THE ETHICS OF MEDICAL INVOLVEMENT IN CAPITAL PUNISHMENT

Transcription

1 THE ETHICS OF MEDICAL INVOLVEMENT IN CAPITAL PUNISHMENT

2 INTERNATIONAL LIBRARY OF ETHICS, LAW, AND THE NEW MEDICINE Founding Editors DAVID C. THOMASMA DAVID N. WEISSTUB, Université de Montréal, Canada THOMASINE KIMBROUGH KUSHNER, University of California, Berkeley, U.S.A. Editor DAVID N. WEISSTUB, Université de Montréal, Canada Editorial Board SOLLY BENATAR, University of Cape Town, South Africa TERRY CARNEY, University of Sydney, Australia UFFE JUUL JENSEN, Universitet Aarhus, Denmark GERRIT K. KIMSMA, Vrije Universiteit, Amsterdam, The Netherlands EVERT VAN LEEUWEN, Vrije Universiteit, Amsterdam, The Netherlands SHEILA MCLEAN, Glasgow University Law School, Glasgow, United Kingdom DAVID NOVAK, University of Toronto, Canada EDMUND D. PELLEGRINO, Georgetown University, Washington D.C., U.S.A. DOM RENZO PEGORARO, Fondazione Lanza and University of Padua, Italy ROBYN SHAPIRO, Medical College of Wisconsin, Milwaukee, U.S.A. LAWRENCE TANCREDI, New York University, New York, U.S.A. VOLUME 18 The titles published in this series are listed at the end of this volume.

3 THE ETHICS OF MEDICAL INVOLVEMENT IN CAPITAL PUNISHMENT A Philosophical Discussion by Joseph B.R. Gaie University of Botswana, Gaborone, Botswana KLUWER ACADEMIC PUBLISHERS NEW YORK, BOSTON, DORDRECHT, LONDON, MOSCOW

4 ebook ISBN: Print ISBN: Springer Science + Business Media, Inc. Print 2004 Kluwer Academic Publishers Dordrecht All rights reserved No part of this ebook may be reproduced or transmitted in any form or by any means, electronic, mechanical, recording, or otherwise, without written consent from the Publisher Created in the United States of America Visit Springer's ebookstore at: and the Springer Global Website Online at:

5 This work is dedicated to the Gaie family and all the family friends.

6 TABLE OF CONTENTS ACKNOWLEDGEMENTS XI INTRODUCTION CHAPTER 1 1 MEDICALISATION OF CAPITAL PUNISHMENT MEDICALISATION...1 MEDICAL INVOLVEMENT IN CAPITAL PUNISHMENT...2 ISSUES ARISING FROM THE DISTINCTION BETWEEN MEDICALISATION AND INVOLVEMENT...2 THE MEDICAL ASSOCIATIONS POSITION ON MEDICALISATION OF CAPITAL PUNISHME. NT...3 What the Medical Associations Regard as Unacceptable for their Members to do.4 ROLE MORALITY...6 AGNOSTICISM...6 CHAPTER 2 9 ROLE/PROFESSIONAL VERSUS ORDINARY MORALITY ROLE MORALITY...9 ROLES...10 PROFESSIONAL MORALITY IS THE APPLICATION OF ORDINARY MORAL PRINCIPLES XIII IN SPECIAL SITUATIONS BUSINESS MORALITY IS NOT SEPARATE FROM ORDINARY MORALITY...16 MEDICAL VERSUS ORDINARY MORALITY...23 CHAPTER 3 27 THE MORALITY OF EUTHANASIA AND ITS IMPLICATIONS FOR THE MEDICALISATION OF CAPITAL PUNISHMENT CHAPTER 4 47 THE MILITARY DOCTOR CHAPTER 5 MEDICAL INVOLVEMENT IN THE WIDER CAPITAL PUNISHMENT PROCESS 61 INSTITUTIONAL JUSTIFICATION...62 MEDICAL INVOLVEMENT AT THE INVESTIGATION STAGE OF A CAPITAL CRIME...63 MEDICAL INVOLVEMENT IN OTHER NON-THERAPEUTIC ACTIVITIES...64 MEDICAL EVIDENCE THAT THE SUSPECT IS FIT FOR A CAPITAL OFFENCE TRIAL...65 MEDICAL TESTIMONY IN A CAPITAL TRIAL...66 vii

7 viii CONTENTS PRE-SENTENCE MEDICAL EVALUATION...66 MEDICAL EVALUATION OF FITNESS FOR EXECUTION...67 MEDICAL RE-EVALUATION OF COMPETENCE TO BE EXECUTED...69 MEDICAL TREATMENT TO RESTORE COMPETENCY TO BE EXECUTED...69 MEDICAL INVOLVEMENT IN WAR AND CAPITAL PUNISHMENT...72 MILITARY DOCTOR ROLE COMPARED TO THE DOCTOR-EXECUTIONER ROLE...73 MEDICAL INVOLVEMENT IN PREPARING A PRISONER FOR HANGING VERSUS GIVING MEDICAL EVIDENCE IN A CAPITAL TRIAL...74 PARTICIPATION AND PROFESSIONAL INVOLVEMENT...75 LETHAL INJECTION...77 CHAPTER 6 81 KANTIAN THEORY INTRODUCTION...81 KANTIAN THEORY OF JUSTICE...82 INVESTIGATION AND TRIAL...87 FITNESS TO PLEAD AND STAND TRIAL...88 SENTENCING STAGE...89 TREATMENT ON DEATH ROW...90 DETERMINATION OF DANGEROUSNESS TO SOCIETY...91 FITNESS/COMPETENCE DETERMINATION FOR EXECUTION AND TREATMENT TO RESTORE COMPETENCE...92 TRANQUILLISATION...93 LETHAL INJECTION...94 WHO SHOULD EXECUTE?...95 SOME PEOPLE ARE BETTER OFF DEAD...96 ORGAN DONATION...99 CHAPTER UTILITARIAN ARGUMENTS FOR MEDICALISATION UTILITARIANISM INVESTIGATION MEDICAL DETERMINATION OF SUSPECT S FITNESS TO PLEAD AND STAND TRIAL MEDICAL PARTICIPATION IN A CAPITAL TRIAL PREDICTION OF FUTURE DANGEROUSNESS TO SOCIETY EXECUTION COMPETENCE DETERMINATION AND RESTORATION TRANQUILLISATION SUBJUGATION BY MEDICAL MEANS OF AN INMATE FOR EXECUTION LETHAL INJECTION AND RELATED PREPARATIONS ORGAN DONATION CERTIFICATION OF DEATH CHAPTER THE MEDICAL DOCTOR AND A CONDEMNED PRISONER THE SOCIAL POSITION OF THE MEDICAL DOCTOR IN HISTORY...125

8 CONTENTS ix THE MEDICAL DOCTOR IN RELATION TO THE CONDEMNED PRISONER CONCLUSION 131 APPENDICES 133 APPENDIX ANOTHER EXAMPLE OF JUSTIFIABLE MEDICAL KILLING: PRISONER DOCTORS IN THE NAZI CAMPS APPENDIX PERSONAL CORRESPONDENCE: L. HURST (1999) APPENDIX AMNESTY INTERNATIONAL ETHICS OF MEDICAL PARTICIPATION IN WAR QUESTIONNAIRE (JANUARY ) APPENDIX RESTRICTION OF DUTIES MEDICAL CERTIFICATE REFERENCES 147 INDEX 153

9 ACKNOWLEDGEMENTS I wish to acknowledge the following for their different invaluable contributions without which this work would not have been possible: Godiramang Makhaya, Keikanetswe Monyai, James Amanze, John Parrat, Saroj Parrat, John Melamu, Thomas Tlou, Vincent Botshelo, Innocent Botshelo, Tom Sorell, Will Cartright, John Basimanebotlhe Gaie, Gabriel Gaie, Cecilia Gaie, Ndipo Segametsi Gaie, Joshua Muller Sebopeng, Leah Mosimanyana, Emily Maripe, Joseph Maripe MmaBoitumelo Botshelo and all those unsung heroes and heroines of this world who have silently made profound and yet unnoticeable contributions. I would also like to thank all those who made it possible for me to write my PhD thesis on which this work is based. xi

10 INTRODUCTION The morality of capital punishment has been debated for a long time. This however has not resulted in the settlement of the question either way. Philosophers are still divided. 1 In this work I am not addressing the morality of capital punishment per se. My question is different but related. It is this. Whether or not capital punishment is morally right, is it moral or immoral for medical doctors to be involved in the practice? To deal with this question I start off in Chapter One delineating the sort of involvement the medical associations consider to be morally problematic for medical doctors in capital punishment. They make a distinction between what they call medicalisation of 2 and involvement in capital punishment, and argue that there is a moral distinction between the two. Whilst it is morally acceptable for doctors to be involved in capital punishment, according to the medical associations, it is immoral to medicalise the practice. I clarify this position and show what moral issues arise. I then suggest that there should not be a distinction between the two. The medical associations argue that the medicalisation of capital punishment, especially the use by medical doctors of lethal injection to execute condemned prisoners is immoral and therefore should be prohibited, because it involves doctors in doing what is against the aims of medicine. Whilst it might be morally right for non-doctors to execute condemned prisoners, the moral basis of that would be different from medical ethics. So in Chapter Two I deal with the issue as to whether medical ethics is separate from ordinary morality or not. I claim that role morality is a special application of ordinary morality. I make use of Gewirth s Principle of Generic Consistency. According to this principle every person would like to pursue their own interest and from this arises the right of each to promote such interest and well being. Each has a moral right to pursue their interests without being impeded as long as they do not impede others in the process. Since these interests are pursuable in society with a division of labour, they give rise to roles (professions). Playing a particular role in society should be done in harmony with other people s interests. I take the examples of business and medicine to argue, that rather than there being moralities particular to each of them, they are examples of means of pursuing interests, and the pursuit of such interests cannot be morally acceptable if it involves the violation or impediment of others pursuit of their own interests. Thus, a businessman pursues his interest by means of his business. If he is to do so in a morally acceptable manner he should not impede others in the pursuit of their interests. Likewise, medicine is a means of promoting people s interest and well being by preventing their demise through disease. Medicine would be morally problematic if its pursuit violated people s interest and well being. The application of Gewirth shows that medicine has to give way in case of conflict 1 There is a lot of literature on the subject. Sorell (1987) for example thinks capital punishment is justifiable in some cases; Bedau (1967, 1982, 1998) and S. Nathanson (1987) think it is not justifiable. 2 See the elaborate distinctions between these in Chapter One below. xiii

11 xiv INTRODUCTION to institutions that protect moral rights, including penal institutions, where the normal requirements of those institutions clash with the requirements of medicine. If institutions carrying out capital punishment in particular protect rights, everyone, doctors included, may need to assist them. In Chapter Three I argue that if some cases of euthanasia are morally justifiable, and doctors can euthanise their patients without violating moral principles. The medical role does not necessarily always exclude killing. Therefore assisting at an execution is not necessarily immoral for doctors just because it involves killing. In Chapter Four I look at the military doctor role and argue that even though doctors are not supposed to engage in war, their role supports an institution that may kill people. If we take a war situation, we find that doctors may attend to the health (physical and psychological) of soldiers who can be assigned to go and bomb enemy positions, killing even noncombatants in the process. With his non-combatant status, the doctor can still help in the planning of a military attack by assuring the health of friendly soldiers. The military doctor is also in a position whereby he repairs people (soldiers) only to have them go back to face the same dangers again when they are fit for duty in the frontline. It is also notable that throughout history the military doctor role has been very important for the survival of armies. The military doctor role s contribution to war efforts is crucial. Doctors in the army may be at least involved in assisting those who may kill, and such involvement is justifiable, I argue. Military doctors are not the only medical people who may sometimes justifiably help to kill or help to repair people to face death. Giving the example of the prisoner doctors in the Nazi concentration camps, I argue that there are cases where doctors may have to kill. In the Nazi prison camps people who were chosen to be killed and prisoner doctors co-operated with the SS, making the process less brutal for the victims. 3 The argument here is that the selection of those to be killed was morally wrong. But the prisoner doctors did it because it was a lesser evil. If capital punishment is morally wrong it might still be a lesser evil to involve doctors in execution by lethal injections rather than not to. What this means is that the medicalisation of capital punishment is not necessarily wrong even if capital punishment itself is wrong. In short, the doctorexecutioner role might not after all be incoherent. In Chapter Five I argue that different medical practices are not necessarily for the interest of all those who are directly affected by those practices. The examples are abortion, where the foetus does not necessarily benefit, and expert medical witness against an accused in a trial. So there is no reason to assume that medical involvement should necessarily benefit the patient. It is also evident that some of the different stages of the capital punishment process that are acceptable may be comparable to those unacceptable to the medical associations. This includes certain practices such as war and the involvement of doctors. In Chapter Six I say that there is a Kantian argument for the medicalisation of capital punishment, or at least some stages of the process, including the injection itself. Kant holds that capital punishment is morally acceptable. And he holds that those to be executed should not be mistreated in any way so that their human dignity is not violated. I hold that medicalisation can be seen as an appropriate means of attaining execution with dignity. 3 See Appendix 1.

12 INTRODUCTION xv In Chapter Seven I suggest that the overall beneficial consequences of medicalisation for those who are executed provide a utilitarian justification for it. This is based on Mill s version of the Utilitarian theory of morality. I will argue not only that the medicalisation of capital punishment is beneficial both to the prisoners and the executioners, but that according to John Stuart Mill; the moral principles of desert may be justifiable if it is useful to apply them. Once we apply the principle of desert, we might find that some prisoners deserve to be lethally injected. It might also show that medical involvement at all the stages of the capital punishment process may be just, and it is therefore useful to uphold justice and maintain all its institutions. Chapter eight looks at the doctor and their relationship with the condemned prisoner. The condemned prisoner does have a patient-physician relationship because being in death row makes one emotionally, psychologically and rationally ill. In short a death row prisoner is in a state in which there is necessity for a physician. It also suggests that the medical doctor should be involved in capital punishment for social reasons. Medicine can be shown to be just like any other profession. Or, put another way, other professions seem to demand similar sorts of obligations from their professionals. The history of medicine also shows that it was considered to be just an art. I argue that the difference is that it happens to be an art that is concerned with what human beings take to be sacred human life, which is why probably medicine is believed to be sacred. I think this is a mistake