Humane Health Care for Prisoners This page intentionally left blank Humane Health Care for Prisoners Ethical and Legal Challenges KENNETH L. FAIVER Copyright © 2017 by Kenneth L. Faiver All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or other wise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging- in- Publication Data Names: Faiver, Kenneth L., author. Title: Humane health care for prisoners : ethical and legal challenges / Kenneth L. Faiver. Description: Santa Barbara, California : Praeger, [2017] | Includes bibliographical references and index. Identifiers: LCCN 2016054652 (print) | LCCN 2016055723 (ebook) | ISBN 9781440855504 (hard copy : alk. paper) | ISBN 9781440855511 (ebook) Subjects: | MESH: Prisoners | Prisons—organization & administration | Community Health Services—ethics | Community Health Services—legislation & jurisprudence | Holistic Health—ethics | United States Classification: LCC HV8833 (print) | LCC HV8833 (ebook) | NLM WA 300 AA1 | DDC 365/.667—dc23 LC record available at https://lccn.loc.gov/2016054652 ISBN: 978-1-4408-5550-4 EISBN: 978-1-4408-5551-1 21 20 19 18 17 1 2 3 4 5 This book is also available as an eBook. Praeger An Imprint of ABC-C LIO, LLC ABC- CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116 - 1911 www . abc - clio . com This book is printed on acid-f ree paper Manufactured in the United States of Amer i ca Contents Preface xi Acknowl edgments xv Explanatory Notes xix Introduction xxiii 1. Ethics in the Context of Correctional Health 1 Common Mission 1 Recognizing Differences 2 A Brief Historical Perspective 2 Ethics 6 Definition of Ethics 6 Ethics and the Law 7 Dignity of the Human Person 8 Professional Codes of Ethics 10 Meaning of a Professional Code of Ethics 11 Impor tant Ethical Issues in Corrections 14 Beneficence, Medical Neutrality, Medical Autonomy 14 Privacy, Patient Autonomy, Confidentiality, Acceptability 14 Informed Consent and Enforced Treatment 18 Informed Refusal 22 A Caring Approach 22 Some Practical Ethical Issues in Corrections 27 Transgender Issues 27 Forensic Use of Medically Obtained Information 30 General Princi ples 30 vi Contents DNA Testing 32 Body Cavity Searches 33 Strip Searches 36 Evaluation of Competence 39 Concept of Predicted Dangerousness and Medical Parole Issues 40 Medical Restraint 41 Directly Observed Therapy 41 Crushing Medi cations 42 Organ Transplants 43 Treating or Diagnosing under Less- than-S atisfactory Conditions 43 Patient Assessment through a Closed Door 44 Drawing Blood through the Bars or through a Food Slot 45 Undue Noise 46 Unnecessary Risk to Safety of Health Care Staff 46 No Sink or Running Water 47 Defective or Inadequate Equipment 47 Methods of Preventing HIV Transmission 48 Food Loaf 49 Hunger Strikes 50 Conclusion 53 2. Areas of Significant Ethical Role Conflict 55 Ethical Role Conflict Situations 55 Medical Clearance for Punishment 56 Use of Mace 58 Writing Tickets 59 Use of Medi cation for Be hav ior Control 60 Shakedowns Performed by Health Professional Staff 61 Witnessing the Use of Force 61 Participation in Executions 62 Position of the American Phar ma ceu ti cal Association 68 Treatment to Render a Person Competent for Trial 70 Determination of Competence to Be Executed 72 Treatment to Render a Person Competent for Execution 74 Involvement with Acts of Torture 75 Reporting Abuses by Staff 79 A Note of Caution— Erosion and Burnout 81 Conclusion 84 3. Other Challenging Topics in Ethics 87 Ethical Reasoning 87 Biomedical Research and Experimentation 88 Working in the Context of a Blemished History 88 First Steps toward Regulation of Biomedical Research in U.S. Prisons 90 Contents vii Institute of Medicine Recommendations and Some Critical Responses 98 Encouraging Appropriate Research 101 How Do We Bring It All Together? 102 Housing the Mentally Ill in Isolation or Supermax Settings 104 A Vicious Cycle 107 Extreme Segregation, Isolation, and Supermax Settings 109 Chemical Castration by Court Order 115 Is It Legal? 115 Is Physician Participation Ethical? 117 Retrospective Clues for a Current Ethical Imperative 120 Conclusion 121 4. Legal Issues in Correctional Health Care 123 What the Courts Have Done 123 Hands- off Policy 124 A Break in the Hands- off Era 125 Holt v. Sarver 127 Newman v. Alabama 128 Estelle v. Gamble 128 Tort Liability 130 Deliberate Indifference 131 Qualified Immunity 133 Farmer v. Brennan 134 Civil Rights of Institutionalized Persons Act 135 Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics 136 Pulling in the Reins 136 Prison Litigation Reform Act of 1996 137 Urgent Need for Reform of the PLRA 140 Miscellaneous Legal Issues 143 Adequacy of Funding 143 Persons with Disabilities 143 Adequate Documentation 148 Health Insurance Portability and Accountability Act 149 Special Prob lems of Juveniles 149 Some Impor tant Legal Cases 150 Cases Concerning Adults 151 Cases Concerning Juveniles 156 Strategies to Avoid Litigation 159 A Checklist of Risk- Prone Areas 159 Don’t Fight the Courts 162 Impact of the Courts 163 A New Challenge— The Impact of Mass Incarceration 167 Conclusion: Looking Toward the Future 169 viii Contents 5. How Much Health Care Is Appropriate and Necessary? 173 A Complex Issue 173 Practitioner Guidelines 176 Universal Princi ples 178 Conceptual Framework for Decision Analy sis 180 International Implications 182 A Spectrum of Care Model 183 From Whose Perspective? 187 Factors That Should Not Influence a Decision to Treat 189 Gender, Race, Ethnicity, or Sexual Orientation 190 Nature of Crime or Be hav ior in Prison 190 Self- Harm or Contributory Be hav ior 190 Celebrity Status, Notoriety, Social Class, or Profession 191 Preexisting Conditions 191 Factors That May Influence the Decision to Intervene 192 Dimensions of Necessity 192 Cost Factors 194 Description of Factors to Be Considered in the Decision to Treat 195 Improvement in Health, Improvement in Function, or Relief of Pain 196 Probability of a Successful Outcome with Few Adverse Side Effects 196 Urgency 197 Availability of an Acceptable Alternative 197 Patient’s Desire for Treatment 197 Expected Remaining Duration of Incarceration 197 Chronicity of Care 198 Cost of the Intervention 198 Avoid Confounding the Variables 199 History of Compliance with Treatment 199 Comorbidity 199 Treatment Delays 199 Age and General Health of Patient 200 Quality of Life 200 Conclusion 200 6. Conceptualizing Mental Illness as a Chronic Condition 203 Mental Illness Should Be Treated, Not Punished 203 Society’s Failure— Deinstitutionalization 205 The Consequences 209 Scope of the Prob lem— Prevalence 209 Jail and Prison Environments Are Countertherapeutic 212 Mental Illness: A Chronic Condition That Waxes and Wanes 215 Contents ix Acute Stress Disorder versus PTSD 218 Closed Head Injury 218 Special Units for Housing Mentally Ill Patients 219 Typical Characteristics of Mentally Ill Patients by Level of Care 220 Practical Consequences of Failing to Recognize the Chronic Nature of Mental Illness 221 Conclusion: An Ethical Imperative 224 7. A Patient or a Prisoner? 227 Why Call Them “Patients”? 228 Is It a Health Care Unit? 234 Where the Lines Get Crossed 235 Patient Advocacy 236 A Lesson from the Captain 237 Conclusion 238 8. Organ izing Correctional Health Care 241 Common Mission with Differences 241 Responsible Health Authority 242 Medical Autonomy 243 Rationale for Designating a Responsible Health Authority 245 Role of Responsible Health Authority 246 Role of the Medical Director 247 Orga nizational Models 248 No Central Health Authority 248 Outside Public Health Authority 251 Need for Patient Advocacy 252 Risk of Excessive Fragmentation 253 Coordination by a Central Health Care Authority 254 Line Authority from a Central Office of Health Care 254 Conclusion 256 9. Corrections and Health Care Working Together 259 Corrections and Health Care 259 Recognizing Differences 260 Purpose 260 Means Employed 262 Coercive Mea sures 263 Punitive Sanctions 264 Primary Client Served 264 Style of Staff Training 265 System of Beliefs 266 Interdependence 268 How Health Care Depends on Custody and Institutional Ser vices 268