Catching the chain: Corrections healthcare, litigation, grow

by • September 1, 2007 • UncategorizedComments Off on Catching the chain: Corrections healthcare, litigation, grow1831

• The Gist: Healthcare for the incarcerated population is an emerging field.

By Jane Grametbaur, RN, CCHP, CLNC

Historical perspective

In the year 1640, 14-year-old Moll Smith steals a loaf of bread. The baker and others who own stalls in the marketplace detain her and turn her over to the sheriff, who remands her to the town jail where she will remain until brought to trial.

Moll has no money to pay the jailer, who earns his salary by charging the prisoners for blankets, food and spirits. The jailer houses her in a large cell crowded with men, women and children, where she sleeps on the dirt floor with no protection from the cold and damp. Moll must sell sexual favors to the male prisoners if she hopes to eat. The room reeks of raw sewage and filth. The ribald shouts of prisoners drunk from gin sold to them by the jailer drown out the moans of the sick and dying.

When Moll goes to trial, no one cares that she has no family, no job and no money with which to buy food. The judge sentences her to whipping at the town crossroads, followed by transportation to the colonies. If she survives the whipping, Moll will be thrown into the dark and fetid hold of a ship, with hundreds of other prisoners. Shackled to another prisoner she will have to fight to survive. If Moll arrives in the colonies alive, she faces brutal guards, appalling working conditions, starvation, disease, hostile natives and a long, slow death.

Moll Smith is a fictional character, but her story is typical for the times. Penalties for crimes were harsh and carried out immediately. Execution for what we would consider petty crimes provided entertainment for the masses. The concept of prison did not exist.

Beginning early in the 17th century the court began to sentence prisoners to transportation to the colonies.

Evolution

In the late 18th century, juries became reluctant to order execution for petty crimes and allowed some prisoners to enlist in the army or navy in order to pay their debt to society. During this period, the idea of reform using various techniques such as solitary confinement became popular. The Walnut Street Jail, constructed in Philadelphia in the year 1790, became the first to segregate prisoners according to age, sex and type of offense. The word “penitentiary” came from the Quaker belief in penitence and self examination as a means of salvation.

In 1821, Auburn Jail was built in New York. The facility had individual cell blocks built to provide the criminal with an environment of rehabilitation. The goal was to separate the criminal from all contact with corruption and to reform him by the use of severe discipline. Prisoners worked as convict labor, ten hours a day, six days a week. The Auburn model influenced the emergence of reform schools and work houses that separated juveniles from adults and vagrants, drunks and petty criminals from those who had committed serious crimes.

The modern era

The days of breaking rocks with sledge hammers, chain gangs and guards with bullwhips are long over. Today we have super-max prisons, cells enclosed with shatter proof glass instead of bars, tasers, restraint chairs and pepper spray. While the structural design of jails and prisons have become high-tech, changes in laws to protect inmate rights have not kept pace.

Until the 1960s inmates had few rights and states were permitted to operate prisons and jails in whatever manner they wished. The precedent for the federal government’s “hands off” stance regarding the operation of state prisons resulted from the court’s ruling on two significant cases.

• In the first case, Pervear v. Massachusetts (1866), the Supreme Court ruled that the Supreme Court “had no standing to interfere with state punishments, not even when 8th Amendment protections against cruel and unusual punishment were being violated. (Pervear was sentenced to three months of hard labor for failure to maintain a state liquor license).

• The second case, Ruffin v. Commonwealth (1871), stated a prisoner “has as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which humanity accords him. He is for the time being a ‘slave of the state.’” The precedent set by these cases remained essentially unchanged until the 1970s.

Since the early 70s there have been multiple cases brought before the courts which have not only changed jurisdiction over the operations of jails and prisons in this country, but have provided guidance for much needed reform. In-depth discussion of all relevant case law would be impossible in this short article, so we will touch upon cases which have had a profound effect on inmate rights.

The right to medical care

It wasn’t until 1972 that inmates were given the right to basic medical care under Newman v. Alabama, when “Federal District Court Judge Frank M. Johnson found 8th and 14th Amendment violations relating to the inadequate medical care and treatment of state inmates, granting declaratory and injunctive relief,” according to the Alabama Sentencing Commissions.

This was followed by Estelle v. Gamble in 1976. Estelle represents one of the most important rulings regarding an inmate’s right to medical care to come out of the 20th century. This case clearly and concisely addresses a number of very important concepts regarding the provision and delivery of medical care to inmates. First and foremost, Estelle states that “indifference to a prisoner’s serious medical needs is cruel and unusual punishment.” The Supreme Court goes on to state, “these elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs. If the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical ‘torture or a lingering death’… This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s medical needs or by the prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.”

Some other important issues addressed by Estelle include:

• A healthcare system must be provided that meets minimum standards of adequacy.

• Reasonable access to medical care is essential.

• Competent, diligent medical personnel will ensure that the prescribed care is delivered.

• The state has an obligation to hire or contract with physicians who meet the minimum standards of competency or diligence.

• The physician cannot have an excessive caseload that would prevent him from providing adequate care, and the practitioner must have adequate facilities in which to practice.

Estelle also clearly states that a complaint of negligence regarding the diagnosis and treatment of a medical condition does not necessarily constitute a valid claim of deliberate indifference, “medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” A serious medical need exists if it is in part “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity of a doctor’s attention.”

Since Estelle, numerous cases have gone to the courts, and judgments regarding mental healthcare and dental care have helped to further define the prisoner’s 8th Amendment rights.

Reform

As these cases were heard by the courts the number of lawsuits filed by inmates exploded. A number of these lawsuits were brought for “frivolous” reasons, such as partially melted ice cream in the cafeteria. In 1996, the Prison Litigation Reform act was signed into law. This act requires that: inmate lawsuits be held to a higher standard, establishes caps on attorney fees, requires proof of an actual violation before a decree or injunction be issued, recommends courts take public safety into consideration and suggests a panel of three judges must agree before any inmate is released by lawsuit.

Developing standards

Around the time that these landmark cases began to progress through the courts, small groups of dedicated correctional healthcare professionals began to meet and develop standards of care to improve the delivery of healthcare to incarcerated inmates. While there are a number of excellent correctional organizations, two were instrumental in developing standards of care regarding the delivery of healthcare in correctional institutions. The American Correctional Health Services Association (ACHSA) is a professional organization for correctional healthcare professionals. ACHSA “serves as a forum for current issues and needs confronting correctional healthcare. It provides education, skill development and support for personnel, organizations, and decision makers involved in correctional health services, thus contributing to a sense of community and creating positive health changes for detained and incarcerated individuals,” according to North Carolina Wesleyan College. In 1991, ACHSA collaborated with the American Nurses Association to develop “The Scope and Standards of Nursing Practice in Correctional Facilities.” These guidelines published by the ANA have been adopted as ACHSA policy.

The other organization that has done an outstanding job of developing standards of care for correctional institutions is the National Commission of Correctional Health Care. NCCHC has not only developed national standards for jails, prisons and juvenile facilities but provides a certification for healthcare professionals and a national accreditation program. NCCHC also has provided position statements on a number of issues including: administrative management of HIV in corrections, charging a fee for healthcare services, correctional healthcare and prevention of violence, and healthcare funding for incarcerated youth.

Career challenges

Health professionals who have chosen the field of correctional healthcare as a career face many challenges.

In 2005, more than seven million people in the U.S. were under some type of correctional supervision. In general, incarcerated individuals tend to be poor and undereducated. Ethnic minority populations are disproportionately represented in correctional institutions. The inmate’s lower socioeconomic status and lack of medical insurance limits access to healthcare services. Inmate lifestyle choices including the abuse of drugs and alcohol, and non-compliance and ignorance all contribute to higher than average risk for heart disease, hypertension, diabetes and mental illness. Because of a significant history of substance abuse, inmates have higher than average rates of infection for human immunodeficiency virus (HIV), tuberculosis, hepatitis B and sexually transmitted diseases.

Correctional medical professionals find it increasingly difficult to provide adequate care and maintain standards as the inmate population rapidly increases, straining available resources. As the criminal population ages, practitioners must deal with increasingly complicated medical and mental health conditions. More and more inmates with serious, debilitating conditions requiring skilled nursing care and hospice care are housed in overcrowded, outdated facilities. Administrators must deal daily with budget constraints, lack of resources and difficulty in hiring and retaining competent staff. Currently, California prisons are in receivership due to their inability to provide adequate healthcare to inmates.

Litigation potential

Potential for litigation involving inmate populations begins from the time of arrest. To effectively work with an attorney on such cases, a legal nurse consultant (LNC) specializing in corrections must have knowledge not only of correctional standards of care, but must maintain a working knowledge of emergency room standards, hospital standards and the standards of care for myriad chronic diseases such as diabetes, hypertension, cardiac disease, neurological disorders, substance abuse and psychiatric disorders. The LNC evaluating correctional cases must be familiar with other issues such as standards of care for communicable diseases like HIV, hepatitis C and TB, and laws regarding exposure and isolation of infected inmates. The LNC who specializes in corrections must be familiar with a wide range of specialties including geriatrics, orthopedics, hospice, infection control, trauma, disaster medicine, long term care, HIPPA and medical administration.

In reviewing correctional cases, the LNC or attorney must look at each facet of incarceration including injuries sustained during the arrest, emergency room care, the intake process and day-to-day care received while in custody as well as upon discharge from the facility to another facility or back to the community. Evaluation of the medical record must also include analysis of issues such as medical autonomy, access to care and timeliness of care.

Future litigation

Future litigation will likely center on issues regarding care of chronic diseases such as diabetes and HIV, issues regarding inmates with disabilities under the Americans with Disabilities Act (ADA), hospice and palliative care, long-term and geriatric care, discharge planning and executions.

In the past 50 years both the courts and the correctional community have worked toward providing the incarcerated population in this country with adequate, timely healthcare. As incarcerated populations continue to grow, the challenges encountered in delivering healthcare will likely become more complicated.

The LNC can be instrumental in applying medical knowledge obtained as a nurse to honestly and objectively evaluate the medical record and to render a fair and unbiased opinion regarding each case. The LNC who accepts the challenge presented by correctional cases provides an invaluable service to both the attorney and to the public. •

Jane Grametbaur, RN, CCHP, CLNC, has 20 years of correctional experience and ten years experience in acute care facilities. She is employed as a senior nurse in one of the largest county jails in the U.S., responsible for more than 6,000 inmates; Jgrametbaurrn@aol.com.

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