Dual Loyalty in Prison Health Care

HEALTH POLICY AND ETHICS

Resolving Ethical Conflicts in Practiceand Research

Dual Loyalty in Prison Health CareJörg Pont, MD, Heino Stöver, PhD, and Hans Wolff, MD, MPH

Despite the dissemination

of principles of medical ethics

in prisons, formulated and ad-

vocated by numerous interna-

tional organizations, health

care professionals in prisons

all over the world continue to

infringe these principles be-

cause of perceived or real dual

loyalty to patients and prison

authorities.

Health care professionals

and nonmedical prison staff

need greater awareness of

and training in medical ethics

and prisoner human rights.

All parties should accept inte-

gration of prison health ser-

vices with public health

services.

Health care workers in

prison should act exclusively

as caregivers, and medical

tasks required by the prosecu-

tion, court, or security system

should be carried out by med-

ical professionals not involved

in the care of prisoners. (Am

J Public Health. Published

online ahead of print January

19, 2012: e1–e6. doi:10.2105/

AJPH.2011.300374)

DUAL LOYALTY IS AN ETHICAL

dilemma commonly encounteredby health care professionals caringfor persons in custody.1,2 Dual

loyalty may be defined as clinicalrole conflict between professionalduties to a patient and obligations,express or implied, to the interestsof a third party such as an em-ployer, an insurer, or the state.1Thedual loyalty practitioners mostcommonly face in prison is betweentheir patients and the prison ad-ministration or the state authority.1

We aim to shed light on the prob-lem of dual loyalty in prison healthcare and to identify measures toreduce and solve the problem.

DOCUMENTS ON MEDICALETHICS IN PRISONS

Ethical rules for health careprofessionals in prisons are amplyand clearly defined in rules, reso-lutions, declarations, and recom-mendations by the United Nations(UN),3---6 the Council of Europe,7---9

the World Medical Association,10---14

the International Council ofNurses,15 Physicians for HumanRights,1 and Penal Reform Interna-tional.16 A few national codes alsorelate to health care matters inprison.17---21

According to these documents,the sole task of health care pro-fessionals working in prisons is thecare of physical and mental healthof the prisoners by

d acting as the private caregiver tothe prisoners and observing the7 essential principles of medicalcare in prison as quoted in thestandards of the EuropeanCommittee for Prevention ofTorture (free access to medicalcare, equivalence of prisonhealth care and communityhealth care, confidentiality, pa-tients’ consent, preventivehealth care, humanitarian assis-tance, complete professional in-dependence and competence)9;

d advising the prison director onhealth affairs in prison, strictlyobeying the 7 principles; and

d acting as a health and hygieneofficer by inspecting and re-porting on food, hygiene, sani-tation, heating, lighting, venti-lation, clothing, bedding, andphysical exercise.

All of these tasks must be per-formed with complete loyalty tothe prisoners; medical activitiesnot in the interest of prisonersshould not be undertaken by pro-fessionals who provide health careto prisoners, as stated clearly inprinciple 3 of the UN resolution onprinciples of medical ethics rele-vant to the role of health person-nel in prison:

It is a contravention of medicalethics for health personnel, par-ticularly physicians, to be in-volved in any professional rela-tionship with prisoners ordetainees the purpose of which isnot solely to evaluate, protect orimprove their physical and men-tal health.4

Such activities include forensicassessments, disclosure of patient-related medical data to otherswithout consent of the patient,assisting in body searches orobtaining blood or urine for anal-yses for safety and security rea-sons, providing medical expertisefor the application of disciplinarymeasures, and assisting or beingcomplicit in physical or capital pun-ishment, force-feeding, or torture.

The claim of exclusive concernwith patients’ welfare may strikesome as excessive in light of theobligations health professionalshave to third parties in otherhealth care settings. However,health care professionals inprisons face extraordinary ethicalchallenges: prisoners, who cannotchoose their care provider andwho are fully dependent on thehealth care provided to them, area vulnerable population, as dem-onstrated by the many exploita-tions, abuses, and violations oftheir human rights in the past.

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Prisons are totalitarian and re-pressive institutions where “struc-tures to support responses withhuman rights of patients arenonexistent or ineffective”1 and“where there is often deliberateambiguity about the health profes-sional’s role in the institution.”1

Health care professionalsworking in prisons are also ina vulnerable position and mayface pressures to serve medicalpurposes other than patientcare.

[They] often try to accommodatetheir medical skills to the limita-tions imposed on them. Theyoften need to adjust standards ofpractice to institutional con-straints. Moreover, many healthprofessionals working in this en-vironment are subject to em-ployment arrangements thatformally subordinate them to of-ficials responsible for institutionaloperation, thus compromisingtheir ability to exercise indepen-dent judgment. In other cases,they become part of an institu-tional culture that subordinatespatient interests to the financial,political, or administrativeagendas of the institution.1

VIOLATIONS OF MEDICALETHICS IN PRISONS

Despite this international bodyof ethical documents, health careprofessionals working in prisonscontinue to be at risk for violatingprinciples of medical ethics,1 andprison authorities, representativesof states, and even scholars ofcriminal law ignore or overridethem time and again.

The most spectacular violationsin recent history that werebrought before the public andwidely discussed involved force-feeding of hunger strikers by

health care professionals,22,23 par-ticipation in carrying out the deathpenalty,24 and complicity in tor-ture.25,26

However, many subtle, muchless spectacular situations in dailyprison life cause health careprofessionals to forsake loyalty totheir patients, often unwittinglyor by failing to scrutinize routineprocedures, decrees, or lawsagainst the standards of medicalethics and human rights:

d The medical examination onadmission of prisoners is ofindisputable importance for thedetection and treatment ofhealth disorders, particularlythose incompatible with impris-onment. However, the healthcare professional who is tocare for the health of the pris-oner as a private caregiver9,16

should not issue certificationsthat prisoners are fit for impris-onment—a professional act thatclearly is outside the principles ofmedical ethics and hardly everfosters a trustful relationship withthe patient.

d Penal systems with laws ordecrees requiring the involve-ment of health care profes-sionals in the approval of pun-ishments and in the medicalsupervision of certain punitiveor security measures (e.g., thepenitentiary laws or regulationsof Austria, Azerbaijan, and Ger-many), activities that are clearlyoutside the scope of health careto prisoners, likewise conflictwith principles of medical ethicsand are therefore rejected byinternational documents.4,9

d Health care professionals inprisons may be requested by

prison authorities to obtain andanalyze blood, urine (e.g., fordrug detection), or other bodysamples; carry out intimatebody searches12; or discloseconfidential medical data tothe prison administration for fo-rensic or security purposes.

d Health care professionals inprisons often are asked to handover prisoner health recordsfor forensic purposes that maycontravene patients’ interests;this is explicitly rejected byinternational documents.1,8,16

This ethical problem also ariseswhen treatment in detentionis ordered by the court andthe duration of detention de-pends on the success of thetreatment, which the treatingphysician has to assess (e.g., hos-pital treatment order, forensicpsychiatry).27

d Prison administrations maypressure health care profes-sionals not to provide evidence-based treatments available tothe community for financialreasons (e.g., hepatitis C treat-ment) or for security or ideo-logical reasons (e.g., opiate sub-stitution treatment). If healthcare professionals yield to thispressure, they forsake loyalty totheir patients and violate theprinciple of equivalence ofhealth care.9

d Contractual obligations, overt orconcealed, or just perceivedpressure by prison authorities;professional isolation; and habitmay lead health care profes-sionals to subordination to oraccommodation of negative in-stitutional cultures that may pre-vent them from detecting andreporting abuse or circumstances

and practices adverse to thehealth of prisoners.

For instances in which healthcare professionals must depart

from undivided loyalty to prisoner

patients, some documents1,6,16

offer an ethical loophole: if the

health care professional makes

a prisoner clearly understand that

the role of the professional haschanged in a particular instanceand the reason for the change,such a departure can becomemorally and legally acceptable.However, the switch from a pro-fessional’s position of personalconfidential caregiver with undi-vided commitment to the prisonerpatient to acting as a forensic orpublic health officer accountableto the authorities—whose reportmight harm the patient—certainlyis detrimental to the patient’s trust,even if thoroughly explained.

The only way to avoid thesedual-loyalty conflicts is a clear as-signment of different medical rolesto separate persons by (1) con-ceding to health care professionalswho care for prisoners completeand undivided loyalty to theirprisoner patients and (2) calling inforensic or public health officerswho do not have a clinical re-lationship to patients for all tasksin which the prison administrationor the state needs medical ex-pertise that does not accordwith the interests of prisoners.

The professional caring fora patient is solely accountable tothe patient, and a forensic expertor a public health officer is pri-marily accountable to the stateand to the community. Publichealth officers and forensic

HEALTH POLICY AND ETHICS

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experts can follow the principles ofpublic health ethics rather thanthose of individual health ethicsbecause their relationship topatients is transient, patientsknow the nontherapeutic purposeof their task, and thereforefidelity concerns are typicallysmall enough to be outweighedby the accompanying socialbenefits.28

CONTINUING PREVALENCEOF DUAL LOYALTY INPRISON HEALTH CARE

International documents onmedical ethics in prison healthcare were formulated and pub-lished decades ago, but mostprison health care professionalsand prison systems still strugglewith dual loyalty. Several reasonsexplain the delay in adopting theseethical standards:

d Health care professionalsworking under the hierarchiesof justice or prison authoritiesreceive little if any training inmedical ethics regarding healthcare in prison. Professionalethics was one of the highest-priority training needs in a sur-vey of doctors in English andWelsh prisons.29 Untrainedprison health care professionalsmay not identify potential roleconflicts.

d Despite the declarations re-garding ethics of health care inprison by international organi-zations and by some coun-tries,17---21 national professionalorganizations have largely failedto advocate on this issue. Therelevant documents belong towhat is called soft law: no legal

sanctions apply to violators. If not

covered by national law, devia-

tion from principles of medical

ethics can only be sanctionedby national professional boards

and licensing bodies, which

generally have no strongly de-

veloped interest in health care

in prison.d Prison directors, representativesof prison administrations, andcriminal justice experts need

greater knowledge and under-standing of the principles of

medical law and ethics, the role

of health care professionals in

prisons, and relevant interna-

tional documents. One proof ofthis is the publicly expressed

opinion of a professor of crimi-

nal law that “medical ethics ap-

ply to private doctors but not to

prison doctors.”23

d Political influence and calcula-tion may play a role. For in-stance, as a result of 2 recent

workshops, on military medical

ethics regarding dual loyalty30

and on interrogations, force-feed-

ings, and the role of health pro-

fessionals,31 the ethicist G. J.Annas noted that the summaries

dramatically demonstrate that,for the first time in the history ofthe US military, the Departmentof Defense has a medical policythat goes directly against a wellrecognized international medicalethics standard.32(p1737)

d In times of scarcity of publicresources, prison health care

may not be given priority.

However, according to the re-vised European Prison Rules,7

neglect of the human right of

prisoners to appropriate health

care is not justified by lack ofresources.

CURRENT STRUCTURESFOR HEALTH CARE INPRISONS

Health care in prisons is orga-nized in various ways accordingto the authority responsible foradministration of prison healthcare and the employment statusof professionals providing healthcare for prisoners. Listed in de-creasing order for risks of dualloyalty for health care profes-sionals, these consist of (1) theagency in command of the prisons(e.g., Ministry of Justice, Ministry ofInterior, Ministry of Defense, po-lice) in order from those who areintegrated in military or military-like hierarchies to those who arefull-time employed civil servantsto those who are privately em-ployed full or part time, and (2)community health services (e.g.,Ministry of Health, Health De-partment, other public health au-thority) in order from those whoare full-time employed civil ser-vants to those who are privatelyemployed full or part time.

Health care professionalsworking in prisons who are inte-grated into uniformed executivebodies face the greatest challengesin defending professional inde-pendence and undivided loyalty totheir patients because they aresubjected to military-like chains ofcommand. Health care profes-sionals employed as civil servantsof the prison authority and subjectto civil service rules also mayencounter demands for dual loy-alty and limitations of medical

independence and confidentiality.This is particularly the casewhenever nonmedical superiors inthe administrative prison hierar-chy abuse their responsibilityof supervision by interfering inmedical issues.

Private health care profes-sionals, subject to no other com-mand than their professional code,are less likely to defer to prisonauthorities who pressure them tocompromise exclusive loyalty totheir patients. Full-time prisonhealth care professionals are morelikely to succumb to institutionalcultures that subordinate patientinterest to agendas of the prisonthan are part-time professionalswho also work outside of prisonwalls and maintain continuouscontact with health care in thecommunity. Nevertheless, privatehealth care professionals em-ployed by the prison administra-tion also can experience pressurefrom the threat of dismissal. Fur-thermore, economic constraints orbudgetary problems communi-cated to doctors may influencetheir decisions.

Dual loyalty is least likely toarise where health care servicesare organized independently ofthe prison authorities. Prison au-thorities then take responsibilityonly for medical tasks deemednecessary for safety and securityor for forensic purposes.

PRISON SYSTEMS WITHINDEPENDENT HEALTHCARE ADMINISTRATION

The canton of Geneva, Swit-zerland, in 1963 pioneered prisonhealth care completely indepen-dent of prison authorities. Prison

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HEALTH POLICY AND ETHICS

health care was transferred to theGeneva University Hospitals in1999 and integrated within thecommunity health care system.The cantons Waadt and Vallisfollowed this lead, but prisonhealth services in the remaining23 Swiss cantons still lack inde-pendence.

In accordance with the principlethat prisoners retain all humanrights not lawfully taken awayfrom them, the Norwegian Asso-ciation for Penal Reform imple-mented its import model regard-ing health services in 1988:responsibility for health services inprisons was transferred from theMinistry of Justice to the Ministryof Health. By 1994 municipalitiesbecame responsible for primaryhealth care services in prisons andby 2002 the regional health au-thorities became responsible forspecialized health care.33,34

In France, prison health carebecame the responsibility of theGeneral Health Directorate forpublic health issues in the Ministryof Health in 1994 and is orga-nized in cooperation with thenearest public hospitals, which setup consultation and health careunits in each prison. They areresponsible for all health servicesto prisoners and also organizecontinuity of medical care on re-lease from prison.34

In New South Wales, Australia,prison health care was already theresponsibility of the Minister ofHealth when in 1997 arrange-ments were consolidated underthe Health Services Act. Thehealth care service also providesbasic health services to periodicdetention centers (where con-victed persons live when

performing mandated communityservice) and works in police cellsand courts, operating by means ofa statutory memorandum of un-derstanding with the Departmentof Corrective Services.34

After publication of a highlycritical report on prison healthcare in 1996, the National HealthService and Her Majesty’s PrisonService established a formal part-nership that aimed to bring healthcare standards in prisons up to thelevel of community standards. In2003 the budget moved from thePrison Service to the Departmentof Health, and in 2004 primaryhealth care trusts took over re-sponsibility for delivering healthcare to some prisons; the hand-over was completed by 2006.Each prison has a health steeringgroup that is responsible forenacting the local partnership be-tween the prison and the healthcare provider.34

The Public Health Model ofCorrectional Health Care inLudlow, Massachusetts, provides forseamless integration of professionalstaff, medical information systems,and disease treatment and preven-tion between a large jail facility anda network of community centers.35

Several countries are consideringsimilar moves, including Georgia,Scotland, and Spain.36,37

A ROADMAP TO ENDINGDUAL LOYALTY

As a first step we should striveto meet the guidelines and pro-posed institutional mechanisms ofthe 2002 Physicians for HumanRights document Dual Loyalty andHuman Rights in Health Profes-sional Practice,1 including

d Raise awareness of principles ofmedical ethics as well as humanrights among health care pro-fessionals and nonmedicalprison communities and prisonadministrations.

d Train health care professionalsworking in prisons in humanrights, medical laws and ethics,and skills to identify dual loyalty.

d Increase involvement of inter-national and national profes-sional bodies and boards ofhealth care professionals in bothactive support and oversight ofhealth care professionals work-ing in prisons. (Active supportcomprises support of individualhealth care professionals as wellas collective professional actionsto uphold undivided loyalty ofhealth care professionals inprison to their patients. Nationalprofessional organizations andtheir licensing bodies shouldhold professionals accountablefor violations of medical ethicsand human rights and shouldadvocate for developing, imple-menting, and monitoring na-tional policies that comply withthe principles of medical ethicsand human rights in prisonhealth care.)

The next step is the uncompro-mising separation of medical roles inprison. Professionals caring for pris-oners should strictly and exclusivelyadhere to their role as caregivers totheir inmate patients, acting in com-plete and undivided loyalty to them,and should firmly refuse to takeover any professional obligation thatis outside the interest of their pris-oner patients. Professionally, theyshould be supervised by an

authority other than the prison au-thorities, for example, the publichealth service or their professionalassociation. In addition, inspectionsshould be performed by an agencyor organization that is independentof the prison authority or ministry ofjustice.

For all prison medical functionsthat are carried out in the interestof the state, the prosecution, thecourt, or the security system of theprison, public health officers, fo-rensic experts, or other medicalprofessionals not involved in thecare of prisoners should be calledin by the prison authorities.

Prison administrations andhealth authorities, although servingthe same government, have com-pletely different and often conflict-ing interests. The prison adminis-tration’s main task is safety andsecurity; the health authority’s ishealth care. As long as health careprofessionals working in prisons areemployed by the prison adminis-tration, they are vulnerable to pres-sures to serve medical purposesother than patient care. Therefore,responsibility for the provision ofhealth care should be transferredfrom the prison administration tothe public health authorities toavoid dual loyalty.

Better integration of prisonhealth care and the public healthservice and equivalence of healthcare for prisoner and nonprisonerpatients should be supported bycommon use of resources, infra-structure, personnel, expertise,training facilities, administration,management, documentation, andplanning. This will lead to

d improved quality of health carein prison,

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HEALTH POLICY AND ETHICS

d inclusion of prisoners in publichealth initiatives,

d uninterrupted continuity of carewhen prisoners are transferredor released,

d completion of epidemiologicalsurveillance, and

d better recruitment and qualifi-cation and less isolation ofprison health care staff.

These benefits have beenshown in countries that pioneeredintegration of prison health carewith the public health ser-vices.34,36---38 However, it also hasbeen shown that the process oftransition requires careful prepara-tory advocacy, establishment of in-terministerial steering committees,and a stepwise process that takesseveral years until full implementa-tion. It is high time to start thisprocess. j

About the AuthorsAt the time of the writing, Jörg Pont wasretired from the Austrian Federal Ministryof Justice and the Medical UniversityVienna, Austria. Heino Stöver is with theUniversity of Applied Sciences, FacultyHealth and Social Work, Frankfurt amMain, Germany. Hans Wolff is with theUnit of Penitentiary Medicine, Division ofPrimary Care Medicine, Department ofCommunity Medicine and Primary Care,University Hospitals of Geneva, and theFaculty of Medicine, University of Geneva,Switzerland.Correspondence should be sent to Jörg

Pont, Brachtlgasse 20a, 1230 Vienna,Austria (e-mail: [email protected]). Reprints can be ordered at http://www.ajph.org by clicking the “Reprints/Eprints” link.This article was accepted July 7, 2011.

ContributorsAll authors contributed equally to thearticle, with J. Pont leading the writing.

Human Participant ProtectionProtocol approval was not required becauseno human participants were involved

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