Thursday, September 17, 2015

The Death Penalty & Medical Ethics Revisited

The Death Penalty & Medical Ethics Revisited
Dudley Sharp, updated 5/2016

Some have undertaken an ill advised or dishonest effort to show that medical ethics require medical professionals to shun the death penalty and that some countries and pharmaceutical companies are so concerned about their moral duty that no medical products should be used in executions.

It is an, utterly, false narrative.



Anti-Death Penalty Activism

From the Glossip v Gross case, recently (2015) decided by the US Supreme Court:

"[I]s it appropriate," Justice Alito asked, "for the judiciary to countenance what amounts to a guerrilla  war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?"

"States are resorting to the less effective midazolam, Justice Scalia added, "Because the abolitionists have rendered it impossible to get the 100 percent-sure drugs."

Who are these anti death penalty, guerrilla warfare folks?

2009

Reprieve, an anti-death penalty group, based in England, began a public campaign against these pharmaceutical companies in Sept/Oct 2009 (1), as well as lobbying efforts with European governments (1&2); at such time those companies and countries started a movement to prevent the drugs from getting to the US.

Reprieve's less public efforts may have begun earlier.

2011

"Reprieve . . . has led the campaign to stop European companies from selling lethal injection drugs to the United States." (2)

"Reprieve filed a lawsuit to ban the exportation of thiopental for use in executions. The British government responded that the death penalty states would simply buy it elsewhere. But shortly after, the government effectively prohibited the export as Reprieve had requested." (2)

2015

"The state of Texas' (lethal injection) drug cache is already dangerously low . . . largely because the compounding pharmacies that make lethal injection drugs fear threats of violence if they are identified." "Many of these vendors who supply these doses to the state have refused to do it any further. It's just not worth the risk of violence." (3)

All death penalty states have either passed laws or are looking at passing laws that allow them to keep their lethal injection suppliers confidential, in order to avoid threats and the risk of violence and/or are seeking alternate methods (4).

Reprieve, as others, are the abolitionists mentioned by the Justices.


THE "ETHICS" TIME GAP

The drug companies were invisible and speechless, from 1977, when the lethal injection protocols were, publicly, adopted by Oklahoma, and from 1982, when they were first used for executions, in Texas, until 2009 - 32 years and 27 years later, respectively. 

Why did the moral outrage take 27-39 years to surface? 

Anti-death penalty folks didn't, publicly, criticize the drug companies (and their countries of origin), until 2009.  Of course, the drug companies and their countries of origin were well aware of the lethal injection use of drugs from 1977, but were not embarrassed, publicly, until 2009.

The response is PR, not ethical. 


Do MORE Harm: The Anti Death Penalty Solution

After pharmaceutical company, Hospira, announced its decision, ending thiopental production, the American Society of Anesthesiologists stated that they were "extremely troubled" by Hospira's decision and criticized the anti-death-penalty movement for "using" thiopental supplies to make a point (5).

The doctors noted the "unfortunate irony that many more lives will be lost or put in jeopardy as a result of not having the drug available for its legitimate medical use." (5), in direct violation of the Hippocratic Oath and the "do no harm" directive.

" . . . European restrictions on thiopental might be justifiable if they save a lot of lives on Death Row. They probably won't." ". . . substitutes for thiopental as an execution drug are readily available." (5)

No murderers lives will be spared in exchange for greater risk to innocent patients - a clear violation of the Hippocratic Oath and the "do no harm" directive.

The drug companies are well aware.

Because of these restrictions, the state of Missouri had planned to use propofol for executions, which no one doubted would result in a quick, painless death.

The European manufacturer stated that they would withhold that drug from the US if propofol were used in executions, thus denying its use, estimated at 50 million uses per year in the US (6).

Missouri Governor Nixon was much more concerned about those innocent patients and how their lives and suffering would be additionally threatened and increased, respectively, by the withholding of that drug. Therefore, he ordered the drug not be used, because he was certain that the drug manufacturer would increase the harm and suffering to all those patients, by withholding that drug (6), if he allowed propofol to be used.

Drug manufacturers in Europe are so against uncomfortable publicity that they would, knowingly, put more innocent patients at risk, by withholding their drugs from the US, while US Governors would reject putting those innocent patients more at risk.

It is obvious who is more concerned with the Hippocratic Oath and the "do no harm" directive - the Governor.

As Charles Lane of the Washington Post observed: "What we have here is not a serious, effective protest, but an exercise in feel-good politics that puts innocent people at risk." (5).


And

" . . . in 1995, a report in JAMA said that, "Over a million patients are injured in U.S. hospitals each year, and approximately 280,000 die annually as a result of these injuries."  (9a).



Based upon 2008-2011 US data, " . . . the true number of premature deaths associated with preventable harm to patients was estimated at more than 400,000 per year. Serious harm seems to be 10- to 20-fold more common (4-8 million) than lethal harm. (9b)

As a result, the drug companies have suspended their drug distributions to the hospitals/doctors with the highest rates of innocent patient harm and deaths via drug/prescription errors   . . .


 . . . well no, not really, of course.

Innocents are more at risk when we fail to use the death penalty (10).

"Do no harm"? Really?


The drug companies, now, say that restricting lethal injection drugs is based upon ethical considerations. But, history tells us it is a pr issue.  As detailed, those companies prefer the result of injuring more innocent patients in exchange for restricting their drugs, which will delay, but not stop, the execution of guilty murderers.

Even without the huge ethics time gap, how could such a known outcome be described as either ethical or moral?


THE ETHICS OF LYING - The Hippocratic Oath

There has been a lot of ink used to review the long standing medical professions ethical prohibitions against the death penalty.

There is no such prohibition.

Some in the medical community have fabricated an ethical prohibition against medical professionals' involvement in state executions by invoking the famous "do no harm" credo and the Hippocratic Oath.

It is a dishonest effort.

Some have proclaimed that "First do no harm" is a centuries old foundation of medical ethics, weighing against death penalty participation.

Untrue.

It is an anti-death penalty fraud that "do no harm" is in the context of the state execution of murderers (8).

Neither the Hippocratic Oath nor "do no harm" have anything to do with executions (8).

Both are, solely, concerned with the medical profession and patients.

" 'do no harm' (a phrase translated into Latin as "Primum nonnocere") is often mistakenly ascribed to the (Hippocratic) oath, although it appears nowhere in that venerable pledge.(8)"

"Hippocrates came closest to issuing this directive in his treatise Epidemics, in an axiom that reads, 'As to disease, make a habit of two things - to help, or at least, to do no harm.'  (8)"

"As to disease" Nothing else.

There is no relevance outside medicine and, most certainly, no prohibition against medical professionals participation in the state execution of murderers.

The effort to ban medical professionals' participation in executions is an unethical effort to fabricate professional ethical standards, based upon personal anti-death penalty activism, from those whose professions are medically related.

From Dr. Robert Truog, MD, Professor of Medical Ethics, Harvard Medical School:

"If I think of the kind of a hypothetical where you have an inmate who is about to be executed and knows that this execution may involve excruciating suffering, that inmate requests the involvement of a physician, because he knows that the physician can prevent that suffering from occurring, and if there is a physician who is willing to do that, and we know from surveys that many are, I honestly can't think of any principle of medical ethics that would say that that is an unethical thing for the physician to do." (11)

Physician & Drug Co. Hypocrisy:
The classic Hippocratic Oath & Its Brother, the Hypocrisy Oath

Hippocratic Oath: "I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art." (8)

This is a prohibition against euthanasia and abortion (8) and has nothing to do with the fabricated medical prohibition of participation in state sanctioned executions.

Do those alleged anti-death penalty drug companies and countries fight against any drugs being used in abortions and/or euthanasia?

Of course not.

Do those anti-death penalty physicians and medical associations promise license revocation if any of their members participate in euthanasia or abortion?

Of course not.

In fact, we have Belgium approving the assisted suicides of children, of any age, with participation by physicians (7).

For those countries and drug companies, the Hippocratic Oath has become the Hypocrisy Oath.

Many of those countries, pharmaceutical companies and medical professionals fully accept and participate in both abortion and euthanasia.

They, totally, negate the true ethical prohibitions that exist in a medical, historical context.

Instead, they just invent new ones, against the death penalty and for child suicide, while showing contempt for the true prohibitions, ushering in the newly renamed and truthful - Hypocrisy Oath.

Is there anyone unaware that the lethal injection executions of murderers are a criminal justice/corrections sanction and that it is not a medical procedure with patients?

No . . . unless they have a well-developed sense of dishonest imagination.

The few legal reviews of this topic have found as reason and fact require:

"Other courts have addressed (physicians participating in executions) and found that it does not violate the physician's code of ethics to participate in an execution . . ." "The Court... does not find that Missouri physicians who are involved in administering the lethal injections are violating their ethical obligations . .  ." (Taylor v. Crawford, Jan. 31, 2006, Court Order issued by the US Western District Court of Missouri)

Let's look at some additional sensible reviews:

The editors of The Public Library of Science (PLoS) Medicine write:

"Execution by lethal injection, even if it uses tools of intensive care such as intravenous tubing and beeping heart monitors, has the same relationship to medicine that an executioner's axe has to surgery." ("Lethal Injection Is Not Humane", PLoS, 4/24/07).

Exactly, none, at all.

So to, The American Society of Anesthesiologists:

"Although lethal injection mimics certain technical aspects of the practice of anesthesia, capital punishment in any form is not the practice of medicine. ("Statement on Physician Nonparticipation in Legally Authorized Executions," 10/18/06).

Both confirm the obvious: The state execution of murderers has no connection, ethically or otherwise, to the medical treatment of patients.

Rationally, there is no ethical nor moral connection, Some folks just want to fabricate a false narrative. So that's what they do - just another anti-death penalty fraud.

Alternatives: Drugs and Methods

Currently, the best lethal injection protocol appears to be using one drug, Pentobarbital, with some 11 US states having that protocol or announcing an effort to adopt it and it is also in use for legally assisted suicides in Oregon and Washington.

Will death penalty jurisdictions abandon lethal injection? They might . . . and, likely, should.

The constant badgering, by anti-death penalty activists, against chemical suppliers and/or compounding pharmacists might simply wear folks down. No one likes constant harassment.

 . . . or a reliable pharmacy, unaffected by threats of violence, may turn up.

It is a mystery, why state corrections pharmacies don't compound the drugs, themselves.

Nitrogen Gas

Well known by the euthanasia community, nitrogen gas is a pain free, inexhaustible source for those wishing to take their own lives and is the ideal solution for executions (12). Oklahoma has already adopted it as an alternate method of execution, as have others.

It has every advantage over lethal injection (12).

That will go well, until anti-death penalty activists start harassing nature for her production of nitrogen and some in the medical community will, again, voice their opposition to participation in executions, while we have the approved ethics of assisted suicides for children, of any age, assisted by physicians, from the EU progressively enlightened Belgium Parliament (7).

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1) The earliest public involvement of Reprieve into stopping executions drugs into the US appears to be in Sept/Oct 2009 and, likely, sooner, privately.  http://www.reprieve.org.uk/case-study/cases-ed-zagorski/

2) "Drug Company in Cross Hairs of Death Penalty Opponents", New York Times, MARCH 30, 2011

3) "Lawmaker Says Death Penalty in Jeopardy", by Terri Langford, The Texas Tribune, April 15, 2015

4) Lots of articles, do a search "death penalty" "secrecy laws"

5) "Europe's dangerous death penalty gesture", By Charles Lane, Washington Post, 02/ 1/2011

6) "Missouri governor postpones execution over questions about lethal injection drug", By Jeremy Kohler, St. Louis Today, October 12, 2013.

7)  "What Belgium's child euthanasia law means for America and the Constitution", Eugene Kontorovich, Washington Post, February 13, 2014

8) Physicians & The State Execution of Murderers: No Medical Ethics Dilemma
http://prodpinnc.blogspot.com/2009/10/physicians-state-execution-of-murderers.html

9) a)  I used 1995, as it was about halfway between 1976, when new death penalty statutes gained US Supreme Court approval, within Gregg v Georgia, and 2015. Bates DW, Cullen DJ, Laird N, Petersen LA, Small SD, Servi D, Laffel G, Sweitzer BJ, Shea BF, Hallisey R, et al. Incidence of adverse drug events and potential adverse drug events. Implications for prevention. ADE Prevention Study Group. JAMA. 1995 Jul 5;274(1):29-34. taken from  DEATH BY MEDICINE, Section THE FIRST IATROGENIC STUDY, By Gary Null PhD, Carolyn Dean MD ND, Martin Feldman MD, Debora Rasio MD, Dorothy Smith PhD, 2003, http://www.wnho.net/deathbymedicine.htm

   b)  A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care
James, John T. PhD, Journal of Patient Safety, September 2013 - Volume 9 - Issue 3 - p 122–128, john.t.james@earthlink.net

10)  The Death Penalty: Do Innocents Matter? A Review of All Innocence Issues
http://prodpinnc.blogspot.com/2013/10/the-death-penalty-do-innocents-matter.html

11) New England Journal of Medicine interview titled "Perspective Roundtable: Physicians and Execution", Jan. 18, 2008

12)  Nitrogen Gas; Flawless, peaceful, unrestricted method of execution