By Dan Resnick, MD, & Mark Spencer, MD

As physicians at one of the largest public hospitals in the country, we have left some patient interactions feeling demoralized. This occurs most often when it is clear that medical interventions are incapable of overcoming the structural violence many of our patients face. As internal medicine physicians, it is our role to see the "big picture," taking into account the interplay of social and political structures that often drive health outcomes. Many of our patients face social determinants that result in adverse health outcomes.

These same social determinants, including poverty and racism, make some people significantly more likely to interact with the criminal legal system and ultimately become incarcerated. Our interactions with incarcerated patients who come to our hospital from various local jails have been the most morally injurious. This results from a hospital culture that too often neglects their rights as patients, compounding the harms already endured in carceral facilities. It is a common topic of informal conversations among students, nurses, residents, and other care staff, yet it remains systemically unaddressed and disturbingly normalized.

What Right to Healthcare?

Incarcerated individuals are one of the few populations in the U.S. with a constitutional right to healthcare. Established in 1976, the Supreme Court ruled that "...deliberate indifference to serious medical needs..." was inconsistent with the Eighth Amendment right prohibiting cruel and unusual punishment. This was further clarified in 1987 to mean care should be"...reasonably commensurate with modern medical science."

Unfortunately, for a myriad of reasons, healthcare in prisons and jails is often subpar and contributes to poor health outcomes both during and after incarceration. Each year incarcerated can reduce life expectancy by 2 years. As Homer Venters, MD, former Chief Medical Officer for New York City jails, summed it up, "The...organizations that run the jails are focused on security, and their view of healthcare is extremely narrow and usually limited to preventing death and defending against lawsuits." Ultimately, many individuals require transfer from jails and prisons to hospitals for higher levels of care.

Regrettably, in our emergency departments and hospital beds, instead of a respite from systemic neglect, the substandard medical care doesn't end. Incarcerated patients often face a new litany of degradations as their most basic medical rights are ignored. While they may be at a hospital, they are still viewed by many as prisoner first, patient second.

There is a long history of medical staff deferring to law enforcement policy and practices for detained and incarcerated patients. Many of the current common practices continue not because they are backed by scientific evidence, but due to a deference to law enforcement and institutional inertia. Clinicians' interactions with these patients are often guided by an unwritten curriculum, picked up by observation of mentors. At times, an institutional policy may not exist at all.

This is a long-standing issue that erodes the trust of the patient-physician relationship, violates patient autonomy, and is an affront to patient dignity. Ultimately, the lack of patient-centered policies to guide privacy, shackling, surrogate decisions, and medical release conversations, among other topics, has led to a systemic trampling of these patients' rights.

We have seen patients intubated and sedated still shackled to their hospital bed. We remain gravely concerned about reports of law enforcement officials acting as surrogate decision makers for patients. We are troubled by policies that prevent families from being notified when their incarcerated loved one is sick. While put into place in the name of safety -- the concern being that loved ones might come to the hospital and create security concerns -- most hospitals already have security protocols and personnel in place.

A ban on family communication severely limits our ability to collect important medical history or obtain accurate consent for incapacitated patients. At times we have received diverging opinions from legal, security, ethics, and medical professionals on questions related to the rights of incarcerated patients in the hospital. We often witness both security and medical staff mistreatment of these patients, largely a result of bias and mis-education with regards to the so-called justice system. None of these experiences are unique to us, but instead are widely applicable to medical centers around the country.

Pushing for Change

There does appear to be a critical mass building for change, as healthcare workers and students are pushing their professional societies to take a stand and demand their institutions enact change. One of the more successful campaigns to date was a student-led campaign in Boston by the Stop Shackling Patients Coalition to end the non-negotiable prophylactic shackling of all incarcerated patients in the hospital. This led to legitimate, if imperfect, policy change toward prioritizing patient comfort and dignity. Similarly, an incarcerated patient bill of rights has been passed in Georgia and is winding its way through national professional organizations.

A new collective of providers called Scopes and Shields has formed to share best practices and build a network of providers to implement and change policies nationwide. Here in Atlanta, we incorporated the treatment of incarcerated patients into the Emory University Department of Medicine Health Justice Standards, a public-facing document that promotes collective accountability in the department.

Unfortunately, as the crises of poor health outcomes in American jails and prisons reminds us, guidelines and recommendations alone often do not translate to practice changes on the ground. This is in part due to lack of transparency, oversight, and critical enforcement mechanisms.

With this in mind, we urge healthcare workers and students to engage their institutions in these discussions; the most effective way to implement change is in a localized context.

Is there a policy on file? If yes, does it honor our patient's rights? Too often the policies remain needlessly deferential to security concerns based on rare, exceptional cases. While it may be easiest to have a guard in the room, keep the patient shackled around the clock, and deny any contact to family, we reject these as adequate policy solutions.

We offer our perspective for another way forward. To end the violations of patient privacy, on-duty guards should be stationed at the door, not in the room. The harms of prophylactic shackling of incarcerated patients must be acknowledged and the practice severely curtailed. If there is a legitimate security concern, guards can discuss with hospital security and document why restraint is needed, similar to any other hospital-based restraint policy.

Medical staff must be able to contact next of kin to provide updates and obtain collateral information. This is a basic component of adequate care delivery. If the patient wishes, medical staff should be permitted to engage with their legal team to explore options for medical release from detention, especially for our most ill and vulnerable patients.

Our duty is to our patient. We must do everything in our collective power to build an environment that honors their rights and dignity. It is what health justice requires.