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Yes. The incarcerated person has the right to direct their own medical care (right to self-determination in health care). This includes the right to decline life-saving interventions. It is not the role of medical professionals to sustain the life of the incarcerated patient – against their will – so they can serve their full sentence.
If an incarcerated person is transitioning to comfort measures, the medical team should update the medical director of the jail or prison so that an appropriate setting for end-of-life care can be selected. This will depend on the capabilities of the institution; some are able to provide hospice care. The physician can also inquire about compassionate release (whereby a person is released from custody because of a terminal diagnosis) for their patient. Compassionate release programs differ depending on where the patient is in custody. If the patient has a hospice-eligible diagnosis, it is appropriate to speak with the medical director of the patient’s institution (e.g., jail or prison). That individual can inform the medical team of the eligibility criteria and procedural specifics.
References:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8083072/
Yes, out of respect for patient privacy, compassion, and health care confidentiality, it is appropriate to respectfully request this accommodation of LEO present at the bedside. If they decline, medical team members may call the LEO supervisor (shift commander or watch commander) to state the reasons for their request. It is important for the medical team to advocate respectfully and collaboratively with law enforcement, acknowledging that there may be security considerations that are not known to the clinical team. If there are, it is appropriate to ask the LEOs to explain the concerns.
References:
https://www.law.georgetown.edu/health-justice-alliance/wp-content/uploads/sites/16/2021/05/Police-in-the-ED-Medical-Provider-Toolkit.pdf
For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.
Surrogate decision makers. Laws vary by state and can even differ within a state depending on whether the person is detained in a municipal, state or federal institution. However, a guiding principle is that incarcerated persons retain autonomy over their health care, which includes both first-person (self) and third-person (surrogate) decision making. Medical teams should work with LEO to establish contact with surrogate decision makers as soon as possible, while respecting the communication rules and procedures outlined by LEOs. The role of LEOs is to provide contact information and establish expectations for the medical team’s communication with the surrogate. It may be legally and ethically inappropriate for LEO to be actively engaged in medical decision making on behalf of an incapacitated patient.
While it is understandable to assume that correctional facility staff may act as surrogate decision makers for unrepresented incapacitated patients, staff may actually be prohibited from doing so, depending on the law governing that correctional facility. This accounts for the possibilities that correctional facility staff may not be aware of the patient’s values and beliefs pertinent to health care decisions, and may be subject to conflicts of interest that would prevent them from making decisions exclusively in the patient’s best interest.
References:
https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1343&context=jhclp
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8083072/
https://pubmed.ncbi.nlm.nih.gov/31107501/
It is appropriate to respectfully ask LEO whether they must remain in the exam room during personal cares or sensitive exams or whether they can step outside the room. LEO (and their supervisors) may determine that their continued presence is lawfully justified, however unless there is a legitimate law enforcement reason, such as violent patient or threats, or if patient consents, they do not have to stay. If LEO remain in the room, or if the care team prefers their ongoing presence for safety, it is important to request that LEOs turn away from the patient and remain quiet.
For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.
No, it is not appropriate for HCP to inquire or search for information about why a patient is in custody. In our opinion, seeking out a patient’s criminal history is a violation of professionalism and is unethical. This extends to looking for newspaper reports or searching the Internet for information about the crime for which they are in custody.
However, if it is relevant to your care of the patient, you may wish to ask your patient how long they have been in custody and what their anticipated release date is. If the patient is incapacitated, you may call the jail or prison and direct the question to a medical staff member. These questions could become relevant to patient care if you were considering starting a new therapy, or determining whether an evaluation should happen during the patient’s hospitalization or as an outpatient at a later date.
No, incarcerated persons retain autonomy over their health care. Importantly, this includes surrogate decision making, as an extension of the autonomy of patients who lack the capacity to make a medical decision themselves. Laws for appointing surrogate decision makers vary by state and can even differ within a state depending on whether the person is detained in a municipal, state, or federal institution. If a LEO questions the appropriateness of a surrogate chosen by the patient’s family, they should advance and explain these concerns to the medical team.
For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.
Only matters of direct relevance to the patient’s medical care belong in clinical documentation. The fact that a person is incarcerated is relevant to their health and is therefore appropriate to include. The duration of a person’s time in custody may be relevant and may also be appropriate to include. The criminal history of a person is not related to their medical care and is potentially prejudicial to clinicians who read this information. However, certain medical systems may include behavioral flags or other warnings in the medical chart of the patient if crimes (such as assault or stalking) were committed against healthcare staff.
There is likely no circumstance under which a LEO is authorized to change the code status of a patient.
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