Medical Treatment and Mentally Incompetent Inmates.

Health care is one of many challenges facing prison administrators today. Longer mandatory senttences fewer early releases and an overall "graying" of the American population have led to a steady increase in the number of inmates older than 50. Older inmates, like older Americans in general, usually require more health care treatment than younger inmates. It is clear that prison administrators must address the medical needs of such inmates. But what are the considerations when inmates are unwilling to consent to treatment or are unable to actively participate in their health care because of age or infirmity? Consider two examples.

"Ronald" is a 63-year-old diabetic inmate. His treatment is difficult because he suffers from vascular dementia and is completely dependent on medical staff for assistance with nearly all his daily living activities, including bathing and eating. Ronald requires constant monitoring and prompting to ensure he takes his medication.

"Patricia" is a 31-year-old inmate with end-stage AIDS. Patricia has developed numerous brain lesions that severely affect her ability to communicate and comprehend information. She barely remembers most of the people with whom she has daily contact in the infirmary. Her psychiatrist has determined that she is functioning at about the mental level of a 2-year-old. Although Patricia generally agrees to take the medication necessary to control her condition, she occasionally refuses. Each refusal places Patricia closer to immediate and severe health risks.

Patricia's and Ronald's cases are typical of the situations correctional health care providers face in Pennsylvania and nationwide. Pennsylvania's correctional institutions exercise care, custody and control over approximately 37,000 inmates, more than 1,500 of whom are older than 55. More than 20 percent of the inmate population has mental health concerns or are confined to a long-term care or special needs unit. Each of those inmates likely will require some level of medical care during their incarcerations. Many of them will be unable or unwilling to consent to treatment when it is needed. Providing adequate care to those inmates in a manner that also conserves limited administrative resources is an important and often difficult issue for correctional managers.

The Pennsylvania Department of Corrections (DOC) treatment protocol includes identifying the legal options that best address the lack of inmate consent in both a timely and legally complete manner. Often, timeliness is the most important consideration. If an inmate's medical condition is immediately life-threatening, some of the available legal options are too slow to be of practical use. The remainder of this article discusses the legal options available in Pennsylvania. Most, if not all, of these options are available in some form throughout the country.

Bodily Integrity and the Right To Refuse Medical Treatment

Before discussing the options available when inmates are unable or unwilling to consent to medical treatment, it is perhaps best to explain the concept of consent itself. The doctrine of informed consent arises from one of the U.S. Supreme Court's earliest decisions relating to the right to privacy. In that decision, Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 5. Ct. 1000, 1001, 35 L. Ed. 734 (1891), the Supreme Court declared, "No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person ..." At its most basic level, informed consent is nothing more than the legal recognition that people generally have the right to decide what will and will not be done to their bodies. That includes the right to decide whether to take medication or permit surgery.

Courts in Pennsylvania and nationwide recognize that patients generally have the right to refuse medical treatment. Like many rights, however, it is not absolute. The right of patients to refuse medical treatment must be balanced against the state's interests in requiring treatment. If the state's interests outweigh a patient's, a court will order forced treatment. The four state interests most commonly recognized by the courts in determining an individual's right to refuse medical treatment are the: protection of third parties, prevention of suicide, protection of the ethical integrity of the medical community and preservation of human life, according to Superintendent of Beichertown State School v. Saikewicz, 370 N.E.2d 417, 425, (1977).

The interest in protecting third parties perhaps is strongest in inmate hunger strike situations. Courts have recognized that hunger strikes pose distinct threats to institution security and order because of the manipulation dynamic. The interest in protecting institution security, staff and the general population generally are found to outweigh the individual inmate's right to refuse treatment. In one Pennsylvania case, Commonwealth of Pennsylvania, Department of Public Welfare, Farview State Hospital v. Joseph Kallinger, 580 A.2d 887 (Pa. Comwlth. 1990) the inmate refused nutrition and hydration, as well as medical treatment for a foot injury. The court found that the inmate was mentally capable of refusing treatment. However, the court held that the state's interest in forcing treatment outweighed the inmate's right to refuse. It also held that, where the refusing patient is a competent inmate, the state has an "overwhelming interest in maintaining prison security, order and discipline."

Such cases are most appropriately handled through the use of a preliminary injunction, which permits immediate treatment, many times within hours of filing the appropriate papers with the court. However, a preliminary injunction is of limited use in a variety of consent scenarios. First, preliminary injunctions require that the party seeking to administer involuntary treatment show that the person refusing treatment is at immediate risk of serious, irreparable harm. Thus, the preliminary injunction may not be sought until the patient's condition has significantly deteriorated. Second, the treatment sought must be directed at relieving the specific immediate risk. Further court action is necessary to address additional health concerns. Despite these drawbacks, the preliminary injunction offers an efficient means of immediately addressing serious treatment issues in which an inmate is unwilling to consent to necessary treatment.

The Mental Health Commitment

When inmates are not mentally able to provide consent, there are alternate avenues for treatment. One is to pursue a mental health commitment. Pennsylvania's Mental Health Procedures Act (MHPA) permits the administration of "adequate treatment" to individuals who are "severely mentally disabled." An individual is severely mentally disabled if he or she poses "a clear and present danger of harm to others or to [themselves]," 50 P.S. 7301. "Adequate treatment" is defined as "treatment that is designed and administered to alleviate a person's pain and distress and to maximize the probability of his recovery from mental illness." Courts have interpreted this definition broadly to include medical care provided "coincident to mental health care," such as in the case, Allen v. Montgomery Hospital, 696 A.2d 1175 (Pa. 1997). The practice, however, is to provide only medical care intended to alleviate the mental illness. Further, certain types of treatments, such as electroconvulsive therapy, are excluded unless order ed by the court.

Many inmates incapable of consenting to treatment are not "severely mentally disabled" and, therefore, not candidates for a mental health commitment. Prison administrators faced with a patient who does not present a danger to himself or herself or others must consider other options.

Advance Health Care Directives

One of the easiest and most efficient means of obtaining consent is to have inmates execute an advance health care directive before they become incompetent. Pennsylvania's Advance Directive for Health Care Act (20 Pa. C.S.A. [sections] 5401 et seq.) permits mentally competent individuals to execute documents that set forth various treatment decisions. The document, known as an advance directive or living will, becomes effective when the attending physician determines that the individual has become mentally incompetent and is in a terminal condition or a state of permanent unconsciousness. A surrogate, appointed by the individual in the directive, signs the papers necessary to effectuate the patient's wishes.

The Pennsylvania DOC adopted a policy honoring inmate advance health care directives. The directive specifies, among other things, whether the inmate wishes to receive pain medication, CPR, nutrition and hydration. Directives are maintained in the medical records so they are available to the treating physicians. The department honors directives when inmates meet the statutory prerequisites (incompetent and in a terminal condition or permanently unconscious). This allows the DOC to know, without going to court, the types of treatment to be provided to inmates. The advance directive does not address all consent issues, however, since directives generally address only extreme forms of treatment, such as blood transfusions or resuscitation. Thus, consent regarding other forms of treatment still must be addressed.

Health care administrators may wish to encourage individuals to provide for future consent through the use of a power of attorney. A durable power of attorney allows a competent individual to appoint someone to act on his or her behalf in the event of incompetency. The person appointed may make arrangements for the patient's care and sign consent-forms for any necessary treatment, giving due consideration to patient wishes.

Guardianship

Guardianship perhaps is the most permanent and comprehensive method of addressing health care issues for incompetent patients in which the patients have failed to appoint a surrogate decision-maker. Unlike the advance directive and the durable power of attorney, which are prepared by patients before they become incapacitated, guardianship allows an outside party to address health care concerns after patients have become incompetent. Pennsylvania's guardianship law, the Incapacitated Persons Act, allows any "qualified individual" to petition the court for appointment, 20 Pa. S.C.A. [sections] 5511. Upon appointment, the guardian may sign consent forms for any necessary treatment. The primary drawback to the use of guardianship is the time requirement. Notice must be given to all interested parties before patients may be declared incapacitated and guardians are appointed. Pennsylvania requires that the guardianship hearing be scheduled no earlier than 20 days after the interested parties have been notified of the proceedings.

An emergency guardianship, referred to in some states as a temporary guardianship, may be sought when consent is required immediately. However, emergency guardianships terminate after a brief period and the guardian only has the authority that is specifically identified in the court's decree. Consent for any treatment beyond that identified at the emergency guardianship proceeding requires further court action.

For purposes of this article, assume that medical staff believe that neither Ronald nor Patricia can understand their conditions or the implications of permitting or foregoing treatment. This means they are mentally incompetent and cannot give informed consent. First, we ask whether Ronald or Patricia have executed an advance health care directive or designated a surrogate decision-maker. If so, the medical staff will need to determine whether either of them is in a terminal condition or permanent state of unconsciousness. Clearly, Ronald's condition is not terminal and he is conscious. Thus, even if he has executed an advance directive, it would not become effective to govern his treatment. However, since Ronald is incompetent, staff will consult any surrogate decision-maker he appointed to determine whether Ronald can be treated.

Patricia, on the other hand, is a less obvious case in the advance directive context. She has AIDS, which is a terminal illness. The issue, however, is not whether her underlying illness is terminal, but rather, whether her present condition is terminal. This is a decision that must be made by medical professionals, but from the facts presented, it does not appear that Patricia's condition is terminal. It seems, instead, that Patricia will recover, or regain consciousness, if she receives treatment. Thus, Patricia's advance directive also would not become effective. As with Ronald, we would next ask whether Patricia has appointed a surrogate decision-maker. If so, that person will be consulted concerning Patricia's treatment.

Are either Ronald or Patricia candidates for commitment under MHPA? Arguably, their refusals of medical treatment make them a danger to themselves and, therefore, candidates for a mental health commitment. Once subject to a mental health commitment, both Ronald and Patricia can be provided with medical care coincident to mental health care. In other words, under MHPA, Ronald and Patricia can be provided with care for a medical condition if resolving that condition will resolve their mental health issues.

Again, Ronald is the clearer case. Ronald's condition is diabetes. Medical staff inform us that treating Ronald's diabetes will not make him mentally competent. We then can conclude that a commitment under MHPA will not allow medical staff to treat Ronald's diabetes.

Patricia's case is less clear. Patricia may be suffering from AIDS-related dementia. Treating her disease may restore her mental competency. It may, however, also be that her dementia will remain even if she receives AIDS treatment. If medical staff believe that treating the AIDS will restore her competency, an MHPA commitment will be sufficient to permit staff to treat her for AIDS. This medical determination, therefore, decides whether an MHPA commitment is a viable way to obtain authority to treat Patricia.

The final consideration is whether to seek a court order to provide specific treatment to Ronald and Patricia or to seek appointment of a guardian. As noted previously, each procedure has advantages and disadvantages. Of the two cases, Ronald looks like a good candidate for a court order. He has diabetes, which cannot be left untreated for very long. On the other hand, his dementia is not likely to improve and he is at an age at which he is likely to have other medical problems. Thus, it probably would be recommended that staff seek both an order for specific diabetes treatment and appointment of a guardian to make medical decisions pertaining to Ronald's long-term care.

Patricia, however, seems to be a good candidate for appointment of a guardian. Although we would defer to the opinion of medical staff, it does not appear that her medical condition is immediately life-threatening. This reduces the need to obtain an immediate treatment order from court. Further, it appears that she will not be able to make medical decisions in the future. Her AIDS condition makes it very likely, if not certain, that she will face future medical issues. She will not be able to make those decisions for herself, so it will benefit everyone to have a guardian appointed to make those decisions.

Obviously, every case must be analyzed under the laws of the particular state. The different states may or may not permit advance health care directives. The procedures for obtaining court orders for specific medical treatment or appointment of a guardian may be more or less expeditious. Nevertheless, it is hoped that the analysis provided will help staff evaluate the most effective course of action the next time they are faced with a medical situation involving an incompetent inmate.

Laura Failing is assistant counselor and Randall Sears is deputy chief counsel for the Pennsylvania Office of General Counsel.