Beyond Estelle: Medical Rights for Incarcerated Patients
by Greg Dober
Like most other individuals, prisoners sometimes need medical attention for ailments, injuries and diseases. However, there appears to be a misconception about prisoners’ medical rights among physicians, medical administrators, prison and jail staff, and law enforcement officials. This article will review some of the medical rights and court rulings that are pertinent to prisoners, including issues such as medical decision-making, medical information privacy, force-feeding and forcible medical procedures.
There have been several landmark rulings regarding healthcare and incarceration. Two of the seminal cases are Estelle v. Gamble, 429 U.S. 97 (1976) and Farmer v. Brennan, 511 U.S. 825 (1994). In Estelle, the U.S. Supreme Court established the standards that a prisoner must prove for an Eighth Amendment claim of cruel and unusual punishment related to inadequate medical care. In a dissenting opinion, Justice John Paul Stevens stated in a footnote: “If a State elects to impose imprisonment as a punishment for crime, I believe it has an obligation to provide the persons in its custody with a healthcare system which meets minimal standards of adequacy.”
The Supreme Court’s decision in Farmer held that a prison official’s deliberate indifference to a substantial risk to a prisoner violated the Eighth Amendment and resulted in cruel and unusual punishment.
These two cases provided guidance regarding the legal standards for access to healthcare and deliberate indifference under the Eighth Amendment, but did not “define the minimal standards of adequacy” for medical care in prisons and jails, nor prisoner-patient rights in medical decision-making.
Although these rulings did not address medical decision-making rights for prisoners, other court decisions have provided more certainty and clarity. However, carceral administrators, employees and healthcare staff often abuse the medical decision-making process with respect to prisoners and detainees. In addition, physicians and other healthcare workers are often unfamiliar with the ethical and legal medical decision-making rights that prisoners have as patients, and often feel intimidated by prison and jail officials.
A recent example of medical decision-making abuse was published in the March 2019 issue of Prison Legal News. In Alabama, a warden who had no medical decision-making authority requested that a hospital take “no heroic actions” and implement a do-not-resuscitate (DNR) order for a prisoner who had been taken to the hospital in critical condition. Further, the warden later requested that life support measures be discontinued, resulting in the prisoner’s death. [See: PLN, Mar. 2019, p.29]. The hospital and clinicians grossly erred in agreeing to follow the warden’s orders for the prisoner’s medical treatment. Under Alabama state law, Alabama Code § 22-8A-11, the warden had no authority to request such actions and state law designates the patient’s family members as the appropriate medical decision-makers.
The legal landmark precedent for cases involving medical decision-making are not of a carceral origin. Two court rulings that affect patients’ rights in medical decision-making resulted from the tragic deaths of two young women, Karen Ann Quinlan (In re Quinlan, 355 A.2d 647 (NJ 1976)) and Nancy Cruzan (Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990)).
In 1975, Quinlan, 21, was found unconscious and in a persistent vegetative state. In subsequent months, with no improvement in her condition, her parents requested that the ventilator and other means of life support be removed. The Morris County, New Jersey prosecutor threatened homicide charges if life supporting measures were discontinued, arguing that the state had an obligation to preserve life. The Supreme Court of New Jersey held that Quinlan’s parents had the right to terminate medical care for their unconscious daughter. The Court ruled that the patient’s right to privacy overruled the state’s interest in this case. In addition, legal guardians, such as parents, can act on behalf of a patient’s rights if they are unable to do so themselves while incapacitated.
In 1983, Nancy Cruzan, 25, was in a car accident in Missouri. She was resuscitated by EMTs and, like Quinlan, remained in a persistent vegetative state. In 1988, her parents requested that feeding tubes and other life-sustaining measures be removed. As in Quinlan, the state argued that its responsibility was to preserve the life of its citizens. Cruzan’s parents and friends testified that when she was healthy, competent and had capacity, she indicated that she would not want to survive in such a dire medical condition. By providing evidence as to the decision that Cruzan would make if she had the capacity to do so, the U.S. Supreme Court held her parents had the right to act on her behalf, including to have the feeding tubes removed.
These cases established important medical decision-making rights for all patients, including prisoners; when competent and not incapacitated, patients have the right to make their own healthcare decisions, including the right to refuse certain kinds of medical care. All patients, including prisoners, have the right to designate who should make their medical decisions if they become incompetent or incapacitated. All patients, including prisoners and their appointed surrogate medical decision-makers, have the right to be properly informed of medical conditions, prognosis, diagnosis, risk and treatment alternatives through the process of informed consent. Wardens, guards, sheriffs and police officers are not court-appointed legal guardians and therefore cannot make medical decisions on behalf of incarcerated patients.
As with the Alabama case mentioned above, in which a warden requested a DNR order for a hospitalized prisoner, it is a violation of law for correctional or law enforcement officials to subrogate medical decisions from a prisoner-patient or their surrogate medical decision-maker, and it is an ethics violation for physicians to abide by those requests. For doctors or other healthcare providers who obey such requests, it may also be a violation of professional ethical codes as well as various state statutes, including medical assault and battery laws.
Prisoners can appoint a surrogate medical decision-maker through a written advance directive, medical power of attorney or an oral order. Upon intake into a prison or jail, the prisoner should be asked to list a medical decision-maker. If not asked by officials, the prisoner can request that such a decision-maker be listed in their medical records. Often, an “in case of emergency” contact is requested during the intake or booking process. In practice and to avoid confusion, it is best that this designee be the same person who would be entrusted with making medical decisions on the prisoner’s behalf. However, the appointment of the same person as the emergency contact and medical decision-maker is not a requirement.
An emergency contact and the medical decision-maker can be different and should be listed separately, and their roles should be clearly identified in medical records. There are various reasons why the emergency contact and medical decision-maker may be different. For example, a prisoner may want an elderly parent notified in case of an emergency, but may not want them to have the burden of making medical decisions. Therefore, they may list a younger sibling, relative or friend as a surrogate medical decision-maker. Prisoners should ensure that this type of request be documented in their records at the prison or jail.
There have been cases where prisoners, having been estranged from their family for many years, appoint another prisoner as their medical decision-maker. The friend may have become a trusted confidant over the course of a long prison sentence. Surrogate medical decision-makers are to make decisions based upon the values of the patient, not the values or wants of the decision-maker. In other words, what does the surrogate believe that the patient would want in these circumstances? Often, long-term friendships may yield more accurate information when determining a patient’s desires than stale information from an estranged family member. Even though state and federal laws do not exclude prisoners from being surrogate medical decision-makers, the federal Bureau of Prisons’ policy 6031.4 explicitly states, “Under no circumstances will another inmate be appointed as proxy decision maker.”
Physicians and medical staff have an ethical and legal duty to adhere to the patient’s decisions, including through a surrogate decision-maker. Medical neutrality requires doctors to treat all patients, regardless of race, religion, socio-economic status, etc. as equal. This includes people who are incarcerated or otherwise in custody. If the prisoner has become incapacitated and a surrogate medical decision-maker is not appointed or available, medical personnel must proceed with treatment using the best interest standard.
Simply put, the best interest standard requires physicians to conduct medical treatments or procedures that a reasonable, competent person would choose in the same situation. The best interest standard errs on the side of medical care rather than withholding of care if the patient’s wishes are not known. Often, there is a misunderstanding among healthcare clinicians, jail and prison administrators, and law enforcement officials that healthcare decisions can be made by wardens, sheriffs, guards or police officers if a prisoner-patient is incapacitated. Under medical ethics and most state laws, those officials do not have medical decision-making authority for incapacitated prisoners. The best they can offer is to assure that an injured or ill prisoner is transported to a hospital or doctor for adequate medical care. The patient, patient’s appointed surrogate, patient’s legal surrogate appointed by state statutes, court-appointed guardian or doctors using the best interest standard have the sole right to make medical decisions.
An area of frequent abuse in medical decision-making for prisoners is when a legally eligible or appointed surrogate decision-maker is neither known and/or available. This is sometimes a problem when people who are homeless or under the influence of drugs or alcohol are arrested. In cases when doctors and corrections officials do not know a legally eligible or appointed medical decision-maker, states have codified the legal hierarchy of medical-decision making through various statutes. Correctional or law enforcement policies do not trump state law, and prison and jail infirmaries and clinics are not excluded from compliance with state decision-making requirements.
States such as California, Washington, Texas, Pennsylvania, New York and Illinois have statutes to determine a surrogate medical decision-maker for a patient in the event they are incapacitated. The states recognize that medical decisions for an incapacitated patient, without an appointed medical surrogate or proxy, should be made on a familial basis. For married individuals it usually starts with a spouse or adult children. For people who are not married, the surrogate can include parents, adult children or adult siblings. State laws often stipulate the lineage for medical decision-making, even applying them down to cousins, nephews and nieces. For example, the California Code, Probate Codestates:“Notwithstanding any other provision of law, within 24 hours of the arrival in the emergency department of a general acute care hospital of a patient who is unconscious or otherwise incapable of communication, the hospital shall make reasonable efforts to contact the patient’s agent, surrogate, or a family member or other person the hospital reasonably believes has the authority to make healthcare decisions on behalf of the patient.”
If a legal medical decision-maker cannot be located, then a court must appoint one on behalf of the patient through the legal guardianship process.In Washington State,like many other states, the law also determines the surrogate decision-maker by lineage. If an incapacitated prisoner-patient does not have a medical decision-making designee or a court-appointed legal guardian, the law stipulates that medical providers use a system of family lineage from spouse to children to parents to siblings to nephew, nieces and cousins. Wardens, jailers and police officers are not authorized to make medical decisions for prisoner-patients.
That doesn’t stop them from doing so, though. Another egregious example of prison officials improperly exercising medical decision-making occurred in the case of Arizona state prisoner Marcia Powell. Powell, 48, died in May 2009 after being left outside in an unshaded chain-link cage for four hours while the temperature reached 107 degrees. She collapsed, was transferred to a hospital and placed on life support. Even though Powell had a court-appointed guardian due to her mental illness, prison officials did not contact them. Then-interim Arizona Department of Corrections director Charles Ryan ordered the removal of life support measures, resulting in Powell’s death. [See: PLN, Feb. 2010, p.32].
In the event of a medical emergency, any contact, advance directive or guardianship information that corrections or law enforcement officials have for a prisoner-patient should be given to medical staff at the prison or jail infirmary or local hospital. Prison and law enforcement officials must refrain from making medical treatment decisions on behalf of incarcerated patients, and doctors must refrain from following treatment decisions made by such officials. It may even be necessary for the hospital to use various means to attempt to determine the medical decision-maker if no information is available from the patient, such as requesting their prison or jail medical records or intake information.
Regardless, clinicians cannot delegate to prison and law enforcement officials a prisoner-patient’s medical decision-making authority. Those officials can make recommendations regarding the safety of patients or clinicians either in the prison or jail infirmary or local hospital, but such recommendations should not interfere with the patient’s treatment protocol. If information is not available through an advance directive, appointed decision-making surrogate or lineage, the healthcare staff will have to default to the best medical interest standard for the prisoner-patient’s care.
Law enforcement, jail and prison policies often restrict visitation privileges once a prisoner is sent to a hospital. When used for legitimate security concerns, such policies may not necessarily violate medical decision-making laws or ethics. However, when they are usedas a way to restrict all visitors, including medical decision-makers, visitation policies may violate state laws and ethical obligations.
State decision-making laws are not subrogated to law enforcement or prison internal policies. Clinicians and hospital administrators should ensure that these types of policies do not deny a prisoner-patient their right to make their own medical decisions or restrict access to a decision-making surrogate. Restrictive visitation policies can be problematic with police and injured or wounded arrestees, too. For example, the hospital visitation policy of the Bureau of Police in Pittsburgh, issued in 2000, stated: “No one shall be permitted to visit a prisoner in custody in a hospital setting w/out permission from the zone commander....”
This is an ethical and legal landmine for hospitals and doctors, since it may deny a wounded or incapacitated suspect access to their surrogate medical decision-maker under the law. Such a violation occurred in a 2012 police incident involving a routine traffic stop. In a case of mistaken identity, Pittsburgh police shot nineteen-year-old Leon Ford five times after pulling him over for a stop sign violation. Ford was paralyzed from the waist down and had to undergo multiple surgeries at UPMC-Presbyterian Hospital. Under Pennsylvania state law, his medical decision-makers, as an incapacitated single adult, were his parents. However, his parents were denied access to their son for nearly seven days under the Bureau of Police’s policy. That policy did not excuse the hospital for its ignorance of medical decision-making statutes; an ethics committee at the hospital should have convened and determined the policy violated the state medical decision-making law as well as medical ethics related to patient decision-making. In a new policy issued in 2017, the Pittsburgh Bureau of Police removed the hospital visitation restriction.
However, as reporter Shelly Bradbury with the Pittsburgh Post-Gazette reported in September 2018, local medical centers such as Allegheny General Hospital erroneously have been enforcing “no visitor” policies and restrictions on behalf of the county jail. Additionally, the newspaper revealed a conflict of dual loyalties, as a physician at the hospital was also the medical director at the Allegheny County jail. Such dual loyalties by doctors can result in a conflict of interest, as they have to decide whether their decisions are for the benefit of the patient or in the best interests of their employer. Many times, hospital officials and clinicians may be intimidated by law enforcement or corrections officials, or may not understand the decision-making rights of prisoner-patients. Law enforcement or correctional policies that restrict hospital visitation by medical decision-makers should not serve as an excuse for healthcare providers to violate prisoners’ treatment rights.
As noted earlier, if a hospital or clinician allows a prison, jail or police official to make medical decisions on a prisoner’s behalf, they are violating medical ethics and state decision-making statutes. Further, they could be held liable in criminal or civil actions for medical battery, which is typically defined as “medical treatment undertaken without obtaining consent,” including “the touching of another person without implied or express consent.”
Precedent regarding medical consent and battery was established early in the twentieth century in Schloendorff v. Society of New York Hospital, 105 N.E. 92 (NY 1914), overruled in part by Bing v. Thunig, 2 N.Y.2d 656 (NY 1957). The plaintiff, during a hospital stay for a stomach ailment, declined surgery for the condition and requested a simpler treatment. However, without her permission, doctors performed the surgery anyway, which resulted in serious medical problems. The New York Court of Appeals – the state’s highest court – found that medical battery had been committed. The majority opinion noted that “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.”
Of course, not all medical procedures performed without consent are considered battery. The general rule is that when an incapacitated patient cannot give permission in a life-threatening situation, the hospital and physicians are immune from battery claims if they use the medical best interest standard to save the patient. However, when law enforcement and hospital officials ignore state medical decision-making laws and patient consent, the risk of liability for committing medical battery increases dramatically.
Being confined in a prison or jail infirmary does not subrogate medical decision-making statutes, either. A review of some decision-making laws, including those in Washington, California, Pennsylvania, Illinois, Florida, Illinois and New York, finds they do not have exclusions for the provision of healthcare to incarcerated patients. Therefore, doctors and other medical staff in prison or jail infirmaries must respect the medical decisions of prisoners, and if necessary, their surrogate decision-makers.
Requests for medical treatment by prisoners have to be reasonable and adhere to medical standards. At times, adhering to medical standards can be a problematic goal in carceral environments. For example, the Centers for Disease Control (CDC) and other medical organizations note that a new class of drugs for hepatitis C, specifically direct acting antivirals (DAAs), is the medical standard for treatment of that disease. Yet as repeatedly reported in Prison Legal News, prisoners continue to be denied DAAs and are forced to seek legal remedies such as through class-action lawsuits.
While In re Quinlan and Cruzan held that patients, through their surrogate medical decision-makers, could refuse life-prolonging medical care, the right to refuse treatment is not absolute for incarcerated patients. Refusal of psychotropic medications is especially prevalent in mental health cases. In a landmark prison ruling, Washington v. Harper, 494 U.S. 210 (1990), the U.S. Supreme Court found prisoners have a liberty interest in refusing their treatment or medications. However, it noted that the state also has an interest in preserving life and ensuring security, though the state must adhere to the Constitution’s due process clause and the patient must be deemed a harm to themselves or others to be forcibly medicated.
The Court ruled that due process can be satisfied in administrative proceedings held at the correctional level and does not necessarily have to include a judicial proceeding. In Washington,the Supreme Court held the state has a legitimate interest in forcible medication to maintain safety in correctional facilities when a prisoner has a serious mental disorder and is a danger to himself or others. Therefore, forcibly treating a prisoner with antipsychotic medication against his will, using the framework of the best medical interest standard, is legal.
In Sell v. United States, 539 U.S. 166 (2003), the Supreme Court affirmed that forcibly medicating a prisoner is an appropriate means to protect the state’s interest in allowing an incompetent defendant to stand trial for serious crimes. However, the Court outlined very specific circumstances that must be satisfied in such cases. First, the government must prove that important governmental interests are at stake, and that forced medication is necessary to protect those interests. Second, there must be a substantial probability that the medication will enable the defendant to become competent without substantial side effects that could impede his or her defense. Finally, the treatment must be in the best medical interest of the patient and there are no alternatives or less obtrusive treatments.
Prisoners and Medical Privacy
Privacy and confidentiality in the prison context are usually luxuries. Unfortunately, the same lack of privacy pertains to healthcare information. In 1996, the Health Insurance Portability and Accountability Act (HIPAA) was passed. For community hospitals and healthcare providers, HIPAA is clear regarding the privacy of a patient’s medical records. However, legal confusion was created in regard to the privacy rights of incarcerated patients.
A main purpose of the Act was for the protection of patient health information (PHI) when it was electronically received, handled or shared among healthcare-related agencies and individuals. HIPAA specifies that entities that engage in those processes are “covered entities.” However, the law had to be clarified for prisons and jails.
The U.S. Department of Health and Human Services (DHHS) later stated that identifiable health information about prisoners is considered PHI. In general, a covered entity is defined as an agency that 1) electronically transmits healthcare information for the purpose of reporting; 2) requests to review PHI in order to secure authorization for the care of patients; and 3) electronically transmits PHI for the benefit of payment and claims from a public or private entity. For example, a prison or jail that accepts payments on behalf of prisoner-patients from private insurance or Medicaid reimbursement is an entity required to be HIPAA compliant.
A HIPAA-covered entity must inform patients of their privacy rights and how their PHI will be used. However, the unique circumstances of incarceration required a separate section under the Act. That section, 45 C.F.R. 164.512(k)(5), “Correctional institutions and other law enforcement custodial situations,” addresses permitted disclosures of PHI for prisoners. The language in the section is very broad to permit disclosure in many circumstances. For example, disclosures that include internal communications such as from a prison or jail physician to a guard, or external communications such as from a doctor at a local hospital to a guard. However, such disclosures must be made within the exclusion categories for incarcerated patients. That is, a permitted disclosure is allowed to law enforcement or corrections officials if the PHI is “necessary for the administration and maintenance of the safety and security and good order of the correctional institution.” Additionally, exclusions exist for safely transporting prisoners to and from medical facilities.
HIPAA was designed to strengthen patients’ privacy rights and give them greater control and access to their medical information. Ironically, a review of various court cases indicates that corrections officials abuse HIPAAby invoking the law’s privacy clause when prisoners seek their own medical records, such as when they file suit alleging inadequate medical care.
There is no private cause of action in the HIPAA statute, thus patients cannot sue for damages resulting from HIPAA violations – though they may have other legal remedies under state law. They can also file complaints with the federal agency that oversees HIPAA compliance: Centralized Case Management Operations, U.S. Department of Health and Human Services, 200 Independence Avenue, S.W., Room 509F HHH Bldg., Washington, DC 20201.
Before examining the ethical and legal issues of force-feeding, a review of this medical procedure is warranted. Since most prisoners who engage in long-term hunger strikes will likely be forced to endure a nasogastric tube (NG) procedure, they usually need to be physically incapacitated. This can involve the use of shackles and other restraint devices. Once the prisoner is subdued, an NG tube can be placed. The lubricated tube is inserted through the nose, into the throat, down the esophagus and then into the stomach. Because the insertion can cause a gag reflex, a sedative may be given to keep the patient calm during insertion. Sedatives and restraints will prevent movement of the patient while the tube is in place; otherwise, movement can cause the tube to flex and cause physical damage. The length of the tube varies, but is usually between 18 to 30 inches long. Potential complications include the tube entering the lungs, aspiration of stomach acid, or damaging or perforating the esophagus, larynx or trachea. A review of medical literature also indicates there have been cases where a wrongly inserted NG tube has entered the brain and caused irreversible brain damage.
The medical profession has recognized many court decisions such as In re Quinlan and Cruzan, honoring the rights of patients and their surrogates to refuse medical treatment and procedures. Opinions and declarations of the medical profession on force-feeding are consistent with legal decisions regarding medical procedures that may violate a patient’s autonomy, bodily integrity and right to privacy. The medical profession recognizes that force-feeding is a medical procedure and, like other medical procedures, a competent patient who is not being coerced can refuse such treatment.
In 1948, the World Medical Association (WMA), which represents medical societies and doctors worldwide, adopted the Declaration of Geneva (Geneva). Informally known as the “physician’s pledge,” Geneva states: “I will not use my medical knowledge to violate human rights and civil liberties, even under threat.” Of course, through their participation in interrogations, torture and executions, medical professionals have littered history with violations of the pledge. Regardless, the Geneva declaration is clear on a physician’s ethical duty and responsibility to honor human rights.
In 1975, the WMA authored the Declaration of Tokyo – Guidelines for Physicians Concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment (Tokyo). The declaration notes, “Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially....”
The most influential directive for the international medical community on force-feeding is the WMA’sDeclaration of Malta on Hunger Strikes (Malta). The declaration was introduced in 1991 at the WMA conference in St. Julian’s, Malta. Since its introduction, it has been updated several times. The preamble cautions that “physicians need to ascertain the individual’s true intention, especially in collective strikes or situations where peer pressure may be a factor.” In clinical settings, a hunger striker should be competent and voluntarily refuse food for specific purposes other than his or her own death. Physicians are cautioned that a hunger striker should not be suicidal. However, acceptance of the possibility of death by the striker, as an outcome to their protest, is morally acceptable.
Also, a hunger striker must have been competent before they began their strike and not have begun refusing food due to threats, coercion or peer pressure. Malta notes that when a hunger striker becomes incompetent while striking, a physician should honor the striker’s prior request of no nutrition or hydration. The declaration recognizes force-feeding as a medical procedure. Like other procedures, competent patients have the right to refuse them, and in legitimate hunger strike cases, doctors should avoid force-feeding. The International Committee of the Red Cross’ position on force-feeding hunger strikers directs physicians to obey theMaltadeclaration.
Although the medical community has recognized the rights of hunger strikers, prison and jail officials find such protests to be a disruption and security threat. Therefore, carceral medical policies usually side with force-feeding procedures. For example, the federal Bureau of Prisons (BOP) addresses hunger strikes in policy P5562.05, which states when “... a medical necessity for immediate treatment of a life or health threatening situation exists, the physician may order that treatment be administered without the consent of the inmate.”
For hunger strikers, BOP policy advises doctors to initiate the procedure of inserting an NG tube. Before a decision is made on insertion of the tube, the policy requires staff to physically take three meals a day to the prisoner and document their refusal to eat. Staff must also remove all food and beverages that the prisoner may have bought from the commissary; ironically, the BOP wants the hunger striker to eat, yet confiscates their commissary food. The policy further urges prison administrators to contact “the Regional Counsel ... so any legal issues may be addressed.” The standards referenced in the BOP policy are from the American Correctional Association and not from the WMA or American Medical Association.
While doctors must take responsibility for the risks and consequences of forced medical procedures, judges have been more liberal in issuing orders to force-feed hunger striking prisoners. Generally, state courts find that the state has an interest in preserving life and that a legitimate penological interest exists for force-feeding. This penological interest includes the ability of corrections officials to maintain order in their prisons and jails. A landmark force-feeding case came from Washington State.
In 2008, the Supreme Court of Washington, in McNabb v. Department of Corrections,180 P.3d 1257, 163 Wash.2d 393 (Wash. 2008), affirmed a lower court decision that held the prisoner-plaintiff could be force-fed and hydrated. The Court decided that the state’s interests outweighed McNabb’s refusal to eat, and that prisoners’ rights are more limited because courts “must consider the state’s additional interest related to incarceration.” It further noted that there were various compelling state interests in the case, including “(1) the maintenance of security and orderly administration within the prison system; (2) the preservation of life; (3) the protection of interests of innocent third parties; (4) the prevention of suicide; and (5) [the] maintenance of ethical integrity of the medical profession in having a caretaking role.” The state Supreme Court added that by force-feeding McNabb, it was attempting to protect the medical profession from participating in physician-assisted suicide should he die. Ironically, the same year as the McNabb ruling, Washington State voters approved a referendum allowing physician-assisted suicide.
As of 2019, the U.S. Supreme Court has not addressed the rights of prisoners who participate in hunger strikes. Like McNabb, legal cases for force-feeding and forcible medication often originate and are decided in state courts. A review of state rulings shows a divide over the rights of hunger-striking prisoners.
An early decision by the Appellate Division of the Supreme Court of New York, Matter Von Holden v. Chapman, 87 A.D.2d 66 (N.Y. App. Div. 1982), involved Mark David Chapman, who killed John Lennon. Chapman asserted he was on a hunger strike to draw public attention to the issue of world child hunger. Although he was ruled competent at the time of his hunger strike, according to a psychiatrist’s testimony he had expressed a desire to commit suicide on prior occasions. Without citing precedential authority, the appellate division held “... that the right to privacy does not include the right to commit suicide.”
In a Florida ruling, Singletary v. Costello,665 So.2d 1099 (Fla. Dist. Ct. App. 1996),the Court of Appeals affirmed a lower court’s decision that a prisoner had the right to refuse force-feeding and hydration. The appellate court noted that even though the prisoner understood his hunger strike may result in his death, the Department of Corrections “failed to prove that compelling state interests outweighed Costello’s privacy right.”
In 2007 at a Connecticut facility, prisoner William Coleman began a hunger strike to protest what he alleged was corruption in the state’s judicial system. The Connecticut Department of Corrections sought an injunction to stop his protest, arguing it needed to preserve Coleman’s life and prevent similar actions by other prisoners. The trial court found that Coleman was competent, understood the consequences of his actions and that his strike was not to bargain for greater privileges at the prison.
However, despite his medical decision-making rights, the court entered a temporary and subsequently a permanent injunction against Coleman’s hunger strike. After the court ruling, an NG tube was used to forcibly feed him. The trial court’s order was upheld by the state Supreme Court in Comm’r of Corrections v. Coleman, 38 A.3d 84 (Conn. 2012). The Court noted that the DOC had “appropriately sought to preserve the defendant’s life using the safest, simplest procedure available, rather than improperly seeking to punish the defendant for engaging in his hunger strike.”
Forcible Medical Procedures
Several alarming cases of forced medical procedures performed on prisoners, in the form of surgery or body cavity searches, have been reported. Earlier this year, Prison Legal News reported that a New York prisoner, Torrence Jackson, received a $4,595.12 hospital bill for a forced sigmoidoscopy to probe his rectum. In 2017, a judge granted an order to the Syracuse police for the body cavity search, as officers believed that Jackson had concealed drugs in his anus. Initially, hospital staff refused to perform the procedure. However, the hospital’s attorney advised them to do so after receiving the judge’s order. Jackson was rendered unconscious and the hospital performed the invasive procedure. No drugs were found. [See: PLN, April 2019, p.52].
In Sanchez v. Pereira-Costillo, 590 F.3d 31 (1st Cir. 2009), the First Circuit Court of Appeals agreed with the plaintiff, prisoner Angel Sanchez, that a surgical procedure conducted by doctors at the direction of corrections officials in Puerto Rico had violated his rights. Prison staff thought that Sanchez had a cell phone hidden in his rectum. Despite X-rays and bowel movements indicating there was no phone, hospital staff at the Río Piedras Medical Center performed exploratory surgery at the request of prison officials.
The Court of Appeals noted in its opinion that Sanchez alleged “the exploratory surgery of his abdomen” violated his rights under the Fourth Amendment. “We agree,” the Court wrote. “The complaint states that he was forced to undergo dangerous, painful, and extremely intrusive abdominal surgery for the purpose of finding a contraband telephone allegedly concealed in his intestines, even though the basis for believing there was a telephone was slight....” The First Circuit added that, “Notwithstanding the existence of probable cause, a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect.”
A final example of abuse of medical rights by law enforcement, from 2017, was the viral Internet video of a University of Utah Hospital nurse being arrested for refusing to do a forcible blood draw on an auto accident patient rushed to the emergency room in a coma. The request was from a Salt Lake City police detective. The nurse read the hospital’s policy to the officer, which required that either informed consent must be obtained from the patient or surrogate, or there must be a warrant issued by a judge authorizing the blood draw. Neither were done. The officer then handcuffed and arrested the nurse, dragged her from the hospital and took her to the local jail. No charges were filed against the nurse, no blood was drawn from the patient and after an internal investigation the detective was fired.
One issue that affects prisoners with respect to forced treatment, involuntary body cavity searches and medical decision-making is a doctor’s dual loyalties, which can be problematic in correctional healthcare. Physicians work as employees or contractors at prisons and jails, and thus sometimes have conflicts between their patients and employer. Examples include doctors who work for corrections departments or private medical providers such as Corizon, Wexford Health Sources, Centurion, Wellpath, NaphCare or Armor Correctional Health Services. The most authoritative medical ethics guidelines oppose doctors’ dual loyalties and self-interests that subordinate patient rights. The American Medical Association’s Code of Medical Ethicsnotes: “The relationship between patient and physician is based on trust and gives rise to physicians’ ethical responsibility to place patients’ welfare above their own self-interest and above obligations to other groups, and to advocate for their patients’ welfare.”
In addition, the Malta declaration notes the following about dual loyalties: “... physicians with dual loyalties are bound by the same ethical principles as other physicians, that is to say that their primary obligation is to the individual patient. They remain independent from their employer in regard to medical decisions.”
Incarcerated patients are entitled to many of the same decision-making rights for medical treatment and procedures as nonincarcerated patients. Unfortunately, these rights are often violated due to ignorance by healthcare providers and arrogance and intimidation by corrections and law enforcement officials. In addition, judges are reluctant to uphold medical ethics, and have ruled, with generally broad criteria, in favor of force-feeding prisoners and other types of forcible medical treatment.
To avoid violating prisoners’ medical rights and their own ethical obligations, healthcare professionals and corrections officials should understand the medical decision-making rights of incarcerated patients. Further, like the Utah nurse who refused to draw blood without a warrant or informed consent, healthcare providers should advocate for their prisoner-patients when law enforcement officials are attempting to usurp those rights. Finally, the medical profession must deal with the issue of dual-loyalties, which can create an “us versus them” mentality rather than a beneficent and ethical approach to patient care in prison and jail settings.
Ed. Note: All states have a process for filing formal complaints against licensed healthcare professionals such as doctors, nurses, psychologists, psychiatrists, etc. Prisoners who have experienced violations of their medical rights by licensed healthcare staff can file complaints with the appropriate regulatory board, which is usually part of the state’s Department of Health or an equivalent agency.
Gregory J. Dober is an instructor in the Biomedical Ethics program for Lake Erie College of Osteopathic Medicine (LECOM). In addition, he is an Official Visitor with the Pennsylvania Prison Society. He wrote this article exclusively for Prison Legal News.
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