To Treat or Not to Treat: The Ethics of Competence Restoration in Capital Cases

Physicians are ethically not allowed to assist in the execution process, as it violates their oath to “do no harm.” Yet, the professional organizations that provide ethical guidance to practitioners allow physicians and psychiatrists to help restore a person’s mental competence so that they may be put to death. How can this be? 

This essay focuses on the mental health professional’s dilemma in capital punishment cases and the conflicting ethical duties in competence restoration. 

The Supreme Court has determined the Eighth Amendment’s prohibition on cruel and unusual punishment bars the government from executing a person who is “incompetent to be executed.” This includes someone suffering from a post-conviction mental illness which prevents them from understanding why they are being executed.

When a court determines a person is mentally incompetent to be executed, their death sentence is not vacated. Instead, it is the start of a new process where the government will attempt to “restore” competence to make the defendant fit for execution (see Arizona state law procedures on restoring competence, for example).

The Ethical Limits on Physician and Psychiatrist Participation in Executions

The medical field has long opposed doctors’ involvement in executions. The current position of the American Medical Association is clear: Members cannot ethically participate in the execution process. The American Board of Anesthesiologists goes further, explicitly stating that participation in an execution is grounds for professional disciplinary action.

While prison staff have figured out how to conduct executions without the assistance of physicians, the restoration to competence process does require the participation of psychiatrists and physicians. Many medical professionals do exactly as the government requests and work to restore defendants to competence. But how is this possible, given the prohibition on participation in executions?

Conflicting Ethical Duties

The American Psychiatric Association permits its members to treat defendants as part of the restoration process with one large caveat: They cannot do so with the sole purpose of enabling a defendant to be executed. Rather, the intent must be to treat the defendant’s distress and suffering, with the effect of restoring the defendant’s competence (and thus enabling the state to execute them). The American Medical Association draws a similar distinction.

The American Psychiatric Association provides little guidance on these deep, complex ethical issues. I find the intent focus of their rules unsatisfying. Furthermore, the rules leave a critical question unanswered: Do psychiatrists have an ethical obligation to treat defendants deemed “incompetent to execute?” 

A physician who ethically abstains from assisting in finding a site for the lethal injection leaves no symptoms unaddressed. A psychiatrist who abstains from treating a defendant suffering from psychosis because of their looming execution cannot say the same. 

This is the dilemma. To treat is to lead a person closer to execution; not to treat is to allow a person to suffer from psychosis or another mental disorder responsible for their incompetence.

A Distinction Without a Difference?

The American Psychiatric Association’s rules recognize that a psychiatrist who treats a defendant with the sole purpose of enabling the government to execute them is clearly violating a duty to do no harm to the patient. However, these same rules allow psychiatrists who know that successful treatment will result in the defendant’s execution to participate in the restoration process. 

The distinction, then, boils down to knowledge vs. purpose (a distinction of intent made often in criminal law mens rea determinations). In this context, I view the difference as a matter of degree, not of kind. 

The psychiatrist acting with knowledge of the inevitable result of their treatment is less culpable than the psychiatrist who intends to bring about an execution. However, it is not clear to me that the first psychiatrist lacks any culpability. On one hand, they avoid the ethical issues in leaving someone in distress without treatment, but on the other, their efforts predictably will result in great harm. 

In Search of an Ethical Compass

Some mental health professionals participate in the restoration to competence process out of an ethical obligation to treat those in distress, regardless of what third parties may do to the patient. Others abstain, believing there is an ethical obligation to prevent forced treatment that will ultimately harm a patient. Troublingly, both groups operate without clear ethical guidance from either the American Psychiatric Association or the American Psychological Association. 

The American Psychiatric Association does not address if psychiatrists have an obligation to care for incompetent patients sentenced to death; it also does not address who should care for the patient if psychiatrists have the option to ethically abstain from treating them. The American Psychological Association’s current ethics code fails to comment on participation in executions at all.

I am not calling for the American Psychiatric Association to develop a bright-line rule permitting or preventing participation in the restoration process. However, I am calling for a greater discussion and guidance in this area. As for the American Psychological Association, it should have a stance on these issues, at least in a manner similar to the American Medical Association and American Psychiatric Association.

The criminal justice system currently assumes an answer on these difficult issues: Mental health professionals are expected to assist in restoring a person to competence to be executed. However, patients and practitioners alike will benefit from thoughtful discussion and guidance about the countervailing and complex problems raised by the restoration process in death penalty cases.