Assistant Professor Vanderbilt University Nashville, Tennessee
Abstract: When a hospitalized patient is in custody of law enforcement and lacks the ability to make their own medical decisions, the question of who makes decisions for this patient frequently comes to the fore. Surrogate decision-making for incarcerated patients is left to the states, where the formal expectation is that existing surrogate statutes are followed. In practice, however, there is significant variation in how surrogate decision-making for incarcerated patients is realized. Known challenges include misinformation that the warden is the surrogate, or facility insistence on communication restrictions and visitation. This has prompted calls for greater education of clinicians about the rights of custodial patients.
However, education does not overcome the barriers clinicians face in holding the facility accountable to upholding the rights of incarcerated patients. Lack of transparency about chain of command and unwillingness of the facility to articulate their reasons for such restrictions remain. This creates a situation in which the rights of incarcerated patients are observed only if the facility is benevolently motivated—a textbook example of domination. Identification of this state of affairs as an example of domination is important, because it points to an unacceptable state of affairs for all incarcerated patients, not just those whose rights are actively being infringed upon. An adequate response, then, must aim to secure incarcerated patients’ rights for appropriate surrogate decision-making while hospitalized via organizational policy and ongoing collaboration with legal and law enforcement.
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