1 Medicalisation of “legal” killing: Ethics of doctor’s participation in death penalty Amar Jesani Perhaps at no time in the past the

societal support to death penalty was as high in India as it was manifested in the public debate and eventual hanging of Dhananjay Chatterjee in Kolkata. Pernicious hysteria was so high that few youngsters died in the mock enactment of hanging and the hangman, Nata Mullick, acquired status of a celebrity. In last two decades those who oppose death penalty in principle, on ethical grounds, for being uncivilised, cruel and unusual have suffered setbacks both with the judiciary and the public opinion. Perhaps the last organised but unsuccessful effort to get this punishment out of the law-books was in 1980 when in Bachan Singh v. State of Punjab, the Supreme Court, by a four-to-one majority (Justice Mr. Bhagwati being the sole dissenter) verdict 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 meanings of “unreasonable, cruel or unusual punishment”, or for that matter that of “rarest of rare case” (another term coined by the Supreme Court) are defined not by any objective criteria, but subjectively by the judges who are greatly influenced by the public opinion. This is also true in the USA (1). With the increasing trend from the late 1980s of civil society and the state sponsored violence in India, the support base – cutting across the political parties and ideologies - for the death penalty has only expanded making the judiciary, the law-makers and constitutional heads bolder in using it more often. Laws and judiciary demanding medical involvement in death penalty: In last one decade, the law and judiciary have made systematic efforts to push doctor’s participation in the death penalty. In 1995, the media reported a ruling of the two-judges bench of the Supreme Court in the Public Interest Litigation (PIL) filed by a lawyer opposing the stipulation in the Punjab Jail Manual to keep the body hanging for half an hour after the execution; and demanded that the state should be using potassium cyanide instead of hanging for the execution. While the Court did not accept the latter prayer, it did agree that keeping the body hanging for half an hour was barbarous and so ruled that “a convict shall remain hanging only till he is declared dead by the medical officer”. This little known judgment makes it mandatory for a doctor to examine the executed person in the state of hanging every few minutes to look for sign of life and if found alive, ask the hangman to continue with the hanging!! (2) After the Supreme Court achieved this goal of getting doctor who finds life in the convict to order more hanging to kill instead of resuscitating him or her, the Law Commission of India in 2003 in its 187th report decided to further medicalise the process of execution not by recommending potassium cyanide but the lethal injection. (3) It is now only a matter of time before another misguided PIL makes the Supreme Court to decide or the parliament to enact a law that, like half an hour hanging, the hanging itself is barbarous, cruel and unusual; and to recommend lethal injection that medicalises not only the method but also, in many ways, even the setting of the execution of human beings. What is ethical and unethical in medical involvement in death penalty: Different types of involvement: The medical involvement in death penalty takes place both in developing methods of execution as well as in the process of execution. Historically, the medical professionals have either on their own, out of their own belief to find more humane ways of execution, or at the behest of the state; played active role in designing different methods, or in providing help to make the existing methods more efficient. Dr. Antoine Louis designed and Dr. Joseph-Ignac Guillotine advocated the beheading or decapitating machine of 18th Century as a humane method of execution and became infamous as Guillotine. A dentist,

2 Dr. Alfred Southwick helped design the electric chair that was considered for many years “more humane”. Indeed, in the use of gas chamber and even in hanging, the medical expertise played important role. Dr Stanley Deutsch, an anaesthesiologist at the University of Oklahoma, conceived of the lethal injection in the same way as medical procedure of the intravenous induction of general anaesthesia. The first “clinical trial” of lethal injection occurred in Texas in 1982 on a 40-year-old non-consenting African-American man who was injected with anaesthetic agents as two doctors watched; and he was dead within minutes. (4) The use of lethal injection is unique simply because it simulates the medical procedure, the setting of the execution looks like medical and due to the condition of prisoner often needs doctor’s assistance to carry it out. In the process of execution, the doctors are involved in the medical care of prisoners awaiting execution, in preparations for execution such as certifying fitness, procuring chemicals for lethal injection and sedating the prisoner on the day of execution, advising on or participating in the execution itself, pronouncing death, certifying death, removing organs for transplantation, carrying out an autopsy. The psychiatrists carry out mental state evaluations, provide testimony in a number of contexts related to capital cases (including ‘fitness for execution’ determinations) and give or recommend treatment. The other health professionals, notably nurses and paramedics, may be called upon to carry out a number of the roles requested of doctors where doctors refuse to participate or where the authorities prefer for whatever reason to use non-medical personnel. 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 of the other national and international associations of the medical and other health professionals – public health, psychiatrists, nurses etc – have also come out with such opposition and forbid their members from participation. Subsequently, in 1992 the AMA, without specifically opposing death penalty per se, came out with the detailed guidelines on the medical acts in the process of execution that did or did not violate medical ethics. (5) Accordingly, the acts such as (a) testifying on competence to stand trial, (b) testifying on relevant medical issues during the trial, (c) testifying during the penalty phase of the trial, (d) witnessing an execution in a non-professional capacity, (e) relieving the acute suffering of the condemned and (f) certifying death, i.e. giving certificate of death after somebody else has already verified the person dead; are considered within the framework of ethical conduct. On the other hand, it listed several specific unethical acts such as, (a) prescribing or administering tranquillisers or other drugs, which are part of the execution procedure, (b) monitoring vital signs, (c) attending or observing the execution as a physician, (d) selecting injection sites, (e) starting IV lines to administer lethal chemicals, (f) prescribing or administering the drugs, (g) supervising lethal injection devices or personnel and (h) pronouncing death, i.e. examining the executed person to ascertain life. But the AMA guidelines have left out issues such as (a) providing evidence bearing on competence to be executed, (b) treating incompetent prisoners to restore competence to allow execution and (c) issues relating to transplantation of organs following execution. On three issues, the ethical problems are very acute and fiercely being debated. Interestingly, in 1969 the AMA had adopted an anti-death penalty resolution but subsequently it has remained silent on opposing the death penalty but tried to regulate doctors’ participation. On the other hand, the medical associations from Europe, with the lead provided by the British Medical Association, have consistently opposed death penalty and played major role in ensuring that it was taken out of the law-books of most of European countries, so much so that those countries are not supposed to allow extradition of a person if he/she is likely to face death penalty.

3 Ethical challenges for health professions in India The Supreme Court judgement (1995) and the Law Commission report (2003) have posed major ethical challenges for the health professionals in India. First of all, the 1995 court ruling demanding the medical officer to monitor vital signs while person is hanging severely compromises medical ethics and must be opposed by the profession. Secondly, on the issue of the death penalty, there has been major rupture between the law and judiciary on one side and medical ethics on the other. The rulings like this or demanding that the psychiatrist should treat say an insane person to the extent of making him or her fit for execution, etc. are leading the law and ethics to head-on collision. It is therefore essential that ethics movement make concerted efforts to educate judiciary and the lawmakers on the subject. Lastly, the Law Commission recommendation on lethal injection should be firmly opposed as it tries to give a medical face or cover to an inhuman punishment. As a part of this, it is also a responsibility of doctors, who occupy more powerful position in medical hierarchy to provide support to other health professionals – nurses, technicians, etc., who would be forced by administrative orders to participate in the execution. References: 1. Annas George, “Moral progress, mental retardation and death penalty”, The New England Journal of Medicine, Vol. 347, No. 22, November 28, 2002, pp. 1814-8 2. Jesani Amar, Vadair Asha, “The doctor’s dilemma: A Supreme Court judgement on death by
hanging violates medical ethics”, Humanscape, March 1995, pp. 12-13

3. Law Commission of India, “Consultation paper on mode of execution of death sentence and incidental matters”, 2003, pp. 59, http://www.lawcommissionofindia.nic.in/reports.htm 4. Groner Jonathan I, “Lethal injection: a stain on the face of medicine”, British Medical Journal, Vol. 325, November 2, 2002, pp. 1026-28 5. As summarised by Robert Ferris and James Welsh, in “Doctors and death penalty: Ethics and a cruel punishment”, based on AMA, “Physician participation in capital punishment”, JAMA, 270 (1993), 365-8

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