“The Impact of Healthcare Law and Ethics on the Incarcerated Individual.” - PowerPoint Presentation

Slide1

“The Impact of Healthcare Law and Ethics on the Incarcerated Individual.”

Presented by: Gregory Dober Slide2

Objectives.Understand the legal and ethical history that mandates healthcare rights to incarcerated and detained individuals in the United States

.

U

nderstanding the

legal and ethical healthcare responsibilities to incarcerated and detained individuals

.

Understand the

ethical challenges for healthcare providers when delivering healthcare services to incarcerated and detained individuals.

Understand that ethical healthcare decisions are not waived by an individual because they are in the custody of the penal system.Slide3

Tribune Excerpts on Ford ShootingFriends and family of a man a Pittsburgh police officer shot during a traffic stop said Wednesday that

UPMC Presbyterian staff

and police won't let them see him in the hospital.

“We just want some answers,” Mondale Ford, 26, of East Liberty, the brother of the suspect, said during a news conference in Garfield surrounded by about 40 friends, relatives and members of community groups. “As of right now, there's no reason we shouldn't be allowed to be there by his side.

” (Note: The detainee is also shackled despite being paralyzed from the waist down)

Police said Leon Ford, 19, of East Liberty is in critical but stable condition.

“

For people that are in custody in a hospital setting, our policy is they're not allowed visitors,” police Lt. Kevin Kraus said. “Based on the circumstances of everything that happened, we have not permitted anyone to see him.”

Read

more:

http://triblive.com/home/2956608-74/police-ford-leon-pittsburgh-derbish-members-family-reached-shot-east#ixzz3BPH3efRY

Slide4

ContentsTerms.Who, What and Where.

Health Care Law and

the Incarcerated

.

Healthcare Ethics and the Incarcerated.Slide5

Jail – usually pre-trail detainees or those sentenced to less than 2 years including “time served.” Usually a local jurisdiction.Prison – usually those sentenced to 2+ years in a state or federal jurisdiction.Pretrial detainee – Not convicted, protected under 14th amendment. No bail set or can’t post bail.Prisoner – prison, usually convicted and protected under 8

th

amendment.

Inmate – jail or prison, pretrial detainee or convicted.

TermsSlide6

Who, What and Where.Slide7

In 2015 about 1 in every 37 adults in the United States, or 2.7% of adult residents, was on probation or parole or incarcerated in prison or

jail.

In 2015, an

estimated 1 in every 50 adult residents was supervised in the community on probation or parole at

yearend.

In 2015, an estimated 1

in every 108 adults

were incarcerated

in prison or

jail at yearend.

Source: BJS, December 2016, NCJ 250374

In the system. Slide8

Year 2015Total probation/parole: 4,650,900Total incarcerated: 2,173,800

Total correctional population:

6,824,700

Source:

Bureau of Justice Statistics, December 2016 NCJ 250374

In the system.Slide9

Size of U.S. Military Force vs. U.S. Correctional PopulationSlide10

Type of

Crime - Federal Facilities

Source:

Bureau of Justice Statistics, December 2016 NCJ 250229Slide11

Type of Crime – State Facilities

Source:

Bureau of Justice Statistics, December

2016

NCJ

250229Slide12

Mental Health and Incarceration

Source

: BJS Special Report, Sept 2006, NCJ 213600

Individuals Treated for a Continuous 12 Months.Slide13

Comparison of

I

ncarceration

Source:

World Prison Population List

11

th

Ed, (2015) International Centre for Prison StudiesSlide14

Healthcare Law and the Incarcerated.Slide15

“It is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.”

Spicer

v. Williamson

,

132 E.E. 291, 293 (N.C. 1926). Slide16

It is the holding of this Court that failure of the Board of Corrections to provide sufficient medical facilities and staff to afford inmates basic elements of adequate medical care constitutes a willful and intentional violation of the rights of prisoners guaranteed under the Eighth and Fourteenth Amendments. Further, the intentional refusal by correctional officers to allow inmates access to medical personnel and to provide prescribed medicines and other treatment is cruel and unusual punishment in violation of the Constitution.

NEWMAN v. STATE OF

ALABAMA

349

F.Supp. 278 (1972)Slide17

Justice Marshall writing for the majority:“ … deliberate indifference to serious medical needs of prisoners” constitutes the “unnecessary and wanton infliction of pain.”

The court reasoned since prisoners cannot care for themselves, the government has responsibility, under the

Eight Amendment

to provide medical care.*

Estelle

v.

Gamble

429 U.S. 97 (1976)Slide18

Eighth Amendment to the U.S. Constitution: “Excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishments inflicted.”

Eighth Amendment Slide19

Deliberate indifference is a state of mind more blame worthy than mere negligence* but less culpable than purposeful misconduct. (Farmer)A prison official will be held liable under the Eight Amendment “only if he knows that inmates face a substantial serious risk of serious harm and disregard that risk by failing to take reasonable measures to abate it.” (

Farmer)

Note: Malpractice type care may not be deliberate indifference.

Deliberate IndifferenceSlide20

The Supreme Court has established a two prong test for determining whether prison conditions violate the 8th amendment. The first condition objective, the second condition subjective. 1) Objective - A judicial examination into the objective component of the 8

th

amendment to determine on whether conditions of confinement are objectively serious (needs must be serious) enough to violate the 8

th

amendment

2) Subjective - Prisoner must show a “sufficiently culpable state of mind” on the part of responsible prison officials, i.e

. knowledge and failure to take reasonable action.

Source:

Farmer v. Brennan 511U.S. 825, 834, (1994)

Two Prong

T

est: Objective and SubjectiveSlide21

Failure to take Reasonable Action “. . . prison officials who act reasonably cannot be found liable under the cruel and unusual punishments clause.”

(Farmer)

Officials act reasonably when they provide whatever treatment decides is appropriate.

(Estelle

)

Officials act with deliberate indifference if they deny, delay, obstruct or interfere with needed or prescribed medical treatment. (

Estelle

)

Lack of funds will not excuse the failure of a system to provide adequate care.

Harris v. Thigpen 941

F.2d 1495 (1991)Slide22

Deliberate Indifference - Medical Staff

Numerous cases have affirmed that medical staff is not liable under the Eight Amendment if the diagnosis and treatment ultimately prove incorrect and result in further pain.

Estelle

opinion noted that the prisoner may have a course of civil action for malpractice even though no deliberate indifference occurred. [This would pass the objective “serious needs” test but not the subjective “deliberate indifference” test.]Slide23

Serious Needs Generally, a serious need is determined on a case-by case basis

.

Estelle’s

“serious medical needs” test does not address ailments lying between the two extremes. (eg tooth decay – infection, minor cut – MRSA, fever to TB)

A

serious medical need is defined as one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would recognize the necessity for a doctors attention.

Monmouth County Inmates v.

Lanzaro

834 F 2d 326,347 (3

rd

Cir 1987)Slide24

Examples of Serious Needs

Life threatening emergencies and injuries or illness (

E

stelle

)

MRSA (

Stewart v Kelchner 3

rd

Circuit 2009

)

Hepatitis C (

Merritt v. Fogel 3

rd

Circuit 2009

)

Heatstroke (

Kost v. Kazakiewicz (3

rd

Circuit 1993)

Insulin dependent diabetes (

Rouse v. Plantier 3

rd

Circuit 1999) Slide25

DetaineesEight Amendment “two-prong” test of treatment applicable but detainee’s are protected under the

Fourteenth Amendment Due

P

rocess Clause.

Fourteenth Amendment, Section 1

:

Section

. 1.

“

All

persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside

.*

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws

.”

* Note: Problematic with immigration detainee’s.Slide26

Mental health needs are assessed using the same two prong test of seriousness and deliberate indifference.A mental health need is serious if it has “caused significant disruption in an inmates everyday life … prevents his functioning in the general population without disturbing or endangering others or himself.” (Tillery v. Owens 719

F.Supp. 1256 (1989

)

[SCI-Pittsburgh case]

Mental HealthSlide27

Healthcare Ethics and the Incarcerated.Slide28

Adequate care. (The undefined “gold standard.”Inadequate care. (Civil malpractice and/or unconstitutional if deliberate indifference. )Malpractice type care. (Civil issue but not necessarily unconstitutional,

only

with deliberate

indifference .

)

Deliberate indifference to care. (Violation of the 8

th

or 14

th

amendment.)

Types of CareSlide29

“Adequate healthcare” required by Constitution. Autonomy: Difficulty in obtaining informed consent.

Uneducated

Coercion

Large number of mental heath issues.

Differing value set

Lack of privacy and confidentiality.

Lack of resources to apply.

The environment of incarceration.

What

M

akes this Population

U

nique?Slide30

AutonomyBeneficenceNonmaleficienceJustice… with some difficulties

The Principles Still Apply

…Slide31

Cost containmentBest interest standard…inmates or states?Adequate care versus medical standard of care.

…

With Some DifficultiesSlide32

Decision making and informed consentAdvance Directives, including DNR’s, are requested in most incarceration facilities at pre-entry medical physical.

Medical decision making should follow the same protocol for prisoners as non-prisoners. (AD, surrogate, ACT 169, court appointed guardian, best interest.)

Prison guards and officials are not medical decision makers for an inmate. The prisoner has a right to refuse unwanted care.

The prison medical officer must use the “best interest” model.

Decision making and informed consent for an inmate follows the same legal and ethical requirements as a non-inmate.Slide33

Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914) “Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . .”Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990

)

“

Reasoning

that the right of self-determination should not be lost merely because an individual is unable to sense a violation of it, the court held that incompetent individuals retain a right to refuse

treatment.”

White v.

N

apoleon

(

897 F.2d 103 (1990)) “

We hold that convicted prisoners, like involuntarily committed mental patients, retain a limited right to refuse treatment and a related right to be informed of the proposed treatment and viable alternatives

.”

Right to Refuse Care

Slide34

The right to refuse care.*Refusal to vaccinate and public health interest. Jacobson

v.

Massachusetts 197 U.S. 11 (1905)

Refusal to take dialysis constituted a form of protest.

Commissioner

of

Corrections

v.

Myers

399 N.E.2d 452

(1979)

Refusal of antipsychotic medication.

Washington

v.

Harper 494 U.S. 210 (1990)

*Note: Refusal can lead to punishment.

Right to Refuse

Care; Not Absolute.Slide35

Often times, inmates are put in administrative custody (solitary) because the administration is mad at the inmate rather than them being violent.A clinicians “report card” on behavior, attitude or cooperation can lead to a “ticket” for administrative custody.

Solitary ConfinementSlide36

Allegheny County Jail“ Information regarding the inmates emergency contact information or next of kin shall be obtained from the inmate during their admission into the facility.

” [Reminder; This may be the individuals surrogate decision maker too.]

The inmate may fill out an AD or medical POA at medical intake at the jail. [Reminder; If not, decision making should follow proper legal and ethical means.]

“In the event of suicide, serious suicide attempt, death or where the inmate is unconscinsious and unresponsive is being sent out by ambulance to the hospital, the County Homicide detectives are to be called into the jail to investigate.”

Source: ACBOC Policy # 32, Date March 11, 2014.Slide37

State SCI’sPrior decision making and informed consent guidelines are relevant to state SCI’s.Slide38

Advance Directives, including DNR’s, are requested in most incarceration facilities at pre-entry medical physical.Medical decision making should follow the same protocol for police detainees as any other patient . (AD, surrogate, ACT 169, court appointed guardian, best interest.)Police officers and officials are not medical decision makers for a detainee. The detainee has a right to refuse unwanted care.

Decision making and informed consent for a detainee follows the same legal and ethical requirements as any other patient.

Detainee’s; Decision Making and Informed ConsentSlide39

Visitors and Detainee’s“No one shall be permitted to visit a prisoner in custody in a hospital setting w/out permission from the zone commander…”

Source: PBOP Order # 50-03 , June 1 ,2000

.

E

thical and legal landmines! How are decisions properly made for the incapacitated patient?

Police INTERNAL policy does not override state law (PA Act 169)

Slide40

Guarded Detainee’s“Common sense shall be a necessary guideline whether or not a twenty-four hour guard is needed.”

“When transporting disabled and injured prisoners, the degree of physical restraints will be applied within reason, . . .”

“The officer will remove the restraints only when it is deemed necessary and he/she is requested by medical staff.”

Pregnant women should not be in restraining devices!

Source: PBOP Order # 50-03 , June 1 ,2000

.Slide41

A hospital providing prison health care may disclose PHI to a “correctional institution” or a law enforcement official having lawful custody of an inmate if the correctional institution or

law enforcement

official represents that such protected health information is necessary for:

A) the provision of health care to such

individuals;

B) the health and safety of such individual or other

inmates;

C) the health and safety of officers or employees or others at the correctional institution

;

D

) the health and safety of such individuals and officers or other persons responsible

for the

transport of inmates or their transfer from one institution, facility or setting

to another;

E) Law enforcement on the premises of the correctional institution;

F) The administration and maintenance of the safety, security, and good order of

the correctional institute.

HIPPASlide42

Mental health. (Staffing*, screening and follow-up)Addictions (Staffing*, screening and follow-up)HCV (Exclusion policies, cost of drugs and follow-up) HIV, AIDS, STD’s (Staffing*, follow-up, better testing/treatment policies.)

TB (

Staffing*,

follow-up, better

testing/treatment policies.)**

*

Staffing includes medical, educational and follow-up clinicians. ** In PA, refusal to get TB test results in solitary confinement.

Public Health ProblemsSlide43

Problems with Privatization of Prison Healthcare

.

Profit motive an incentive to reduce staffing and staffing hours.

Flat fee contracts

.

Costly procedures, including ER trips, may be avoided at risk to patient.

Per the legal precedent from

E

stelle

, “malpractice type” care is not unconstitutional.

Population they serve has difficulty proving or funding a civil case.

Little transparency as compared to a government entity. (Trade secret defense)Slide44

Defining “basic” or “adequate” care for incarceration.Testing for infectious diseases.Treatments for infectious diseases, especially HCV.Segregation/isolation and mental health.For-profit, private health care.

2016 vs. 2017 Issues

2016

2017

Defining “basic” or “adequate” care for incarceration.

Defining “basic” or “adequate” care for incarceration.

Test

infectious disease.

For-profit, private health care (federal).

Treatments for infectious diseases, especially HCV.

Care for immigrants and families (federal

–

classified

as detainee)

.

Segregation/isolation

& mental health.

Treatment for infectious diseases, especially HCV.

For-profit, private

health care.

Segregation/isolation

& mental health.