Category Archives: Legal matters

Is this a Medical Refusal–or Manipulation?

My good friend Al Cichon writes:

Dr. Keller – would you consider a discussion of balancing the autonomy of patient decision-making and the risk to the facility for not providing appropriate care.
Examples
1. Individual is on disability but wants to sign a ‘waiver’ of responsibility so he/she can work
2. Diabetic (NIDDM) individual that wants to refuse diet and be placed on insulin so he/she can eat what ever they wish
3. Individual with a comminuted jaw fracture – cut wires on episode of nausea – now wants regular food despite oral surgeon advising limited jaw movement
Documentation of appropriate exam and advice to the individual is, of course, the foundation of addressing the issue – but do you allow the 100% (physically) disabled person work; allow the diabetic to sign a refusal of the diet & prescribe insulin; give the individual with the broken jaw (who is asking for more hydrocodone) a regular diet?
I believe your expert ability to address these thorny issues will help us all

Thank you for the kind words, Al! The issue you highlight is indeed a thorny one—when a patient wants to refuse strongly recommended medical care. Sometimes these are true refusals, meaning the patient understands the medical intervention being offered and truly does not want it. More often, though, such refusals are a form of manipulation to get something else that the patient wants. I would like to address these two scenarios first and first and then discuss your three specific examples. Continue reading

The M-Word–Malingering

I went to the always excellent NCCHC spring convention in Nashville last month. One of the many outstanding presentations was done by frequent lecturer Deana Johnson. Deana talked about the risks of using the word “malingering.” Her basic message was to be very careful about saying that an inmate is malingering—in fact, perhaps we should never use that word.

I was surprised by the degree of spirited disagreement from several members of the audience. They pointed out that “malingering” has a specific medical meaning and sometimes—even often—it is an appropriate medical diagnosis. They pointed out that malingering is listed as an official diagnosis in DSM-5 and that outside medical agencies, like mental hospitals, use the term malingering. If we can’t say that an inmate who is clearly faking is malingering, what are we supposed to say?

Today in Jail Medicine, I am going to tackle the term malingering. It turns out that there is indeed a correct and proper way to use the term malingering in correctional medical practice—but it is tricky and most often (in my experience) done incorrectly, with resultant bad consequences.

There are three important reasons for this. First, most people have an inaccurate idea of what malingering actually means in a medical sense and so use the term inaccurately. Second, the use of the term “malingering” also carries with it an emotional definition that MUST be taken into account when it is used in a medical document. Finally, use of the term “malingering” has important consequences for patient relations, patient behavior and time management.

The bottom line, in my opinion, is that “malingering” is a term that should very rarely be used in correctional medicine. There are better and more precise ways to convey medical information. But if you do absolutely want to use the term “malingering,” you need to know how to use the term correctly. Continue reading

Reader Question: How Should We Handle Inmate Requests for their Medical Records?

Dr. Keller, We have recently had inmates requesting copies of their medical records. We have not been releasing those records but we now have a new jail commander that feels we should release those records. Also, what about after an inmate has been released and then requests the information? We’re not sure what to do on this and would appreciate any input you might have. Kathleen

That is a good question, Kathleen! I also frequently have inmates in my jails who request (or demand) copies of all of their medical records. Prisons typically do not have this problem because every state prison system (that I am aware of) already has a detailed policy and procedure on how to deal with inmate requests for medical records. Medical personnel are often not even involved in the procedure. But many jails, like yours, do not have a policy and are commonly confused about their obligations when inmates want copies of medical records.

Does HIPAA give inmates have a legal right to their medical records? What if there is sensitive information in the medical records? What about mental health records? Does it matter if the inmate wants to sue me? Some medical files are huge. Do I have to copy everything? If we have obtained medical records from an outside clinic, do I have to give the inmate those records, as well? How long do I have to respond to their request? Can I charge the inmate for my time and effort? What if the inmate has been released and then requests copies of her medical records?

I have had all of these issues come up in my jails. This is such a frequent occurrence, and is so emotionally charged, that every jail should have a written policy on what to do when an inmate requests copies of his medical records. Believe it or not, it turns out that HIPAA has a section specifically dealing with medical records in corrections. And so, Kathleen, today’s JailMedicine post will review the HIPAA guidelines for corrections, answer all of your questions and make suggestions to help you write a medical record policy for your facility.medicalrecord Continue reading

Price Check! Extended Release Antidepressants

Every once in a while, because of changing drug prices, I discover that my formulary has become outdated. More expensive medications are on my formulary and less expensive equivalents are non-formulary. Depending on how long the price change occurred before I noticed it, I may have overpaid hundreds of dollars unnecessarily. Oops!

This situation arises more frequently than you might expect. Drug prices can change rapidly. And formularies do not get updated often enough. I try to go through mine quarterly, but, to be honest, it probably happens only once or twice a year. As a result, I miss opportunities to save my jails some money.

Today’s example is extended release antidepressants. For many years, I never even looked at extended release drug prices. I just “knew” that ERs were much more expensive than their immediate release cousins. But wait long enough, and everything goes generic, including extended release.

If you have not yet noticed, you can save quite a bit of money (and time!) by switching to extended release venlafaxine (Effexor) and bupropion (Wellbutrin). Continue reading

Help a Brother Out! Outcome Studies

Hi Dr. Keller,

I was hoping I could pick your brain (and those of your readers) for ideas regarding Outcome studies.

We are an NCCHC accredited facility with a population of less than 500 inmates. We are required as part of our accreditation to complete 1 Outcome and 1 Process study annually. Outcome studies are more patient specific and Process studies are more global, referring to the process by which we deliver care.

I don’t usually have problems developing Process Studies, but always seem to get stuck on the Outcome studies. I am wondering if you or your viewers might share any suggestions on topics for Outcome studies or comment on topics they have studied in the past.

Thanks for your help–Bryan19970521 Continue reading

Rectal Contraband. What Would You Do?

Hey Jeff,
 like you I am an ER doc and am the Medical Director of a 550 bed jail. I would like you thoughts on body cavity searches. We had a case last week where an inmate was seen putting a baggy in his rectum. A search warrant was issued and the inmate was sent to the ER for a body cavity search. The inmate refused to let the ER personal touch him. He told the ER doc that it was a baggy of tobacco. The ER observed him for several hours and sent him back to the jail. No cavity search was done. The ER doc felt she would have to sedate the inmate to do the search and felt uncomfortable doing this against his will. The NCCHC frowns on the jail medical providers doing evidence related procedures or searches. My policy is to do the searches if the inmate will sign an informed consent and allow it to be done. If the inmate were to have a complication of sedation or the removal procedure that was done against his will, I would think a malpractice claim could be supported. How do you handle these types of situations in your jail?
 Thanks,
BJFUnknown Continue reading

Judges Practicing Medicine Continued

With regard to the recent article about judges issuing court orders for medical treatments while in jail, I wanted to get a legal perspective, so asked my friend David Tatarsky, who is General Council for the South Carolina Department of Corrections, for his thoughts.

South Carolina Department of Corrections

South Carolina Department of Corrections (Photo credit: Wikipedia)

Here is his response:

My thoughts   (all of which must be considered in light of the particular judge you are dealing with):

1.         You are exactly right about the major cause of this problem—–no one in the courtroom representing the interests of the jail/prison. The parties just want to get the plea completed and move on to the next case. Your solution is great if you can successfully develop the type of relationship you have created with the prosecutors.

2.         In some states, judges may be expressly prohibited from requiring particular medical treatment in a sentencing order.  Jails/prisons should check with Legal on this.  The analogous situation is when a judge sentences an inmate and requires the DOC to house the inmate in a particular prison.  In South Carolina, there is a state statute that says the DOC has the exclusive authority to determine where an inmate is housed:

(A) A person convicted of an offense against this State and sentenced to imprisonment for more than three months is in the custody of the South Carolina Department of Corrections, and the department shall designate the place of confinement where the sentence must be served.

Here is another one I use in South Carolina:

SECTION 24-1-130. Management and control of prison system.

The director shall be vested with the exclusive management and control of the prison system, and all properties belonging thereto, subject to the limitations of Sections 24-1-20 to 24-1-230 and 24-1-260 and shall be responsible for the management of the affairs of the prison system and for the proper care, treatment, feeding, clothing, and management of the prisoners confined therein. The director shall manage and control the prison system.

This is basically what attorneys call a “separation of powers” argument.  Managing inmates belongs to the DOC, a part of the Executive Branch of government.  A judge who tries to assume this power is going outside the power/authority of the Judicial Branch of government.

3.         Sometimes the problem can be solved via education.  Judges, like lawyers, have continuing education requirements.  See if you can get this issue addressed at a CLE for the judges.  My office does a lot of training for prosecutors, public defenders and (sometimes) judges on sentencing issues.  Maybe ask the legal office for the DOC in your state if they can help.

4.         Tied in with the education issue—many (most??) judges know little or nothing about how jails and prisons operate, because most attorneys, before they become judges, learn little or nothing about the corrections system.

5.         If your agency has in-house counsel, ask him/her to contact the judge when you get one of these orders.  What I sometimes do is write to the prosecutor and defense attorney, letting them know that the order is improper and asking them (nicely) to have it corrected.  If I get an unsatisfactory response, I sometimes contact the judge’s law clerk.  Judges do not want to look stupid.  If someone points out the issue to the judge (without embarrassing him/her), he/she may fix it.

6.         A “split the baby” approach is to have the judge “recommend” rather than order some form of treatment on the sentencing order.  Then you can just look at the medical issue when the inmate arrives and exercise your own professional judgment.

These are all excellent points.  I wonder how many other states have a “separation of powers” statute like South Carolina’s.  Mine does not (sadly).

I also like David’s idea of trying to get on the judge’s required Continuing Education schedule.  I intend to do this, myself.  If I am successful, I will write about the experience here.

Davis County Jail Success Story

Tied in with David’s thoughts, I especially liked James Ondracek’s comment about his experience:

I have been the Nursing Director at Davis County Jail for almost 20 years now. I have the e-mail addresses and phone numbers of every court clerk in Davis County. I contact them every time we have a medical issue that requires assistance from a judge. None of our current Judges will grant medical furloughs without contacting me first. I have inmates tell me all the time that they requested a medical furlough and the judge told them to talk to the jail medical staff first because he will not grant a furlough without receiving a recommendation from the jail. Likewise we do not currently, have a problem with judges ordering medications in the jail. It has taken many years of working with judges and attending judge meetings and getting prosecutors to help reverse court orders in the past, but it has paid off in the long run. I have met with many of the judges in court chambers about specific inmate needs and discussed having the judge grant medical furloughs and releases from jail when appropriate. It is very worth it to build relationships and understanding with prosecutors, judges, and attorneys. You will not win every battle but from my experience, most judges are glad to contact the jail with a concern and glad to tell the inmate that the jail will take care of his medical needs and he is not qualified to make medical decisions as a judge. Incidentally, I have never had any of our doctors come to a meeting with a judge. I will occasionally ask him for a note to take with me to meet with a judge or the prosecutor but we have always been able to handle this with our in-house staff.

The key quote here is this: It has taken many years of working with judges and attending judge meetings and getting prosecutors to help reverse court orders in the past, but it has paid off in the long run. It takes time and effort to cultivate a close relationship with judges and prosecutors.  But it is well worth the effort.  Besides being a medical care issue, it is also a time-management issue.  I believe that if you spend the time and effort to cultivate these relationships now, you will spend much less time in the long run—by a substantial margin. 20031105

What About Defense Attorneys?

Besides prosecutors and judges, it may also be worthwhile to cultivate a relationship with the defense attorneys.  Here in my hometown, one local defense attorney (who happens to be a friend of mine) organized a tour of the jail for the County Bar Association.  It was surprisingly well attended by around 40 attorneys.  The 1 ½ hour program featured short presentations by sheriff and the jail commander who talked about jail procedures  and another by me about jail medical services.  The attorneys then took a tour of the jail.  The attorneys had lots of questions.  Basically, like David Tatarsky said above, the attorneys did not know much about how jails work.  It was quite eye-opening for most of them.

The feedback was overwhelmingly positive. As part of my presentation, I gave each of the attorneys my personal cell phone number and invited them to call me if they had any questions about the medical services their clients were receiving.  (I reminded them that they had to have a Release-of-Information form signed by the inmate before I could talk to them in detail).  As a result of this, I have received several phone calls in the last month.  But as I told the attorneys, inviting them to call me directly is a time management issue for me.  It takes much less of my time to talk to them directly than to answer their letters, requests for records, subpoenas, etc.

Have you ever invited the Bar Association to tour your facility?  Please comment!

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Judges Practicing Medicine–The Right Response

I received a court order last week, ordering me to provide a certain inmate with several medications (some of them misspelled) during her six month incarceration.  Upon investigation, it turned out that she did not even have a current prescription for all of the medications, but I was ordered to provide her with them nevertheless.  Oh, and I was ordered to give her a double mattress, too.Judge with One of Those Days Look.

Nothing in correctional medicine irritates me more than when a judge tries to practice medicine like this.  It makes me want to tear out my hair and gnash my teeth. And thus begins THE RANT:

THE RANT

You mean to tell me, Judge, that this patient has to remain on these medications while in jail, no matter what?  I cannot exercise any medical judgment?  What if she suffers a severe reaction to one of the medications?  By court order, I cannot change it!  What if the patient herself wants to stop one of the medications?  I cannot accede to her request without violating the court order.  What if her outside doctor wants to withdraw a prescription?  Nope, by court order, that is not allowed.  Do you really intend for her to be on these exact medications for the rest of her life?

Not only is this terrible medicine, Judge, but an insult as well.  Do you believe that I will not do what is best for my patient?  Do you truly believe that I do not care what treatment my patient has received in the past?  Do you truly believe that I am such a bad doctor that the only thing that will keep me from committing medical malpractice is this stupid court order?

OK.  I have wiped the spittle off my computer screen and I feel better now.

But that is not all!  Earlier in the year, a judge approved a medical furlough for an inmate so he could see his “own doctor.”  However, when this inmate went to the doctor’s office upon his release, they would not see him because he did not have an appointment!  What a waste.  Another patient released for a medical furlough did have an appointment, but never showed up for it.  What did she do in the six hours she was away from jail?  I don’t know and neither does the court.  They never checked.  Not only were these furloughs a security breach, both furloughs were totally unnecessary.  I was well aware of each patient’s medical condition and even had talked to the outside doctors to coordinate care.  What a waste of everyone’s time, including the court’s.

Am I the only correctional physician to be cursed with such orders?   Nope.  Having talked to many colleagues, such orders seem to be ubiquitous in correctional medicine!  The question is what to do about them.

It Is Our Duty And Obligation to Oppose These Orders

In my opinion, we cannot simply indulge in a rant, but then shrug our shoulders and blithely obey medical court orders.  Such orders from the court are bad medicine.  It is our obligation and duty to protect our patients from this bad medicine.  The court is, in fact, incompetent to make medical decisions.    It is also our duty and obligation to educate all parties involved that we are competent to deal with inmate medical problems.  We don’t need the court’s “help.”

In order to formulate a game plan, we need look no further than the hearing that resulted in this court order.

Anatomy of the Hearing

20100526To begin, think about the players who were present in the courtroom when this order was issued.  There was the judge, of course.  The defense attorney was there along with our patient, the defendant.  And a deputy prosecutor was there, too.  Now, think about who was NOT in attendance.  The outside doctor(s) who prescribed the medications were not there, provided no testimony and probably did not even know that the hearing was taking place.  In fact, there was no medically trained person in the court room at all.

Who, then, provided the expert testimony about what medical services the patient would need while in jail?  The patient herself, via her attorney!  She acted as her own “expert witness!”  The procedure went something like this:  The patient’s attorney told the judge that the patient had medical problems and would require certain medications and treatments while in jail.  The patient and her attorney then said that they were afraid that these necessary medicines would be stopped as soon as she arrived at the jail.   And this, they alleged, would result in horrible consequences for this patient.

Since none of this patient’s outside doctors was in attendance, no evidence was presented to back up any of these claims.  There was no evidence presented that the patient actually had the diseases she claimed to have.  There was no evidence that the medications she listed were necessary or that they should be continued indefinitely, no matter what.

So why then would the judge issue the order, despite the absence of any medical evidence?  The critical answer is that the prosecutor present at the hearing said he had no objection!  There is the crux of the matter.  If the prosecutor had said, “This court order is unnecessary.  Jail medical can handle this patient’s medical needs,” then the judge would never have issued such an order.  At most, she would have set a date for a formal hearing on the matter.  Or just said, “No.”

So why didn’t the prosecutor object to the issuance of this order?  There are several possible reasons.  The prosecutor is interested in criminal charges, not medical issues.  Whether the inmate gets certain medications or not is no skin off his nose.  Also, if he objects, a formal hearing might be scheduled.  He is busy and he does not want to have to prepare for yet another hearing.  It is much easier just to go along.  Finally, everyone in attendance, from the judge to the attorneys, are ignorant of the medical services available in the jail.  For all the prosecutor knows, everything the patient said is true.  She needs these meds! Maybe the jail Doc will stop them for no good reason!

To summarize, here are three critical facts about the hearing that resulted in the medical court order:

  1. No evidence was presented at the hearing to substantiate the patient’s claims.  No expert witness spoke.
  2. In order for the order to be issued, the prosecutor (who is our representative) had to agree to the court order.
  3. Nobody in attendance understands what medical services are available to incarcerated inmates.  They might not even know that there is a medical service at all.

Fighting Back—What We Can Do To Combat Irrational Medical Court Orders

It would be irresponsible not to do what we can to reverse these bad medical court orders.  There are two priorities here.  The first is to get this particular court order reversed and the second is to do what we can to make sure that no such court orders are issued in the future.

The key to reversing the original court order is to remember that no medical expert attended the original hearing and no medical evidence was introduced.  So to get it overturned, all I need to do is to introduce medical evidence.  The legal term for a written statement of evidence is an affidavit.  The person who will help me prepare this affidavit is the prosecutor who signed off on the original order.  I need to call him (or his boss) and explain that this court order is bad and needs to be reversed.  The prosecutor and I then need to write an affidavit to the court stating all of the reasons that this court order is bad medicine.   The affidavit should basically restate everything I said in the rant above, but in a nice way.  For example, I need to introduce myself and list my qualifications.  That establishes that, hey, there is a real, competent doctor at the jail.  Then I should list the blatant problems with the court order, for example, there is no room for any clinical judgment,  I cannot, by court order, change the medications under any circumstances, such as side effects, or even by patient choice.  If I think that some of these medications are inappropriate for the patient, I can state that and briefly say why (major potential drug interaction, controversial off-label use, dose higher than manufacturer recommendation, etc).

Almost always, the affidavit alone is enough to have the judge rescind the order mandating certain treatments.  Occasionally, the judge will schedule a formal hearing on the subject, but that always seems to go well because the correctional physician is the only medical professional who attends.  I have yet to see an outside physician at one of these hearings.

Writing an affidavit and then perhaps attending a hearing on the matter may seem like a lot of work.  In reality, it will save time in the long run, because it will result in fewer medical court orders in the future.   The defense attorney will be less likely to seek such a court order in the future knowing it will be challenged, the prosecutor won’t blithely sign off such orders without calling me first and the judge will be less inclined to issue such orders.

Educating the Courts.  Meet the Prosecutors.

After the original court order has been reversed, the next task is to do what we can to prevent such orders being issued in the future.  The way to do this is to set up meetings in which you will provide education about jail medical services.  I have had meetings with the judges themselves, but these are often hard to set up.  You can set up meetings with the public defenders, but to meet with every defense attorney in town is hard.  (I have had success setting up such meetings, however).

Fortunately, the easiest meeting to set up is also the most important and that is the one with the Prosecutor’s Office.  A typical Prosecutor’s Office will already have a meeting attended by all of the prosecutors at least weekly.  I have found it quite easy to get a half hour scheduled to talk about jail medicine and the problems with the courts.  In fact, the Prosecutors Offices I have dealt with have been happy, even enthusiastic to discuss jail medical issues.  The main goals for the prosecutors are:

  1. Introduce yourself and your credentials.  It very much helps that, just by talking to the prosecutors face-to-face, they can see that you are a rational, reasonable person.
  2. Describe the problems with the various medical court orders, including medications, furloughs, double mattresses, etc.
  3. Explain how these medical histories are assessed and evaluated in the jail, including discussions with the outside doctors when necessary.  Expect a lot of questions about how meds are approved or disapproved for use in the jail (This is the single most prevalent complaint that they hear in the courts:  “I’m not getting my meds.”)
  4. And most importantly, ask the prosecutors never, ever to approve medical court orders without talking to you first.

I always give the prosecutors my personal cell phone number and invite them to call anytime.  I point out that it will take less time and effort for both them and me if they call me initially rather than have to fill out an affidavit after the fact.

I have attended many such meetings with prosecutors.  These have always gone well.  I usually get several phone calls in the weeks after the meeting from prosecutors asking about certain allegations that were made in court.  But when the prosecutors are armed with the facts, nonsensical medical court orders stop.  Commonly, patients have fudged the truth or outright lied about their medical problems and what has been prescribed for them.  When judges find out this out (from me via the prosecutors), they tend to be irritated—and less likely to entertain medical requests in the future.

Occasionally, I have had to testify in court about medical processes in the jail.  These have always gone well, also, and are again an opportunity to educate the judge about what goes on in the jail.  It sounds especially good when I testify that I have contacted the outside physician and that we jointly have agreed to a treatment plan while the patient is in jail.

By the way, I have never once seen an outside physician testify at one of these court hearings about jail medical issues.  Outside physicians hate to go to such hearings for many reasons:  It disrupts their busy practice schedule, they don’t get paid, and they usually have no objection to the medical treatment the patient is getting in jail, anyway.  This means of course, that I am the only “expert witness” that the court hears.

In the case I initially introduced, I filed an affidavit with the court the next day with the help of the county attorney and the deputy prosecutor in the case.  The court order was amended that very day to read “The foregoing order is subject to the exercise of medical judgment of the medical staff  . . .including, if deemed appropriate, consultation(s) with those physicians who have prescribed the above medications.”

This was good enough for me.  I called the outside physician (which I would have done anyway), and we jointly agreed on a treatment regimen to be used while this patient was incarcerated.  Interestingly enough, this treatment plan did not include most of the medications on the initial court order.

How do you handle medical court orders at your facility?  Please Comment.

Chemical Sedation is Safer than Prolonged Physical Restraint

Here is the clinical scenario:  You have an inmate in your facility who is running his head into wall, bull-like, at full speed.  He then backs up and does it again.  He may be suicidal.  He may be high on meth.  He may just be a jerk throwing a tantrum.  But he will not stop just because you have asked him to.

How should we stop this patient from hurting himself?

How should we stop this patient from hurting himself?

What would you do in this situation?  It seems to me that there are only three options for how to deal with this inmate.

  1.  Do nothing!  Let him hurt himself if he wants.
  2. Physically restrain him in a restraint chair or on a board.
  3. Administer sedating medications as a form of chemical sedation.

These three responses clearly are different in the risk of a bad outcome.  And there are two possible bad outcomes to consider.  The first is the medical risk.  Which approach is most likely to result in a serious injury to the patient?  The second is the legal risk.  Which approach is least likely to result in a successful lawsuit?

I hope that no one reading this would opt to do nothing.  You simply cannot continue to let this inmate run his head against the wall.  The risk of a bad outcome, both medical and legal is just too high.  On the medical side, I personally am aware of three cases where inmates running their heads into the wall of their cells fractured their necks. One was left a quadriplegic.  The risk of legal action is also high.  In fact, this could be Deliberate Indifference:  You knew that running his head into the wall could potentially result in serious injury and yet you did nothing to stop him.  I will leave the Deliberate Indifference question to the lawyers, but even without this, the threat of a nasty lawsuit following such an injury is almost inevitable.

So the prudent action, both medically and legally, is to restrain this patient in some way.  But which method of restraint is safer for the patient?  Which method of restraint is safer legally?

In my strongly held opinion, restraint by chemical sedation is safer than prolonged physical restraint for those who are a threat to injuring self or others.  I have several reasons for believing this.

  1. Chemical Sedation is the community standard of care in the other two areas of medicine that also routinely restrain patients who are a threat to self or others.  Those two areas are Emergency Medicine and Inpatient Psychiatric medicine.
  2. Prolonged physical restraint, for example in a restraint chair or board, carries significant risks of injury, including death.  Chemical sedation is much safer.
  3. As long as the chemical sedation is done properly, there is less risk of successful legal action with chemical sedation than with prolonged physical restraint.

Chemical Sedation is the Community Standard of Care

I practiced in a busy emergency department for many years before I came to correctional medicine.  There, chemical sedation is routinely practiced.  Every Emergency Department does chemical sedation routinely.  It is not controversial in ERs at all.  I was taught how to do chemical sedation in my ER residency.  It is an Emergency Medicine “Core Competency.”  Chemical Sedation is discussed in every major Emergency medicine textbook.  As a matter of fact, physical restraint is viewed in Emergency Medicine as a tool to facilitate chemical sedation rather than a viable option on its own.

It is a similar situation in inpatient psychiatric hospitals.  I have asked several psychiatrists whether they leave dangerous inmates in a psych hospital physically restrained for long periods of time.  The typical response is to laugh and say “No.  They get sedated.”

I’m not sure why chemical sedation has such a bad reputation in some quarters of the correctional medicine world, because it is the Standard of Care for patients who are an acute danger to self or others elsewhere in medicine.  Why is this so?  It is because:

Chemical Sedation is Safer than Prolonged Physical Restraint

Unfortunately, I cannot point to any published studies that show that chemical sedation is safer than prolonged physical restraint.  That is because there are none.  However, I personally know of at least five cases of death from physical restraint.  The mechanism of death in these cases has ranged from suffocation to acute pulmonary embolism to “excited delirium.”  The point is that prolonged physical restraint carries substantial risks that range from minor (contusions, abrasions, broken bones) to serious (death, loss of limbs from too-tight restraints).

On the other hand, I am not aware of any deaths from chemical sedation, whether in an Emergency Department setting or in corrections.  I actually have never heard of any serious complications from chemical sedation.  There may have been one somewhere and I am just not aware of it.  If you know of such a case, please contact me!

Chemical Sedation Carries Less Legal Risk Than Does Prolonged Physical Restraint

Again, there are no published studies on the incidence of lawsuits after restraints.  I have spoken to several different Risk Management experts on the subject, both in Emergency Medicine and Correctional Medicine,  and they have unanimously agreed that chemical sedation of a dangerous patient carries less legal risk than does prolonged physical restraint.

Here is one example.  I contacted Rick Bukata and Greg Henry, who together publish Risk Management Monthly, a publication on how to reduce medico-legal risk in Emergency Departments.  I asked them about the legal risk of administering chemical sedation to a dangerous patient against his will.  This was their response:

“Jeff Keller has malpractice concerns about the patient who is sedated against his/her will.  This situation is not likely to be problematic if the patient is being sedated because he or she poses a danger to self or others, and if the reason for sedation is meticulously documented.  A physician might be at greater medicolegal risk if he or she fails to sedate a problematic patient who is placing the staff in jeopardy.”

After talking to several Risk Management experts in Correctional Medicine about this subject, I am unaware of any successful lawsuits arising from chemical sedation of an incarcerated inmate who was an acute danger to self or others.  Once again, if you are aware of such a lawsuit, I want to know about it!  Please contact me!

I believe that the legal risk of restraining an inmate depends on two factors.  The first is harm.  If a patient has been harmed by the restraints, he is more likely to sue and is more likely to be successful.  So the method of restraint least likely to injure the patient is the safest legally.  Chemical sedation is safer than prolonged physical restraint and so is safer legally as well.

The second factor is that the sedation was done on the right patient (one who is an acute danger to himself or others) and that this was documented properly.

In fact, chemical sedation is very like administering any medication.  You must have the right patient, give the right medications in the right dosages, do the right monitoring and follow-up care, and document in the right way.  If you do all of that, your legal risk will be low.  More details on that later.

What does your facility do for out-of-control inmates who are a threat to themselves or others?  Chemical sedation or prolonged physical restraint?  Please comment!

 

 

Reader Question: Diabetic Malingering Part 3

Janet, great correctional nurse, Ada county Jail, Boise

Dr. Kay Haw submitted the following question:

“I would like to know your thoughts on the ability to forcibly provide insulin coverage on a diabetic inmate whose sugars are out of control and is refusing blood sugar checks and insulin administration.”

This is a great question that I should have answered as part of the Diabetic Malingering series found here and here.  The question here is whether an inmate has a right to refuse medical care, even if doing so could result in harm.  In general, inmates retain the right to refuse medical care, as long as they are competent to do so and as long as the refusal is informed (more on that later). However, this right of refusal is not inalienable and  depends on clinical circumstances, such as how much harm the patient faces by the refusal, the reason the patient has for refusing and the patient’s competence.

In the case of refusing insulin, the risk the patient faces depends on whether the patient is a Type 1 diabetic or a type 2 diabetic. A Type 1 diabetic will eventually die without insulin and may lapse into a diabetic keto-acidosis coma in as soon as 3-4 days.  Type 2 diabetics, on the other hand, will not die without insulin.  They still make their own insulin.  They are insulin resistant but not insulin dependent.  Some are prescribed insulin to keep their blood sugars down, but they do not need insulin to survive.

Refusal of Insulin by a Type 2 Diabetic

So let’s first take the simpler case of a Type 2 diabetic who refuses to take insulin.  Since he does not need insulin to survive, and since insulin is not the only treatment option available, the refusal of insulin is analogous to the same patient refusing a diabetic diet.  It may not be in his best interest to refuse insulin (or a diabetic diet) but the patient has the right to refuse these treatments as long as the refusal is an informed refusal.  An informed refusal entails that someone, usually the jail practitioner, informs this patient of the potential harm that might ensue as a result of refusing medical care.  I would talk about the risk of heart attacks, strokes, kidney failure, blindness, foot amputations and every other complication of diabetes I can think of.  Besides warning him of the possible consequences of his refusal, I might just scare him enough to reconsider.  The threat of impotence seems to work particularly well in the scaring department!

After this, assuming that the patient continues to refuse care, I inform him that he can change his mind at any time and document the conversation thoroughly in the medical record.  There are times when you can be brief in your medical documentation but this is not one of them.  You need to document the risks you discussed with the patient, the fact that he refused and that you told him he could change his mind.  That’s the easy case.

Refusal of Insulin by a Type 1 Diabetic

The refusal of insulin by a Type 1 diabetic is a totally different case since type 1 diabetics are dependent on insulin to survive.  Without insulin, they can lapse into a diabetic coma in as little as 3-4 days.  The threat is real and immediate. The first question to ask a Type 1 diabetic who is refusing insulin is whether he understands this and whether he is intending to commit suicide.  In fact, for Type 1 diabetics, the conversation on adverse consequences can be much shorter than for Type 2 diabetics.  All you really have to say is “Without insulin, you will die.  Maybe within days.  Do you understand this?”

If the patient continues to refuse insulin despite this warning, my personal opinion is that, in most cases, this jail inmate should be forcibly restrained and given insulin despite his refusal.

“Wait!” you might be saying.”What about the inmate’s right to an informed refusal of medical care?” Well, there are several  issues here that bear on my decision to override this particular inmate’s right to refuse care.

1. What is the inmate’s motivation for refusing this life-saving medical intervention? There is a difference between a patient who is refusing life-or-death medical care for religious reasons (Like Jehovah’s Witness refusing blood products) versus refusing due to a trivial protest of jail policies or wanting to commit suicide.   I do have not have much respect for a patient who is refusing insulin as a method of manipulation.  And inmates do not have an innate right to manipulate.

2.  Inmates do not have a right to commit suicide.  Just as an inmate does not have the right to kill themselves by refusing oxygen (by wrapping a sheet around their neck), they also don’t have the right to kill themselves by refusing insulin.

3.  The threat to a Type 1 diabetic’s health of refusing insulin is immediate.  Without insulin, they may lapse into a coma within days.  There often is not enough time to adjudicate the question in court.  If, instead of wanting to commit suicide by refusing insulin, an inmate wanted to commit suicide by refusing food and starving to death, there would be plenty of time to get a judges opinion.  Death by starvation takes weeks.  Death by diabetic coma takes days.  I need to act now.

4. The solution to this dilemma is relatively quick and easy.  In order to keep a Type 1 diabetic alive, all we really need to give them is long acting basal insulin, either Levemir or Lantus, once a day.  And patients need only be restrained for literally seconds, just long enough to get a blood sugar and give insulin.  Patients won’t be well controlled with just Lantus, but it will keep them alive long enough to go to court, if necessary. More typically in my experience, after the first forced shot, patients usually change their mind and again accept diabetic care.

5. Finally, incarcerated inmates, to some degree, have lost absolute autonomy to make their own decisions.  Just like an inmate cannot choose what to eat or to wear, they do not have an inalienable right to refuse medical care when in jail.  Jails, prisons and juvenile facilities have some degree of guardianship over incarcerated inmates and also have not only the right, but the responsibility to protect the well being of the inmate as well as the safety and security of the institution.

“I’ll take insulin, but I refuse to allow you to take blood sugars.”

What about the patient who accepts insulin, but refuses to allow blood sugar checks?  Again, in my mind, this boils down to the risk the patient faces by this refusal.  Since a shot of insulin can potentially kill a person whose blood sugar is low, knowledge of the blood sugar is mandatory to be able to give insulin safely.  I would not allow a patient to accept insulin but refuse blood sugar checks.  They must go together.

What I have written here is my own opinion.  I freely admit that smart people might just disagree with me!  In fact, I might be wrong!  You should discuss this potential situation with your facitily’s legal counsel and administration so you know in advance what you are going to do when the time comes.  And it will happen!  This is not that uncommon of a situation.

What would you do in the case of a Type 1 diabetic who is refusing insulin?  Please comment!

Special Thanks to David Tatarsky, General Counsel to the South Carolina Department of Corrections, for teaching me how to look at this case from a legal perspective.  Of course, if I have made a mistake, it is my mistake, not his!