#8 Legal Considerations in Critical Care

HumanitiesGuest Episode
Written By Nick Mark

The intersection between  patient care and the legal system can be a tricky one to navigate. Our duty as members of the healthcare team - irrespective of a patient’s social history - is to provide the best care we can, while protecting a patient’s privacy. Unfortunately, this can sometimes be easier said than done, and traveling such choppy waters can be challenging! Join Nick & Cyrus as they host Drs. Erin DeMartino & Matthew Griffith of Scopes and Shields for a case-based discussion which will hopefully equip you with some knowledge and tools for the next time you have a patient who is in custody or otherwise involved with the legal system.

Quick Take Home Points

  1. Bookmark the Scopes & Shields Website - this is a great resource for understanding patients rights and your legal & ethical obligations as a health care provider. Consider this a “middle of the night” resource.

  2. Terminology - avoid terms like inmate, convict, prisoner that define people in terms of their legal status.

  3. Privacy - law enforcement officers (LEOs) are not covered by HIPAA; avoid discussing private or confidential information in front of LEOs to avoid breaching HIPAA. If necessary you can have hospital security come into the room (as hospital employees they are covered by HIPAA).

  4. Testing - you must obtain patient consent for testing, regardless of criminal legal status of the patient. Healthcare providers are not required to perform any medically unnecessary procedures or tests, including phlebotomy for blood alcohol testing, when requested by LEO.

  5. Restraints - shackles can cause pressure injuries and intimidate patients. Healthcare providers can request that shackles be removed or loosened. Pregnant women may not be placed in shackles under federal law.

  6. Surrogate Decision Makers - Assuming they have capacity, people who are incarcerated or are in police custody have the right to make medical decisions for themselves or appoint surrogates.

  7. Compassionate Release - physicians can advocate for the early release or parole of some incarcerated people of advanced age, with life-limiting illness, complex medical care needs or significant functional decline.”

Infographic:

See this ICU OnePager infographic for a visual summary of caring for the critically ill person in the criminal justice system,

Show Notes:

Context: High rates of incarceration in the US have significant health effects

  • The United States has the highest incarceration rate in the world; Over 1.2 million people are incarcerated in the US.

    1. To put this another way, the US has about 4% of the worlds population, but 25% of incarcerated people worldwide are in US prisons/jails.

  • In Estelle v Gambel, the US Supreme Court found that “deliberate indifference to the serious medical needs of prisoners constitute[d] the ‘unnecessary and wanton infliction of pain” and was a violation of he 8th amendment injunction against Cruel and unusual punishment.

    • While people in prisons are constitutionally guaranteed essential care, this has limitations. Despite the dedicated hardworking professionals who work in prisons, prison healthcare is limited. People who are in the criminal justice system are frequently brought to hospitals for medical care.

    • People in prisons may not be able to afford care. In most states, prisons charge copays for medical care. Quote from article:

      • “People held in jails and prisons are required to pay copays of $2–$5, even though they typically make between $0.14 to $0.63 per hour. That’s equivalent to a copay of hundreds of dollars for people making minimum wage.”

    • When people are released from prison they often lose access to healthcare. This can precipitate health and mental health crises.

    • The effect of mass incarceration is significant - It’s estimated that the high incarceration rate results in the overall US life expectancy being reduced by 1.5 years. Quote from a 2016 Study:

      • “from 1981 to 2007, the U.S. life expectancy would have increased by more than five years – from 74.1 to 79.4 years – if not for mass incarceration. But given the reality of mass incarceration, the U.S. life expectancy only increased 3.5 years over that time”

Defining terms

  • LEO - law enforcement official

  • HCP - healthcare provider

  • Many people are accompanied by LEO in the healthcare setting. This does not necessarily mean that they have been charged or convicted of a crime.

  • Custody - people may be in the custody of LEO. This does not necessarily mean that they have been convicted of a crime.

  • Jail - a county or city run facility for people who are not yet convicted or who are convicted but are serving a sentence less than 1 year (a misdemeanor).

  • Prison - a state or federal fun facility for people who are convicted and are serving a sentence longer than 1 year (a felony).

  • Convict, Prisoner, Inmate - we refrain from using common terms like “prisoner” and “inmate”, which define individuals by their current criminal status rather than who they are to us: our patients.

Case 1: Privacy

  • Regardless of criminal-legal status, law enforcement officers (LEO) are not privy to a patient’s protected health information (PHI) except in rare circumstances. Discussing PHI with a patient in the presence of LEO’s may be a breach of that patient’s privacy.

  • Healthcare providers (HCPs) are covered by HIPAA, and can only disclose PHI to the individual to whom the PHI belongs and to their choice of surrogates.

    • LEOs are NOT covered by HIPAA. Discussing protected health information in front of LEOs potentially constitutes a breach of HIPAA.

    • Hospital security officers are covered by HIPAA. Having hospital security officers present does not breach HIPAA.

  • To avoid violating privacy/confidentiality, HCPs should ask LEO to leave the room when communicating medical information or providing care (e.g. examination, procedure) if the HCP feels safe to do so. LEO are not bound by HIPAA, so anything observed or overheard is not protected. If necessary, hospital security officers can be present instead.

  • There are certain circumstances where HCPs can or must disclose private health information - these rules vary by state. See the Scopes and Shields Website for more.

Case 2: Avoiding potential Bias

  • In general, a persons history with law enforcement is not germane to medical care and can bias the care they receive.

  • AVOID asking or searching for information about specific crime that a patient is accused or convicted of, unless serving a specific medical purpose. This information may bias care delivery and should be avoided

Case 3: Testing

  • HCP cannot obtain testing without patient consent, regardless of criminal legal status of the patient.

    • A common exception: most states require consent for future blood alcohol testing to obtain a driver’s license, therefore no further consent is required

  • Other procedures performed without consent could constitute patient battery.

  • HCP are not legally required to carry out any medically unnecessary procedures or tests, including phlebotomy for blood alcohol testing, when requested by LEO.

Case 4: Restraints

  • Restraints can cause injury, especially in people w/ critical illness.

  • Restraints can lead to harm and intimidate patients. HCPs should demand removal of unnecessary non-medical restraints if they do not perceive a security or safety risk.

  • An estimated 58,000 pregnant people enter US jails/prisons each year. Federal law prohibits the use of non-medical restraints for pregnant women.

Case 5: Surrogate Decision Makers

Case 6: Compassionate Release

  • Definition: “Compassionate release is a process that allows for the early release or parole of some incarcerated people of advanced age, with life-limiting illness, complex medical care needs or significant functional decline.”

  • Providers can advocate for compassionate release for individuals with terminal diagnoses or advance stage chronic conditions that cannot be reasonably managed in a jail/prison.

DISCLAIMER: This is intended only for educational purposes and does not constitute legal advice. Check relevant state laws & hospital policies. Consult www.scopesandshileds.org for more information.

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Nick Mark
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