Table Of ContentHumane Health Care for Prisoners
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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
