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Posted on March 2, 2020 at 10:55 AM

In 1976, the
U.S. Supreme Court ruled that jails and prisons must provide medical care to
incarcerated people on the grounds that “deliberate indifference to serious
medical needs” violates Eighth Amendment protections against cruel or unusual
punishments (
Estelle v. Gamble, 429
U. S. 97)
. Prior to this, the only medical care
offered in 65% of U.S. jails was first aid (Steinwald et al. 1973, in Rold
2008). The case, Estelle v. Gamble, made incarcerated people the only
group of Americans other than Native Americans with a constitutionally
protected right to health care. However, because federal law prevents Medicaid
and Medicare from paying for care for “‘inmate[s] of a public institution’”,
most of the cost of jail and prison health care falls to state and county
departments of corrections (42 U.S.C., in Rold 2008, p. 18).  One result is that the quality of what is
often called “correctional care” varies widely across states and facilities.

Because the
U.S. does not have universal health coverage, some correctional institutions end
up serving as medical safety nets for people who have poor access to health
services when not incarcerated (Sufrin 2014). Others offer dangerously
understaffed and/or substandard care (SPLC 2014, Brown v. Plata 563 U.S.
493, 2011). When Estelle was first decided, care in prisons was
offered by clinical staff employed directly by state departments of
corrections. Since then, many states have switched to using private
subcontractors to provide some or all health care delivered inside their prisons
(Pew 2017). All but eight states require a co-pay to see a clinician while in
prison. The average co-pay across all 50 states is $3.47. Although this may
seem like a small amount compared to typical insurance co-pays, it is
equivalent to over 25 hours of paid labor inside prison, where the average
hourly wage is 14 cents per hour (Sawyer 2017).

Estelle v.
Gamble
did not mandate that incarcerated people
receive excellent or even compassionate health care. As I stated above, it held
merely that prisons not show “deliberate indifference to serious medical
needs”. For incarcerated persons seeking to legally assert their constitutional
right to care, this wording means that medical negligence alone is often not
enough for a successful legal claim. Rather, a plaintiff must prove “deliberate
indifference” by prison officials or clinicians. Lower courts have described
“deliberate indifference” as medical care that is so poor or inadequate that it
“shock[s] the conscience” or is “intolerable to fundamental fairness” (Hurst et
al. 2019). Some states have enacted laws or policies setting a higher standard.
For example, Washington state law requires the provision of “medically
necessary” care to people in state correctional facilities (WAC 137-91-010).

Estelle and subsequent rulings established the legal duty to provide health
care for incarcerated persons. But what ethical obligations are owed to
incarcerated patients? In caring for people in jail and prison, we can do
better than the legal minimum standard laid out by the courts. As patients and
human beings, incarcerated people hold the same moral status as
non-incarcerated patients. They should have the same rights to
self-determination (autonomy), treatment in their best interest (beneficence),
protection from harms (nonmaleficence) and fair treatment (justice). However,
in practice, care for people in prison is rarely ethically equivalent to care
provided to free patients because it must be delivered within limitations set
by correctional authorities.

For example, a
number of the rights typically encoded in patient bills of rights, such as the
right to privacy and the right to know one’s own medical records, may not be
honored in correctional settings. Incarcerated people who are transported to
community hospitals for treatment are routinely shackled during their hospital
stay, even at the end of life (DiTomas et al. 2019). Physician autonomy is also
limited in correctional contexts, as recommendations made by medical staff are
routinely reviewed by prison administrators, who usually have the ultimate say.
Given the inherent the inherent values conflict between care and custody it
may, in fact, be impossible to deliver ethically equivalent care within a
context of punishment. But there is certainly room for improvement.

 

DiTomas, M., Bick, J., &
Williams, B. (2019). Shackled at the End of Life: We Can Do Better. The
American Journal of Bioethics
, 19(7), 61–63. 
Sufrin, C. (2014). Jailcare: The safety net of a U.S.
women’s jail
. University of California Press.

Hurst, A., Castañeda, B., &
Ramsdale, E. (2019). Deliberate Indifference: Inadequate Health Care in U.S.
Prisons. Annals of Internal Medicine, 170(8), 563.

Pew Charitable Trusts. (2017). Prison
Health Care: Costs and Quality
(p. 140).

Rold, W. (2008). Thirty years after
Estelle v. Gamble: A legal retrospective. Journal of Correctional Health
Care
, 14, 11.

Sawyer, W. (2017). The steep cost
of medical co-pays in prison puts health at risk
[Briefing]. Prison Policy
Initiative.

SPLC. (2014). SPLC files federal
lawsuit over inadequate medical, mental health care in Alabama prisons
.
Southern Poverty Law Center. Retrieved February 12, 2020, from
https://www.splcenter.org/news/2014/06/17/splc-files-federal-lawsuit-over-inadequate-medical-mental-health-care-alabama-prisons

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