A bill that’s passed the Senate and is now moving through the House would allow doctors to participate in executions without threat of sanction from the N.C. Medical Board.
By Rose Hoban
It’s been almost seven years now since the state of North Carolina carried out an execution, as the procedure has been subject to political pressure by anti-death penalty groups and caught up in court cases.
One of the barriers to carrying out executions has been legal wrangling over the role of doctors in the procedure.
But a General Assembly bill that would resolve those issues passed the Senate in April and was heard in a House Judiciary committee Wednesday. SB 306 would amend state statutes around the death penalty; the bill stipulates that the administration of lethal injection is not part of the practice of medicine.
That means participation in executions can no longer be a cause for sanction by the state’s Medical Board.
The bill would also allow nurses and pharmacists to participate in executions without fear of sanction from licensing boards, explained bill sponsor Sen. Thom Goolsby (R-Wilmington).
No vote was held on the bill, but debate around the measure was pointed and detailed, punctuated by testimony from doctors, criminal-defense lawyers and family members of murder victims speaking in a small, overflowing committee room in the N.C. Legislative Office Building.
Among the crowd were a number of doctors wearing their white coats.
The bill also would repeal the state’s Racial Justice Act and reinstate the death penalty, which has effectively been stopped since the Medical Board controversy arose in 2007.
Though several states have recently banned the death penalty, it’s still on the books in 34 states and with the federal government and the military.
But support has been slipping. According to a February 2013 survey by Public Policy Polling, some 68 percent of North Carolinians would support replacing the death penalty with life without possibility of parole, in particular if the offender had to work and pay restitution to the victim’s family.
North Carolina law has required the presence of medical personnel at executions to ensure the procedure doesn’t violate the U.S. Constitution’s prohibition against cruel and unusual punishment.
But in 2007, the N.C. Medical Board issued a position statement prohibiting doctors from participating in executions, saying that it believed that “physician participation in capitol punishment is a departure from the ethics of the medical profession.”
The Medical Board ruled that all aspects of participation – from administering lethal drugs to starting intravenous lines to monitoring machines that track a prisoner’s vital signs and brain activity – violated medical ethics and could make doctors subject to sanction by the board.
The state Department of Corrections sued the board over its position, and the case began making its way through the court system.
“The earlier statute in North Carolina required the presence of doctors in executions, but it wasn’t clear what that meant,” said Ken Rose, an attorney with the Center for Death Penalty Litigation.
Rose said many believed that doctors were physically present in the rooms where executions were taking place.
“It turned out though that what was going on was doctors were not even on the same floor in the prison,” Rose said. “There was testimony at a hearing that the doctors were in the warden’s office until the execution was complete, and then they’d come up to the execution chamber and declare the person dead.”
The state Supreme Court ruled that while the N.C. Medical Board does “retain disciplinary power over a licensed medical doctor who participates in an execution,” the board “may not discipline or threaten discipline against its licensees solely for participating in the execution alone.”
“The board revised its position on the death penalty in the wake of the Supreme Court ruling in 2009,” said Jean Fisher-Brinkley, a spokeswoman for the board. “I suspect this is just the law catching up with that debate.”
Some MDs still resist
Despite the Supreme Court ruling, a statement on the Medical Board’s website makes it clear the board still believes “physician participation in capital punishment is a departure from the ethics of the medical profession.”
That position is based, in part, on a 1994 ruling by the House of Delegates of the American Medical Association that determined physicians should not participate in executions.
Raleigh family doctor Robert Bilbro, who testified at the hearing, cited that decision.
“You say in this bill that the administration of required lethal substances or any assistance whatsoever does not constitute the practice of medicine,” he said, “and that’s in direct contradiction to the accepted ethical standards across this country for the practice of medicine.”
“You can pass a law and you can manipulate what’s done in North Carolina, but you don’t reverse professional ethical standards,” said Bilbro, who maintained that participating in executions, and taking a life, undermines the public’s trust in the medical profession.
“The North Carolina Medical Board is charged with preserving the public trust in the medical profession, and your statute would weaken their authority to do just that,” he concluded.
Later, bill sponsor Goolsby called Bilbro’s comments “liberal theater.”
The law simply mandates that doctors “do something that was the law up until somebody decided that they weren’t supposed to participate,” Goolsby said. “Then the Supreme Court said, ‘Well, of course they can,’ and in order to carry out a humane execution, when it’s an execution delivered with lethal injection, you have to have a doctor present.”
“The Medical Board never had any trouble with that in the past,” he said.