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First, Do No Harm

In the current issue of the American Journal of Bioethics is an interesting article by Dr. Michael Keane of the Monash Medical Centre, Victoria, Australia. Keane's thesis is that the effect on the family of the murder victim, "co-victims" as he calls them, must also be considered in debating the role that physicians play.

Ralph Baze, who was the appellant in the recent Supreme Court case (Supreme Court of the United States. 2008), was convicted for killing two police officers. Earlier in the year and in response to this Supreme Court challenge the local media reported on one Baze's co-victims: '"It makes me sick," said Carl Briscoe, as he talks about how the man who shot his brother in the back of the head is today sitting comfortably in a cell in Eddyville (Louisville Courier-Journal 2008). But is not "healing" the sick a part of the AMA code of ethics discussed previously? Surely making someone sick is not ethical. Whether or not it was justified, and this article does not address the overall question of the appropriateness of the death penalty, it is inescapable that those physicians who supported Baze's appeal contributed to making Mr. Briscoe "sick".
There are multiple "Open Peer Commentary" articles following Dr. Keane's article, and their tone and content will not surprise anyone familiar with the nature of death penalty debate. Lee Black and Hilary Fairbrother of the AMA chime in with this observation, among others: "It is likely that the United States Supreme Court will eventually address the constitutionality of capital punishment itself, rather than just a particular method." Breaking news from 1976, as James Taranto of the WSJ would say. They have addressed it. See Gregg v. Georgia, 428 U.S. 153.

Courtenay Bruce, identified as a J.D. with the Cleveland Clinic, opines, "It also is conceptually and practically difficult to extend the physicians' obligation to do no harm to the co-victims. Indeed, the physician should do no harm to the patient (the felon, in this context) and society as a whole, but it is unclear why this obligation should be narrowly tailored to the co-victims." (Emphasis added.) Bruce gives no justification for the assertion that the felon is the patient in this context, and none is apparent. Neither physicians participating in executions nor those engaged in advocacy to prevent executions are engaged in treating the felon for any medical condition. What makes the murderer a "patient"? Bruce goes on, "The interests of society in assuring that justice has been done, and the interests of the felon in exhausting his appeal mechanisms, seem to outweigh any harm incurred by the co-victims in having to delay the execution." Baloney. Absent any genuine question of actual innocence (and there was none in the Baze case and in most capital cases), "the interests of society in assuring that justice has been done" are precisely aligned with, not opposed to, the interests that Keane notes.

The full texts of the article and comments are, unfortunately, not available online to the general public without a stiff fee. Citation and abstract follow the jump.
Keane, M. (2008). The ethical elephant in the death penalty room. The American Journal of Bioethics 8(10):45-50.

The United States Supreme Court recently ruled that execution by a commonly used protocol of drug administration does not represent cruel or unusual punishment. Various medical journals have editorialized on this drug protocol, the death penalty in general and the role that physicians play. Many physicians, and societies of physicians, express the opinion that it is unethical for doctors to participate in executions. This Target Article explores the harm that occurs to murder victims' relatives when an execution is delayed or indefinitely postponed. By using established principles in psychiatry and the science of the brain, it is shown that victims' relatives can suffer brain damage when justice is not done. Conversely, adequate justice can reverse some of those changes in the brain. Thus, physician opposition to capital punishment may be contributing to significant harm. In this context, the ethics of physician involvement in lethal injection is complex.

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