Decision Making Tools

Yes.  It is imperative that clinicians be aware of and support the rights of persons in custody, which include the right to make their own medical decisions (to accept or decline life-saving interventions).  There are notable exceptions to this statement, including cases of suicidal intent or decisional incapacity. If the patient lacks decisional incapacity, the patient’s legally authorized surrogate can engage in these decisions on their behalf, in accordance with the laws of the state in which the patient is receiving medical care.  

If, in the opinion of the clinician, the patient has decisional capacity, it is appropriate to engage in advance care planning (conversations about values and preferences for serious illness and end of life care).  Additionally, clinicians should offer incarcerated patients the opportunity to complete advance directive and POLST (physician orders for life-sustaining treatment) documents, particularly if the patient is approaching the end of life and/or expresses a preference to limit intervention.  Clinicians should help the patient complete official state advance directive forms or POLST forms, as they would do for any other patient.  In addition to adding these forms into the medical record, a copy should be provided to the referring prison/jail.  

References:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8083072/

Yes.  The incarcerated person has the right to direct their own medical care (right to self-determination in health care).  This includes the right to decline life-saving interventions.  It is not the role of medical professionals to sustain the life of the incarcerated patient – against their will – so they can serve their full sentence.  

If an incarcerated person is transitioning to comfort measures, the medical team should update the medical director of the jail or prison so that an appropriate setting for end-of-life care can be selected.  This will depend on the capabilities of the institution; some are able to provide hospice care. The physician can also inquire about compassionate release (whereby a person is released from custody because of a terminal diagnosis) for their patient. Compassionate release programs differ depending on where the patient is in custody.  If the patient has a hospice-eligible diagnosis, it is appropriate to speak with the medical director of the patient’s institution (e.g., jail or prison).  That individual can inform the medical team of the eligibility criteria and procedural specifics. 

References:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8083072/

Yes, out of respect for patient privacy, compassion, and health care confidentiality, it is appropriate to respectfully request this accommodation of LEO present at the bedside.  If they decline, medical team members may call the LEO supervisor (shift commander or watch commander) to state the reasons for their request.  It is important for the medical team to advocate respectfully and collaboratively with law enforcement, acknowledging that there may be security considerations that are not known to the clinical team. If there are, it is appropriate to ask the LEOs to explain the concerns.

References:

https://www.law.georgetown.edu/health-justice-alliance/wp-content/uploads/sites/16/2021/05/Police-in-the-ED-Medical-Provider-Toolkit.pdf

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

Yes. However, they should check with the medical team about the appropriate time for a visit. If the patient has just received distressing news, is critically ill, or they lack decisional capacity, you should work with the law enforcement officers to find an alternate time.

No, incarcerated persons retain autonomy over their health care.  Importantly, this includes surrogate decision making, as an extension of the autonomy of patients who lack the capacity to make a medical decision themselves.  Laws for appointing surrogate decision makers vary by state and can even differ within a state depending on whether the person is detained in a municipal, state, or federal institution.  If a LEO questions the appropriateness of a surrogate chosen by the patient’s family, they should advance and explain these concerns to the medical team. 

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

No. Information that could be used to identify a patient, or details about their health status (including discharge plan), constitutes protected health information (PHI). Protected health information (PHI) remains protected, regardless of whether or not someone has been arrested, charged with, or been convicted of a crime. Individuals can request or deny disclosure of their PHI to others. Additionally patient rights to privacy are protected by laws and statutes that could be violated if PHI is shared outside of specific contexts and without patient or surrogate consent, exposing the provider (not the law enforcement official requesting the information or the health care system) to legal risk. If there is concern that individuals are being prevented from controlling the disclosure of their own PHI, without a subpoena or court order, then health care practitioners should consider contacting their supervisor or the law enforcement officials’ supervisor (a watch or shift commander) for verification.

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

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Visitors to correctional facilities are subject to searches of their body and belongings without probable cause. However, visitation policies to medical facilities are typically set by the individual medical facility. Hospitals, whether public, private, or government-based, have the right to create and enforce security protocols, including visitation restrictions, that actively identify and mitigate potential threats to patients and staff. However, law enforcement officers (LEOs) with probable cause can authorized to search a patient or visitor’s body or belongings in order to ensure patient, health care provider (HCP) and LEO safety. Providers must make themselves aware of hospital or facility security policies regarding visitation as these guide most visitation rights while patients are receiving care. In the absence of hospital policy or justified and well-articulated concerns about patient and/or staff safety (probable cause), it is legally questionable whether a LEO could treat a hospital room like a jail or prison and enforce searches of all visitors prior to entering the patient’s room. Such a practice could intimidate or coerce visitors and, in the case of patients with impaired decision making, could limit care conversations, further eroding trust between surrogate decision makers and HCPs. Concerns about unnecessary or inappropriate limitations on patient visitation should be directed initially to hospital or facility security to verify that these policies are outside of hospital or facility policies. If so, then hospital or facility security should communicate with the law enforcement agency with jurisdiction over the hospital or facility to ensure that additional limitations on visitation are necessary due to concerns about staff or patient safety. If there is disagreement about procedures while in the hospital, HCPs should consider contacting their supervisor or the LEOs' supervisor (a watch or shift commander) for verification. If the disagreement remains, the local law enforcement agency would likely need to obtain a court order to impose additional limitations.

Information that could be used to identify a patient, or details about their health status (including discharge plan), constitutes protected health information (PHI). Protected health information (PHI) remains protected, regardless of whether or not someone has been arrested, charged with, or been convicted of a crime. Individuals can request or deny disclosure of their PHI to others. Additionally patient rights to privacy are protected by laws and statutes that could be violated if PHI is shared outside of specific contexts and without patient or surrogate consent, exposing the provider (not the law enforcement official requesting the information or the health care system) to legal risk. If there is concern that individuals are being prevented from controlling the disclosure of their own PHI, without a subpoena or court order, then health care practitioners should consider contacting their supervisor or the law enforcement officials’ supervisor (a watch or shift commander) for verification.

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

No, information that could be used to identify a patient, or details about their health status, constitutes protected health information (PHI). PHI remains protected, regardless of whether or not someone has been arrested, charged with, or been convicted of a crime. Additionally patient rights to privacy are protected by laws and statutes that could be violated if PHI is shared outside of specific contexts and without patient or surrogate consent, exposing the provider (not the LEO requesting the information or the health care system) to legal risk. If there is concern that PHI is being requested inappropriately by LEO, without a subpoena or court order, then HCP should consider contacting their supervisor or the law enforcement officials’ supervisor (a watch or shift commander) for verification.

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

‍No, information that could be used to identify a patient, or details about their health status, constitutes protected health information (PHI). PHI remains protected, regardless of whether or not someone has been arrested, charged with, or been convicted of a crime. Additionally patient rights to privacy are protected by laws and statutes that could be violated if PHI is shared outside of specific contexts and without patient or surrogate consent, exposing the provider (not the LEO requesting the information or the health care system) to legal risk. If there is concern that PHI is being requested inappropriately by LEO, without a subpoena or court order, then HCP should consider contacting their supervisor or the law enforcement officials’ supervisor (a watch or shift commander) for verification.

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

Depending upon individual state laws, surrogate decision makers should make decisions about organ donation if the patient has not already stated a preference.  

It is worth noting that disposition of the patient’s remains may be complicated by their carceral status.  In many penal systems autopsy is mandatory for all patients who die in custody.  This would include patients who become organ donors. 

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Compassionate release/medical parole programs (whereby a person is released from custody to a nursing facility or to family because of a terminal diagnosis or incapacitation) differ depending on where the patient is in custody. If the patient has a hospice-eligible or terminal diagnosis or is significantly disabled, it is appropriate to speak with the medical or nursing director of the patient’s institution (e.g., jail or prison). That individual can inform the medical team of the eligibility criteria and procedural specifics. For more information about compassionate release programs for your state, click here and here. You can also contact the Medical Justice Alliance at info@medicaljusticealliance.org for more guidance and to connect with patient advocacy groups in your area.

References:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10141511/#:~:text=Compassionate%20release%20is%20a%20process,needs%20or%20significant%20functional%20decline.

Providers must make themselves aware of hospital or facility security policies regarding visitation as these guide most visitation rights while patients are receiving care. In the absence of hospital policy or justified and well-articulated concerns about patient and/or staff safety (probable cause), it is legally questionable whether a law enforcement officer (LEO) could treat a hospital room like a jail or prison and enforce searches of all visitors prior to entering the patient’s room. Such a practice could intimidate or coerce visitors and, in the case of patients with impaired decision making, could limit care conversations, further eroding trust between surrogate decision makers and health care providers. Concerns about unnecessary or inappropriate limitations on patient visitation should be directed initially to hospital or facility security to verify that these policies are outside of hospital or facility policies. If so, then hospital or facility security should communicate with the law enforcement agency with jurisdiction over the hospital or facility to ensure that additional limitations on visitation are necessary due to concerns about staff or patient safety. If there is disagreement about procedures while in the hospital, then the local law enforcement agency would likely need to obtain a court order to impose additional limitations.

There is likely no circumstance under which a LEO is authorized to change the code status of a patient.

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No, information that could be used to identify a patient, or details about their health status, constitutes protected health information (PHI). PHI remains protected, regardless of whether or not someone has been arrested, charged with, or been convicted of a crime. Additionally patient rights to privacy are protected by laws and statutes that could be violated if PHI is shared outside of specific contexts and without patient or surrogate consent, exposing the provider (not the LEO requesting the information or the health care system) to legal risk. If there is concern that PHI is being requested inappropriately by LEO, without a subpoena or court order, then HCP should consider contacting their supervisor or the law enforcement officials’ supervisor (a watch or shift commander) for verification.

References:

https://www.law.georgetown.edu/health-justice-alliance/wp-content/uploads/sites/16/2021/05/Police-in-the-ED-Medical-Provider-Toolkit.pdf

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

No, it is not appropriate for HCP to inquire or search for information about why a patient is in custody.  In our opinion, seeking out a patient’s criminal history is a violation of professionalism and is unethical.  This extends to looking for newspaper reports or searching the Internet for information about the crime for which they are in custody.  

However, if it is relevant to your care of the patient, you may wish to ask your patient how long they have been in custody and what their anticipated release date is.  If the patient is incapacitated, you may call the jail or prison and direct the question to a medical staff member.  These questions could become relevant to patient care if you were considering starting a new therapy, or determining whether an evaluation should happen during the patient’s hospitalization or as an outpatient at a later date.  

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No, information that could be used to identify a patient, or details about their health status, constitutes protected health information (PHI). PHI remains protected, regardless of whether or not someone has been arrested, charged with, or been convicted of a crime. Additionally patient rights to privacy are protected by laws and statutes that could be violated if PHI is shared outside of specific contexts and without patient or surrogate consent, exposing the provider (not the LEO requesting the information or the health care system) to legal risk. If there is concern that PHI is being requested inappropriately by LEO, without a subpoena or court order, then HCP should consider contacting their supervisor or the law enforcement officials’ supervisor (a watch or shift commander) for verification.

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

It is appropriate to respectfully ask LEO whether they must remain in the exam room during personal cares or sensitive exams or whether they can step outside the room.  LEO (and their supervisors) may determine that their continued presence is lawfully justified, however unless there is a legitimate law enforcement reason, such as violent patient or threats, or if patient consents, they do not have to stay.  If LEO remain in the room, or if the care team prefers their ongoing presence for safety, it is important to request that LEOs turn away from the patient and remain quiet.  

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

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Only matters of direct relevance to the patient’s medical care belong in clinical documentation.  The fact that a person is incarcerated is relevant to their health and is therefore appropriate to include.  The duration of a person’s time in custody may be relevant and may also be appropriate to include.  The criminal history of a person is not related to their medical care and is potentially prejudicial to clinicians who read this information. However, certain medical systems may include behavioral flags or other warnings in the medical chart of the patient if crimes (such as assault or stalking) were committed against healthcare staff.

• To report PHI to a law enforcement official reasonably able to prevent or lessen a serious and imminent threat to the health or safety of an individual or the public.

• To report PHI that the covered entity in good faith believes to be evidence of a crime that occurred on the premises of the covered entity.

• To alert law enforcement to the death of the individual, when there is a suspicion that death resulted from criminal conduct.

• When responding to an off-site medical emergency, as necessary to alert law enforcement to criminal activity.

• To report PHI to law enforcement when required by law to do so (such as reporting gunshots or stab wounds).

• To comply with a court order or court-ordered warrant, a subpoena or summons issued by a judicial officer, or an administrative request from a law enforcement official (the administrative request must include a written statement that the information requested is relevant and material, specific and limited in scope, and de-identified information cannot be used).

• To respond to a request for PHI for purposes of identifying or locating a suspect, fugitive, material witness or missing person, but the information must be limited to basic demographic and health information about the person.

• To respond to a request for PHI about an adult victim of a crime when the victim agrees (or in limited circumstances if the individual is unable to agree). Child abuse or neglect may be reported, without a parent’s agreement, to any law enforcement official authorized by law to receive such reports.

References:

https://www.hhs.gov/hipaa/for-professionals/faq/505/what-does-the-privacy-rule-allow-covered-entities-to-disclose-to-law-enforcement-officials/index.html

Content duplicated from https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/special/emergency/final_hipaa_guide_law_enforcement.pdf

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Visitation policies to medical facilities are typically set by the individual medical facility. These policies could allow for deference to an outside law enforcement agency to set visitation policies that supersede their own, in circumstances where the patient, their visitors or staff may be at risk of harm. Privately owned, non-profit and for-profit health care facilities (e.g. hospitals and clinics) may set their own security and visitation policies to be enforced by their security personnel or by law enforcement, guided by state statues related to places of business. City and state-owned facilities may set their own policies and hire private security, although policies may been overseen by city or state law enforcement or justice personnel depending upon individual state requirements. Federal agency health care facilities (e.g. Veteran’s Affairs and Department of Defense) often provide their own security services and set policies that are relevant only to facilities owned and operated by the federal government. 

Visitors to correctional facilities are subject to searches of their body and belongings without probable cause. Hospitals, whether public, private, or government-based, have the right to create and enforce security protocols, including visitation restrictions, that actively identify and mitigate potential threats to patients and staff. However, law enforcement officers (LEOs) with probable cause can authorized to search a patient or visitor’s body or belongings in order to ensure patient, health care provider (HCP) and LEO safety. Providers must make themselves aware of hospital or facility security policies regarding visitation as these guide most visitation rights while patients are receiving care. In the absence of hospital policy or justified and well-articulated concerns about patient and/or staff safety (probable cause), it is legally questionable whether a LEO could treat a hospital room like a jail or prison and enforce searches of all visitors prior to entering the patient’s room. Such a practice could intimidate or coerce visitors and, in the case of patients with impaired decision making, could limit care conversations, further eroding trust between surrogate decision makers and HCPs. Concerns about unnecessary or inappropriate limitations on patient visitation should be directed initially to hospital or facility security to verify that these policies are outside of hospital or facility policies. If so, then hospital or facility security should communicate with the law enforcement agency with jurisdiction over the hospital or facility to ensure that additional limitations on visitation are necessary due to concerns about staff or patient safety. If there is disagreement about procedures while in the hospital, HCPs should consider contacting their supervisor or the LEOs' supervisor (a watch or shift commander) for verification. If the disagreement remains, the local law enforcement agency would likely need to obtain a court order to impose additional limitations.

Most states pass state statues that mandate reporting of certain injuries or suspected circumstances of harm by healthcare workers.  Each state can designate the specific medical conditions, injuries or circumstances of harm and the mandatory reporters. These statutes are rarely made at the county or other sub-state level. Medical conditions included in these statutes may  include STIs (HIV, syphilis, gonorrhea, chlamydia, and chancroid) as mandated by the CDC but could include other conditions. Common injuries that may be covered by mandatory reporting laws include animal bites, gunshots, stabbings and burns. Circumstances of injury could include: 1) Child Abuse and Neglect, 2) Abuse or Neglect of Older Adults or Adults with Intellectual Disabilities, 3) Sexual Assault, and 4) Other Injuries Related to a Crime. Most health care and allied professions licensed in a state are considered mandated reporters by that state. Failure to report may be considered a misdemeanor depending upon the laws of each state Injuries related to a crime usually must be reported to the law enforcement agency in the treating facility’s jurisdiction, not where the injury took place.

It is critically important that all health care providers familiarize themselves with mandatory reporting statutes in the jurisdictions where they practice as these can vary from state to state. Injuries occurring while in police custody can be prosecuted as assault or neglect and therefore would constitute injuries related to a crime – falling under mandatory reporting statutes. Reporting procedures about such injuries vary from state to state.. Providers may be concerned that these claims may not be investigated appropriately, particularly if the injury was the result of action by the law enforcement agency with jurisdiction over the reporting facility. However, this fear typically does not override state reporting requirements. Typically risk management, hospital security or other hospital or health system stakeholders are made aware of these reports and can assist individual physicians in following up these reports to advocate for their patients if necessary.

References:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7493571/

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

LEO have limited ability to obtain testing or procedures (e.g. phlebotomy) without patient consent. Forty nine states have implied consent laws that indicate, unless consent is retracted by a patient who was a driver, blood samples can be withdrawn to identify intoxicants. Therefore any unconscious or otherwise incompetent patient can have samples obtained or procedures performed, to establish intoxication, without their active consent. HCP may also want to check the applicable policies and procedures at their facility regarding the taking of such samples. For patients who refuse this testing, a warrant must be obtained to draw these samples. Some cases may allow LEO to collect other biologic samples without consent or a warrant if the LEO reasonably believes there to be an exigency – a situation where delays in obtaining the warrant may lead to destruction of evidence. HCPs cannot be compelled by LEO to perform procedures or tests if both the provider and patient do not consent without a warrant. Obtaining a warrant overcomes the patient refusal to consent, but does not compel the HCP to perform the testing or procedure. Although many states provide some legal protection, in case of procedural complication, for HCPs performing tests or procedures at LEO request, if the LEO requested the test or procedure without appropriate authority, then the HCP is not guaranteed this protection.

HCPs are likely protected to obtain blood samples to establish intoxication among drivers who cannot provide consent in states with implied consent statutes. However, HCPs cannot be compelled to obtain blood samples to establish intoxication among drivers who cannot provide consent in states with implied consent statutes or perform phlebotomy or potentially other procedures. HCPs may not be protected if causing an injury or other harm that results from these procedures if not covered by implied consent or exigency statutes.

References:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6699816/

Both HCP and LEO are permitted to restrain individuals, but their uses of restraints differ in important ways. HCP may restrain patients to protect them from intentionally or unintentionally harming themselves or HCP. However, use of restraints by HCP is widely recognized as potentially harmful and should be exercised sparingly and only after a patient has demonstrated inability of self-control or restraint. Additionally, the need for restraints must be balanced against the risk of creating primary trauma or forcing patients and their family members to relive prior trauma.

Restraints used to mitigate flight risk may be governed by LEO concerns, but this use should be justified by identifying a specific threat or behavior. Further, physical restraints should be removed when not needed for medical reasons and the threat is no longer a possibility (e.g. medically sedated or brain dead from neurologic injury). However, some studies show that even in circumstances when HCPs have been given explicit legal authority to remove restraints (e.g. while giving birth), there may remain confusion among HCP about when to exercise that decisional authority, leading to ongoing inconsistent use of unjustified restraints.

Individual providers should be aware of their hospital policies guiding non-medical restraints. If no policy dictates that the patient must be restrained (e.g. they have been transferred from a jail or prison) then the provider could decline to place the patient in non-medical restraints unless compelled by a court order. Providers should work with LEO to understand risks of harm and flight.

References:

https://link.springer.com/article/10.1007/s11606-021-07222-5

Surrogate decision makers.  Laws vary by state and can even differ within a state depending on whether the person is detained in a municipal, state or federal institution.  However, a guiding principle is that incarcerated persons retain autonomy over their health care, which includes both first-person (self) and third-person (surrogate) decision making.  Medical teams should work with LEO to establish contact with surrogate decision makers as soon as possible, while respecting the communication rules and procedures outlined by LEOs.  The role of LEOs is to provide contact information and establish expectations for the medical team’s communication with the surrogate.  It may be legally and ethically inappropriate for LEO to be actively engaged in medical decision making on behalf of an incapacitated patient.  

While it is understandable to assume that correctional facility staff may act as surrogate decision makers for unrepresented incapacitated patients, staff may actually be prohibited from doing so, depending on the law governing that correctional facility. This accounts for the possibilities that correctional facility staff may not be aware of the patient’s values and beliefs pertinent to health care decisions, and may be subject to conflicts of interest that would prevent them from making decisions exclusively in the patient’s best interest.

References:

https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1343&context=jhclp

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8083072/

https://pubmed.ncbi.nlm.nih.gov/31107501/

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Patients in legal custody retain autonomy over their own health care decisions, up to and including consent for surgery, transplantation, psychiatric care, and end of life care.  Incarcerated patients may decline suggested interventions, so long as they have decisional capacity in the medical team’s opinion.  Exceptions to self-determination may be made if a patient is hospitalized with intentional and ongoing self-harm or suicidality.  

If the medical team is concerned the patient lacks decisional capacity, they should follow their institution’s normal protocols (which could include involvement of the consult liaison psychiatry service for a formal capacity assessment, if decisional incapacity is not previously documented, may be arising from or exacerbated by a psychiatric condition, and is impeding provision of medically recommended care).  Decisional incapacity in the inpatient setting may be transient and reversible.  However, it is possible that inpatient clinicians are the first to detect a loss of capacity that is expected to be irreversible.  In these cases, inpatient clinicians should speak with a medically-trained staff member at the referring prison or jail to apprise them of the concern and determine whether a healthcare power of attorney or other surrogate decision maker is known to the prison or jail. If not, and no such surrogate decision maker is available or willing to make a decision, inpatient clinicians may need to coordinate with the referring prison or jail concerning the appointment of a court-appointed guardian .  

It is important to clarify the important role of LEOs in these situations: they serve as liaisons coordinating logistics of care and connecting clinicians with legally- and ethically-appropriate surrogates (if needed).  However, their role does not extend to making medical decisions for patients. 

For additional information about protection of health information by the Health Insurance Portability and Accountability Act (HIPAA) we encourage review and familiarity with the document here. For a summary of HIPAA Privacy Rule please visit here.

References:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8083072/