Unique ethical issues come up with individuals who currently are (or previously were) incarcerated or whose surrogate decisionmaker is incarcerated, a recent study found.1 “Limited empirical data were available for patients impacted by incarceration,” says Janice Firn, PhD, MSW, HEC-C, one of the study authors and a clinical ethicist at Michigan Medicine and Center for Bioethics and Social Sciences in Medicine.
Firn and colleagues analyzed ethics consults for patients affected by incarceration from 2015-2022. The researchers compared those patients who received ethics consults with the overall population of 37,184 patients who were affected by incarceration.
Overall, 3% of ethics consults involved individuals affected by incarceration. Some key findings regarding these consultations:
• Surrogate decision-making and fiduciary duties (determining beneficence, non-maleficence, and best interest) were the most common ethical issues that were addressed.
• Intra-family communication challenges were common.
• Access to decision-makers and provision of medically necessary care were affected by the patient’s incarceration status.
• Some of the ethics consults were requested because clinicians were unable to reach wardens or court-appointed legal guardians during off-hours.
In some cases, surrogates were unable to speak about the patient’s values and wishes because of lack of contact with the patient. In other cases, there was no next of kin or durable power of attorney identified. “Healthcare teams had misperceptions about who could serve as a surrogate decision-maker, or the process for involving the family in decision-making,” reports Firn. Clinicians sometimes wrongly assumed that the warden could serve in that role for incapacitated patients, instead of a family member or another third party.
Ethicists provided guidance for employing the “best interest” standard if a surrogate could not be identified or could not be reached for time-sensitive treatment decisions. Ethicists also collaborated with many other individuals to resolve the cases. In some cases, ethicists worked with the health system’s Office of the General Counsel to pursue emergency guardianship if indicated, or to pursue a court order if necessary, to provide treatment.
The Office of the General Counsel, in turn, communicated with the state attorney general’s office to advocate on behalf of the person who was incarcerated. Ethicists coordinated with social workers to communicate with the prison. Sometimes, this was necessary to arrange for surrogates who were incarcerated to participate in decision-making conversations with the healthcare team.
Ethics issues related to surrogate decision-making were common. “Incarceration is incredibly disruptive to relationships. This isolation and inability to have regular contact makes accessing the surrogate, and/or the surrogates’ ability to engage in substituted judgment, challenging,” explains Firn. Ethicists can help to ensure ethical care for patients affected by incarceration in these ways, offers Firn:
• Advocating for additional education and better collaboration.
Ethicists can reach out to healthcare system legal offices, hospital security, social work, medical record technology specialists, correctional officials, and the state attorney general. At Michigan Medicine, the Office of General Counsel has a contact with the state attorney’s office that ethicists collaborate with when there are concerns. Ethicists have also met with the prison system’s lead social worker. “We communicate with the prison physicians and staff to explore the patient’s values and prior stated wishes. Our healthcare teams also proactively coordinate with prison healthcare teams around discharge care needs,” reports Firn.
• Facilitating completion of advance care planning documents and appointing proxy decision-makers.
Staff may not realize that incarcerated individuals have the right to advance care planning. The presence of guards at the bedside also can hinder efforts to have detailed conversations about goals of care. “These may act as deterrents to engaging incarcerated patients in advance care planning,” notes Firn.
REFERENCE
- Kang Y, Chao S, Battles A, Firn J. Clinical ethics consultation for patients impacted by incarceration: A single center retrospective review. J Correct Health Care 2024; Apr 9. doi: 10.1089/jchc.23.10.0083. [Online ahead of print].
Unique ethical issues come up with individuals who currently are (or previously were) incarcerated or whose surrogate decisionmaker is incarcerated, a recent study found.
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