the condemned individual requests such
participation. This introduces the principle of autonomy, which states that a
physician should respect the decisions of individuals, given that these
decisions do not infringe on the autonomy of others. Ridley (5) asserts that
the two forms of utilitarianism clearly require that autonomy be respected. The
basis of utilitarian theory rests with the consequences of certain actions,
whether this is determined on a case-by-case basis or by following certain
rules. In either case, an action whose consequence results in the greatest good
for the greatest number of people is considered ethically justifiable. To
achieve this, the individual performing the action must have some idea of what
will be considered the best consequences. No-one is more qualified to decide
what an individual will consider the best consequences than the individual
themselves. This being the case, any utilitarian theory must accept the
principle of autonomy.
Deontology
supports the ethical principle of autonomy in both interpretations of it’s
theory. Rights-based theory supports the principle as it constitutes the basis
of the theory. In the medical setting, the rights-based theorist would suggest
that the doctor must support any decision the patient makes, providing that the
decision does not prevent the doctor from acting autonomously. The patient
cannot call on their right to autonomy to force the doctor to participate in
something to which they are opposed. The duty-based deontologist gives ethical
justification to the societal obligation to allow an individual to decide the
outcome of their own lives. Therefore, deontological theory supports the
medical ethical principle of autonomy.
A
condemned individual’s request for physician involvement in their execution
often draws analogies with the request made of the physician to assist in
euthanasia. The nature of death facing a patient on death-row cannot be
regarded as one that they can choose with their own free will. Most criminals
would aim to avoid death by execution by whatever means possible. Therefore, the
physician cannot accept the patient’s right to autonomy as justification for
participation. Regardless, the patients request, if fulfilled by the physician,
may infringe on the physician’s right to decide not to participate. While some argue
that physician participation in an execution can be ethically justified by
appealing to the condemned’s right to autonomy, this argument ignores the
coercive nature in which this request is inevitably made.
In
conclusion, it has been demonstrated that utilitarianism and deontology, the
two major ethical theories, do not support capital punishment. Likewise, the
medical ethical principles of non-maleficence, beneficence and autonomy, which
are born of a compromise between these ethical theories, lend no justification
to physician involvement in capital punishment. It follows that capital
punishment can never be ethically justified, and that physician involvement in
such a practice undermines the moral foundations of the medical profession, by
breaching the fundamental principles which govern the practice of medicine.
REFERENCE LIST
1. Radelet, M., Akers, R.L. Deterrence and
the death penalty: the view of experts. J.
Criminal Law Criminol. 1996; 87,
1-16.
2. Beauchamp, T.L. and Childress, J.F.
Principles of biomedical ethics. New York: Oxford University Press, 1994.
3. Michalos, C. Medical ethics and the
executing process in the United States of America. Med. Law. 1997; 16:
125-167.
4. Moore, B. (ed.) The Australian Pocket
Oxford Dictionary. 4th Edition. Melbourne: Oxford University Press, 1996.
5. Ridley, A. Beginning bioethics. A text
with integrated readings. New York: St. Martin’s Press, 1998.
6. Committee on Bioethical Issues of the
Medical Society of the State of New York. Physician involvement in capital
punishment. NY State J. Med. 1991; 91: 15-18.
7. Ragon, S.A. A doctor’s dilema:
resolving the conflict between physician participation in executions and the
AMA’s code of medical ethics. University
of Dayton Law Review. 1995; 20:
975-1007.
8. Sikora, A. and Fleischman, A.R.
Physician participation in capital punishment: a question of professional
integrity. J. Urban Health. 1999; 76, 400-408.
9. Council on Scientific Affairs, American
Medical Association. Female genital mutilation. JAMA. 1995; 274:
1714-1716.
