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Making the case for bioethics in corrections: formal programs or policies can alleviate pressure on correctional health care workers.

J.W. is an HIV-positive inmate whose illness is progressing steadily. The infetious disease consultant recommends an expensive "cocktail of mediciens that are now J.W.'s only hope of survival. The warden warns that the prison cannot afford this treatment regimen. J.W. and his lawyer argue that he is entitled to health care in prison. Is J.W. entitled to these expensive medicines? What if paying for his treatment means that other prison programs must be cancelled? Is it in society's best interest to prolong J.W.'s life? Suppose J.W. is a convicted murderer serving a life sentence?

S.M. is an inmate who is suspected of concealing matches in her vagina. The warden asks the nurse to perform a pelvic examination. S.M. refuses. Should be nurse force S.M. to undergo the examination? Does the nurse have a greater duty to her supervisor or to the autonomy of her patient? If she does not perform the examination, will her jon be in jeopardy? If she does force it, will she be an effective health care provider for S.M. in the future? Can S.M. charge the nurse with assault? What if S.M. has threatened to harm herself or others will the matches?

The county jail recently has initiated a screening program for suicide. In reviewing the results, the psychologist realizes that many more inmates than had previously been suspected are at suicide risk. He does not have the resources to adequately counsel all of them. Does he briefly interview all at risk, knowing that his intervention will be insufficient? Does he select a few for more comprehensive treatment? Ho is the selection made?

Health care providers in correctional systems often face ethical dilemmas unlike those found in other medical settings.(1) Issues of resource rationing, inmates' rights, consent, confidentiality and the providers' divided loyalties among patient, institution and society create a unique environment for health care in corrections. Not only must those who deliver health care to inmate populations assure quality of care, but they also are charged with improving the efficiency of valuable health care resources while working in an institution which carries out society's goal of isolating, punishing and rehabilitating offenders. When inmate litigation over alleged medical mistreatment is brought into the picture, the need for a bioethics program becomes patently clear.

A bioethics program is one which resolves issues related to the proper delivery of health care. Such a program provides policy recommendations based on ethical considerations; a practical means of resolving conflicts related to the ethics of health care provisions; and a staff that is educated in the moral implications of health care decisionmaking and objective measures of the effectiveness of the program. The program offers the potential for improved quality of care for inmates, creating greater satisfaction among inmates, staff and administration. Care is more often delivered properly the first time, so expenses are reduced and potential lawsuits are avoided or more easily defended. A successful bioethics program ensures consensus among providers, administrators and others regarding the proper delivery of health care, in compliance with established ethical principles and values.

The Ethics Movement

Minimum standards for health care in adult and juvenile correctional systems have been issued by the American Correctional Association and the National Commission on Correctional Health Care. They provide for autonomy in medical decision-making and attempt to establish a philosophy that health care in prison systems should be equivalent to the community level of care. Although these standards have done much to improve the level of health care in correctional institutions, there are several problems with their content and application:

1) Because relatively few correctional institutions are certified by these national organizations, few are governed by the standards;

2) The standards emphasize procedural regularity without promoting performance, so compliance does not necessarily imply better care;(2)

3) The standards are not as strict as current case law in some areas, such as the participation of health care providers in isolation and restraint practices in juvenile institutions;(3)

4) The standards do not reflect a common perspective on ethical problems in prison systems; and

5) The standards do not propose a method of deciding how ethical dilemmas should be resolved.

Correctional health care professionals must develop their own code of ethics to provide guidance on moral decision-making or have them imposed by others, including courts, legislatures, employers or third-party payors.(4)

The American Correctional Health Services Association (ACHSA) has developed a Code of Ethics for correctional health care providers (see chart at right). The guiding principles of this code are consistent with traditional professional standards of medical practice. Priorities of interest are ranked first for the individual patient, second for the health environment and third for the security of the institution.

Ethical Considerations

Physicians, nurses and other health care providers who work in prisons are bound by the same ethical considerations as their colleagues in the community. But they face additional dilemmas because of their unique situation of practicing in a secure institution on patients whose rights are defined in a different context than patients in the community. Health care providers who work in prisons must constantly re-evaluate their loyalty to their patients, the institution and society as a whole.

Inmates' Rights -- Upon imprisonment, an inmate forfeits several of his or her constitutional rights, including freedom of movement, the right to bear arms, freedom from search and seizure, and the ability to act on a life plan. Although courts recognize that incarceration, by itself, does not deprive individuals of rights, the legitimate needs of the institution take precedence.(5) On the other hand, the right to health care is guaranteed by the Eighth and 14th amendments to the Constitution. The Eighth Amendment provides, in part, that "cruel and unusual punishment (shall not be) inflicted." It is violated if correctional health care providers show "deliberate indifference" to a serious medical or psychiatric need. The Eighth Amendment is most often cited in cases of denied access to care or of interference with prescribed care.(3,5)

Case law, specifically Youngberg v. Romeo, has interpreted the 14th Amendment "due process" clause as guaranteeing "minimally adequate" treatment, which often implies greater protection of inmates than that guaranteed under the Eighth Amendment.(3) Courts have interpreted the Eighth and 14th Amendments as guaranteeing the rights of inmates to nutrition, shelter and health care. Since most Americans do not have these rights, administrators and health care personnel may be ambivalent about the quantity and quality of care given.

Rationing - Rationing of care is a dally occurrence in a prison system. Budget considerations may limit the number of health care providers and facilities, the number of patients who can be seen or the adequacy of treatment. A provider, faced with limited resources, must decide if he or she gives adequate care to a few or inadequate care to many. A bioethics program could provide guidelines for appropriate health care distribution. Administrators and health care providers also may ration care to those whom they feel are least deserving of it. Some have questioned the sense in providing care to inmates on death row, for instance. Others consider the length of an inmate's sentence, the nature of his or her offense and his or her perceived burden on society when deciding whether or not to pursue medical treatment. In addition, health care providers have been known to adopt the attitudes of inmates and delay or deny care for "manipulative behavior," i.e., attention-seeking behavior, or frequent or unfounded complaints.(6,7) A health care system must be designed to meet the needs of such patients. Therefore, health care providers who see such patients daily must have sufficient support, both intellectual and emotional, to properly perform their duties.

Confidentiality - Protection of patient privacy and confidentiality is problematic in a crowded prison. Although courts have upheld that an inmate has a right to privacy, it is not always practically possible. Some treatment programs, such as those for sex offenders or AIDS patients, carry a social stigma. if known to other inmates, the patient's safety could be in danger. A report by the National Institute of Corrections acknowledges the difficulty in protecting confidential information in a prison: "In prisons, the public health imperatives and the need to protect others from illicit drugs or weapons may conflict more often with the health care practitioner's duty of confidentiality. Outside prisons, providers do not practice in an alien surrounding; they do not have conflicting loyalties. Inside, they do and that ongoing tension affects how the principle of confidentiality is employed in practice."(8)

Consent/Refusal - The principle of respect for autonomy is one of the basic principles of medical ethics. It is based on respect for persons and personal choices, and implies that a person may consent to treatment or refuse it. Freedom from restraint or coercion is necessary. If autonomy is dependent on the ability of a person to relate a moral decision to a chosen personal life plan, and placement in prison forfeits the ability to pursue a personal life plan, doubt clouds the application of the principle.(9) Informed consent requires that a patient be competent, that he understand the nature of the treatment to be given and that he voluntarily decide to authorize the treatment. This implies a dialogue between the provider and the patient based on trust. Trust is difficult if the inmate is aware of the provider's divided loyalties - to the patient and the institution.

"Free and informed consent" is not attainable when an inmate's privileges are dependent on participation in treatment. This frequently is the situation for inmates who have been incarcerated for sexual offenses or substance abuse. The justice system may impose treatment as a condition of release. Inmates also have a right to refuse treatment. This becomes an issue when the health and safety of others is in jeopardy, such as when an inmate refuses treatment for tuberculosis. Competent inmates have embarked on hunger strikes in order to achieve a goal, such as release from prison or better living conditions. Force-feeding under this condition could be considered an assault as was decided in the cases of Schloendorff v. Society of New York Hospital and Natanson v. Kline. On the other hand, some courts have ruled that in some situations, treatment without consent is justified in order to preserve life. Since most hunger strike imbroglios are situation-specific, the outcome of ethical decision-making may be different in each case. A bioethics program could guide the negotiation process in such situations.

Participation in Executions - Physicians and other health care providers traditionally have been required to participate in carrying out the death penalty. The requirement to pronounce death may lead to complicity in the sentence if the inmate is found to be alive after a first attempt at execution and the means must be repeated. Since an inmate must be of sound mind in order to be executed, psychiatrists have been asked to prescribe medication to treat psychotic inmates so that the sentence may be completed. Health care providers may start intravenous lines, perform cut-downs, give technical advice or prepare or administer lethal injections. The American Medical Association has declared that such participation by physicians is unethical.(12) The morality of physician participation in other aspects of the process of the death sentence, such as certifying the inmate's capacity to stand trial and determining sanity, also has been questioned.(13,14)

On the other hand, some physicians have argued that if the death penalty is considered a terminal illness, it is the duty of the physician to provide humane care so that the inmate's sentence is carried out with as little pain as possible.(15) Others have noted that the death penalty is lawful because it is considered appropriate by a majority in a democratic society; it is sodety's "self-defense."(16) it can be argued that the physician has a duty to society to support its system of justice. Participation in the death penalty complies with the principle of "do no harm" if it deters crime or demonstrates compassion for the condemned. For this reason, some physicians maintain that professional organizations should not rule on the morality of physician participation except to recommend that each physician exercise his or her own judgment after careful reflection. Physicians who are required to participate need guidance, such as would be provided by a bioethics program.

Participation in Institutional Practices - Health care providers may be called upon to participate in institutional practices that are harmful to the patient, such as the use of fixed restraints or the prescription of medications for behavior control. Inmates may be subjected to body cavity searches, without consent, when they are suspected of harboring a weapon or illegal substance. Health care providers may be called upon to perform the search. This may lead to problems with the patient-provider relationship if the provider is the same person who routinely cares for the inmate. On the other hand, it may be preferable to have the health care provider perform the search rather than an untrained correctional officer. A bioethics program may provide guidelines for addressing when health care providers should be called upon to perform searches.

Obligation to Patient - Control over medical practice may be problematic in a correctional environment. The contract or position description outlines the health care provider's obligation to the institution; it seldom describes the obligation to the patient.(3) Physicians and nurses may not be in control of screening practices for health care. Untrained staff may administer medications or triage patients for health services. The NCCHC standard addresses this issue by stating that "Matters of medical and dental judgment are the sole province of the responsible physician and dentist, respectively. However, security regulations applicable to facility personnel also apply to health personnel."(17)

Providers may not recognize, however, that institutional practices limit patients' access to them, or they may not understand their obligation to change their working conditions. This leaves them open to civil liability and to charges of violating the Eighth and 14th Amendments.(3) A bioethics program would raise awareness of these issues and would provide a framework to resolve them.

Preventive Care - Inmates are at a greater risk of poor health than the general population. Poverty prior to incarceration, with lack of access to medical care, may have led to neglect of medical problems.(3) Crowded living conditions both before and during incarceration increase the risk of tuberculosis.(18) Incarceration presents an opportunity for preventive treatment that could enhance the future health of the inmates and forestall their likelihood of spreading diseases in the community after release.

A Bioethics Program

The issues discussed above are only a few of the problems that arise daily in prisons, jails, and detention and juvenile centers. Others include terminal care in an uncaring environment, advance directives, the requirement to disclose HIV status, use of technology and research on a vulnerable population. Currently, there is no method of addressing these issues either in policy or on an individual basis. A process for determining the moral implications of these and other concerns should be available to all prison health care providers and administrators. What follows is a proposal for a bioethics program in a prison system that is based on the bioethics structure used in many hospitals.(19)

Components of a bioethics program include a bioethics committee, a bioethics consultation service, education of staff, empirical investigations and evaluation.

The Committee - The function of the traditional hospital ethics committee may be served by a health advisory committee which provides policy recommendations. It should be accountable to the administrative position or board that sets policies for the institution or the correctional system. The committee should serve as a forum for discussion of clinical ethical problems, and should make policy recommendations. The committee also should direct other aspects of the bioethics program, including the consultation service, education, networking and evaluation. Advice given by the committee should be seriously considered but should not be binding on the institution or policy-making body.

Its Makeup - In order that the committee be able to operate objectively, and in order that recommendations reflect the values of the community, more than half the membership should consist of persons from outside the institution. Members should be selected from those with a background in ethics and be members of the clergy, lawyers, community health professionals or other community leaders. Institutional representation on the committee should include health care and administrative staff. The chairman of the committee is responsible for directing the activities of the group and for acting as a liaison between health care providers and prison administrators on ethical matters.

Education - The first item on the agenda of the committee should be its own education on ethical matters. It would be helpful if a member of the committee had credentials in ethics. Otherwise, members may attend programs on hospital ethics or a consultant may be obtained. The services of a regional bioethics network may be helpful. Early topics should include an introduction to bioethics and ethical decision-making, professional codes of ethics, autonomy and informed consent, confidentiality, rights of inmates, access to treatment and the role of health professionals in a security institution. The second level of ethics education is for the health care and security staff. This is done to increase the general level of institutional knowledge and to involve all members of the institution in the discussion of ethical issues.

Consultation - Specific ethical questions may arise which require immediate attention and which are beyond the scope of policy recommendations. Such situations require the services of an ethics consultant. The consultant should be one of a qualified, available team of well-trained individuals who have familiarity with the prison milieu. These individuals may be volunteers from the community or employees of the prison who have demonstrated a commitment to fair treatment of all concerned parties. The role of the consultant is to explicate the ethical facts, articulate the parameters of the case and educate the persons involved in the situation. A recommendation for the resolution of each case should be made to the ethics committee following a clear discussion of the facts and specific issues.

Evaluation - Program evaluation is directed by the bioethics committee. Information and opinions should be sought from members of the health care staff, institutional administration, security staff and the community. Evaluations should be conducted on a regular basis, with results shared throughout the institution.

Institutional Components

In addition to the bioethics program, other administrative components have been recommended to resolve many of the problems inherent in a system where security needs often conflict with the delivery of adequate health care. These components include a responsible physician who has the power to advocate for the health needs of inmates, appropriate nursing supervision by medical administrators and a quality assurance program.(7)

Although there is overlap between the concept of a bioethics program and a quality assurance program, they are not the same. A bioethics program would promote quality care, but it would not oversee the quality assurance of the health care system. A bioethics program would include persons from outside the prison system and provide nonbinding recommendations for the proper delivery of health care. The quality assurance program would be comprised of persons who deliver care within the prison system and are in a position to change any deficiencies.

The bioethics program need not incur a great monetary cost to the institution. Community representatives on the committee may serve voluntarily, or with no more reimbursement than travel costs.

A benefit of the program should be a better understanding of the relationship between security and health care staff. Whereas the prevailing ethos of the physician-patient relationship is one of mutual trust and respect, that of a correctional institution is hierarchical and controlling. Health care providers must be constantly vigilant to prevent a shift in their own attitudes toward that of the institution.' At the same time, administrators and staff should understand that the role of health care providers includes advocacy for the health care needs of their patients.

A bioethics program, as structured above, potentially has great value to a correctional institution or system. It would promote quality medical care, support health care staff in ethical decisions and elevate the level of understanding between health care and administrative staff. Policies based on ethical principles can only benefit the institution and those incarcerated behind its walls.

American Correctional Health Services Association Provisional Code of Ethics

1. The inmate shall be evaluated as a patient or client in each and every health care encounter.

2. Medical treatment shall be rendered only when it is justified by an accepted medical diagnosis. Treatment and invasive procedures shall be rendered after informed consent.

3. Inmates shall have the right to refuse care and treatment. Involuntary treatment shall be reserved for emergency situations in which there is grave disability or immediate threat of danger to the inmate or others.

4. Health care services shall be provided with respect to sound privacy in all cases and sight privacy, regardless of custody status.

5. All inmates shall be provided health care services regardless of custody status.

6. Correctional health professionals shall be identified and shall not represent themselves as other than their licenses permit.

7. Correctional health professionals shall collect and analyze specimens only for diagnostic testing based on sound medical principles.

8. Body cavity searches shall be performed by those health professionals who have received training in proper techniques and who are not in a patient-provider relationship with the inmate.

9. Health professionals shall not be involved in any aspect of execution of the death penalty.

10. All medical information shall be confidential and health care records shall be maintained and transported in a confidential manner.

11. Health professionals shall honor custody functions but shall not participate in such functions as escorting, forced transfers, security supervision, strip searches or witnessing use of force.

12. Correctional health professionals shall undertake biomedical research on inmates only when the research methods meet all requirements for experimentation on human subjects and when individual inmates or prison populations are expected to derive benefits from the results of the research.

NOTES

1. U.S. Department of Justice National Institute of Corrections, Prison Health Care: Guidelines for the Management of an Adequate Delivery System. (The National Commission on Correctional Health Care, 1991).

2. U.S. Department of Justice Office of Juvenile Justice and Delinquency, Prevention: Conditions of Confinement: Juvenile Detention and Corrections Facilities. (Abt Associates Inc., 1994, August).

3. J.D. Costello and J.J. Jameson, "Legal and Ethical Duties of Health Care Professionals to Incarcerated Children," J Legal Med (1987) 8:191-263.

4. K. Kipnis, "Professional Ethics in Correctional Health Services: Clearing the Ground," Corhealth (1990, October/November).

5. S.L. Kay, The Constitutional Dimensions of an Inmate's Right to Health Care. (Chicago, Illinois: The National Commission on Correctional Health Care, 1991).

6. J. Rowan, "Street Attitudes of Health Care Providers Promote Lawsuits," Corhealth (1989, March/April/May).

7. A.H. Start, "Correctional Health Care Programs Properly Designed, Properly Administered," Corrections Today (1988, February): 16-8.

8. C. Greenland, "The Treatment and Maltreatment of Sexual Offenders: Ethical Issues," Ann. NY Academy Sci (1988) 528:373-8.

9. T.F. Ackerman, "Why Doctors Should Intervene." In: Biomedical Ethics (3rd ed.), eds. T.A. Mappes and J.S. Zembaty (McGraw-Hill Inc. New York: 1991).

10. M.F. Marshall, "When the Patient Refuses Treatment." In: Introduction to Clinical Ethics, eds. J.C. Fletcher, C.B. Hite and P.A. Lombardo (Charlottesville, Va.: University of Virginia, 1994).

11. I. Kleinman, "Force-Feeding: The Physician's Dilemma." Can d Psychiatry (1986) 31:313-316.

12. "Physician Participation in Capital Punishment. Council on Ethical and Judicial Affairs, American Medical Association," JAMA (1993) 270(3):365-8.

13. A.M. Miller, "Amnesty International Stands Opposed." JAMA (1989) 261(1):132-3.

14. D.A. Sargent, "Treating the Condemned to Death," Hastings Center Report (1986, December) 16(6): 5-6.

15. D.S. Hsieh, "Physicians Should Give Injections," JAMA (1989) 261(1):132.

16. E.W. Martz, "Society's Self-Defense." Del Med J (1990) 62(11):138.

17. National Commission on Correctional Health Care: Standards for Health Services in Juvenile Detention and Confinement Facilities. 1992.

18. U.S. Department of Health and Human Services Public Health Service Centers for Disease Control: Control of Tuberculosis in Correctional Facilities. (U.S. GPO, 1992).

19. Center for Bioethics, University of Virginia.

Patricia N. Reams, M.D., M.P.H., is a pediatrician at Cumberland Hospital for Children and Adolescents in New Kent, Va., and former chief physician for the Department of Juvenile Justice in Virginia. Martha Neff Smith, Ph.D., is on the faculty in public health and nursing at Johns Hopkins University. John Fletcher, Ph.D., is director of the Center for Biomedical Ethics at the University of Virginia. Edward Spencer, M.D., is director of outreach programs at the Center for Biomedical Ethics.
COPYRIGHT 1998 American Correctional Association, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Author:Reams, Patricia N.; Smith, Martha Neff; Fletcher, John; Spencer, Edward
Publication:Corrections Today
Date:Apr 1, 1998
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