Informed Consent and the Refusal of Medical Treatment in the Correctional Setting

See Zalman M. , “Prisoners' Rights to Medical Care,” Journal of Criminal Law, Criminology & Political Science, 63 (1972): 185–99, at 185.

See Ruffin v. Commonwealth, 62 Va. 1024 (21 Gratt. 790) (1871).

See Zalman , supra note 1, at 185.

See Estelle v. Gamble, 429 U.S. 97 (1976). The Eighth Amendment provides that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The courts have long recognized that a competent person possesses the right to refuse treatment. Although debate continues regarding the true scope of this right, it is widely acknowledged as a byproduct of the doctrine of informed consent, which defines as a tort the performance of any medical procedure without patient consent. Justice Cardozo explained the concept in these terms: Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages. Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914). Some courts have found the right to derive from an elusive liberty interest or right of privacy, or otherwise to implicate Fourth Amendment concerns, and they have come to apply the doctrine to grant judicial sanction even to one's refusal of a well-meaning attempt to save his life. See, for example, Natanson v. Kline, 350 P.2d 1093 (Kan. 1960) and In re Yetter, 62 Pa. D. & C.2d 619, 623, 624 (Pa., Northampton County Ct. 1973). It may be fair to say that the rapid emergence of advanced medical technology over the last two decades has provided the main impetus for the modern so-called right-to-die cases (having given medical professionals the ability to sustain life well beyond its natural barriers of time and physics). Perhaps the most widely noted of the recent cases is Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1989).

Washington v. Harper, 494 U.S. 210 (1990).

Riggins v. Nevada, 504 U.S. 127 (1992).

Thor v. Superior Court, 5 Cal. 4th 725, 855 P.2d 375, 21 Cal. Rptr. 2d 357 (1993).

See Harper, 494 U.S. 210.

Id. at 222.

Turner v. Safley, 482 U.S. 78 (1987).

Harper, 494 U.S. at 224.

Id. at 227.

Id. at 225 (citation omitted & emphasis added).

Riggins v. Nevada, 504 U.S. 127 (1992).

See id. at 129.

See id.

Id. at 135 (citations omitted).

See id. at 137.

Id. at 135.

The relevance of this question is underscored by the fact that the majority expressly avoided whether a competent inmate may refuse antipsychotic medication if the cessation would render him incompetent to stand trial. By leaving this question open, the U.S. Supreme Court left for speculation whether the state's “legitimate penological interest” would encompass the inmate's personal safety and well-being, independent of the broader concerns of institutional safety and control. Likewise, would this interest extend to keeping an inmate alive simply to make him stand trial? The Court in Washington v. Harper indicated that the test does not require the state to show a compelling interest or otherwise to establish a heightened standard of scrutiny for the analysis of these issues. Rather, it chose to apply a reasonableness standard, and its inquiry thus far appears to have focused only on the existence of a “legitimate penological interest.”

David Riggins asserted both arguments in support of his motion for an order suspending the forced administration of medications. See Riggins , 504 U.S. at 132.

Thor v. Superior Court, 5 Cal. 4th 725, 855 P.2d 375, 21 Cal. Rptr. 2d 357 (1993).

Thor, 855 P.2d at 380.

Id. at 381 (citations & footnotes omitted).

See Washington v. Harper, 494 U.S. 210 (1990).

See Riggins , 504 U.S. 127.

See Thor , 855 P.2d 375.

See generally, Caldwell A. and Brodie S. , “Enforcement of the Criminal Civil Rights Statute, 18 U.S.C. Section 242, in Prison Brutality Cases,” Georgetown Law Journal, 52 (1964): 706–46.

United States v. Jackson, 235 F.2d 925, 929 (8th Cir. 1956). Other courts have expressed the same conclusion in different language, but with equal conviction. According to the court in Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. 1972), for example: While federal courts have historically been loathe to interfere in the operation of state and local prisons, they have long since recognized that a person entering a non-federal confinement institution does not leave all of his constitutional rights behind him, even though those rights are obviously subject to great curtailment in post-conviction confinement and to a lesser extent in pre-trial confinement. Likewise, the Supreme Court noted, in Turner v. Safley, 482 U.S. 78, 84 (1987), that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” and in Pell v. Procunier, 417 U.S. 817, 822 (1974), that a prison inmate “retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.”

Turner , 482 U.S. at 89.

See, for example, Jacobson v. Massachusetts, 197 U.S. 11 (1905); see also Greifinger R. Heywood N. , and Glaser J. , “Tuberculosis in Prison: Balancing Justice and Public Health,” Journal of Law, Medicine & Ethics, 21 (1993): 332–41.

Although the doctrine of informed consent finds its origin in law, it is ultimately grounded in principles of ethics, and the medical profession has come to recognize it as such. According to Opinion 8.08 of the American Medical Association's Code of Medical Ethics, for example, “the physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice. Informed consent is a basic social policy….” Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics (Chicago: American Medical Association, 1996): at 120.

See infra notes 40–57 and accompanying text.

See, for example, Cruzan v. Director, Missouri Department of Health , 497 U.S. 261 (1989).

The same might be held from a purely legal perspective. See Washington v. Glucksberg, 521 U.S. 702, 725 (1997).

See generally, Dubler N. and Anno B. , Ethical Considerations and the Interface with Custody, In Prison Health Care and Guidelines for the Management of an Adequate Delivery System (Washington, D.C.: National Institute of Corrections, 1991): at 53, cited in Dubler N. , “The Collision of Confinement and Care: End-of-Life Care in Prisons and Jails,” Journal of Law, Medicine & Ethics, 26 (1998): 149–56, at n.23; see also Plotkin R. , “Enforcing Prisoners' Rights to Medical Treatment,” Criminal Law Bulletin, 9 (1973): 159–72, at 159.

See Annas G.J. and Grodin M.A. , The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (New York: Oxford University Press, 1992).

See Stover E. , The Open Secret: Torture and the Medical Profession in Chile (Washington, D.C.: American Association for the Advancement of Science, 1987).

See Klose K. , “A Question of Conscience: The Cases of Alexei Nitikin and Anatoly Koryagin,” in Stover E. and Nightingale E.O. , eds., The Breaking of Bodies and Minds: Torture, Psychiatric Abuse, and the Health Professions (New York: Freeman, 1985): 164–82.

See Hornblum A. , “They were cheap and available: Prisoners as research subjects in twentieth century America,” British Medical Journal, 315 (1997): 1437–41.

See Council on Ethical and Judicial Affairs, supra note 36, at 11, Opinion 2.06.

See notes 40–57 and accompanying text.

See Council on Ethical and Judicial Affairs, supra note 36, at 11, Opinion 2.06.

Louisiana v. Perry, 610 So. 2d 746 (La. 1992).

See Washington v. Harper, 494 U.S. 210 (1990).

The Supreme Court of South Carolina reached the same conclusion in Singleton v. State, 437 S.E.2d 53 (S.C. 1993). Opinion 2.06 of the Code of Medical Ethics proscribes physician involvement in capital punishment: “When a condemned prisoner has been declared incompetent to be executed, physicians should not treat the prisoner to restore competence unless a commutation order is issued.” Council on Ethical and Judicial Affairs, supra note 36, at 11. Professional ethics aside, at least one authority has opined that state medical licensing authorities may not discipline a physician who, in conjunction with an execution, performs an act that state law would limit to physicians. See, for example, Op. Att'y Gen. (1994), available in 1994 Va. AG LEXIS 12.

See State v. Elkins, No. 86,642 (Bossier Parish, La. Nov. 30, 1998). There exists no convincing evidence that such surgical procedures prevent recurrent behavior. See Alexander M. , “Should a Sexual Offender be Allowed Castration?,” British Medical Journal, 307 (1993): 790–93. Yet, the defendant was told to “have proof of the operation being done” before his next scheduled court appearance “or receive the maximum sentence of the Court.” Criminal Case Minutes dated Nov. 5, 1998, State v. Elkins, No. 86,642 (Bossier Parish, La., Nov. 30, 1998). The surgery was performed nine days later, and the defendant thereafter entered a guilty plea to three counts of molestation, in exchange for which he was sentenced to twenty-five years at hard labor. Id. (entry dated Nov. 30, 1998).

In contrast with castration, Kansas has chosen to deal with sex offenders by continuing their incarceration (by civil commitment) beyond their original jail terms. See, for example, Kansas v. Hendricks, 521 U.S. 346, 388 (1997). The involvement of physicians in this process poses its own ethical challenges, because psychiatrists play a role in determining whether continued incarceration is advisable (on grounds of “dangerousness”) and, if so, for how long (by certifying when the offender no longer will pose a threat to society). It has been suggested that this process institutes a parallel system of justice independent of the jury system because the psychiatric determination of continuing “dangerousness” is central to incarcerating the prisoner beyond the term decreed by the judicial process. See Falk A. , “Sex Offenders, Mental Illness and Criminal Responsibility: The Constitutional Boundaries of Civil Commitment After Kansas v. Hendricks,” American Journal of Law & Medicine, 25 (1999): 117–47.

Those decisions turn on the lack of competence: “Competence, the ability to understand and appreciate the nature and consequences of one's decision, is the sine qua non of autonomy in the medical setting.” Annas G. and Densberger J. , “Competence to Refuse Medical Treatment: Autonomy vs. Paternalism,” Toledo Law Review, 15 (1984): 561–95, at 561.

See Council on Ethical and Judicial Affairs, supra note 36, at 77, Opinion 5.05. (“The information disclosed to a physician during the course of the relationship between physician and patient is confidential to the greatest possible degree. The patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication.”).

See Washington v. Harper, 494 U.S. 210 (1990).

A number of commentators have remarked on the distrust inmate-patients and their caregivers have for each other. One authority, for example, observed these facts: In a prison, the state retains the physician, and therefore inmates, who cannot personally choose their doctor, often lack confidence in his skills and sincerity, and may even refuse his treatment. The notion that underlies many malpractice suits, namely that the patient has sought out and retained this particular doctor and therefore is presumed to trust him and assent to his treatment, is absent in institutional cases. Instead, the prison doctor may come to see himself as personally responsible for the prison's medication supplies, … all to be jealously defended against the inmate. … The doctor assumes that every patient is trying to con him, and may resist inmates' complaints. Further, the doctor may find himself making moral judgments which affect his treatment of different patients (particularly in cases of self-inflicted wounds). Plotkin , supra note 40, at 165–66. Nancy Dubler elaborated on this view in the more specific context of the dying patient: In contrast to nonincarcerated patients, inmates do not assume that the system is acting in their best interests. Dying prisoners may not be convinced that the system is acting in their best interests. Dying prisoners may not be convinced that decisions to limit care and permit death have been preceded by the full range of efforts to extend and support life. Sadly, the problem lies not in their unfounded suspicions, but in the accuracy of their assessment. In the nonincarcerated world, one important focus is on preventing overtreatment and inappropriately aggressive care at the end of life. In many correctional institutions, however, it is still necessary to ensure that inmate patients receive intensive care to extend life when that is medically appropriate. Dubler , supra note 40, at 149. Physicians who practice in the free-world managed care environment might be viewed through the same lens of suspicion, both because their patients are required to choose them from a limited list and because their financial well-being varies inversely with the cost of the care they dispense. A physician who practices under a capitated arrangement, for example, could easily come to envision as a potential economic loss any patient who presents himself for care. A salaried physician in the prison system similarly could think of an inmate-patient as demanding his time without offering any corresponding compensation. Further, given the perceived incidence of malingering among prison inmates, the institutional physician might be inclined to see his patients in much the same way as a capitated physician in the free world would see a hypochondriac. Yet, market-driven demands exist in the free world system which, though imperfect in practice, are designed to ensure physician compliance with professional standards of care, thereby rewarding the most efficacious treatment patterns. These demands are translated into economic incentives to which physicians employed in the penal system are not subject.

See Williams v. Vincent, 508 F.2d 241 (2d Cir. 1974). See also Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970); and Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974).

See Thor v. Superior Court, 855 P.2d 375 (1993).

See, for example, Blackburn v. State, 23 Ohio St. 146 (1873).

Quite simply, serious physical illnesses do not discriminate among their victims in terms of whether they live in the free world or in prison, either in terms of the symptoms that manifest themselves physically or in terms of the depression that commonly accompanies a life-threatening malady. See, for example, Sutor B. , “Major Depression in Medically Ill Patients,” Mayo Clinic Proceedings, 73 (1998): 329–37. Yet, although depression might be expected to play a significant role in the decision to refuse treatment in either case, one could only expect the severity of the depression, as well as its effect on treatment decisions, to be compounded in the correctional environment, where a variety of stressors unheard of in the free world come into play. The very nature of the prison experience thus can be expected to heighten the depression that is common to those suffering from similar illnesses under otherwise similar conditions, rendering prisoners more susceptible to making rash decisions to refuse life-sustaining treatments that reasonably could be expected to lead to their recovery or at least to prolong life until the day when their perspective has changed.

See, for example, Dubler , supra note 40, at 151: For inmates, as for many people, terminal illness is a time of great sorrow, loneliness, suspicion, pain, and suffering. The good death—an acceptance of the inevitable and a reconciliation with family and friends, supported by spiritual counselors in a comfortable surrounding—is rarely available inside prison walls. Plans for a good death often run afoul of prison rules and regulations, and are complicated by the structure of the medical care organization, the distance of families, and the barriers to communication and affection that exist in the punitive correctional environment.

The link between hopelessness and self-destructive impulses is well established. See, for example, Beck A. , Depression: Clinical, Experimental and Theoretical Aspects (New York: Harper and Row, 1967).

Dubler raises a variant of this issue in the context of do-not-resuscitate (DNR) orders and living wills: [I]t is very difficult, and in some settings nearly impossible, to distinguish between a refusal and a denial of care. If the inmate fails to arrive for a particular treatment, has he decided not to come or has the corrections officer at the gate denied him access to the medical unit? Has the inmate decided to see a visitor instead of the doctor, or has he/she been sent to an unexpected court appointment? The secluded nature of movement and the disparate power relationships within prisons can combine to permit the exclusion from care of inmates who have not chosen to reject care. This reality must inform the creation of instruments that are used prospectively to refuse care. These documents and the powers they represent are only legitimate if they truly reflect the values and preferences of the inmate and are in no way coerced or imposed by others. … When an inmate authorizes a DNR, the danger is that some member of the care team or the administration has convinced him/her to refuse cardiopulmonary resuscitation when that would not have been the inmate's real choice. Dubler , supra note 40, at 152.

The dysfunctional nature of the relationship between prisoners and their physicians led one authority to argue that “medical personnel should be held to standards stricter than those applied to doctors on the outside.” See Plotkin , supra, note 40, at 165.

Cruzan v. Director, Missouri Department of Health , 497 U.S. 261, 283 (1989) (citations omitted).

Blackburn v. State, 23 Ohio St. 146 (1873).

The significance of this problem is growing as the inmate population grays. The number of inmates who are older than fifty-five years old more than doubled between 1981 and 1990. See, for example, Adams W.E. Jr. , “The Incarceration of the Older Criminal: Balancing Safety, Cost and Humanitarian Concerns,” Nova Law Review, 19 (1995): 465–86, at 469 n.22; and Dubler , supra note 40. This trend is expected to accelerate. See Chaneles S. , “Growing Old Behind Bars,” Psychology Today, 21, no. 10 (1987): at 47, 49. It will subject the inmate population to the same age-related illnesses that their counterparts experience in the free world. In addition to these conditions, which tend to accompany the aging process, acquired immune deficiency syndrome has become a leading cause of death among prison inmates. See Bureau of Justice Statistics, Correctional Populations in the United States, 1995 (Washington, D.C.: Department of Justice, NCJ 163916, June 1997): at 105 tbl. 5.17. As these trends progress and the prison population becomes increasingly older and chronically ill, one may anticipate that the incidence of inmate decisions to refuse life-sustaining care will increase, just as one may expect among the same population on the outside.

See Thor v. Superior Court, 855 P.2d 375 (1993).

See Washington v. Harper, 494 U.S. 210 (1990).

See Riggins v. Nevada, 504 U.S. 127 (1992).

Turner v. Safley, 482 U.S. 78, 84 (1987).

Pell v. Procunier, 417 U.S. 817, 822 (1974).