PRISONERS, HEALTHCARE ISSUES OF

"It is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself" (Spicer v. Williamson, 1926).

Because of incarceration, the legal context of providing medical, dental, and mental health services is different in prisons and jails from that in the outside community. In no other setting are such services constitutionally guaranteed. Drawing upon the prohibition against "cruel and unusual punishment" in the Eighth Amendment to the Constitution (and the Due Process Clauses of the Fifth and Fourteenth Amendments for juveniles, pre-trial detainees, and federal prisoners), the courts require that institutions with custody of human beings provide for their basic necessities, including healthcare.

It was not always so. Historically, the correctional system in the United States has been largely protected from public scrutiny. Prisons were built far from population centers, and courts adopted a "hands off" doctrine regarding their administration (Procunier v. Martinez, 1974). Early cases in the 1970s, however, revealed horrendous medical conditions in which inmates were used without supervision to perform medical care on their fellows, including pulling teeth, suturing, and surgery. Dramatic instances were illustrated in which prisoners died neglected, covered in maggots, and lying in their own filth (Newman v. Alabama, 1974).

The present legal framework was established in the 1976 landmark decision of Estelle v. Gamble, in which the Supreme Court ruled that prisoners have a right to be free of "deliberate indifference to their serious health care needs." Although there has been some fine-tuning, the legal landscape has remained largely unchanged since that ruling.

In the hundreds of published cases following Estelle v. Gamble, three basic rights have emerged: the right to access to care, the right to care that is ordered, and the right to a professional medical judgment (Rold, 2001). The failure of correctional officials to honor these rights has resulted in protracted litigation, the awarding of damages and attorneys' fees, and the issuance of injunctions regarding the delivery of healthcare services.

To provide for constitutional care and to protect themselves from litigation, correctional administrators must adopt procedures to protect inmates' basic rights, including a functioning sick call system that uses properly trained healthcare staff, a means of addressing medical emergencies, a priority system so that those most in need of care receive it first, the development and maintenance of adequate medical records, liaison with outside resources for specialist and hospital care when needed, a system for staff development and training, and an ongoing effort at quality improvement. Jail wardens and prison superintendents and their chief medical officers must develop policies and procedures for meeting the special needs of disabled, elderly, and mentally ill inmates, as well as those with HIV infection and AIDS, and to preserve the confidentiality of medical information.

The Eighth Amendment

The Eighth Amendment, forbidding cruel and unusual punishment, presents a relatively narrow standard of liability. The Eighth Amendment does not render prison officials or staff liable in federal cases for malpractice or accidents, nor does it resolve professional disputes about the best choice of treatment. It does require, however, that sufficient resources be made available to protect the three basic rights.

While the constitutional standard does not require that an express intent to inflict pain be shown (Wilson v. Seiter, 1991), it does include an inquiry into the defendants' state of mind. A violation of the Eighth Amendment requires a "subjective" showing of "deliberate indifference." It is not enough that the defendant should have known or ought to have understood the danger to the inmate. The defendant must know of and disregard a substantial risk (Farmer v. Brennan, 1994). Such knowledge, however, can be inferred from the surrounding facts where the failure to respond to a clear risk is reckless.

In general, cost considerations are not valid defenses to a violation of the Eighth Amendment. Corrections officials must diagnose and treat illness and eradicate conditions of confinement that expose inmates to communicable disease and other identifiable health threats (Jones v. Diamond, 1981). Indeed, correctional facilities have been ordered to pay for the cost of medical procedures for indigent inmates, such as an otherwise legal abortion, where the inmate was precluded by incarceration from any option other than carrying her fetus to term (Monmouth County Correctional Institute Inmates v. Lanzano, 1987). The Eighth Amendment does not afford inmates priority in the allocation of scarce medical resources, such as organ transplants; but it does require access to such resources for serious conditions on the basis of the same ethical and medical considerations for similarly situated patients who are not incarcerated (see Statement, United Network for Organ Sharing, 2001). Finally, the increasingly common practice of contracting with private healthcare corporations to provide healthcare services does not shield the correctional agency from fulfilling the constitutionally required dimensions of healthcare. The private contractor is likewise brought within the aegis of the Eighth Amendment (West v. Atkins, 1989).

THE RIGHT TO ACCESS TO CARE. The right to access to care is fundamental: When access is denied or delayed, the health staff does not know which patients need immediate attention and which patients need care that can wait. "A well-monitored and well-run access system is the best way to protect prisoners from unnecessary harm and suffering and, concomitantly, to protect prison officials from liability for denying access to needed medical care" (Winner).

The right to access to care includes access to both emergency and routine care. All institutions, of whatever size, must have the capacity to cope with emergencies and to provide for sick call. Access to specialists and to in-patient hospital treatment, where warranted by the patient's condition, are also guaranteed by the Eighth Amendment.

THE RIGHT TO CARE THAT IS ORDERED. Generally, courts assume that care would not have been ordered if it were not needed. Thus, once a healthcare professional orders treatment for a serious condition, the courts will protect, as a matter of constitutional law, the patient's right to receive that treatment without undue delay. The easiest way for an institution to lose a lawsuit is to fail to provide inmate patients with the care that its own staff has ordered.

THE RIGHT TO A PROFESSIONAL MEDICAL JUDGMENT. In general, the courts will not determine which of two equally efficacious treatment modalities should be chosen. The adjudication of constitutional claims is not the business of "second guessing" healthcare professionals. Rather, the courts seek to: "ensure that decisions concerning the nature and timing of medical care are made by medical personnel, using equipment designed for medical use, in locations conducive to medical functions, and for reasons that are purely medical" (Neisser).

By ensuring that professional judgment is actually exercised, however, the federal courts have not only protected the sphere of discretion surrounding medical practitioners' treatment and diagnostic decisions, but they have often enhanced it. At issue in a typical injunctive case are such matters as staffing, physical facilities, transportation, and sick call and follow-up procedures. When a court orders relief in these areas, it is assuring that the raw materials from which responsible professional judgment is formed and carried out are available to practitioners.

"Serious Medical Needs"

The Constitution requires that correctional officials provide medical care only for "serious medical needs." Generally, a medical need is "serious" if it "has been diagnosed by a physician as mandating treatment or … is so obvious that even a lay person would easily recognize the necessity for a doctor's attention" (Duran v. Anaya, 1986; Ramos v. Lamm, 1980). Conditions are also considered to be "serious" if they "cause pain, discomfort, or threat to good health" (Dean v. Coughlin, 1985). A condition need not be life-threatening to be deemed "serious," and many treatment plans that are labeled "elective" nevertheless are deemed "serious" within the meaning of Estelle v. Gamble (1976).

In general, courts consider three factors in determining whether correctional officials are being deliberately indifferent to "serious medical needs": (1) the amenability of the patient's condition to treatment; (2) the consequences to the patient if treatment does not occur; and (3) the likelihood of a favorable outcome. Within this mix, the court may also consider the length of the patient's anticipated incarceration. It is one thing to decline the provision of dentures or an artificial limb to an inmate with a three-day jail sentence. It is quite another to withhold such adjuncts to a patient serving twenty years to life (Rold, 1997).

The Role of Standards and Accreditation

Compliance with national standards and accreditation, while not dispositive on the outcome of litigation, are frequently regarded favorably by the courts. In the Arizona prison litigation (which ultimately reached the Supreme Court on the unrelated issue of inmates' claims of denial of access to the courts), experts for both sides relied on standards of the National Commission on Correctional Health Care in their testimony, the defendant prison officials' expert stating that "[t]here are no correctional health care standards that are more stringent or more difficult to fulfill than the National Commission on Correctional Health Care standards" (Caseyv. Lewis, 1993) The standards of the National Commission on Correctional Health are the only national standards devoted solely to healthcare delivery in corrections. They have been updated periodically as the standard of care evolves. The American Correctional Association (1990) and the Joint Commission on Accreditation of Health Care Organizations (2000) also have standards and accredit correctional facilities. The American Public Health Association (1986) also has detailed standards for prison and jail healthcare, although it does not accredit. While meeting standards is not a guarantee that a lawsuit against a correctional facility will fail, compliance with standards and facility accreditation have been noted by courts in the granting of summary judgment to defendants in individual prisoner damages cases (Williams v. Ceorlock, 1998; Tumath v. County of Alameda, 1996).

Confidentiality

Inmates have a constitutional right to privacy in their medical diagnoses and other healthcare records and information. That right is not violated by the reporting of medical findings in the ordinary course of prison medical care operations or probably even to prison and jail executives with a reason to know, but the "[c]asual, unjustified dissemination of confidential medical information to non-medical staff and other prisoners" is unconstitutional (Woods v. White, 1998; Doe v. Coughlin, 1988). "[T]he gratuitous disclosure of an inmate's confidential medical information as humor or gossip… is not reasonably related to a legitimate penological interest." (Powell v. Schriver, 1999).

In contrast, there are also occasions when a provider may have not only a prerogative, but a duty, to report or disclose confidential medical information to third parties. If a concrete risk to an identifiable person is revealed, and "disclosure is essential to avert danger," the revelation of a patient's private communication may be essential to protect peril to innocent persons. In such cases, however, disclosure must be done "discretely" and in a way that preserves the privacy of the patient "to the fullest extent compatible with the prevention of the threatened danger." (Tarasoff v. Regents of the University of California, 1976).

Informed Consent and the Right to Refuse Treatment

A mentally competent adult has the right to be informed of proposed medical treatment (and its likely benefits and risks) and the right to refuse medical treatment, including the direction that life-saving or other extraordinary measures be withdrawn in terminal cases (Cruzan v. Missouri Department of Health, 1990). As Judge Cardozo stated in the 1914Schloendorff v. Society of New York Hospitals ruling: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." This right generally extends to prisoners as well (White v. Napoleon, 1990). On the other hand, in some cases life-sustaining care may be imposed. In Commissioner of Corrections v. Myer(1979), the court balanced the inmate patient's objections to treatment with the state's interest in orderly prison administration and ordered resumption of dialysis despite the patient's refusal. Temporary, forced administration of anti-psychotic drugs over a prisoner's objection has also been allowed if preceded by administrative protections, including an impartial hearing that finds that the patient has a "mental disorder," is "gravely disabled," and "pose[s] a likelihood of serious harm to self or others" (Washington v. Harper, 1990).

Profound ethical issues can be presented, most acutely in the case of mentally ill inmates facing execution:

[T]he determination of whether an inmate is "competent for execution" should be made by an independent expert and not by any health care professional regularly in the employ of … the correctional institution …. This requirement does not diminish the responsibility of correctional health care personnel to treat any mental illness of death row inmates. (National Commission on Correctional Health Care, p. 75)

While the courts continue to explore this issue, the availability of an ethical advisory board for consultation with individual correctional systems is strongly recommended.

The right to refuse is, of course, the obverse of the right to informed consent, and each depends upon the genuine observance of the other (White v. Napoleon, 1990). Because of the environment, there are "reason[s] to be leery of refusals of care in prisons" (Anno), because the institutional environment often clouds issues of informed consent, making it difficult to distinguish between refusal of care by the staff. It is important in corrections to take steps to determine if a refusal of care is genuine. Some investigation of an inmate who does not appear for treatment should occur if the appointment were for a serious condition and a lapse in treatment might result in deterioration or a poor outcome.

Ethical Considerations

Correctional healthcare providers work in a "medically alien setting" (Wishart and Dubler). The mission of medical care is to diagnose, comfort, or cure; the goal of a prison or jail is to confine, to punish, and, ideally, to reform. There is an inevitable tension between these two purposes, because correctional facilities are "inherently coercive institutions that for security reasons must exercise nearly total control over their residents lives and the activities within their confines" (West v. Atkins, 1988). This setting affects the way healthcare is practiced by professionals within institutions.

In addition to constitutional mandates and the range of medical/ethical problems complicated by the prison context, there is a series of ethical dilemmas peculiar to correctional settings, even though healthcare providers in correctional settings are bound by the same guidelines as their colleagues who work in more conventional medical spaces. They must promote the welfare of patients, advocate their medical needs, inform them about their diagnoses and prognoses, and protect their privacy. Providers in correctional settings, however, also face ethical challenges for which there are no parallels in the outside world because the prison setting exerts a continual pressure on professional judgment (Anno and Dubler).

Providers may be asked to act as impartial arbiters of potentially explosive or violent situations, to witness forced transfers, or to supervise punishment. It is assumed that their presence will prevent violence or that their skill and special status will render searches less painful and intrusive and the punishment less destructive. Acquiescing to these requests, however, may destroy the provider's ability to act independently as the patient's advocate. Such participation violates the particular provider–patient relationship, and by extension, relationships with other inmates (Anno and Dubler).

"No individual, however skilled and compassionate a doctor, can maintain a normal doctor-patient relationship with a man who the next day he may acquiesce in subjecting to solitary confinement" (Brazer). Other assignments that tend to undermine the provider–patient relationship include collecting forensic information for prosecutors, using restraints for nonmedical purposes, agreeing to endorse a "special diet" that is actually a nutritionally adequate yet inedible punishment, permitting a medical note about an inmate's noncompliance with a care plan or follow-up appointment to be used to trigger disciplinary action, agreeing to monitor a hunger strike, certifying that a prisoner has been successfully executed, or helping to determine whether an inmate is "competent" and sufficiently mentally intact and aware for execution.

Deciding how to respond to requests for such assistance is a difficult and complex task. The institutional pressures for provider participation may be enormous, yet many scholars and commentators have argued, consistent with comprehensive standards published by the National Commission on Correctional Health Care (2003) and by the American Public Health Association (1986), that if professional ethics would prohibit an action in a community setting, they prohibit it in a correctional setting as well.

Inmates are not passive in the process of receiving healthcare. The need for a medical note to obtain an assignment excuse and the lack of available common over-the-counter medications all encourage heavy use of the medical service. Prisoners, who are largely poor and did not have adequate access to medical, mental health, and dental care before incarceration, tend to have more significant health problems than a matched-age cohort. Prisoners may also view medical service personnel as more humane and caring than the rest of the prison staff and for this reason seek to spend inordinate amounts of time in their presence. Such use of the medical service to meet "nonmedical" needs, although perhaps a rational coping strategy in a dehumanizing environment, may elicit hostility from the medical staff (Wishart and Dubler). In short, correctional rules issued for administrative reasons (and not because of legal, medical, or ethical imperatives) continue to influence and challenge those who work in healthcare "inside the walls."

Conclusion

"No serious student of American correctional history can deny that litigation has provided the impetus for reform of medical practice in prisons and jails" (Nathan). Yet, as resources become increasingly scarce, government officials are constantly faced with doing more with less. Voluntary adoption of community and ethical standards and accreditation are a less tortuous road to reform, and, in the long run, are likely to be more successful and less divisive.

nancy n. dubler (1995)

revised by william j. rold

nancy n. dubler

SEE ALSO: Coercion; Conflict of Interest; Death Penalty; Divided Loyalties in Mental Healthcare; Freedom and Free Will; Research Policy: Risk and Vulnerable Groups

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