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Medical Confidentiality in Prisons

Posted by Sara Cooper | Jun 22, 2023 | 0 Comments

Relationships between a patient and a physician in general include the right to medical confidentiality. The exceptions that would break that confidentiality are usually if there is notice of risk of losing their own life or threats being made to harm another person. This is also applied in the setting of prison, but the main difference is the control of jail administration and their conflict with dual loyalty.

The purpose of prison is to punish, and the purpose of medical care is to aid. The opposing missions cause complications in how a prisoner can access treatment while withholding autonomy of their wellbeing. According to Allen and Aburabi from the International Journal of Prisoner Health, they point out how “this conflict in missions for the health professional has been described by the term “dual loyalty” which is defined as a situation arising when “the loyalty to one's professional oath and ethic comes into conflict with loyalties and obligations to a third party, in this case, the prison or the state and its security interest” (Physicians for Human Rights, 2003). So where does this compromise lead? Is there ever a true balance between the prison and the physician within their roles? Ultimately, the prisoner is the one most impacted no matter which ethical rule or security measure is taken place for an effective response.

Health care professionals have the role of being a caregiver to those who are incarcerated and offer the required principles of care for their patient: free access to medical care, equivalence of prison health care and community health care, confidentiality, patient's informed consent, preventative health care, humanitarian assistance, complete professional independence, and competence (standards upheld by the European Committee for Prevention of Torture). These should be followed since the initial examination that is given by the physician or health care professional when meeting their patient.

With prisoners being a vulnerable population, confidentiality and respecting the patient's choices altogether is based on the professional's judgement. According to the American Journal of Public Health, “The only way to avoid these dual-loyalty conflicts is a clear assignment of different medical roles to separate persons by (1) conceding to health care professionals who care for prisoners complete and undivided loyalty to their prisoner patients and (2) calling in forensic or public health officers who do not have a clinical relationship to patients for all tasks in which the prison administration or the state needs medical expertise that does not accord with the interests of prisoners” (Pont, et al., 2012). For example, there have been an array of hunger strikes in prisons and detention centers in California, and doctors that work in the facilities could be forced to “tube feed” prisoners to give them nutrition.

Medical law and ethics would respond that the patient has the right to not be fed if they are on a strike. Depending on the situation, it can fall under the protection of confidentiality, to put the best interests of the patient as a priority. Especially when dealing with drug misuse, if a patient discloses with the doctor about their trading of prescribed medication for a slim of cocaine, the physician will most likely not report that to prison authorities. The prisoner will be asked if there will be future usage of cocaine, and if not, it is not in harms way of themselves or others. Treatment from the assigned physician to the patient will continue.

Other difficult navigations in prison regarding the public health of prisoners include HIV/AIDS, COVID-19, anything popularized by the prison community. It is crucial that physicians and health care professionals have a good rapport with prisoners, including always notifying the patient of the guidelines of medical confidentiality and their limitations. This is how prisoners survive, and this is how prisoners can operate with each other under less tension and violence. A big indicator of the quality of healthcare in prison is the outside community and their status with local healthcare. If the average health care facilities in the outside community of a society are inadequately poor it might be argued that health care in prison must be even superior as a consequence of the government's responsibility for people deprived of their liberty and thus fully dependent on the state authority (Penal Reform International, 2001). It is easier to make healthcare a battle to access than it is to reprimand as a public health mandate for prisoners that are more than just a number or the crime that they were sentenced for.

According to the International Journal of Prisoner Health, exceptions to this rule include an order from a court of law (in which case the doctor should personally hand over the information directly to the judge) and those rare cases when the doctor must decide to breach confidentiality in order to protect a higher-ranking legal right like saving the health or life of another person. The judgement to call on breaking medical confidentiality can be determined differently depending on the physician and their relationship with the prisoner or their familiarity on the impact of reporting to administration. If the physician has been serving the same for the past decade, they are in deep recognition of how the system and their prison staff treats incarcerated individuals. They can provide more long-term support for their patients and their conditions than the outcome of them getting relocated to a higher-risk facility for a negative habit they haven't stopped. They could also be a new physician that just got out of medical school residency and are in fear of being terminated from their position that they have worked academically hard for.

Confidentiality between the doctor and the prisoner is always an ongoing learning experience that requires a space that humanity is difficult to find in an incarcerated space. A good point made by Pont from the International Journal of Prisoner Health mentions how “the prison doctor should seek to arrange for terminally ill prisoner patients to die in the community rather than in prison and to support the prisoner's application as the last act of mercy than can be shown to them” (2006). The power of authority that facility physicians and health care professionals have could be a gateway for prisoners to have a less traumatic experience in prison and a smoother process when getting out.

For a general list provide by the International Committee of the Red Cross, here is what global treaties and conventions state that prison authorities have a duty to provide:

  • safe and healthy living quarters for all prisoners:
  • protection of individuals from violence and coercion;
  • provision of adequate health care services and medicines, as far as possible free of charge;
  • information and education about preventive health measures and healthy lifestyles;
  • implementation of elementary preventive health measures;
  • means for detecting sexually transmitted infections and for treating them, so as to reduce risk of HIV transmission;
  • continuation of medical treatments begun outside (including those for drug users) or the possibility of commencing them inside;
  • provision of specific protection for vulnerable prisoners, such as those who are HIV-positive, from violence from other prisoners, or from those with infectious diseases which could be extremely dangerous for them, such as tuberculosis;
  • where voluntary testing for HIV is available, it should always be provided together with adequate counselling, before and after testing.

Supporting Documents:

Allen, Scott A.; Aburabi, Raed (2016). When security and medicine missions conflict: confidentiality in prison settings. International Journal of Prisoner Health, 12(2), 73–77. doi:10.1108/ijph-03-2016-0007 

Pont, Jörg (2006). Medical ethics in prisons: Rules, standards and challenges. International Journal of Prisoner Health, 2(4), 259–267. doi:10.1080/17449200601069643 

Pont, Jörg; Stöver, Heino; Wolff, Hans (2012). Dual Loyalty in Prison Health Care. American Journal of Public Health, 102(3), 475–480. doi:10.2105/ajph.2011.300374 

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