Correctional Health Care Practices, Performance, Ethics, and Responsibility

 

William “Bill” J. Rold, JD, CCHP-A, is a private practice attorney in New York City who consults on correctional health care, ethics, and the law. He is a member of several health organizations and is on the advisory board for the Mental Health in Corrections Consortium and is on the Certified Correctional Health Professional board of trustees. He also recently received the Bernard P. Harrison Award of Merit from the National Commission on Correctional Health Care, the organization¹s highest honor. He talks with us about past and present correctional health care policy; current program issues, changes, and challenges; and ideas that can improve today¹s correctional health care.

Jay Schneider: Can you tell us a little about your background? What sparked your interest in inmate issues?

Bill Rold: I think my interest first goes back to my parents. My father resigned from the American Legion in the 1950s because of the group’s refusal to integrate minorities-we were a white family in an all-white county in Iowa, so it wasn’t a pressing issue-but he felt strongly about it because of his experience fighting in the South Pacific during WWII. It impressed me that he stood up for the issue at a time when a lot of people weren’t talking about that where I lived. The second influence was my mother who worked as a court reporter in Germany on the war crimes trials following WWII. Tying civil rights together with incarceration was very impressionable to me at the time, as was seeing my parents involvement in those issues.

JS: How serious an issue was correctional health care when you first started working in the field? Have you seen dramatic changes over the years?

BR: Well, it was a very serious issue in the late 1970s and early 1980s. We had courts taking control of institutions, some where inmates were providing heath care for other inmates and others where serious issues were simply being neglected.

Some of the horror stories begin with the Holt case in Arkansas and the Newman case in Alabama. Holt vs. Sarver (1969) was one of the earliest cases where the federal courts assumed authority to regulate state prison practice. And then, Newman vs. Alabama, in 1974 or 1975, dealt specifically with medical care. Those are some of the beginning cases where federal judges began to assert their authority under the 8th amendment to regulate practices with regard to health care.

I have seen in my 20 or so years of involvement, an increase in professionalism. My involvement began in New York in 1981 when I litigated a class action suit involving a maximum-security facility with about 2,200 men. The facility had very serious deficiencies in terms of staffing, access to hospitals and specialists, dental care, and special services for the disabled, among other things. I also litigated another suit involving dental care at a woman’s prison in New York where there were some very serious problems with the dentist, who ultimately resigned.

We now have a lot of standards that have been promulgated by the National Commission on Correctional Health Care, where I’m involved, and other groups like the American Health Association, which specifically address health care in corrections and seeks to increase the professionalism of the people who work in that very unique setting.

JS: What are the biggest legal hurdles you’re currently encountering?

BR: Oh, I would probably say the hostility of Congress and the courts to inmates’ rights.

I think Congress has done a few foolish things, including the elimination of Pel grants. Inmates used to be able to qualify for college tuition credits under the Pel program. No one in corrections was pushing to eliminate that-not wardens or the people who are involved in dealing with the inmates. In fact, the literature on recidivism said that one of the things that really worked was getting a college degree in prison. But, Congress eliminated that.

As for courts, the passage of the Prison Litigation Reform Act (1995) was designed to cut back on their involvement within prison management-and I think, to a great degree, it has been successful. Of course there have been a few situations where courts have gone too far, but the courts are all that’s left to a lot of inmates and that’s a door we don’t want to close.

JS: You recently received the Bernard P. Harrison Award of Merit-the NCCHC’s highest honor-for having demonstrated excellence and service to the correctional health care field. What do you consider your biggest contributions?

BR: I think my involvement with the commission in helping to establish standards, serving on the board of trustees of the Certified Correctional Health Professional, and mentoring people throughout the United States.

I get calls from all over the county asking for assistance. One of the things I find most gratifying is speaking at conferences for people who work in mental health in corrections; that kind of national exposure has been very gratifying. At one point I even had the chance to consult with the chief judge of Argentina-who hooked up with me through the State Department-and helped develop an AIDS policy for their criminal justice system.

JS: What are the emerging trends within correctional health care?

BR: Well, I think the notion of charging inmates for health care, albeit at nominal rates in many cases. I think that privatization, the use of contractual providers, is a new development. And I think there’s been a move toward accreditation, certification, and increased staff professionalism.

What’s most interesting is the recognition that correctional health care is part of the public health care system. One of the things that communities should do is build affiliations with colleges, nursing schools, physician assistants schools, and EMS schools, and say to them, “we have within our institutions a collection of some of the most fascinating cases you’re probably going to find and we welcome you to come in and rotate your students through our facility.” It’s amazing the ties that can be built when you try something like that. Texas has done a very good job with that and it’s something that can be replicated almost anywhere because most communities have at least a junior college located nearby with some health care program. Correctional facilities are untapped resources and often you can get these extra people in there for nothing because it’s part of their curriculum.

That practice is growing because of the fact that so many people in corrections have unique health care problems. From a teaching point of view you have-no pun intended-a captive audience. When I talk to wardens and superintendents, they really perk up at the notion that they can do more with their own communities. Correctional facilities can be looked at as more than just pork barrel for jobs in some depressed county-they can also be an opportunity for education and working together.

JS: What is your view on privatized/contracted inmate health care?

BR: I have seen some very good programs and I have seen some deficient ones. The use of privatized care is not itself a bad thing. It is important that the professional judgment be maintained. You cannot tell someone in the middle of a cardiac arrest that we can’t send you out because our profit/loss statement for this month would be out of balance. You can’t do that because that’s not professional judgment-and I don’t think that that really happens all that often. I think what we have is a utilization review that can be stingy at times, in the same way the people complain about HMOs. And the Patient’s Bill of Rights movement, I think, will eventually apply to corrections.

JS: Are most correctional facilities meeting the minimum standards for health care? If not, where are they falling short?

BR: I think the majority of correctional facilities are attempting to meet the standards. Where they’re falling short, in my opinion, primarily is not the fault of the doctors and nurses who work there but the fault of too many patients chasing too few resources, as well as the inability of correctional health care to effectively compete with schools and highways for state money.

That’s where the courts have been useful because the courts can issue injunctions saying do something and, in effect, force an appropriation of money to accomplish it. The failure to do so would violate the 8th amendment.

JS: Can you explain the 8th Amendment?

BR: The 8th amendment prohibits cruel and unusual punishment. The Supreme Court has interpreted that to provide an affirmative right to health care for serious medical problems. And that is the legal theory under which the courts get involved in health care.

People who are not incarcerated can always go to an emergency room and under most conditions cannot be turned down in an emergency. A prisoner can’t do that and is totally at the mercy of the correctional system to permit access to health care. There is an obligation on the part of the system to permit it.

JS: What rights (minimum standards) do inmates have with regards to health care while incarcerated?

BR: I think if you look at the hundreds of cases that have been decided in the last 25 years and the way the Supreme Court ruled, three basic rights emerged.

The first is the right to have access to care. That can be everything from emergency care for a heart attack to seeing a dentist for a toothache.

The second is the right to receive care that’s ordered. If you fall down in the prison yard and seriously hurt your arm and the clinic orders an X-ray to see if it’s broken, you have the right to receive that X-ray.

The third is the right to receive a professional medical judgment, which means having health care providers act as the professionals they are. It would not be appropriate for medical providers to say “we can only send three inmates a week to an emergency room” if there are four genuine emergencies. That is no longer a professional judgment and instead becomes administrative rationing, which is not permitted under the 8th amendment.

JS: What can institutions do to improve themselves-are there small changes that can make a huge difference or are solutions extensive and expensive?

BR: Well, I think one of the best things an institution can do is become accredited. The accreditation value is not so much in the certificate you hang on the wall, but the peer review and self-analysis process you go through to prepare for accreditation. You sit down and you look at the national standards and ask how do we measure up against these? What do we need to do to meet them? How do we get ourselves in line to succeed?

And, that process is one that people can do within their institutions and not something the courts are imposing on them or lawyers are telling them to do. It’s measuring their performance against standards their own peers have developed.

Fewer than 25 percent of facilities have accreditation by the National Commission on Correctional Health Care. The American Correctional Association (ACA) also accredits, but they accredit the entire institution, not just health care.

JS: You must be happy about the move toward more treatment programs for drug addictions as opposed to incarceration?

BR: Yes. And I think we need more of it. The public, in my view, is ahead of the politicians on a lot of these issues. The politicians need to catch up.

JS: Do you feel the correctional community is doing enough to care for mentally ill inmates? Are separate treatment facilities the way to go?

BR: No, and I’m not sure that enough is reachable.

As we de-institutionalize mentally ill people, we move to a different form of institutionalization. Inmates get released from mental institutions into communities that don’t have the resources to help them and they get into trouble. They find themselves sick. They get arrested. They end up back in the system.

In some ways the corrections system has become the new mental health system for large numbers of people, but it was never designed to be that. It’s designed primarily to confine. One of the biggest difficulties in trying to enhance correctional health care is the fact that these institutions are not primarily health care institutions. Whether it’s medicine or mental health, they were not designed-in terms of their physical plant-to have large spaces devoted to health care. Often the people who work in health care are confined to small areas and don’t even have the room they need.

It is very important that medical care and mental health care be a component in the early planning process. I advise correctional health care workers to insist on being on the planning committee or having a representative on the committee.

As for separate facilities, I think acutely ill people need to be in acute care settings. One of the early mental health cases was in Colorado; the court ruled that double celling chronically mentally ill inmates with people who were not mentally ill violated the rights of both groups.

JS: What is happening with sexual predators? The Supreme Court recently ruled that they could be held indefinitely. How do you feel about that?

BR: What the Supreme Court ruled in that case was that there was no constitutional prohibition on transferring someone who had exhausted the entire criminal system. In other words, when there was no longer any authority to keep them in jail or prison, they could be transferred to civil confinement if they continued to pose a danger to society.

That is a very unusual decision and is somewhat unprecedented in Western law where we tend to confine people for what they’ve done, not what we think they’re going to do.

My personal view is that it is difficult to draw a distinction between a danger to society posed by a sexual predator from the danger to society posed by a compulsive arsonist. Both threats are real and both can hurt people. Once you start down that road, how do you pick the offenses you’re going to do this with?

I don’t know where the line should be drawn, but we tend to use our criminal justice system and the confinement of people as, not a last resort, but sometimes a first resort.

JS: The prison population is aging and soon many facilities will be dealing with large geriatric populations. Are most facilities capable of handling health care for these inmates?

BR: I did some consulting with the U.S. Department of Justice on this subject and I think probably not.

In corrections, those considered geriatric are 50 and older; it’s as if they are older because the lives they’ve led takes a sufficient toll on their health. I’m working with a grant from the Federal Government to develop a package of issues on end-of-life care for inmates who are terminally ill-for any reason and theoretically, at any age-but most of the people are geriatric. I’m considering: What standards should apply to them? Should hospitals have “do not resuscitate” orders? What kind of palliative care is appropriate in corrections? Should inmates be diverted from custody and given what in some states is called medical parole or compassionate release so they can die at home? The entire package of issues applies to that group.

JS: Are you arguing that they should be allowed to have some sort of medical clemency?

BR: Well, I think that most states now provide for that, the question is how strict should it be? What criteria should be used? Are there certain offenses that are going to be exempted from it?

Across the country, it has not been a big avenue for relief and so corrections is still providing for dying people. One of the most interesting things has been touring a hospice unit [in Vacaville, Calif.]. They use a buddy system similar to the one developed by the Gay Men’s Health Crisis for HIV patients. It allows inmates who are not sick to bond with an inmate who is terminal; to help care for them, wheel them around, help them with basic things. Not as a substitute for doctors and nurses, but to give terminal patients someone to talk to because many of these people have no family-other inmates are their family. It has turned out to be a very successful program and has been replicated in a number of other places.

JS: Is AIDS still an enormous concern for correction health care?

BR: Yes. If you think of the number of people with AIDS who are in custody in the United States, that’s probably the largest group in public health care in the world. Places where the epidemic is wild, such as in Africa, have no public health system and are left without the resources we have.

At one time in New York, it was estimated about 12,000 people within the Department of Corrections had HIV infection. That’s a huge number of people. And, that’s under one administration-no hospital would have that.

JS: Do inmates have access to new or experimental drugs?

BR: That depends on where they’re incarcerated. In New York they often are. I think in some places, particularly states that are fairly rural with very small numbers of inmates with HIV infection, it’s a little more difficult and work still needs to be done.

The issue has recently been complicated by hepatitis C, which is often a co-infection for people who have a drug use history and because there’s no medical consensus on how to deal with hepatitis C.

With TB in corrections, I think one of the ironies is that it brought home to people the notion that inmates are part of the public health care system. The airborne illness forced people to make linkages they weren’t making before-that the majority of inmates are going to be released into the community and that they are part of the larger public health family.

JS: For the most part, is the correctional community meeting women’s health care needs?

BR: No. I don’t think their needs are always being met. Often, especially in smaller states, there aren’t as many options for women in a system that segregates the sexes. Institutionally, it’s hard to duplicate everything, including health care programs, for one female facility that you have for 10 male facilities.

In New York, we have in one of the male prisons, a sensory deprivation unit where people who are blind or deaf can be sent to have their special needs addressed. There’s no equivalent to that for women. When you get into special needs, I think that women do get a short shrift.

JS: What about specific female issues such as abortion or prenatal care?

BR: I think the right to an abortion for incarcerated women-at the public’s expense-was established by the U.S. Court of Appeals in Philadelphia. I think that was a rather unique decision, but I think it’s been widely followed.

Prenatal cases vary from jurisdiction to jurisdiction. Several years ago in New York, we were in front of a judge over whether incarcerated women who go into labor can be shackled during delivery-the practice was discontinued as a result of that lawsuit. I’m sure there still are examples of that kind of confinement.

JS: What are the big issues surrounding adolescent/juvenile health care?

BR: Well, juveniles tend to be healthier than adults, as far as corrections goes, although they can have serious problems as well.

The biggest change over the last few years is the placement of juveniles in adult facilities. It’s a challenge to the health care system because most of the people who take care of adults in prison aren’t used to caring for children. You have different diseases, different processes, and different mental health needs to address.

Drugs, abuse, sexually transmitted diseases, pregnancy all have to be addressed. The mental health fallout of being abused as a child often is present for these kids.

JS: What about public perception of inmate health care-we’re paying a lot for inmates to get full health coverage. How do you view these complaints?

BR: I do hear that. What we should be asking is “why doesn’t everyone get health care?” Not, “why should it just provided for inmates and not for us?” People aren’t there yet.

JS: Should inmates be used in medical research?

BR: Well, I have served on institutional review boards involving the use of inmates as subjects and I think there’s an ethical way to do it. I think the best way to protect inmates as subjects is to have them be part of a larger cadre of subjects under an academic study program and not just being researched as inmates.

I think it’s important that people who are proposing to use inmates be very sensitive to the unique pressures that exist to give consent or not give consent. If they don’t know anything about an institution, they need to find out before they start getting involved with inmates.

There’s a lot of pressure by inmates to use inmates because of the belief that a new drug may give them a shot at a cure they wouldn’t otherwise have access to. You have to be very careful about not misleading people; it needs to be made very clear that if a drug is very early in its study, no one knows yet whether it is going to do any good. It’s complex and there’s been a lot written about it.

For years it was said that inmates shouldn’t be used at all-in the same way pregnant women shouldn’t be-because they just aren’t appropriate subjects. I think we’ve come away from that because of the disease process clustered in corrections and the demand for access from a lot of these people.

JS: Is there anything you would like to add that I haven’t yet asked you?

BR: The thing I’d like to say is that, for years people used to comment that individuals who worked in corrections only work there because they couldn’t get a job anywhere else. I don’t think that’s true-and it may never have been true.

The people who work in corrections do noble work and should be respected for the professionals they are or strive to be. To borrow from Dostoyevsky: we can measure a society’s compassion by looking at society’s prisons. If we’re compassionate to those people, that’s a good sign how we treat others.