Volume 56, Number 1 - Winter 2010

 

By CMA Legal Counsel

To the Department of Corrections and Rehabilitation:

The California Medical Association (CMA) is a nonprofit, incorporated, professional association of more than 35,000 physicians practicing in California, in all specialties. CMA would like to thank you for providing us with the opportunity to comment on the California Department of Corrections and Rehabilitation (CDCR) proposed regulations on the administration of lethal injections to condemned prisoners. 

Physicians are dedicated to preserving life and should not participate in executions. Physician participation in executions violates longstanding principles of professional ethics and is a violation of the Hippocratic Oath, which stipulates: “First, do no harm.” Physician participation in an execution violates the ethical policies of the California Medical Association, American Medical Association, American College of Physicians and World Medical Association. 

CMA opposes the CDCR proposed regulations. As we read the proposed regulations, CDCR appears to be trying to create an execution process in which physicians: (1) evaluate and declare the inmate legally competent to undergo execution and (2) determine and declare death of the inmate after administration of the lethal injection chemicals. Under the proposed regulations, CDCR could assign or contract with non-physicians for carrying out most of the tasks leading to the death of a condemned inmate. However, CDCR is not expressly prohibited from assigning or contracting with a physician to do so. In fact, the proposed regulations expressly allow it. While keeping physicians out of the actual process of administering the lethal injection chemicals and thus, out of the actual act of executing a condemned inmate is a goal we applaud, the proposed regulations do not achieve that goal. Rather, the proposed regulations call for both direct physician participation and physician participation that aids or assists in causing the death of the condemned. Both are a violation of ethical principles for physicians.

Under the terms of the proposed regulations, the warden is responsible for the selection of Lethal Injection Team members consistent with the criteria set forth in the regulations. The warden must coordinate the recruitment and selection of those team members first from employees of San Quentin, then from other CDCR locations or from outside of CDCR. Criteria for the various sub-teams vary, but undoubtedly, both staff and non-staff physicians could meet the criteria specified for members of the two sub-teams who are most directly involved with administration of the lethal injection chemicals, specifically, the Intravenous Sub-Team and the Infusion Sub-Team. The CDCR’s proposed regulations seem to embrace that scenario and give the warden express authority to, “contract with medical personnel to be members of the Lethal Injection Team, or to serve as the physician attending the execution.”

Given the warden’s obligation to fill the Lethal Injection Team positions, and the warden’s express authority to contract with medical personnel to fill those positions, under the terms of the proposed regulations, physicians may be directly involved in effectuating the death of an inmate. In order to ensure that physicians are not involved in the administration of lethal injection chemicals, the regulations must be amended to expressly state that physicians cannot be members of the lethal injection team and that the warden cannot compel a staff physician or contract with a non-staff physician to participate in the administration of the lethal injection chemicals. CMA is opposed to the proposed regulations which do not contain such express prohibitions. 

Numerous other provisions in the CDCR proposed regulations also call for direct physician participation in executions. For instance, the proposed regulations call for an attending physician at the execution, require the attending physician to monitor the inmate’s vital signs, and require a physician to determine and declare death of the inmate. Each of these requirements constitutes physician participation in executions in violation of longstanding professional ethical principles and CMA and AMA policy. 

The proposed regulations also do not contain any safeguards to ensure that a physician does not get called upon to intervene in the actual lethal injection process. The CDCR proposed regulations specify the criteria for the Lethal Injection Team members, including that they be trained in administering an IV and that they be familiar with the effects of the three drugs that are used. CMA is skeptical that implementation of these criteria will satisfy the court’s requirement that CDCR ensure that the executioners are adequately trained. However, even if it does, the concern of CMA’s member physicians is that when CDCR employees require assistance in administering the execution process, the physician who is standing by to certify death of the inmate will be called upon to intervene. Given the nature of the circumstances in which this may occur, the physician will be under significant pressure to intervene, yet forbidden by ethical obligations from doing so. In order to ensure that this does not occur, the regulations should specifically state that no physician shall be involved in or called upon to assist in the administration of the lethal injection chemicals. 

CMA opposes the proposed regulations as written and urges the CDCR to include language in the regulations that expressly prohibits physician participation in the administration of lethal injection chemicals and which expressly prohibits the warden from requiring a staff physician or contracting with a non-staff physician to do so. In addition to breaching one of the professions’ most important ethical boundaries, the use of a physician’s medical skills for this non-medical task threatens the public’s trust of physicians. This trust is central to the physician-patient relationship. 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 a physician’s medical skills are used to facilitate death. It is unjust and shortsighted to ask physicians to disregard their ethical and moral obligations in order to carry out CDCR’s job to execute prisoners sentenced to death. Organized medicine must protect the profession and maintain the trust of the public by demonstrating commitment to the ethical tradition: “Above all, to do no harm.”