Norbert Konrad, Birgit Völlm and David N. Weisstub (eds.)International Library of Ethics, Law, and the New MedicineEthical Issues in Prison Psychiatry201310.1007/978-94-007-0086-4_3
© Springer Science+Business Media Dordrecht 2013
3. Ethical Issues in Correctional Psychiatry in the United States
(1)
Beldock Levine and Hoffman LLP, 99 Park Avenue 16th Floor, New York, NY 10016, USA
(2)
New York University Medical School, 1 Fifth Avenue, Suite 1BB, New York, NY 10003, USA
(3)
Taylor and Company Law Offices, LLP, One Ferry Building, Suite 355, San Francisco, CA 94111, USA
(4)
Van Der Hout, Brigagliano and Nightingale LLP, 180 Sutter St., 5th Floor, San Francisco, CA 94104, USA
Abstract
By their nature, prisons distort human interactions. They may be chaotic and violent places, but even well-run, orderly prisons are created to isolate, control, and stigmatize their inhabitants; at the same time, they are governed by legal and ethical obligations to provide humane conditions of confinement and care for serious medical needs of inmates who are completely dependent upon the institution for the basics of survival. The names of some governmental agencies charged with imprisonment include the words “corrections” or “rehabilitation” signifying at least an aspiration for a mission beyond custody and control. A tension, sometimes destructive and sometimes creative, results when the competing normative values associated with these missions collide. Some individuals handle this situation with remarkable professionalism and compassion; some surrender to less admirable influences. This reflects more than variation in individual temperament; individual reactions to employment in corrections is strongly influenced by the expectations and examples created by those charged with system oversight as well as the characteristics of the setting itself. (See, e.g., Haney et al. 1973). The same practice or behavior which shocks the conscience when seen for the first time or from afar can come to appear chillingly pedestrian with long-term exposure. The objective perspective which accompanies outside oversight of correctional practice, whether via court-imposed monitoring, regulatory oversight, or well-developed systems of quality improvement which utilize the resources of professionals providing direct care across disciplines but also rely on analysis of aggregate data, is an important ethical counterweight to this natural tendency toward desensitization. Professional and visible frontline supervision which provides a clear sense of organizational mission and vision is critical for maintaining standards of conduct consistent with ethical guidelines.
3.1 Introduction
By their nature, prisons distort human interactions. They may be chaotic and violent places, but even well-run, orderly prisons are created to isolate, control, and stigmatize their inhabitants; at the same time, they are governed by legal and ethical obligations to provide humane conditions of confinement and care for serious medical needs of inmates who are completely dependent upon the institution for the basics of survival. The names of some governmental agencies charged with imprisonment include the words “corrections” or “rehabilitation,” signifying at least an aspiration for a mission beyond custody and control. A tension, sometimes destructive and sometimes creative, results when the competing normative values associated with these missions collide. Some individuals handle this situation with remarkable professionalism and compassion; some surrender to less admirable influences. This reflects more than variation in individual temperament; individual reactions to employment in corrections is strongly influenced by the expectations and examples created by those charged with system oversight as well as the characteristics of the setting itself (See, e.g., Haney et al. 1973). The same practice or behavior which shocks the conscience when seen for the first time or from afar can come to appear chillingly pedestrian with long-term exposure. The objective perspective which accompanies outside oversight of correctional practice, whether via court-imposed monitoring, regulatory oversight, or well-developed systems of quality improvement which utilize the resources of professionals providing direct care across disciplines but also rely on analysis of aggregate data, is an important ethical counterweight to this natural tendency toward desensitization. Professional and visible frontline supervision which provides a clear sense of organizational mission and vision is critical for maintaining standards of conduct consistent with ethical guidelines.
When viewed structurally, no group of people — correctional officers, treatment staff, or the inmates themselves — is innately immune from the deforming effects of the environment. Inmates, with far too little constructive activity to occupy their minds, may become overly focused on their dissatisfactions or maladies. They may alternatively fabricate or mask symptoms of mental illness in an effort to obtain safer and more desirable housing assignments or access to needed programming. They may engage in behavior which, within the prison context, is viewed pejoratively as “manipulative” but, when seen objectively, is the functional equivalent of behavior which, if engaged in within other social contexts, might be considered more acceptable.
Staff, likewise, is not freed from the necessity of harmonizing — whether consciously or otherwise — the conflicts created by this situation. As a bridge between inmates and correctional staff on one hand, and mental health and medical staff on the other, no one is potentially more caught in the middle of these issues than the correctional psychiatrist.
Successful day-to-day functioning depends on making good choices in dozens of discrete situations: Do I prescribe medication to an inmate-patient who appears to be in distress but has a history of substance abuse and drug-seeking behavior? Do I support an inmate-patient’s efforts to obtain a change in housing unit? Much in the same way that a therapist monitors for counter-transference in clinical situations, the correctional psychiatrist must become self-aware of maladaptive coping mechanisms, as long-term success depends upon it: Is there a tendency to over-identify with the punitive and dehumanizing aspects of prison life? Conversely, does the practitioner find him- or herself viewing all inmates as symbols of society’s oppression of disenfranchised groups? While one or the other may be more consonant with an individual’s worldview, either type of objectification places the psychiatrist at risk of making non-individualized and potentially unethical decisions.
The psychiatrist working within a jail or prison encounters similar ethical dilemmas as do his or her colleagues in community settings, but, additionally, must confront ethical considerations unique to or exacerbated by the confinement environment. Perhaps the most fundamental one is: Do I view the person sitting across the desk from me primarily as “my patient” or “an inmate” – an individual person, or a representative of a group?
While these issues disproportionally involve marginalized groups, large numbers of people are affected. The United States places an extraordinary number of people under the control of the criminal justice system. The trend toward incarcerating so many people, many of whom have serious mental disabilities as well as multiple medical and social difficulties, for longer periods of time followed by increased post-incarceration community supervision, has continued mostly unabated since the 1970s. Until recently, society paid scant attention to the fiscal and social costs associated with this decision. Yet, there are important ramifications of this policy direction related to public health and public safety concerns, the ability of the psychiatrist to meet legal and professional mandates, as well as attention to the sound stewardship of public dollars in a time of economic uncertainty (Dlugacz et al. 2007). None of these can be neatly isolated from ethical considerations for a psychiatrist practicing medicine within a correctional setting. Some of the ethical dilemmas discussed in this chapter, such as dual agency, are inherent to clinical practice in a confined, controlled environment, while others derive from the moral imperative to question the larger context in which treatment occurs and the ethical requirement to provide care meeting professional standards.
One critical aspect of that context is the diminishing access to public hospitals which further amplifies the importance of the medical care provided in jails and prisons. Specifically, the interim report of President Bush’s Freedom Commission on Mental Health found that the US community-based “mental health delivery system is fragmented and in disarray” (The President’s New Freedom Commission on Mental Health 2003). Seen in this way, correctional healthcare in the United States forms an essential part of the social safety net providing care to an often indigent population (King 2005). Ethical as well as public health mandates may increasingly elevate the healthcare (including mental health) role of correctional institutions; it may no longer be sufficient to accept what has long been taken for granted — that healthcare is necessarily and properly subjugated to the confinement mission of jails and prisons (King 2005; Dlugacz and Roskes 2009). Seen in this larger context, an important ethical issue is raised: Does seeking incremental improvements in substandard correctional mental healthcare merely ease the way of misguided public policy by facilitating large scale incarceration of people with severe mental disabilities? If so, is there a responsible alternative for the individual psychiatrist other than opting out of providing care within the system? If there is, what is the obligation of the individual psychiatrist to engage in advocacy for system change which permits adequate care?
It is also important to understand the more immediate context in which clinicians practice, and struggle to practice ethically. One highly regarded model for the assessment of healthcare quality is referred to as the Donabedian Triad (Glickman et al. 2008), which recognizes the necessity of assessing the organizational attributes or structure in which care is delivered as well as the process by which it is delivered and the outcomes which it obtains. The structure includes the physical characteristics, management, culture, organizational design, information management, and incentives that are present. All aspects of this triad may be dictated by forces beyond the direct control of the correctional psychiatrist:
Are examination rooms confidential?
Is there access to the information technology so essential to the modern practice of medicine?
Do staffing patterns permit caseload sizes that allow individualized treatment?
Is there sufficient custody staffing so that they may facilitate participation in treatment?
Is there reasonable access to various levels of care including inpatient hospitalization when clinically indicated?
Is the physician responsible to a healthcare or custody authority?
What formulary and diagnostic tests are available?
Does evaluation of inmates housed in extreme conditions of confinement legitimate a practice which many believe harms people with serious mental illness?
One example of structural concerns unique to the correctional setting is that most inmate-patients with mental illness will be released before their condition is fully resolved, and will not have access to the correctional system’s mental healthcare after release. The American Medical Association’s (AMA 2010) Ethical Standard 10.01, Fundamental Elements of Patient-Physician Relationship, provides that the patient has the right to continuity of healthcare, the physician has an obligation to cooperate in coordination with other providers treating the patient, and the physician may not discontinue treatment of a patient as long as further treatment is medically indicated, pointing to an ethical duty to facilitate reentry planning for some discharged inmates. The above are just some issues that implicate the need for the “system” as a whole to provide the correctional psychiatrist with the tools and autonomy to act ethically. This understanding also raises the related question of what ethical responsibility inures to a psychiatrist to advocate for a system that permits and facilitates ethical practice. Seen this way, professional organizations have a concomitant ethical duty to require and support needed change (Metzner and Fellner 2010).
After providing background data concerning levels of confinement and characteristics of the incarcerated population, this chapter will review the standards that govern the ethical practice of psychiatry in correctional institutions and explore specific ethical problems facing the American correctional psychiatrist.
3.2 Incarceration of Persons with Mental Illness in the United States
It is now well known that the United States incarcerates an astonishing number of people compared to Western European countries. At year-end 2011, American prisons and jails held almost 2.25 million inmates – 1 out every 107 adult American residents (United States Department of Justice, Bureau of Justice Statistics 2012). This is roughly equivalent to the entire population of Latvia (Central Intelligence Agency (CIA) 2009). It is estimated that between 8 and 19 % of prisoners are persons with serious mental illness, and another 15–20 % require some form of psychiatric care during their incarceration (United States Department of Justice, Bureau of Justice Statistics 1999; Metzner 2002; Magaletta et al. 2009). Offenders with mental disabilities are more likely to recidivate, more likely to recidivate for violent crimes, and receive longer sentences than offenders who do not have mental disabilities (United States Department of Justice, Bureau of Justice Statistics 1999). They are also more likely to be punished for disciplinary infractions while in prison (United States Department of Justice, Bureau of Justice Statistics 1999). Data from US studies indicate that two-thirds of all inmates with serious mental illness are rearrested and one-half are hospitalized within the first 18 months of release (Feder 1991; Hartwell 2008). One US study found that in the first two weeks following release inmates as a group were close to 13 times more likely to die as compared with other people with similar demographics (Binswanger et al. 2007).
Persons with mental disabilities may also suffer grievously from incarceration. The social isolation, sensory deprivation alternating with unpredictable stimuli, loss of autonomy, lack of continuity of care, and frequent, severe punishment for aberrant behavior that characterize some American prisons all may exacerbate mental illness and result in decompensation (Fellner 2008, 2009. But see O’Keefe et al. 2010, questioning this hypothesis). This, in turn, may produce inmates less capable of establishing productive, lawful lives upon discharge (Lovell et al. 2007).
3.3 Standards
There are a host of formal standards that inform the practice of psychiatry in American correctional institutions. As in other areas of the American legal system, actors are subject to a web of federal, state, and local legal requirements. These requirements can further be divided into constitutional standards and statutory and regulatory standards. This chapter focuses on federal constitutional standards. International legal standards, which tend to be more stringent (Fellner 2010), also merit consideration for the views and experiences of other nations they embody. Finally, professional psychiatric organizations have established ethical guidelines for practice.
It is worth considering how these standards inform ethical obligations. The applicability of the guidelines established by professional organizations seems self-evident: The members of the profession have, through experience and consultation, developed a set of guidelines representing best practices and standards of care. Upon becoming a member of that profession, one takes a vow to adhere to these standards.
Domestic legal standards are somewhat different. American legal standards arise from three sources: (1) the elected legislative bodies, which pass statutes; (2) the executive branches (which include elected actors and their appointees), which promulgate regulations and set policies for executive action; and (3) the judiciary (which is appointed in the federal system, and either elected or appointed in the states), which is responsible for ensuring that executive action conforms with legislative and constitutional requirements, and that legislative action conforms with the nation’s and states’ fundamental commitments expressed in their constitutions. As any practitioner knows, straying from these requirements exposes one to significant, potentially career-ending, liability. Familiarity with them can thus be justified by self-interest. However, awareness of these standards is also necessary in order to carry out ethical duties to one’s patients. Legal standards, be they constitutional, statutory, or regulatory, represent the polity’s collective determination of what must, and what must not, be done. They set an absolute minimum for conduct; that is why liability attaches to violations of them. In the context of psychiatry or other medical fields, they represent the nation’s, states’, and municipalities’ expression of the basic standard of care. Further, when assuming membership in the profession, psychiatrists pledge to adhere to applicable law (American Psychiatric Association (APA) 2009). Domestic legal standards thus provide a key set of sources of ethical guidelines for mental health practitioners in American correctional institutions.
International standards are another matter. International treaties that the nation has not ratified do not become American law, though signing a treaty commits the nation to acting in accordance with the principles of that treaty (VCLT 1969). Even ratified treaties bind only governmental actors – individual, private actors will be legally bound only by statutes or regulations passed to implement those treaties. Absent conduct of breathtaking scope, no American psychiatrist will be prosecuted for violations of international law taken within the United States. Further, any judgment by the international courts against an individual would be unenforceable within the United States. The oath taken by psychiatrists on accession to the profession is silent on adherence to non-binding international standards. So how are they relevant? As professionals, psychiatrists owe an ethical duty to their patients to continually seek to improve their knowledge and their standards of practice. International legal standards, like domestic legal standards, represent the collective determination of the polities of appropriate standards of care. Unless one takes the view that the practice of psychiatry in other nations is somehow fundamentally different from practice in the United States, the experiences of psychiatrists in other nations – as embodied in standards of care developed in consultation with them – are worth consideration, if not outright adherence. This is the approach that the United States Supreme Court has developed with respect to international law in its jurisprudence concerning the federal Eighth Amendment’s ban on cruel and unusual punishments: International law is not binding, but is an important source of information about whether a challenged punishment is out of step with the evolving standards of decency that inform the Court’s decision whether a punishment is “cruel and unusual.” Further, the US Supreme Court in three criminal procedure and criminal law cases, over vigorous dissent, has endorsed an expansive reading of international law principles in a domestic constitutional law context (Perlin and Dlugacz 2009). The possible US ratification of the UN Convention on the Rights of Persons with Disabilities could bolster efforts to use international human rights conventions to support claims seeking improved treatment for confined individuals; at present, it may be that international standards are most accurately viewed as forming a best practice approach warranting consideration by US psychiatrists and courts (Perlin and Dlugacz 2009; see, also In the Matter of SCPA Article 17-A Guardianship Proceeding for Mark C.H. (2010)). At a minimum, then, American practitioners owe an ethical duty to consider international standards – and the evolving best practices of the international community that they represent – when assessing their own conduct.
3.3.1 Domestic Professional Standards
American professional associations have issued both general codes of ethics that are applicable to all psychiatrists, including those practicing in correctional institutions, and more particular guidelines aimed at the specific concerns of correctional psychiatrists.
The American Psychiatric Association’s Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry (APA 2009), which builds on the AMA’s ethics code, apply to all psychiatrists, regardless of their environment. It enunciates several principles pertinent to practice in correctional institutions, including the obligations to act “with compassion and respect for human dignity and rights,” to “seek changes in those [legal] requirements which are contrary to the best interests of the patient,” to “support access to medical care for all people,” and to “regard responsibility to the patient as paramount.”
The American Public Health Association’s (APHA) Standards for Health Services in Correctional Institutions (APHA 2003) and the National Commission on Correctional Health Care’s (NCCHC) Standards for Mental Health Services in Correctional Facilities (NCCHC 2008) address a host of structural and patient-specific concerns, including clinical independence, participation in forensic gathering for disciplinary proceedings, forced medication, and executions. Applications of these principles are considered below.
3.3.2 Federal Constitutional Requirements
As noted, there are federal constitutional, state constitutional, and federal, state, and local statutory and regulatory standards designed to ensure inmate’ access to a minimum quality of psychiatric services while incarcerated. The predominant source of law, and the one most interesting for consideration of a correctional psychiatrist’s ethical duties, is the Eighth Amendment to the United States Constitution.
The United States Supreme Court has interpreted the Eighth Amendment’s ban on “cruel and unusual punishments” to establish minimum standards of medical care for prisoners. Courts have applied these standards to the provision of mental healthcare. In brief, “deliberate indifference . . . to serious medical needs of prisoners” amounts to “unnecessary and wanton infliction of pain” in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment (Estelle v. Gamble 1976). Because the Supreme Court has established that the Eighth Amendment’s requirements are determined by an “evolving standard of decency,” developments in a significant number of state policies can raise the standards of care that all states and the federal government must meet (Graham v. Florida 2010).
This standard includes both systemic and individual components. Systemically, courts have typically required that correctional institutions provide the following basic services: Screening and evaluation by which inmates with serious mental health disorders can be identified; a sufficient quantity of trained staff to provide individualized treatment to inmates with treatable, serious disorders; mechanisms for proper administration of psychotropic medication; adequate record-keeping; and a system to prevent suicides and respond to suicide attempts and other mental health emergencies (Ruiz v. Estelle 1980; Madrid v. Gomez 1995; Coleman v. Schwarzenegger 2009). An emerging consensus among some states and major cities that post-release planning is a necessary component of mental healthcare in the prison setting presents the possibility that this may become enshrined by the courts as another necessary element (Dlugacz and Low 2007; Mellow and Greifinger 2008; Dlugacz and Roskes 2009). Individually, the Eighth Amendment requires that the methods used to maintain control over or discipline an inmate with mental illness must have a valid penological purpose, and must take into account the individual’s potential inability to conform his conduct to the rules of the institution or understand the reason for the punishment inflicted upon him (Thomas v. Bryant 2010).
Supreme Court precedent establishes that courts will defer to the proper exercise of judgment by a qualified professional (Youngberg v. Romeo 1982; Perlin 2005). However, the presumptive validity of a treatment decision made by qualified professionals using professional judgment exists only to the extent that professional judgment was in fact brought to bear in making the determination in question. In the correctional system there are many factors militating against the genuine exercise of a psychiatrist’s professional judgment, including financial, administrative, and disciplinary influences. Courts have not allowed these factors to excuse the failure to exercise professional judgment. For example, professionals have been found to have departed from this standard when: (1) no judgment was exercised at all; (2) judgments were made by non-professionals or unqualified professionals; or (3) judgments were made for inappropriate reasons such as budgetary limitations or staff convenience (Stefan 1993). As will be discussed below, this obligation to exercise professional judgment frequently runs up against the custodial demands of the correctional institution. These concepts reinforce that at times ethical behavior must be exercised by the system as a whole, and that individual conduct alone is insufficient to meet expectations.
3.3.3 International Standards
Partial Incorporation into American Law
The United States is party to three international treaties that concern ethical obligations of mental health professionals in the correctional context. The prohibitions on torture and cruel, inhumane, or degrading treatment contained in the Convention Against Torture (CAT 1984) have been binding on the US since it ratified the treaty in 1994. The Universal Declaration of Human Rights (UDHR 1948), though not legally binding, also prohibits torture and cruel, inhumane, or degrading treatment. Article 8 of the International Covenant on Civil and Political Rights (ICCPR 1966), ratified by the US in 1992, contains similar prohibitions. Article 10 of the ICCPR further requires that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”, which has been interpreted to protect the right to confidentiality and informed consent in healthcare (UN Human Rights Committee 1992). The United States has also signed, but not yet ratified, the Convention on the Rights of Persons with Disabilities (CRPD 2006), which affirms the right of persons with mental illness to equal protection under the law, and is a potential new source of law for those seeking to enhance the outcomes of inmates with mental illness through litigation or policy (CRPD 2006; Perlin and Dlugacz 2009).
The UN Standard Minimum Rules for the Treatment of Prisoners (SMRTP 1955), while not a binding treaty, provides some ethical guidance for correctional mental health practice. Rule 25.2 requires medical professionals to notify prison officials whenever continued confinement or conditions of confinement are negatively impacting a prisoner’s mental health. Rule 83 recommends that medical staff provide for continuity of psychiatric treatment post-release (UN 1955).
Domestic professional associations have incorporated these and other relevant international instruments. The American Correctional Association (ACA) has referenced the SMRTPs as “the prototype” for prison standards (ACA 2004). The APA’s standards for health services intend to ensure compliance with relevant international treaties and standards, including the Standard Minimum Rules, the ICCPR, and CAT (APHA 2003).
States have also incorporated the SMRTPs in correctional standards. In 1971, the Pennsylvania Department of Corrections became the first state correctional department to adopt the SMRTPs through an Administrative Directive. Five other states subsequently adopted them through Department of Corrections directives, while three states adopted them by executive order (Skoler 1975). Though the majority place some limitations on their application (most frequently, directing implementation only insofar as the SMRTPs do not conflict with federal, state, or local law), these limitations do not significantly alter the spirit or impact of the mental health provisions. While the SMRTPs may set a higher standard than that required by the Eighth Amendment, it is commonplace to American constitutional law that states may set standards more protective of individual liberties than that contained in the federal constitution (PruneYard Shopping Center v. Robins 1980).
A few US courts have considered international standards in cases involving inadequate prison healthcare. In Estelle v. Gamble (1976), the Supreme Court, while basing its finding that unnecessary suffering caused by lack of healthcare “is inconsistent with contemporary standards of decency” on domestic legislation and standards, noted that the SMRTPs are also in accord. The Oregon Supreme Court (Sterling v. Cupp 1981), Utah Supreme Court (Bott v. DeLand 1996), and United States District Court for the District of Connecticut (Lareau v. Manson 1980) have also relied in part on the ICCPR, UDHR, and SMRTPs in cases regarding prisoner treatment and living conditions. Though not concerned with prisoners’ rights per se, a very recent lower New York State court decision considered the CRPD when setting the terms of a guardianship for a man with a mental disability (In the Matter of SCPA Article 17-A Guardianship Proceeding for Mark C.H. 2010).
Taken together, the incorporation of international ethical standards into domestic ethics codes and case law has to some extent integrated these principles into the standard of care for correctional mental health services. Per Gamble, mental healthcare violates the Eighth Amendment prohibition on cruel and unusual punishment only if it constitutes “deliberate indifference to serious medical needs”. However, the Sterling, Bott and Lareau courts imply that extreme deviation from the standard of care embodied in international treaties and protocols can rise to the level of deliberate indifference and violate prisoners’ constitutional rights.
Related posts:
Ethics Within the Prison System
The Evolution of Punishment and Incarceration
Overcrowded Prisons and Low Psychiatric Provision: The Situation of Mentally Ill Prisoners in Kenya
Psychiatric Treatment in the Detention Systems of Quebec: Trying to Merge Prison and Therapeutic Cultures
Application of the AMA Code of Medical Ethics to Psychiatric Practice in Correctional Facilities and Access to Psychiatric Care in the U.S.A.
Current Ethical Challenges in Prison Psychiatry in England and Wales
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