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January 01, 2003

Doing No Harm

by Mark D. Agrast

"It is the privilege of the medical doctor to practice medicine in the service of humanity, to preserve and restore bodily and mental health without distinction as to persons, to comfort and to ease the suffering of his or her patients. The utmost respect for human life is to be maintained even under threat, and no use made of any medical knowledge contrary to the laws of humanity."

- World Medical Association, Declaration of Tokyo (Oct. 1975)

"The true object of these experiments was not how to rescue or to cure, but how to destroy and kill."

- Opening Statement of the Prosecution, The Doctors' Trial, Nuremberg Military Tribunals (Dec. 9, 1946)

The horrors of World War II accelerated the codification of international human rights principles, including the prohibition on torture and the formal recognition of the principle of informed consent: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation." International Covenant on Civil and Political Rights, Article 7.

The principle memorialized in the Covenant was derived from the Directives for Human Experimentation developed in 1947 by the judges of the American military tribunals at Nuremberg in the course of the trial of twenty-three Nazi doctors and administrators for crimes against humanity. The directives, which became known as the Nuremberg Code, represented an effort to establish criteria for distinguishing permissible research on human beings from the activities in which the defendants had engaged.

One year after the trial, as the U.N. General Assembly was preparing to adopt the Universal Declaration of Human Rights, the General Assembly of the World Medical Association convened in Geneva to consider the response of the medical profession to the Nazi atrocities. The delegates adopted a Physician's Oath that declares, "I will not use my medical knowledge contrary to the laws of humanity."

As Stephen F. Hanlon and Robyn S. Shapiro show in their discussion of the Hillsborough case, informed consent remains an issue half a century after Nuremberg (and seven decades after the infamous Tuskegee study). And as our other authors show, doctors continue to confront many other dilemmas that test their fidelity to the Physician's Oath.

It is among the peculiar features of the administration of the death penalty in America that the role of executioner has passed from the hangman to the physician, posing new ethical challenges for the medical profession and imparting to the proceedings a disturbingly antiseptic character. The American Medical Association Code of Medical Ethics (the AMA Code) bars physicians from participating or assisting in executions, including administering tranquilizers and other medications that are part of the execution procedure; monitoring vital signs; attending or observing in a professional capacity; and rendering technical advice. While physicians are permitted to "certify" that death has occurred, they may do so only if the executed prisoner has been "declared" dead by another person. See AMA Code, E-2.06. Yet a 1994 study by leading medical and human rights organizations found that twenty-three states require a physician to "pronounce" or "determine" death and twenty-eight states require that a physician "shall" or "must" be present at the execution. Breach of Trust: Physician Participation in Executions in the United States (1994).

Singleton v. Norris, the Arkansas case discussed by Kathy Swedlow, raises still more troubling contradictions. It is now the law in the Eighth Circuit that a state may forcibly medicate an incompetent prisoner to render him fit for execution. Yet it would appear that any physician who agrees to administer the medication would be in violation of the AMA Code, which states that physicians should not determine a prisoner's legal competence to be executed, and that when a prisoner has been declared incompetent, the physician "should not treat the prisoner for the purpose of restoring competence unless a commutation order is issued before treatment begins."

The rationale for this prohibition is explained in the 1994 study:

Execution is not a medical procedure, and is not within the scope of medical practice. Physicians are committed to humanity and the relief of suffering; they are entrusted by society to work for the benefit of their patients and the public. This trust is shattered when medical skills are used to facilitate state executions.

Nor is capital punishment the only circumstance in which the non-medical use of thiopental sodium raises ethical concerns. As this issue was going to press, it was reported that former FBI director William Webster had urged the government to consider the use of "truth drugs" to extract information on terrorist operations from al Qaeda and Taliban captives in U.S. custody.

While the authorities are far from unanimous on the question, the use of forced chemical interrogation is widely held to be a form of torture (or "cruel, inhuman or degrading treatment") that contravenes the Convention Against Torture and other international agreements to which the United States is a party. The AMA Code states, "Physicians must oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, providing or withholding any services, substances, or knowledge to facilitate the practice of torture." AMA Code, E-2.067 (emphasis added).

Whether or not the administration of truth drugs in the course of interrogation "facilitates torture" as defined by applicable provisions, such a practice is no more a "medical procedure" than execution, nor does it provide a benefit to the subject. As such, it may well implicate at least one international instrument that speaks to the obligations of physicians. The U.N. Principles of Medical Ethics Relevant to the Protection of Prisoners Against Torture state:

It is a contravention of medical ethics for health personnel, particularly physicians . . . [t]o apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments.

The responsibility for curbing such practices ought not to rest with the medical profession alone. But until existing ethical prohibitions are enforced by state medical boards or given legal force and effect, the state will always find willing accomplices to administer truth serum to detainees, psychotropic drugs to prisoners deemed not competent to be executed, and lethal cocktails to those who are.

Mark D. Agrast

Mark D. Agrast is chair of the Section of Individual Rights and Responsibilities for 2002-2003.