CorrectCare

Dual Loyalties: Our Role in Preventing Inmate Abuse

By Scott A. Allen, MD, Robert L. Cohen, MD, and William J. Rold, JD, CCHP-A

An inmate comes to your clinic and tells you that a correctional officer on the third shift has been harassing him and others, and at times has struck inmates in the head with a phone book. What do you do?

As you walk through a cellblock on your way to clinic, you see that officers have stripped several inmates to their underwear and placed them in a cell with windows open to the winter air. When you ask one of the officers what’s happening, she tells you she is just “teaching them a lesson.” What do you do?

Punitive Setting
Correctional institutions are punitive by design. Health care professionals have a difficult and important role in this punitive, nonmedical setting. Yet, competing loyalties create a conflict between these professionals’ commitment to their patients’ welfare and their institutional roles and responsibilities.

What is the appropriate response when a health professional witnesses or suspects abuse of an inmate-patient by staff? Can a correctional health professional always just “treat the medical problem” and “leave security issues to the security chain of command”?

Recent allegations of inmate abuse internationally and domestically remind us that health care professionals working in institutional settings can be confronted with situations where they may become aware of inmate-patient abuse, or in some cases become unwittingly complicit in the abuse.

Renewing our familiarity with ethical principles in the care of inmate-patients is essential for all correctional health professionals. This article will address the following issues:

· What is dual loyalty?
· What are the national and international bases for ethical medical practice in correctional settings?
· What is the health professional’s role in use-of-force procedures?
· How should a health professional respond if asked to tolerate, monitor or conceal abuse of an inmate perpetrated by other staff?

The subject of medical ethics is a complicated and nuanced one. This article introduces some basic concepts. Suggestions for further reading are provided below.

Dual Loyalty
Dual loyalty is defined as conflict between professional duties to a patient and obligations, express or implied, real or perceived, to the interests of a third party such as an employer, an insurer or the state.

This conflict of loyalties is a potent and common moral conflict for health care providers in military and institutional settings, and most health professionals who have worked in correctional institutions are familiar with the challenge of balancing their health professional obligations with the missions of security institutions. Dual loyalty conflicts can arise when the health workers’ professional ethics come into conflict with obligations to the institution even when the activities of the institution are perfectly lawful.

Codes of Medical Ethics
Numerous health professional organizations have published codes of medical ethics. Four of the principles that are the basis of most codes of medical ethics have special relevance for our work in corrections and deserve special attention.

· Nonmaleficence: Most health care providers are familiar with the Hippocratic admonition “First, do no harm.” This principle dictates that, at a minimum, health care providers must avoid actions that may cause harm to their patients.

· Autonomy and neutrality: The principle of autonomy in prisons and detention centers dictates that health care workers should have autonomy from nonmedical authorities in making clinical judgments about their patients.

· Primary loyalty to patients: Health care workers have a professional obligation to act in their patients’ best interests, particularly in relieving distress and preserving and restoring health. In general, all other interests are subordinate to acting to preserve and protect their patients’ health. However, this principle is often challenged when it comes into conflict with health care workers’ obligations to nonmedical authorities. This occurs in situations where the institution places competing institutional values above the individual patient’s physical and mental well-being.

· Trust: The practice of medicine is based on trust. Health care workers must strive to honor their patients’ trust. This principle is fundamental in the ethics of preserving confidentiality and obtaining informed consent in correctional settings.

National & International Guidelines
Numerous guidelines articulate basic medical ethics, but those that address the health care worker in prisons and detention facilities deserve our special consideration. Four are described in brief here. See box at right for links to these documents.

· World Medical Association Declaration of Tokyo: Also adopted by the American Medical Association, the Declaration of Tokyo provides clear and explicit guidelines to physicians in preventing torture and cruel, inhuman and degrading treatment of prisoners and detainees. However, the principles also have meaning for other correctional health professionals.

Among the seven enumerated principles are the declarations that physicians shall not “countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures,” regardless of the status, motives or beliefs of the detainee. Physicians are prohibited from facilitating torture, and from “diminishing the ability of the victim to resist such treatment,” and they must not be present when torture is practiced.

The principles go on to assert that physicians must preserve the confidentiality of medical information, and may not use their knowledge or skills to facilitate interrogation, whether legal or illegal. They also must have complete autonomy over the clinical care of their patients. The declaration also addresses physician conduct in the event of a hunger strike, which is beyond the scope of this introductory article.

· United Nations’ Principles: This statement—the full name of which is the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—articulates six principles similar to those of the World Medical Association. To summarize:

Health personnel have a duty to provide prisoners and detainees “with protection of their physical and mental health” with a standard of care comparable to individuals not imprisoned or detained.

Health professionals must not engage “actively or passively” in torture or cruel, inhuman or degrading treatments or punishments.

Health professionals must not be involved in any professional relationship with prisoners or detainees other than evaluating, protecting or improving their physical or mental health.

Health professionals must not apply their skills in a manner that may adversely affect the physical or mental health of prisoners or detainees, and they must not certify their fitness for the infliction of punishments that may adversely affect their health and do not accord with relevant laws.

· American Psychiatric Association and American Medical Association positions: Ethical principles promulgated by the APA state that no psychiatrist should participate directly in the interrogation of persons held in custody by military or civilian investigative or law enforcement authorities, whether in the United States or elsewhere. Direct participation includes being present in the interrogation room, asking or suggesting questions, and advising authorities on the use of specific techniques of interrogation with particular detainees.

Participation in interrogation also is addressed in a new AMA policy, which states that physicians “must not conduct, directly participate in, or monitor an interrogation with an intent to intervene, because this undermines the physician’s role as healer.”

NCCHC Standards
The National Commission on Correctional Health Care has consistently affirmed the components of a policy against torture and other cruel, inhuman or degrading treatment of inmates. NCCHC also recognizes the principle of autonomy.

The Standards for Health Services for adult facilities preclude health staff participation in nonclinically ordered restraint and seclusion, except to monitor health status (I-01), and in the collection of forensic information (I-03). They require the patient’s informed consent for “all examinations, treatments, and procedures” (I-05), recognize the patient’s right to refuse treatment (I-06) and protect inmates as subjects in human research (I-07). Other standards insist on medical autonomy in clinical decision making (A-03), maintenance of health information confidentiality (H-02) and patient privacy (A-09).

The standards also require documentation of patients’ health status at each encounter (H-04), with special attention to the medical and mental health of inmates under close confinement (E-09). Other standards address adequate nutrition (F-02) and a safe and healthy environment, including personal hygiene, hot water, heat, lighting and noise containment (B-02).

These standards approach but do not address directly the dilemma of a health professional who (1) is asked to participate, even indirectly, in abusive control or coercion of an inmate, or (2) witnesses inmate abuse or its medical or mental health consequences.

The NCCHC board of directors is considering draft language relating to the roles and responsibilities of correctional health professionals confronted with abuse, torture or other cruel, inhuman and degrading treatment of inmates. NCCHC also is considering draft language relating to health professional participation in any aspect of interrogation.

Role in Use of Force
Is it appropriate for health professionals to monitor use of force? The idea is tempting, as it appears to be consistent with patient safety. On further examination, however, health professionals are not qualified to monitor use of force for appropriateness and safety, and such a role is inconsistent with medical autonomy and neutrality.

In fact, the presence of health professionals during the application of force has been shown to “ratchet up” force, as security staff feel less need to exercise self-restraint, feeling they can “keep going” until health staff intervene.

On the other hand, given the risk of injury during use-of-force procedures, health care staff do have a duty to respond to any injuries sustained during the application of force. However, the health intervention must be separate and removed from the security procedure.

Avoiding Complicity
So what are health professionals to do if they become aware of possible abuse against an inmate-patient? How should they respond if they are told by custody staff to “stay out of security matters” and “stick to medicine”?

Consistent with the professional ethics described above, health professionals have an affirmative duty to report all allegations of alleged torture and cruel, inhuman or degrading treatment up the chain of command. In most correctional settings, such reporting is encouraged and supported by the institution. However, in some settings, reporting of allegations against staff can be perceived as disloyal.

While confronting witnessed or suspected abuse can present one of the greatest challenges to correctional health professionals, they have a primary commitment to preserve the health and safety of their patients. Confronting abuse is consistent with that role.

While “leaving security issues to security staff” sounds reasonable, health professionals practicing in correctional settings need to understand the legitimacy their profession imparts to the institution as a whole. Even without participating in abuse, medical professionals may become socialized to environments that are permissive of abuse.

Health care professionals who fail to confront acts of abuse inadvertently sustain those environments by the implicit acceptance of these acts, through their silence and through their failure to use their medical authority in defense of their patients’ well-being.

Another form of complicity occurs when health care professionals use their confidential knowledge and clinical expertise to assist in interrogation. Health professionals should not be present in the interrogation room, ask or suggest questions, or advise authorities on the use of specific techniques of interrogation with particular detainees.

Closing Thoughts
This article provides a brief overview of the role of health professionals in confronting abuse in correctional settings. Obviously, as with any real-world ethical conundrum, the issue is complex and nuanced.

The National Commission recognizes the growing need for correctional health professionals to become familiar with the subject. To that end, the NCCHC policy and standards committee is drafting a position statement to address the roles and responsibilities of health professionals in reacting and responding to abuse, torture and cruel, inhumane and degrading treatment of inmates.

— About the authors:  Scott A. Allen, MD, is a clinical assistant professor of medicine at Brown Medical School, Providence, RI. Robert L. Cohen, MD, is a physician based in New York City; he represents the American Public Health Association on the NCCHC board of directors. William J. Rold, JD, CCHP-A, is an attorney specializing in correctional health care law, policy and ethics, and is based in New York City; he represents the American Bar Association on the NCCHC board.

[This article first appeared in the Summer 2006 issue of CorrectCare.]