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Abstract

Although imprisonment limits many rights of a person, a prisoner still retains the right to health. Upon imprisonment, the health care for prisoners becomes a State obligation. International guidelines recommend that health care in prison must be administered independently of the reasons for imprisonment and governed by the same medical ethics that exists outside prisons. The minimum standard of care in prison that must be respected universally is the principle of equivalence of care. In this entry, two basic medico-ethical concerns relevant in prison health care are discussed: conﬁdentiality in seeking health care and dual loyalty of medical professionals. The latter includes dual loyalty in difﬁcult situations such as torture, solitary conﬁnement, and hunger strike. Even today, health care personnel in prisons work in conditions where they are unable to respect the basic principles of medical ethics. Resources and conditions to allow these professionals to respect the basic principles are critical and should be provided. Whenever these conditions and resources are unavailable, their lack should be reported. Prisoners are entitled to receive medical care which is equivalent to the care that any other patient who is not incarcerated receives.

Introduction

The number of prisoners has increased in the last decade. It is estimated that a total of 10.2 million persons are incarcerated in penal institutions worldwide (Walmsley 2013). In this entry, a prisoner is any person deprived of liberty and incarcerated in one of the following correctional institutions: remand prisons, penitentiaries, and police stations.

Imprisonment rates vary between different regions of the world as well as within a region. The country with the highest number of prisoners is the United States with 2.24 million imprisoned persons and an incarceration rate of 716 per 100,000 persons (Walmsley 2013). In Europe the average incarceration rate is at 98. In Demark, it is 73 prisoners for every 100,000 inhabitants, while that of Spain is 147.

The prison population includes minority sub groups such as juvenile prisoners, female prisoners, and older prisoners. Female prisoners tend to constitute less than 10 % of the total prison population, according to the International Center for Prison Studies. Among these different subgroups of prisoners, the number of aging prisoners is increasing signiﬁcantly (Human Rights Watch 2012). Furthermore, ethnic and racial minorities are overrepresented in the prison population.

As a closed environment, one of the main goals of a prison is to separate those it incarcerates from the general population. In doing so, it intends to prevent these persons from committing future crimes and thus to limit the danger they pose to society. Prison structures are generally designed for young and healthy persons and do not address the needs of vulnerable subgroups, such as aging prisoners as well as those with health problems.

As such, the prison environment poses an additional burden on the health of different group of prisoners. Furthermore, poor prison conditions, such as overcrowding, insanitary services, imposed promiscuity, poor diet, and limited opportunities to exercise, pose severe challenges to ensuring good physical and mental health.

Both the physical health and mental health of prisoners are found to be poorer than those of individuals of the same age and demographic characteristics in the general population (Fazel and Baillargeon 2011; Wilper et al. 2009). Aging prisoners carry a high disease burden (Aday 2005–2006; Fazel et al. 2001). Psychological health is of great concern among all prisoners because of the stressful prison environment and the inherent characteristics of the prison population itself: prisoners often belong to the lower socioeconomic strata exposing them to poor health behaviors and increasing their chances of suffering from illnesses.

Once incarcerated, prisoners lose the right of free movement and decision-making about their daily life. At the same time, the responsibility of care for these persons is transferred to the prison administration. This means that the State is responsible for answering to the needs of prisoners. It must ensure that adequate health care is provided so that they do not suffer undue harm. Studies have shown, however, that the State often falls short in guaranteeing prisoners’ right to basic care and health. The poor living conditions make prisons an ideal breeding ground for infectious diseases such as tuberculosis, HIV, and hepatitis B and C. Another important health effect of prison life is accelerated aging. Prisoners are reported to age 10–15 years faster than their peers in the general population (Loeb and Abudagga 2006).

In light of the many health problems that prisoners face, this entry will focus on concerns that are directly related to biomedical ethics, that is, on those that pertain to health care provision to prisoners. Thus, this entry ﬁrst presents the standard of health care prisoners should receive in light of existing guidelines. Next, it discusses some of the main ethical concerns that arise in the provision of medical care to prisoners. Criminological questions related to the justiﬁcation of imprisonment will not be covered.

Standard Of Health Care For Prisoners

Universal medical ethics and human rights guidelines stipulate that persons should not suffer unfair discrimination based on legal status or other characteristics, such as gender, age, religion, political opinions, and race (see Council of Europe’s Resolution (73)5 Standard minimum rules for the treatment; United Nations (UN) Standard Minimum Rules for the Treatment of Prisoners; UN for the Protection of All Persons under Any Form of Detention or Imprisonment; UN Basic Principles for the Treatment of Prisoners; United Nations Educational, Scientiﬁc and Cultural Organization (UNESCO) Universal Declaration on Bioethics and Human Rights). Therefore, health care provided to prisoners should be of good quality and at par with what is provided to patients in the general community. These guidelines also underscore that prisoners should have access to primary health care services as well as specialized professionals based on their needs and in a timely fashion. Moreover, health care must be provided to prisoners in a manner that respects their basic human dignity and their rights as individuals and as patients.

Health care personnel working in prisons are expected to implement their roles as care providers in the best interest of the patient by using their best judgment and independently of external loyalties (see European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT Standards)). The standard of care for prisoners is based on the principle of equivalence (see UN Principle of Medical Ethics) which is also the standard principle in European ethical and legal frameworks. It is explained in detail in the Council of Europe “Recommendation No. R (98)7 of the committee of ministers to member states concerning the ethical and organisational aspects of health care in prison.” The recommendation has the status of a “soft law.” It demands that health care provided to prisoners is equivalent to what a non-imprisoned person receives as part of the national health policy. It also underscores that the doctor-patient relation in prison should be guided by the same standard of professional ethics which is in force outside prisons. This means that a prisoner-patient has the same autonomy rights, such as informed consent, medical conﬁdentiality, freedom of choice and decisions, and the right not to be harmed, as those that apply to the general population (see CPT Standards; UN Principles of Medical Ethics; UN Basic Principles; World Medical Association (WMA) International Code of Medical Ethics). The World Health Organization in its Health in Prisons Programme also points out that equivalence of care includes a minimum level of care that prisoners should receive. This standard has been incorporated in professional recommendations of organizations such as the Swiss Academy of Medical Sciences and the Australian Medical Association.

Irrespective of this minimum standard of health care, prisons fail to adequately address the care needs of inmates (Fazel et al. 2004; Wilper et al. 2009), and the principle of equivalence of care is not met. This raises the question as to how health care professionals should act if they notice the noncompliance with ethical standards. Should medical associations prohibit physicians from working in such unethical conditions and therefore increase the pressure on the State to adapt the conditions or should they try to avoid the worst consequences for prisoners and do their best in unethical conditions? It is important also to point out that several scholars state that the equivalence standard may be misleading as it cannot properly respond to the complex health care needs of prisoners (Niveau 2007; Jotterand and Wangmo 2014). These observations are in part the result of the fact that there is no clear deﬁnition of equivalence of care within the prison context. Still, despite these doubts, this principle remains the most widely accepted minimum standard of care that prisoners must receive.

Medical Ethics In The Care Of Prisoners

Prisoners are not different from any other patient in the medical care context, and the place where the physician cares for his patients should not affect medical ethics. According to the WMA Declaration of Lisbon as well as UNESCO Universal Declaration on Bioethics and Human Rights, patient rights apply to prisoners as well. These basic medical rights include, among others, the right to autonomy, ability to provide informed consent, right to their information being kept strictly conﬁdential, right not to be harmed by the health care personnel, and health care personnel working on their best interest. However, the inherent prison context exerts speciﬁc threats to these rights. This is particularly true when physicians providing mental health care are asked to also provide expert opinion on their patients to the judicial authority. Such a situation brings forth two critical ethical concerns: breach of conﬁdentiality and dual loyalty. Health care personnel working in correctional settings must be particularly sensitive to those violations of patient rights and prevent them actively. Furthermore, physicians must be vigilant not to confound the roles of a treating physician with that of an expert witness. Finally, with a number of limited resources available in prisons, health care professionals may not be able to address each single prisoner’s need, thus bringing forth the issue of inadequate care. These medico-ethical situations that are characteristic of the prison context are discussed below.

Confidentiality

Ensuring that medical conﬁdentiality is upheld in the prison is highly important for the doctorpatient relationship. International guidelines such as the CPT Standards and WMA International Code of Medical Ethics conclude that prisoners should enjoy the same medical conﬁdentiality as any other patient. In prison the trust relationship is based upon the belief that the (sensitive or incriminating) information that prisoner-patients share with their physicians will not be transmitted to others. However, in certain situations, conﬁdentiality is breached without the consent of the patient (Pinta 2009). In these cases, it is recommended that the breach of conﬁdentiality is limited, justiﬁed by medical ethics, required by law, and that patients are informed about it (Appelbaum 2002). This recommendation has been endorsed by professional organizations such as the World Psychiatric Association and the Royal College of Psychiatrists. They state that breach of conﬁdentiality is justiﬁed if required by law, if it applies in the same way to prisoners and non-prisoners, and if breaches occur to curb danger to third parties.

Prisoners suffer from many acute and chronic health problems, including transmittable diseases and mental health disorders. Their health status may undermine their rights in prison to equal treatment and freedom from harm and violence. Knowledge that someone suffers from a stigmatizing disease such as HIV-AIDS or a serious mental health disorder can lead to discrimination from both the prison staff and other inmates. The discrimination, subtle and obvert, could result in feelings of isolation if other prisoners do not wish to communicate or be in the company of the affected person or even lead to violent reactions including murder. In the case of infectious diseases and communicable illnesses, it is important not only to prevent other non-concerned persons from accessing medical information but also to make sure that such information is not obvious and cannot be deduced by other types of avoidable behavior. For example, when medications are dispensed by prison staff and the names of the medications are clearly announced or if it is known that a certain size or color of the medication denotes certain diagnoses, it is the obligation of health personnel to make those signs less obvious and to ﬁnd solutions to protect conﬁdentiality adequately.

Considering mental health illness, a prisoner may disclose information about crimes and fantasies that may include (past or future) harm to third parties. A Swiss study with mental health professionals concerning conﬁdentiality in prison highlighted that several of these professionals were uncertain when conﬁdentiality should be breached (Wangmo et al. 2014). From an ethical and legal point of view, an assessment as to whether the new information changes the risk evaluation and implies important harm to others that cannot be averted otherwise than by violating conﬁdentiality was correctly identiﬁed as the most important factor to justify not maintaining medical conﬁdentiality. The same study also found that prisoner-patients were informed that conﬁdentiality rules did not apply in the case of expert consultation where the mental health therapy was court-ordered (Elger et al. 2015).

The dilemma arises as to what should be the standard process of informing prisoners about the limits to conﬁdentiality. Routinely informing patients that shared information regarding actions that could harm another person or the patient himself will not beneﬁt from conﬁdentiality rules could compromise the mental health treatment the patient is seeking (Elger et al. 2015). If the past crime of the patient is very much linked to the treatment sought and if disclosing them means further incarceration, it is unlikely that a prisoner-patient would disclose such information (Wangmo et al. 2014). This in turn means that those patients may never get the indicated therapy (which is itself a prerequisite to treat the underlying mental disease and to avoid future harm) since the health care professional remains ignorant of all facts. Thus, a well-argued and evidence-based balance is needed between the right of third persons not to be harmed and the prisoner’s right to health care.

Dual Loyalty

In the example discussed above, mental health professionals reported informing their prisonerpatient that in the case of a court-ordered therapy, everything that is discussed will be transmitted to the responsible organization (Elger et al. 2015; Wangmo et al. 2014). Such a direct approach makes it explicit that the loyalty of the physician lies elsewhere. All prison physicians working as therapists must be transparent and explain to their prisoner-patients that their well-being is their main goal as stipulated by medical ethics. At the same time, physicians working in detention facilities have to respect the security rules of the prison. This means that health professionals are often caught between the need to maintain conﬁdentiality toward their patients and the pressure by the justice system or the State to respect the laws (International Dual Loyalty Working Group 2002).

In cases where physicians accept the role of an expert witness, the change of loyalty has to be made transparent to the prisoner who is no longer their “patient” but the person to be examined at the request of third parties, in this case the judicial authorities (Konrad 2010). This is one of the difﬁcult cases of dual loyalties where a treating physician is expected to provide information to the judicial authorities as part of mandatory treatments. Such situations require clear rules. The Council of Europe’s Recommendation No. R(98)

7 states that physicians carrying out a therapeutic role in prisons have the ethical obligation to refuse forensic evaluations of their prisoner-patient’s health to determine his or her dangerousness or the ability to stand trial. If no other physician is available and the patient actively requests the treating physician to make an expert statement, they may do so, but it should be clear to the patient what the consequences could be. The reasons for refusing to be an expert witness are multiple. First of all, evaluations of dangerousness need expert knowledge that goes beyond the general knowledge of a treating physician and should remain in the hands of speciﬁcally trained physicians. Second, treating physicians have a role conﬂict of obligations, as the primary goal to act for the beneﬁt of their patients contradicts the role of an expert to provide impartial evaluation.

In order to avoid as well as reduce situations of dual loyalty, it is further recommended by the Council of Europe’s Recommendation No. R(98) 7 that prison physicians are independent and not employed by the justice and police departments. If the independence of health care personnel is guaranteed, prison physicians are able to respect the same ethical and legal framework as their colleagues outside correctional setting. To ensure that health care personnel who treat prisoners have the best interest of their patient at the fore, in addition to the recommendations of the Council of Europe, various guidelines underline the signiﬁcance of professional independence (see CPT Standards; UN Principles of Medical Ethics). Discussed below are three situations of dual loyalty more in detail since they are unique to the prison context.

Participating In Torture

In some countries, health professionals are asked to conduct a health assessment of a prisoner in order to carry out torture. In these instances, the physician is demanded to perform the task as required by the State who is in most cases the physician’s employer. Irrespective of what is asked from physicians, the British Medical Association underlines that medical ethics dictates that physicians refuse tasks that are not compatible with the goals of medicine. Health care providers should never become party to violations of human rights and participate in any treatments of torture or humiliating practices against a prisoner (see International Dual Loyalty Working Group 2002; UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment). In order to ascertain that physicians act according to their Hippocratic Oath of do no harm, the WMA Declaration of Tokyo “Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment” states that physicians should not participate in torture and provide any information or tools to facilitate torture. This declaration, again, underpins the need for complete clinical independence of doctors in order to provide the appropriate health care to their patients. The need for better training of doctors in medical ethics becomes apparent if one looks at the history of human rights violations where health personnel participated actively. A recent example of doctors aiding in the process of torture and inhuman acts against prisoners is from Guantanamo Bay (Miles 2007).

Certifying Solitary Confinements

Solitary conﬁnements are used in many jurisdictions as a measure to punish, discipline, or interrogate a prisoner. The European Committee for the Prevention of Torture ﬁnds it medically, ethically, and legally questionable whenever prisoners are held in such conﬁnements. It thus “pays particular attention to prisoners held, for whatever reasons (for disciplinary purposes; as a result of their “dangerousness” or their “troublesome” behaviour; in the interests of a criminal investigation; at their own request), under conditions akin to solitary conﬁnement” (see CPT Standards, p18). In light of the harm that such a conﬁnement can do to the mental and physical health of a prisoner, it argues that solitary conﬁnement should be proportional and that medical examination of the prisoner must be done without delay to record the health of the prisoners and to present the consequences of continued conﬁnement. Furthermore, the European Committee for the Prevention of Torture goes on to state solitary conﬁnement could amount to inhuman and degrading treatment in some circumstances. Hence its duration must be limited. Physicians in no means should be involved in declaring a prisoner “ﬁt” to be kept under solitary conﬁnement or “ﬁt” for continued conﬁnement (see Council of Europe Resolution (73)5 Standard minimum rules for the treatment of prisoners).

Hunger Striking Prisoners

Hunger strikes are used by prisoners for political or personal reasons as an expression of discontent or as a means to gain certain outcomes (Andorno et al. 2015; Sebo et al. 2004). When a hunger striking prisoner dies, it not only draws negative media attention but also raises important issues related to the respect of human rights. Thus, prison administrations in their attempt to avoid the death of an inmate may wish to use force-feeding and may seek the aid of the physician in doing so. The WMA Declaration of Malta on Hunger Strikers states that physicians must respect the informed decisions made by the prisoner. The issue of informed consent is crucial in these situations because medical ethics requires respect for a detained patient in the same way as for any other patient. The duty of the physician in these cases is to ensure that the hunger striking prisoner is competent and understands the consequences of food refusal. Physicians should take sufﬁcient time to understand the motives and wishes of the prisoner and ensure that he or she has given valid informed consent and was not under any sort of duress when doing so. If the physician is uncomfortable accepting the decision of his patient, the prisoner should be referred to another physician who is able to respect the autonomous choices of the patient. In any case, force-feeding a competent patient in response to the request of the prison administration is not compatible with medical ethics. Respect for human rights and ethical sensitivity are also required when health care personnel is asked to intervene in the case of hunger striking prisoners (Andorno et al. 2015; Sebo et al. 2004). Force-feeding when there is an explicit valid informed consent not to do so amounts to inhuman and degrading treatment and unauthorized invasion of the private space.

Reacting To Inadequate Care

How should health care professionals react to the fact that many prisons fail to address the care needs of prisoners? In light of the lack of adequate living conditions, basic health care, respect for patients’ rights, and human dignity, international “soft law” and ethical guidelines claim that it is the duty of the State to ensure prisoners a minimum standard of care (see UNESCO Universal Declaration on Bioethics and Human Rights). That means access to care at any time and a standard of care that is equivalent to the general population (see Council of Europe Recommendation No. R(98) 7; CPT Standards). Individual health care personnel has the duty to inform prison authorities about the shortcomings – either with the consent of individual patients or providing generalized descriptions – and to denounce any violations of the principle of equivalence to their medical hierarchy and to professional organizations. The latter have, until today, not always taken up their responsibilities to stand up for medical ethics in correctional medicine. For example, the American Medical Association, in contrast to medical associations in other countries, does not recognize the principle of equivalence of care in prisons. Medical associations should follow the widely known guidelines of the British Medical Association and intervene actively in the case where individual physicians ﬁnd themselves working in unethical conditions.

Conclusion

A prisoner is a human being whose right to move freely and to make certain choices has been restricted. However, a prisoner retains the right to health. Health care for prisoners must be administered independently of the reasons for imprisonment and governed by the same medical ethics that exists outside prisons. The minimum standard of care in prison is the principle of equivalence of care. This standard should be applied universally. Unfortunately, besides the many examples from the past, health care personnel in prisons are often forced to work in conditions where they are unable to respect the basic principles of medical ethics. This shows not only that physicians working with prisoners often lack the appropriate ethical knowledge but also that they do not get enough support from professional organizations. Resources and conditions that would allow health care professionals to respect the basic principles are critical and should be provided. Whenever these conditions and resources are unavailable, their lack should be reported. Hence, transparency and both individual and professional courage are needed to expose existing ethical and human rights violations. The aim is not to blame single practitioners working in prisons for failing to proceed according to set standards. All health care personnel are responsible for educating their peers, the general population, and policy makers. They are also responsible to actively support the respect for the health care rights of every patient, including prisoners.

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