Upon arrival, J.D. was noted to be minimally responsive. Serum tricyclic antidepressant levels were elevated, but there were no findings of cardiac toxicity. Naloxone and oxygen via face mask were administered, but his mental status deteriorated and he was intubated and placed on mechanical ventilation. Following a fever to 38.7° C and a chest radiograph revealing a lobar infiltrate, treatment for presumed aspiration pneumonia was started.

In the ICU, staff continued all appropriate medical treatment since J.D. lacked the capacity to make treatment decisions and no known surrogate decision makers or advance directives were known to exist.

Almost immediately, state prison officials inquired about J.D.’s ability to return to prison. The attending physician responded that transfer could not occur due to the patient’s unstable medical condition.

The following morning J.D. became agitated and removed the endotracheal tube. Over the next 18 hours, he remained lethargic and tachypneic with an oxygen saturation of 92% while wearing a non-rebreather mask.

During this time, the ICU attending physician received telephone calls from attorneys, state officials and university administrators regarding J.D.’s medical condition.

Twelve hours before J.D.’s scheduled execution, he became alert and less tachypneic, but still required high-flow oxygen. After reevaluation, the ICU physician noted an improvement in his mental status and oxygenation parameters and described the patient as stable for transport with supplemental oxygen. Subsequently, an aircraft transported him to the prison 200 miles away.

Within an hour after arrival, J.D. was executed by lethal injection, administered by nonhealth professionals.

Health Care on Death Row
J.D.’s case typifies the axiom that prison environments, particularly death row, are notoriously difficult settings in which to provide health services. The constraints on practice include limited budgets, difficulty recruiting qualified, motivated health professionals to work behind bars, and the frequently antisocial populations for whom health care must be provided (Schiff & Shansky, 1998). These difficulties are confounded by prisoners’ general lack of autonomy in decision making and the vulnerabilities created by the nature of the prison setting.

Providing medical care to death row inmates is even more difficult because of the perceived hopelessness of their circumstances, and intense security measures, such as leg shackles, handcuffs and constant accompaniment by correctional officers.

All prisoners, however, including those whom society has condemned to die, are accorded with a federal constitutional right to minimally acceptable health care. The U.S. Supreme Court has recognized this right because prisoners are profoundly limited in their choices and are dependent upon prison officials for health care. If prison officials do not provide basic health care, those needs will not be met, something the Supreme Court considers tantamount to punishment that conflicts with society’s “evolving standard of decency” (Estelle v. Gamble, 1976).

A prisoner’s right to health care has been interpreted to include minimally adequate health care, as well as care that is necessary, timely, accessible and physician prescribed. Nothing in this interpretation distinguishes a death row inmate’s right from those of other inmates.

Guidelines for Care
We believe it is possible to create guidelines that strive to honor the health professional’s obligations to care competently and ethically for the death row patient, within the constraints of the criminal justice system.

First, when execution is not imminent and the prisoner-patient requires comprehensive, hospital-based treatment, decisions about the care plan should be the exclusive preserve of the patient’s attending health professionals, who act in accord with the patient’s consent. This includes evaluation, treatment, consultative assistance and follow-up. Medical consultation from the full range of subspecialty care should be made available.

When necessary hospital-based care is completed, the physician should be able to discharge the inmate to a prison unit with the requisite outpatient care. Penological interests related to execution under these circumstances should have little if any practical bearing.

Second, if hospitalization is required but execution is imminent, the authority of a prisoner-patient’s health care professional to provide necessary medical care must still be unencumbered by prison officials. However, the penological interest in execution now intrudes upon a condemned prisoner’s health care, and a clear chain of command and responsibility for resolving competing interests must be established beforehand so that the needs of the prisoner, health professionals and prison officials can be addressed.

In general, nurses and other health professionals should work together with the prisoner’s attending physicians, who in turn should maintain communication with appropriate medical consultants and the medical director of the prison. Hospital administrators should act as intermediaries between prison security and the treating health professionals so that necessary medical care is not unduly handicapped. If necessary, a consultant or committee with expertise in correctional health care ethics should be involved.

Importantly, as with prisoners generally, patients on death row should be allowed to give or withhold consent to all indicated interventions and treatments. If the patient lacks decisional capacity, the physician should act initially to preserve life and restore health, similar to nonprison situations. If the patient remains mentally incapacitated and has created a durable power of attorney for health services or named a legal proxy to make health care decisions, then the appropriate legal provisions that pertain to such circumstances should be observed.

At some point, the recovering patient will have to be returned to prison, but this should not be effected until the discharge has been deemed medically appropriate. Discharges or transfers that require life-sustaining pharmacological or mechanical ventilator support should not be permitted, although simple comfort measures, such as low-flow oxygen or analgesia, are appropriate. Intravenous lines should be maintained only for required medication, and a clear agreement should exist between health care providers and prison officials that such access lines should never be used for lethal injection.

Particularly vexatious in J.D.’s case was the health care team’s disconcerting realization that by declaring him “medically stable” for transfer, the endpoint was not the usual continued medical care and ultimate discharge but his immediate execution. If the patient cannot be medically stabilized by the designated execution date, then the responsible physician should attempt to provide an estimate of the time frame required so that decisions about delaying execution can be facilitated.

Inevitable Conflicts
In summary, John Doe’s case represents a dramatic example of the dilemmas and conflicts that can arise when society’s goals for law, order and punishment clash with the goals of health care providers, particularly when the autonomy and best medical interests of the condemned are at stake. These dilemmas will only continue, since health professionals will continue to provide basic and increasingly advanced medical care for the large number of death row inmates in America.

Ultimately, some criminal justice goals, including the use of capital punishment, can never be fully compatible with the goals of medicine and health care. As a result, prison officials and health professionals will have to continually negotiate their differences over inmate health care, including the care of death row inmates, into mutually acceptable policy and procedure. Even then, some health care standards and their underlying ethical premises are not negotiable, and health professionals should be cognizant of the inevitable conflicts that they may face when prisoners are their patients.

This is an excerpt of an article published in the Journal of Correctional Health Care, Vol. 11,
Issue 1. This excerpt omits discussion of the legal and ethical points that underlie the authors’ recommended guidelines. To purchase a copy of this issue, call (773) 880-1460 or order via our online Catalog.

— About the authors: Eugene V. Boisaubin, MD, Alexander G. Duarte, MD, and Patricia Blair, JD, LLM, RN, CCHP, are affiliated with the University of Texas Medical Branch, Galveston. Boisaubin is with the Department of Medicine and the Institute for the Medical Humanities. Duarte is with the Department of Medicine, Division of Pulmonary & Critical Care Medicine. Blair is with the School of Nursing. T. Howard Stone, JD, LLM, is with the Institute for Bioethics, Health Policy and Law, and the Department of Family and Community Medicine at the University of Louisville, Kentucky.