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Module Overview: The Prison Patient
Module Coordinator/Editor: Jeremy Graham MA DO FACP
Educational Objectives:
1. Describe the “Dual Loyalty” problem in patient care, illustrated by corrections
medicine practice.
2. Examine tensions between obligations to society versus to the individual patient,
and Report formal professional organization positions on the obligation to the
patient
3. Identify external resources relevant to training for corrections medicine.
4. Explicate the bias physicians can develop upon learning undesirable components
of the patient’s social history.
5. Discuss ways physicians can navigate the emotional challenges of care of the
“undesirable patient”
6. Report the current and historical legal requirements regarding adequate medical
care of imprisoned persons in the United States.
Section 1: Dual Loyalty: Physician’s Duties to Patients and Society
Section 2: Useful Social History? Or Intrusive Voyeurism?
Section 3: Physician’s Emotional Responses to Undesirable Patients
Section 4: Historical Perspective on the Medical Rights of Prisoners
SECTION 1: Dual Loyalty: Physician’s Duties to Patients and Society
Jeremy Graham MA DO FACP, Internal Medicine Residency Spokane,
and Washington State University-Spokane
Discussion Questions:
1. Bennett, the physician of the story intentionally delivers adverse drug effects
upon his patient: What motivates his action?
2. What guidance exists regarding physicians obligation to individual patients, as
versus the protection of a larger society?
3. Bennett departs from the patient-care obligation to discuss truthfully the harms
and benefits of a therapy with Mr. Masterson. What is known of physicians’
knowledge, acceptance, and adherence to ethical standards of prisoners’ care,
as they are encoded by specialty societies?
4. The physician of the story acts in the exam room as if his primary responsibility
was (at least his perception of) the protection of a larger community. What other
forces might similarly cause a physician to face conflict between service to the
individual patient, and another interest?
5. Certain diseases and health problems have become accepted as reasons to limit
an individual’s rights and liberties, in service of the greater society’s needs.
a. What are examples of these?
b. What differentiates these sanctioned limits on individual freedoms, which
have been accepted socially and legally, from the actions the young
physician of the story exerted upon Masterson?
6. What training or guidance materials are available for physicians confronted with
the care of prisoners, and the special circumstances which emerge in their care?
a. Specific to Medical Education, discuss: Do participants perceive Bennet
to be moonlighting in the prison, or is he working there for a sanctioned
resident activity?
b. What governance applies to resident physicians working in this context, or
n any situation outside of their residency program support systems?
c. In this story, Bennett’s practice in the prison is not described with any
relationship to accessible supervision or support or colleagues. Is it
acceptable for him to practice in this setting? At this stage of his career
and training? At any future stage of his career and training?
7. Is the prison population sufficiently different from other practice, that it warrants
its own special training or preparation?
8. How accessible is adequate health care known to be, for imprisoned persons? Is
poor access to healthcare a legitimate feature of imprisonment? What ethical
obligations exist, for clinicians to ensure their care is not an element of
punishment?
BACKGROUND MATERIALS AND EXPLORATORY QUESTIONS:
Discussants have noted that “Opposing and competing obligations to third parties, such
as employers, governments and insurers, often test the devotion that health
professionals are required to give to their patients. Such conflicts are generally
identified as “dual loyalty” issues because the health professional is torn between two
different players which often have different or competing aims and objectives.” (from
http://phrtoolkits.org/toolkits/asylum-detention/background/dual-loyalty/ accessed May
25 2012)
EBM and Population Based Medicine: The growth of evidence-based medicine,
married to the advocacy for best practices, and diagnostic and therapeutic algorithms
aims to deliver the most cost-effective care (with varying degrees of successes and
failures). These efforts intrinsically apply concepts such as pre-test probability and
number-needed-to-treat, which describe population health, to make decisions about
treating the individual patient at the bedside. Consider whether you have seen a time
when an individual patient’s needs diverge from the available evidence-basis?
Military medicine: Physicians in service of governments have long dealt with the
ambivalence of serving both their individual patient and a larger operational capacity, for
instance of a military service. In this context, individuals’ liberties and lives are sociallylegitimized as ultimately expendable in the interests of a larger entity. In some
instances, the best interests of the patients’ wellness might be in conflict with the
service imperative to return a patient to his or her role as a soldier. In what ways does
this compare and contrast with the rights and protections afforded to the
disenfranchised and disempowered imprisoned person?
Physician participation in coercive treatment of prisoners and in capital punishment:
Major medical societies as well as the AMA, hold ethical policies which preclude
physician participation in selecting injection sites, placing IV access, delivering
injections, order the drugs intended to end the prisoner’s life, prescribe tranquilizers to
the prisoner before execution or to use medications to subdue resistance, supervise the
execution, monitor the prisoner during death, pronounce the person dead. Most
positions approximate that of the World Medical Association, which posits that only
certifying the person dead (that is, signing a death certificate) is an acceptable ethical
role for a physician in capital punishment.
However, a survey of 413 responding physicians from the AMA master file found that
among U.S. physicians, 41% would be willing to perform at least one prohibited action,
25% would perform a majority of the prohibited actions. More than a third (36%) stated
they were willing to pronounce the person dead, and nearly one in five (19%) were
willing to actually inject a lethal dose. Importantly, a strong correlate of willingness to
violate these ethical conventions was physicians’ perception “of a duty to society.” The
authors concluded that the medical profession had much more to learn about the ethical
issues surrounding physicians’ participation in capital punishment. (Farber NJ, Aboff
BM, Weiner J, Davis EB, Boyer EG, and Ubel PA. “Physicians’ Willingness to
Participate in the Process of Lethal Injection for Capital Punishment” Annals of Internal
Medicine v135, pp 884-888, 20 Nov 2001.)
In 2008, Marc Stern, MD MPH, resigned from the directorship of the Washington State
prison health system, having learned that drugs for executions were obtained from his
department’s pharmacy. State officials refused physicians’ request that the drugs not be
obtained from a department intended to serve the health of the imprisoned persons. Dr
Stern’s resignation and similar controversies in California, Missouri, Georgia, and North
Carolina in the years immediately before engendered a renewed discussion and
disagreement. Ethicists and policymakers re-examined the boundaries between prison
physicians’ care roles and their intrinsic connection to punishment operations.
PROFESSIONAL SOCIETY ETHICS STATEMENTS ON PRISON MEDICINE:
The American College of Physicians Ethics Manual 6th Edition, specifically addresses
the care of prisoners as a component of Physician and Society. The Ethics guidelines
acknowledges the tension of the Dual Loyalty, and emphasize that the physician’s
ultimate responsibility is to the individual patient:
Physicians must not be a party to and must speak out against torture or other
abuses of human rights. Participation by physicians in the execution of prisoners
except to certify death is unethical. Under no circumstances is it ethical for a
physician to be used as an instrument of government to weaken the physical or
mental resistance of a human being, nor should a physician participate in or
tolerate cruel or unusual punishment or disciplinary activities beyond those
permitted by the United Nations’ Standard Minimum Rules for the Treatment of
Prisoners.
Physicians must not conduct, participate in, monitor, or be present at
interrogations (defined as a systematic effort to procure information useful to the
purposes of the interrogator by direct questioning of a person under the control of
the questioner; it is distinct from questioning to assess the medical condition or
mental status of an individual) or participate in developing or evaluating
interrogation strategies or techniques. A physician who becomes aware of
abusive or coercive practices has a duty to report those practices to the
appropriate authorities and advocate for necessary medical care. Exploiting,
sharing, or using medical information from any source for interrogation purposes
is unethical.
Limited access to health care is one of the most important characteristics of
correctional systems in the United States. Physicians who treat prisoners as
patients face special challenges in balancing the best interests of the patient with
those of the correctional system. Despite these limitations, physicians should
advocate for timely treatment and make independent medical judgments about
what constitutes appropriate care for individual inmates.
TRAINING NEEDS AND RESIDENT PHYSICIANS AS PRISON PHYSICIANS:
Balance between resident physicians’ autonomy and their supervisory and support
needs has shifted over recent decades. Current ACGME guidelines mandate both
limitations of hours, and appropriately-accessible attending faculty support, review of
practice actions, and feedback
In past decades, resident physicians moonlighting outside of work was common; the
hours spent were not accounted for or accommodated in residency programming. If
moonlighting, Bennet’s role at the prison would not necessarily supervised in the current
era, but would be subject to hours limitations. Although indirectly, an outside work
setting would be monitored by a residency program for the impact of outside work upon
his fatigue, well-being and education progress.
Similarly, historical traditions of nearly-unsupervised resident practice have shifted in
recent years to a wide recognition of greater need for academic support, personal
support, and adequate supervision of medical actions and decision-making. If his care
of Masterson is part of an official residency operation, Bennett’s patient-care (and
professionalism) in the prison setting would be reviewed by attending faculty, through
this supervision would not necessarily be physically on-site during all patient visits.
In the current story, there’s no evidence reported of any collegial or supervisory
presence in Bennett’s prison work, and the isolation and lack of support is perhaps an
ingredient in his delivery of problematic medical care and the ethical difficulties he
faces.
Further Discussion: Resident physicians treating the general population receive both
support and supervision; these are regarded as necessary elements to provide quality
care. Is practice upon prison populations (or other vulnerable groups) by not -yettrained physicians appropriate?
http://www.acgme.org/acWebsite/dutyHours/dh_index.asp
https://www.acgme.org/acWebsite/dutyHours/dh-faqs2011.pdf
SELECTED / ANNOTATED BIBLIOGRAPHY
Br Med J (Clin Res Ed). 1984 March 10; 288(6419): 781–783.PMCID: PMC1444628
Prison doctors: ethics, invisibility, and quality R Smith. An older but lucid discussion of
the longstanding ethical conflicts encountered by physicians who care for imprisoned
persons.
When Law and Ethics Collide- Why Physicians Participate in Executions Atul Gawande,
M.D., M.P.H. N Engl J Med 2006; 354:1221-1229 March 23, 2006 A physicianjournalist’s brief history and the current status of physicians’ role in capital punishment,
with narrative interviews of some involved physicians.
United Nations. First Congress on the Prevention of Crime and the Treatment
of Offenders. Standard Minimum Rules for the Treatment of Prisoners.
1955. Accessed at www2.ohchr.org/english/law/pdf/treatmentprisoners.pdf on May 15
2012
The foundational global standards for the treatment of imprisoned persons.
National Commission on Correctional Health Care. Charging inmates a
fee for health care services. 1996; reaffirmed 2005. Accessed at www.ncchc.org
/resources/statements/healthfees.html on May 15 2012. A review and discussion of
the widespread inadequacy to access to care for the imprisoned, the ethical imperatives
to provide fundamental medical care to the imprisoned person, and the limits on
requiring the disempowered to facilitate their own medical care.
Farber NJ, Aboff BM, Weiner J, Davis EB, Boyer EG, and Ubel PA. Physicians’
Willingness to Participate in the Process of Lethal Injection for Capital Punishment.
Annals of Internal Medicine v135, pp 884-888, 20 Nov 2001. Article cited in discussion
above regarding US physician’s perspectives on participation in capital punishment, as
is prohibited by major professional organization standards.
Thorburn, Kim. May;134(5):457-61.Croaker's dilemma--should prison physicians serve
prisons or prisoners? PMID:7257360. An early and robust discussion of whether prison
medical care is to be regarded as a part of the punishment process or as care of
individual persons.
http://www.ama-assn.org/amednews/2009/02/09/prsc0209.htm A medical news review
of the 2008 resignation of Washington State’s chief of prison medicine and the ensuing
and related controversies regarding physician participation in delivering punishment as
contrasted with delivering care. Access June 20, 2012’
http://www.acpinternist.org/archives/1999/07/prisonmed.htm “Once the practice of last resort,
prison medicine rebuilds it image”. A medical news discussion of the changing role of prison
practice into a more recognized and supported practice area. An interview with an ACP fellow
working in a large prison highlights improvements in the practice life of prison physicians, as
well as concerns for future developments in the commercial relationships in both medical care
and corrections operations.
INTERNET AND WEB EDUCATION RESOURCES FOR CLINICIANS WORKING IN
CORRECTIONS MEDICINE
http://www.wma.net/en/20activities/20humanrights/30doctorsprison/
The World Medical Associations’ accredited course on the ethical work of physicians in
prison settings. Delivered in conjunction with the Norwegian Medical Association.
http://phrtoolkits.org/toolkits/asylum-detention/background/dual-loyalty/
A human-rights oriented discussion and resource set regarding the “Dual Loyalty”
problem physicians may face in serving both a social agency, and their individual
patient. Examines the problem physicians may encounter from a perspective of serving
the primary goal of individual rights
http://www.unodc.org/documents/balticstates/EventsPresentations/FinalConf_2425Mar11/Pont_25_March.pdf
A current presentation from The United Nations Organization on Drugs and Crime on
the global standards for ethics in the medical care of prisoners, as delivered by Jorg Pont in Vienna.
RELATED HUMANITIES RESOURCES
Vettese, TE. Judgment. [On Being a Doctor] Annals of Internal
Medicine, 21 August 2012;157(4):296-29. Online at:
http://annals.org/article.aspx?articleid=1351367 AUDIO MP3 at
http://annals.org/data/Journals/AIM/24774/157-4-296_Reading.mp3
A teaching physician confronts the inner dilemmas and social burdens of caring for
prisoners, in personal essay published 15 years after “The Prison Patient.”
Prison Terminal. [FILM] Online at: http://www.prisonterminal.com/resources.html . A 2012
documentary film about a single one of the 3000 persons annually who die in US
prisons, and an end-of-life hospice care program in a maximum-seciurity prison.
Educational resources and discussion guides are made available at the film-makers’
website.
SECTION 2 : USEFUL SOCIAL HISTORY? OR INTRUSIVE VOYEURISM?
Darryl Potyk MD FACP, Internal Medicine Residency Spokane
Should the prison physician have known or had access to the events that lead to
his patient’s incarceration?
Rephrasing the question; should this be part of the social history for incarcerated
patients?
Some prisons forbid the medical staff from knowing the crimes that their patients have
been accused of. (Mental health providers in the referenced facility are exempted from
this restriction)
Was Bennett’s reaction to his patient a result of a flawed individual reacting on an
emotional level?
Was this an abuse of the power? Was it right to try to further frighten the
patient?
Was Bennett being misleading? Were Bennett’s actions noble and was he acting
to protect others?
Framing the arguments:
Physicians in prisons should not have access to this information.
Not having access to this information simplifies the ethical dilemma. Not knowing the
allegations or crimes their patients are accused of allows the medical provider to offer
nonbiased care to the patient. Implicit in this position is that physicians cannot or
should not be trusted with certain information. If we have this information will we be
capable of providing the care that each individual deserves, that is the best care
possible? We are human and prone to making human errors and judgments, having
this knowledge will put us at risk of making judgments about our patients that could
compromise their care or influence the way they are treated as was the case in the story
presented. To say that we should have access to this information and that we are well
enough trained to avoid making judgments is a tremendous ideal for our profession. At
the same time, it fails to acknowledge that we are all prone to our individual flaws and
that our views can become contaminated. It is easy to say that as physicians we will
not make these judgments, but a parallel example with good data already exists, that is
the influence of pharmaceutical representatives on the prescribing habits of physicians.
Even those who state that they are not influenced have been shown to have altered
their prescribing habits. Not only do we all have subconscious biases that affect our
behavior, at times these biases are not recognized and acknowledged.
Another concern about having access to the reasons for a prisoners’ incarceration
pertains to how good this information is. While we want to have faith in our justice
system, there have been an increasing number of highly publicized cases in which it
was revealed either through DNA evidence or recanting of stories that someone has
been wrongly imprisoned. In these highly publicized cases, the prisoner has been
exonerated and released. If we acknowledge our inherent, that is our human,
susceptibility to biases and the untoward effects these biases can have on patient care,
we should not risk compromising the care of our patients based upon data that may be
unreliable.
For these reasons, prison physicians should not have access to or seek to find out the
crimes their patients have been accused of. Some may argue that this approach is too
simplistic and that it simply represents “putting our heads in the sand.” On the contrary,
such an approach acknowledges our own human flaws and allows physicians to serve
those whose care they have been entrusted with and to care for those individuals
without judgment regarding the circumstances that lead them to be incarcerated. This
approach focuses on solely what is best for the patient and the physician is not in a
position of making societal value judgments. This is not the role of the physician but is
for the legal system and the courts to decide. Our job is to offer the patient in front of us
the best possible care.
Note that his argument is predicated upon the provision of adequate safety for the
health care team. Much like universal precautions for blood borne pathogens, safety
precautions in the prison infirmary should be universally applied.
Physicians in prisons need to have access to this information.
Having access to this information allows the provider to put the care in the broader
context – what is best for the patient and best for society at the same time. At times
there can be a tension between population medicine and individual care – balancing the
needs of the individual in front of us in the examination room with those of a larger
sphere. This is part of our daily work and we are all familiar with these decisions.
Examples include antibiotic stewardship and prudent prescribing in order to minimize
antibiotic resistance in the community, denying driving privileges to those with dementia
or a seizure disorder and even mandated directly observed therapy for patients infected
with mycobacterium tuberculosis who are deemed to be unreliable. In each of these
instances, we are advocating both for our patient and the society in which we practice
and reside to the benefit of both.
In order to truly care for these individuals and ensure that we offer comprehensive
primary care, we need to know the context in which our care is being delivered. Having
comprehensive knowledge about the patient enables the physician to make better
decisions about diagnostic and therapeutic interventions. Only by knowing our patients
can we truly care for them and tailor our care to their needs.
Some patients may try to exploit the prison’s medical staff and infirmary with a multitude
of complaints, requests for specific medications and dietary issues. It is important to
know the context in which these requests are being made – both in terms of the
patient’s medical problems, the social situation and conditions within the prison all of
which are contingent upon the reason for incarceration. Without this knowledge, prison
physicians risk practicing medicine in a vacuum. The consequences of practicing in a
vacuum range from non-adherence to taking advantage of the medical system. There
is a distinct hierarchy and culture within our prison system. Subcultures exist along the
lines of gangs, race, crimes – and knowing about these issues, all of which can affect
the healthcare we deliver, can be viewed as providing culturally competent care.
Lastly, only with full knowledge of the reason for incarceration can the medical providers
take necessary precautions in order to ensure their own safety when caring for
prisoners.
The importance of the social history.
Another way to reframe this question is how relevant the social history is or should be.
Generally we think of social history as being important in helping us not only getting to
know our patients but helping to deliver relevant care. As we shift towards patient
centered care, we need to know about them but also know them. But is it possible to
know too much? This question is increasingly being asked in our world of information
overload and ready access to computerized information of all types. Yet we rarely if
ever think that we know too much about our patient. Are there other instances in which
we choose to not know certain information? There is some information that may be
irrelevant but rarely do we choose to ignore information.
SECTION 3 :
PHYSICIANS’ EMOTIONAL RESPONSES TO UNDESIRABLE PATIENTS
Judy Swanson, MD; Internal Medicine Residency Spokane Faculty Group
1. When a physician has a negative emotional response to a patient, whether it is a
patient who engages in socially offensive interactions, criminal behaviors or is
just a “difficult” patient, the consequences can affect both the patient and the
physician. What are some of the behaviors which can arise out of this situation?
a. Considerations as a Physician:
Stepping back into the role of the professional and failure to achieve
empathy in the patient-doctor relationship. This is a self-protective
strategy on the part of the physician which allows for the cognitive care of
the patient’s disease process. However, it fails to recognize that each
patient is an individual. One needs to treat the whole person, and try to
understand what led to the label as a difficult patient in the first place. Can
you truly achieve a physician-patient relationship if you close off your
emotions? Do we deprive ourselves and our patients of a depth of
experience if we disengage emotions, and does this disengagement with
one patient start affecting other relationship?
b. Considerations as a patient:
The patient is morally judged by the physician, which can negatively
impact the patient’s care. How can the patient break out of behavioral
patterns, knowing they are being looked down on? The disease can be
seen as “their own fault” by physicians, and that they don’t deserve the
same level of care that would be given to a patient of a loving and
supportive middle class family.
The physician’s attitude can affect the staff that is also caring for the
patient.
The organization’s attitude can also affect the care of the patient.
If a patient feels that he might be judged, he may not seek medical care.
2. How much does scarcity of time affect the physician’s response to an
undesirable patient? The undesirable patient is typically seen as a “time hog”
and to be avoided in a busy day. If Bennett had more time to talk with the
patient, and develop an understanding of the forces behind the patient’s criminal
behavior (suppose the patient had a history of being molested that had come up
in previous encounters?), could that have influenced his reaction? Does one
need time in order to build empathy?
3. It is easy to understand the emotional response brought on by the patient’s
history of being a child rapist; disgust, anger and horror being common reactions.
One of the categories of undesirable patients that can elicit similar but less
intense responses is that of the obese patient, where the failure to lose weight is
perceived by both physician and patient as a moral failure. If you examine your
reaction to the patient i.e. the physician is self aware of their reaction, does it
make it easier to treat the patient or does it not matter?
4. Bennett had an obvious physical and emotional reaction to the patient. Is there
such a thing as PTSD for a physician after being involved in encounters with
undesirable patients? You have just spent an hour with a drug-seeking patient
and the encounter has gone badly. You dread working with your next drugseeking patient and start trying to avoid encounters with them. This can lead to
easy way outs such as giving in and prescribing them medicine, not return phone
calls and cursory appointments where your hand is on the door the entire time.
What might be some coping strategies for you when encountering this situation?
Further discussion: perhaps looking at why the situation is so painful might help.
Physicians can be perfectionists and a patient that continually fails to get better
with can lead to emotional avoidance of the situation. Perhaps changing your
expectations of the patient might improve your encounter.
5. Undesirable patients are those who do not live up to our expectations of the
physician patient relationship. We expect the patient to trust us, but it is a two
way street and we also build up expectations that the patient will respond in a
certain way to our attempts to help them. In order to achieve the ideal
relationship, do we need to give up our expectations of trusting our undesirable
patients to respond in a certain way?
NAVIGATING EMOTIONAL BURDENS OF PATIENT CARE:
RESOURCES FOR STUDENTS, RESIDENT PHYSICIANS, AND IN PRACTICE:
Anger or judgmental response toward a patient can be a sign of burnout or compassion
fatigue. Trying to overcome these reactions alone can lead to a circular path with no
improvement for either you or the patient.
“In no relationship is the physician more often derelict than in his duty to himself.”
-Wm. Osler, in Dr Johnston as a Physician, Washington Med Ann
1902;1:158-61.
Well-being and self care are themselves legitimate professional needs. It is frequently
appropriate to utilize supportive resources. Specific resources vary by institution.
However JCAHO has mandated that each hospital have an ongoing wellbeing program
for physicians which include residents.
For residents, the residency office and your faculty advisor should be a source of
support information. The medical staff office at your hospital provide resources to you.
County or state medical associations maintain physician well-being committees and
resources.
Teaching physicians and administrative physicians should familiarize themselves with
their community and program resources to facilitate referral and access for colleagues
and trainees .
Find a mentor or colleague with whom to talk is invaluable in medicine. Sometimes,
your peers and colleagues already have informal discussion groups set up that help
address these situations.
Knowing that you one’s feelings towards a patient or problem are a human fact, and can
be steps towards improving the physician-patient relationship.
REFERENCES:
Hill, Terry. How clinicians make (or avoid) moral judgments of patients:
implications of the evidence for relationships and research. Philos Ethics Humanit
Med. 2010; 5: 11.
Groves, James E. Taking Care of the Hateful Patient. NEngl J med 1978;298:883887
Gorlin, R. Physicians’ reactions to patients. A key to teaching humanistic
medicine. NEngl J med 1983; 308: 1059 – 1063.
ADDITIONAL HUMANITIES RESOURCES
Hugo, V. Les Misérables (1862)
SECTION 4: HISTORICAL PERSPECTIVES ON THE MEDICAL RIGHTS OF
PRISONERS
Rachel P Safran MD, Internal Medicine Residency Spokane
1. The provider-patient power dynamic can change based on many variables and is
often taken for granted –Bennett was “impressed by his own unexpected power
and by the transparency of Masterson’s soul.” What practices inform a unique
power differential, when treating prisoners?
- knowledge of the crime committed
- societal designation of inmates as “undesirable” (discussed elsewhere)
- limited choice of provider, particularly given movement restrictions
- presence of custody officials and restrictive clothing/cuffs
2. Although the physician in the story is undoubtedly providing medical care to
Masterson, does his conduct meet the legal standard of care?
There is substantial case law supporting prisoners’ rights to access
adequate health care while incarcerated, unfortunately there is little consensus
as to what qualifies as “adequate” or if providing what some consider a bare
minimum is truly ethical regardless of being legal. One could argue that the
patient in this story’s complaints about erectile dysfunction do not qualify as
“serious” health concerns, and, therefore, the physician is excused from any
negligence. It is not uncommon for physicians to feel the benefits outweigh the
risks of a given treatment and use their position of authority to persuade a patient
to comply without thoroughly considering the patient’s preferences.
Unfortunately, the dynamic between provider and patient in this story is
particularly concerning given the physician’s personal feelings towards the
patient’s sexuality.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0429_0097_ZS.html
Thirty Years After Estelle v. Gamble: A Legal Retrospective J Correct Health
Care January 2008 14: 11-20
a. The Supreme Court held Estelle v. Gamble held that the 8th Amendment
required the federal government, and through the 14th Amendment the
states, to provide medical care to prisoners. The court established a twopronged test to determine an “adequate” standard of care. The test holds
that a prisoners’ right is violated if: 1) prison officials manifest “deliberate
indifference” to prisoners’ medical needs and 2) those medical needs are
“serious”. Accordingly, the test excludes negligence and “deliberate
indifference” to medical needs that fall short of being “serious”.
http://www.law.cornell.edu/supct/cert/09-1233
http://www.aclu.org/files/assets/schwarzenegger_v_plata_acluamicus.pdf
b. Plata vs. Scharzenegger was the largest ever prison class action civil
rights lawsuit where prisoners alleged that the California Department of
Corrections and Rehabilitation (CDCR) inflicted cruel and unusual
punishment by being deliberately indifferent to serious medical needs. The
plaintiffs and defendants negotiated a stipulation for injunctive relief, which
the court approved requiring defendants to provide “only the minimum
level of medical care required under the 8th Amendment.” An evidentiary
hearing revealed the persistence of sub-adequate and “appalling” conditions.
The CDCR was ultimately held in civil contempt and the medical health
care system was placed in receivership.
3. As the field of medicine evolves, so does the practice of how medical research is
performed. The story presented in “The Prison Patient” asks us to think about the
struggle to provide high quality health care for prisoners, but it is important not to
forget about the possibility of providing intentionally poor quality care in the name
of intellectual curiosity. What is the history of medical research in prisons?
From 1913 to 1951, Dr. Leo Stanley, performed a wide variety of experiments on
hundreds of prisoners at San Quentin. Many of the experiments involved testicular
implants, including attempts to implant the testicles of rams, goats, and boars into
living prisoners. In the 1940s, hundreds of Illinois prisoners were submitted to
experimental cases of malaria as medical researchers attempted to find more
effective means to prevent and cure tropical diseases that ravaged Allied troops in
the Pacific after WWII. Researchers employed prisoners as subjects in a multitude of
experiments that ranged in purpose from a discovering the cause of cancer to
testing the effects of a new cosmetic. After the FDA's restructuring of drug-testing
regulations in 1962, prisoners became almost the exclusive subjects in non-federally
funded Phase I pharmaceutical trials designed to test the toxicity of new drugs. By
1972, FDA officials estimated that more than 90 percent of all investigational drugs
were first tested on prisoners. In 1950, Dr. Joseph Stokes of the University of
Pennsylvania deliberately infected 200 female prisoners with viral hepatitis. And the
abuses were not limited to US soil as evidenced by experiments where US
government doctors intentionally infected prisoners in Guatemala with syphilis in the
1940s for research purposes.
"Procedures Used at Stateville Penitentiary for the Testing of Potential Antimalarial
Agents," Journal of Clinical Investigation 27, no. 3 (part 2) (1948): 2-5
Aileen Adams and Geoffrey Cowan, "The Human Guinea Pig: How We Test New
Drugs," World (5 December 1971): 20.
“Guatemala syphilis experiments in 1940s called ‘chillingly egregious’”.
http://www.cbsnews.com/8301-504763_162-20099804-10391704.html
Hornblum, Allen. “Acres of Skin: Human Experiments at Holmesburg Prison : a True
Story of Abuse and Exploitation in the Name of Medical Science.” Psychology Press,
1999.
Washington, Harriet. “Medical Apartheid: The Dark History of Medical
Experimentation on Black Americans from Colonial Times to the Present.” Random
House Digital, Inc., 2006.
Ethical Considerations for Research Involving Prisoners. Washington (DC): National
Academies Press (US); 2007. (Ch. 2: Today’s Prisoners: Changing Demographics,
Health Issues, and the Current Research Environment).
4. How have medical research regulations changed to protect incarcerated
patients?
Prisoners are considered vulnerable research subjects, because of the restrictive
institutional environment. Because they have little opportunity to making meaningful
choices, their autonomy is deemed limited. According to current Human Health and
Services guidelines prisoners may only participate in certain categories of research.
Additionally, special precautions are mandated to ensure that their consent to participate
in said research is “genuinely knowing and voluntary.”
http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.html#subpartc
http://answers.hhs.gov/ohrp/categories/1568
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the exemptions that generally apply to certain types of research involving human
subjects do not apply to research involving prisoners;
in order to approve research involving prisoners, the IRB must find that the
proposed research falls into one of the permissible categories of research;
the institution must certify to the Office for Human Research Protections that an
IRB has reviewed the proposal;
the IRB must include a prisoner or prisoner representative, and meet a
membership requirement concerning the number of IRB members not associated
with a prison involved in the research; and
Secretarial waiver of informed consent in certain emergency research is not
applicable to research involving prisoners.
Permissible categories for research involving prisoners:
- If the study presents no more than minimal risk and no more than inconvenience to the
subjects:
 Study of the possible causes, effects, and processes of incarceration, and of
criminal behavior.
 Study of prisons as institutional structures or of prisoners as incarcerated
persons.
- Research on conditions particularly affecting prisoners as a class (e.g. Hepatitis
vaccine trials)
- Research on practices which have the intent and reasonable probability of improving
the health or well-being of the subject.
An IRB must make seven additional findings in order to approve research involving
prisoners:
1. The research under review represents one of the categories of research
permissible mentioned above;
2. Any possible advantages accruing to the prisoner through his or her participation
in the research, when compared to the general living conditions, medical care,
quality of food, amenities and opportunity for earnings in the prison, are not of
such a magnitude that his or her ability to weigh the risks of the research against
3.
4.
5.
6.
7.
the value of receiving such advantages in the limited-choice prison environment
is impaired;
The risks involved in the research are commensurate with risks that would be
accepted by non-prisoner volunteers;
Procedures for the selection of subjects within the prison are fair to all prisoners
and immune from arbitrary intervention by prison authorities or prisoners;
The information is presented in language that is understandable to the subject
population;
Adequate assurance exists that parole boards will not take into account a
prisoner's participation in the research in making decisions regarding parole, and
each prisoner is clearly informed in advance that participation in the research will
have no effect on his or her parole; and
Where the IRB finds there may be a need for follow-up examination or care of
participants after the end of their participation, adequate provision has been
made for such examination or care, taking into account the varying lengths of
individual prisoners' sentences, and for informing participants of this fact.