Eliciting Medical History
Laws and Policies Specific to Prisoners

As the result of physically and psychologically abusive research that was conducted on inmates in the United States in the last century, prisoners are now classified as a unique vulnerable population. The Department of Health Education and Welfare condemned the use of prisoners in human subject research in 1978, which was codified in Title 45 of the Code of Federal Regulations (Reiter, 2009). Prisoners were excluded from human research studies, although this decision was not without controversy. The arguments against the code are that the current regulations are outdated; prisoners could benefit from new treatments; and that they deserve the right to choose to participate (Perez, 2008). However, some researchers manage to evade the system and succeed in using inmates as experimental subjects. For example, between 2006 and 2008, the drug company Hythian contracted with at least 5 jurisdictions and "diverted" drug offenders into an experimental treatment program for addiction treatment, in which one participant died (Reiter, 2009). Currently, federal regulations require additional safeguards when conducting research on this vulnerable population. Prisoners may only be involved in research that directly relates to their lives as prisoners. When planning studies involving prisoners or the prison environment, researchers can expect an especially stringent IRB review process.

The Eighth Amendment gave prisoners the right to medical care when needed (The Constitution of the United States). However, a 2006 report by the Commission on Safety and Abuse in America’s Prisons stated that healthcare continues to be inadequate because of required co-payments for inmates, inability of inmates to receive Medicare or Medicaid, lack of prison healthcare staff, poor funding, and inconsistent health screenings (Gibbons, 2006). The poor quality of health care is accentuated by limited mental health care resources.

Despite the mandate for jails and prisons to provide mental health care for inmates, (Cohen & Dvoskin, 1992), it is apparent that uniform standards are not in place. Initial mental health screenings conducted in correctional facilities are not reliable (Ford et al., 2007) and may be highly variable. The mental health training and experience of corrections staff is likely to be relatively low (Ford). Most prisons provide initial mental health screenings but mentally ill patients often go undetected and untreated. According to the U.S. Department of Justice, 83% of correctional facilities provide initial mental health screening, but inmates with mental illness were reportedly overlooked 64% of the time (Ford). In 2002, a female inmate was denied mental healthcare services and wrote to an unknown recipient before she died: “I’ve been in the S.H.U [secure housing unit] for over 6 ½ years where I’ve been locked in a cell for 23 to 24 hours a day, 7 days a week. In March of 2002, I had a mental breakdown… and attempted to commit suicide by swallowing 150 pills. I was saved and sent to Central New York Psychiatric Center (CNYPC) for treatment for 7 weeks…When I was discharged I was sent to Wende Correctional Facility [a maximum security prison]…where I was kept for 25 days in a stripped cell. I was mistreated and denied everything. There was no heat in the place. I was put in a dirty and bloody cell. I was jumped and assaulted by the officers and was left unattended by mental health staff. In the time I was there, I continually requested to be sent back to (CNYPC) for further treatment because I went into relapse and could not bear being locked in a cell 24/7 again” (Lurgio, 2008).

Despite national health information privacy standards (HIPAA), exceptions exist related to prisoners’ healthcare. The following are loop-holes in the standard regulations:

  1. Permitted Disclosure. Healthcare providers may disclose to a correctional institution or a law enforcement official having lawful custody of an inmate if the correctional institution or such law enforcement officials request such protected health information for:

    1. The provision of health care to such individuals

    2. The health and safety of the inmate and other individuals

    3. The health and safety of officers or employees or other at the correctional institution

  2. Access to protected health information. An inmate’s request to obtain a copy of protected health information may be denied without an opportunity for review.

      1.  Jeopardize the health, safety, security, custody, or rehabilitation of the individual, other inmates, or employees, and others.

  3. Notice of Privacy Practices: An inmate does not have the right to notice of the uses and disclosures of protected health information.

 

 

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