Prison healthcare in England and Wales is undergoing major reform. The
principle behind this, providing prisoners with a standard healthcare
equivalent to that in the wider National Health Service (NHS), is laudable, but
it does not do justice to the complex reality of imprisonment. We argue that
being a prisoner is not the same as being an ordinary citizen and ignoring the
realities of the differences between prisoners and ordinary NHS patients leads
to complex ethical dilemmas for prison healthcare staff. We illustrate some of
the areas where prison healthcare is different: access to care and allocation
of NHS resources; patient choice and independence. Many of the examples given
refer to psychiatric care, but the dilemmas apply to general medical care.
ACCESS TO CARE AND ALLOCATION OF NHS RESOURCES
About 5 years ago, when prison doctors were employed by the Prison Service, the
NHS could exclude prisoners from health services. However, Department of Health
guidance specifies that the NHS must now work in partnership with the Prison
Service to provide healthcare in prisons. In addition, by 2006, primary care
trusts will become fully responsible for commissioning these services (Department of Health, 2005). This implies
that NHS treatment guidelines and standards, such as the National Service
Framework and National Institute for Health and Clinical Excellence (NICE)
guidelines, now apply equally in prison.
These changes have been driven by the ethical principle of justice, especially
justice for the vulnerable in terms of access to resources. This has been
formulated clinically as the ‘principle of equivalence’. This states that
prisoners are entitled to have access to the same range and standard of
treatment as any other potential NHS patient (Joint Prison Service and National Health Service Executive Working Group,
1999). This suggests that prisoners live in a community of their own.
Their penance is their loss of liberty. Deprivation of healthcare is an
additional punishment which the state is not entitled to inflict.
It is extremely difficult to provide ‘equivalent care’ in prisons, where
physical and mental health problems are commonplace and healthcare budgets are
relatively meagre. Prison doctors will find it difficult to justify prescribing
expensive treatments that are readily available in the wider community. The
range of treatments may be reduced further by the lack of resources to
administer or monitor certain treatments in prison. Prison doctors delivering
primary care to prisoners are often faced with situations in which it would
normally be appropriate to seek a specialist opinion, but financial constraints
can put pressure on them not to refer prisoners for treatment outside prison
and there has been a general reluctance on the part of NHS specialists to
establish prison out-patient clinics or visit patients in prison.
All healthcare resources have to be rationed but it is not clear on what basis
care to prisoners should be. For example, a specialist hepatology service may
refuse to offer this to prisoners with hepatitis on the grounds that demand
would outstrip supply: can this decision be justified? What remedy is there for
prisoners if it is not provided?
Prison doctors quite often refer prisoners with serious mental health problems
to the NHS, seeking transfer to hospital for treatment only to find that they
are rejected (Coid, 1999). What is the
responsibility of the prison psychiatrist in this situation who believes
in-patient treatment is necessary but has no power to override another
healthcare provider's decision? There is no equivalent of a prison healthcare
centre in the wider NHS and statutory powers to treat mental disorder do not
apply in prison, so, if patients refuse treatment, they must remain untreated
and mentally ill in prison (Wilson,
2004). Rarely, in such cases the doctor has to resort to common law
to justify enforcing treatment for mental disorder without the prisoner's
consent (Wilson & Forrester, 2002;
Earthrowl et al,
PATIENT CHOICE AND AUTONOMY
Recruiting suitably qualified and trained doctors to work in prison has always
been difficult (Department of Health,
2001). The NHS encourages patients to exercise control over the
doctor they see. Prisoners do not get this choice. Choice is a particular issue
in mental health, a recent inquiry report (Norfolk, Suffolk and Cambridgeshire Strategic Health Authority,
2003) recommending that all detained patients have a right to a second
opinion about their diagnosis. How could this be accommodated in prison?
There are further difficulties with ‘choice’ given the coercion inherent to
imprisonment. Capacity to consent or refuse treatment is rarely explored in
prison despite there being case law which states that competent refusals of
medical treatment must be respected. If a competent adult prisoner refuses
medical treatment, this decision should be respected, even if the consequences
could result in their death. When seeking consent the doctor must not knowingly
or unwittingly compromise the prisoner's autonomy by pressurising them into
accepting treatment. This not only applies to decisions about medical
treatment, it could also involve participation in offender treatment programmes
that may have a bearing on the prisoner's eligibility for early release.
The question of consent in custodial settings is a complex one, and it is often
argued that valid consent is almost always impossible in prison. It is possible
to enforce treatment under common law under certain circumstances in prison,
but the powers of the Mental Health Act 1983 do not extend to this setting.
Some would say that this is a good thing, but others would argue that denying
prisoners with serious mental health problems prompt treatment, regulated by
statutory safeguards, is unethical and out of line with the principle of
equivalence (Wilson, 2004).
National Health Service patients have increased rights to determine what
happens to information about them. The principle of equivalence implies that
prisoners have the same rights. However, prisoners are not routinely informed
about the limits of confidentiality on entry to prison. Although many (if not
most) prisoners may be highly suspicious of any claims to confidentiality
offered by doctors, equally there are some who may assume that doctors can
offer total privacy.
Issues of choice and autonomy become even more complex in relation to
restraint. Guidelines are available from the British Medical Association on the
use of restraint in institutional settings (British Medical Association, 2001). When a prisoner has to be
restrained for health-related reasons, healthcare professionals should always
be involved. Control and restraint measures used to maintain discipline should
be carried out in accordance with prescribed guidelines (European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, 2002), but must never be used as a
punishment or convenience measure. But who decides when restraint is being so
used? Prison doctors were originally employed by the state to mediate the use
of punishment and decide which prisoners should be exempt from certain aspects
of the harsh prison regime (Gordon,
1922). Even if this is no longer the case, to what extent does the
presence of a doctor legitimise restrictive practices?
Attempts have been made to address other historical anomalies involving prison
doctors, such as inspecting the food and deciding whether a prisoner is ‘fit’
to attend court or be placed in segregation. Prison Service Order 1700 provides
a simple algorithm for prisoners moved to a segregation unit. However, some of
the old prison-specific roles of the doctor still remain. Healthcare staff are
required to assess whether segregation is likely to be deleterious to a
prisoner's mental health. Because prisoners with mental health problems might
be at increased risk of suicide in segregation, an anxious institution can
interpret the algorithm to mean that no prisoner at risk of self-harm is to be
segregated. They may be placed in the healthcare centre instead. This not only
subverts the function of the healthcare centre, which becomes a place of
punishment, it offers carte blanche for prisoners to assault
staff without any disciplinary remedy by the prison.
WHAT DOES A ‘DUTY OF CARE’ MEAN IN PRISON?
The principle of equivalence states that doctors have the same duties to
prisoners as to any other patient. Yet this ignores the fact that duties
between persons arise out of relationships. The relationships that prison
doctors have to negotiate in their work differ considerably from NHS
For example, both staff and prisoners can exhibit rigid and punitive attitudes
towards those detained in hospital. A prison doctor working in relative
isolation can find it hard to counter the mindset of prison staff who hold very
rigid, institutionalised views. It may have become somewhat easier for prison
doctors who witness unacceptable practices to speak out now that the NHS has
become more involved in prison healthcare, but whistle-blowing in prison is not
something to be envied. Prison doctors need a good support network and adequate
protection if they speak out against abuse.
Prisoners may evoke very strong emotional reactions that make it difficult for
the doctor to remain objective, perhaps because of the nature of a patient's
offence. Doctors working in general medicine or casualty, for example, may
react strongly to admitting a man with a history of a sexual offending.
Although this problem is not unique to prisons, because complex issues of this
nature are so common in prison, doctors in this setting need adequate guidance
and support to deal with problems that may arise.
There is also the added complexity of working in a multidisciplinary team,
which must involve prison staff who have little or no mental health training or
expertise. How can one expect a prison officer to look after a prisoner with
borderline personality disorder who presents very challenging behaviour, if
they do not have the training to do so? Recent NHS guidance states that all
professionals who work with personality disorder should have the necessary
‘capabilities’ (National Institute for Mental
Health, 2003). Good communication is essential between those managing
complex patients. Consistency, honesty and attempts to reduce the ‘splitting’
that can emerge in the team are vital. Dividing staff into the ‘good guys’ from
health who are allowed to know about the patient and the ‘bad guys’ in uniform
who must be kept in the dark is a good example of acting-out the patient's
unconscious view of the world.
The National Service Framework objectives for reducing suicide rates in prison
direct the duties of prison doctors through clinical governance. Yet how far
can a prison doctor's duty extend in relation to prevention of suicide or
trying to put in place aftercare arrangements for prisoners with mental
disorder who are released without warning? What should a prison psychiatrist do
about practising in an institution that is unable to safely discharge its duty
of care for all prisoners? Should a prison mental health team, designed to meet
the needs of those with severe mental disorder, allow itself to be subverted by
the prison into preventing all prisoners from harming themselves or committing
acts of violence?
Prisoners are in an institution that owes them a duty of care. In the
community, people with personality disorder who are suicidal might be offered
packages of treatment and support, but they might be turned away from services
altogether. The principle of equivalence dictates that the same approach should
apply in prison. However, the consequences of a self-inflicted death may be
very different in these two settings. Suicides in prison are seen as a failure
of the system, perhaps including healthcare, whereas it is perhaps easier to
allow that sometimes bad things happen to people in the community.
Prison is a challenging environment for doctors. Guidelines for good medical
practice may not always reflect the nature and complexity of the ethical
problems that arise or the reality of the prison environment. Perhaps the most
important fact for the prison doctor to realise is that there are overall
ethical dilemmas in prison medicine and in many cases no simple solution is
available. In such cases, the best the doctor may be able to do is recognise
the issues at stake and feel the tension.
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