I belong to a prison healthcare Internet list. Recently a discussion came up regarding the use of videotapes in correctional facilities. During "use of force" incidents, such as cell extractions, correctional officers use videotape to document the actions of custody staff. Still photographs may also be taken to document injuries sustained by inmates or staff during these incidents. One prison physician raised the question of whether or not inmates are allowed to refuse video documentation, and if the presence of custody staff during the subsequent medical evaluation violates inmate confidentiality. I wrote this column as a result of this discussion, to provide a general overview of the legal basis for confidentiality in correctional settings.
While no single standard could cover all possible clinical scenarios, many authorities address the issue of inmate confidentiality. These authorities include accrediting agencies, professional organizations, state statute and case law.
The National Commission on Correctional Health Care views confidential medical treatment as an important standard for accreditation. Specifically, it states: "Health care encounters are private, with a chaperon present when indicated, and are carried out in a manner designed to encourage the patients' subsequent use of health services. Clinical encounters should be conducted in private and not observed by security personnel unless the inmate poses a probable risk to the safety of the health care provider."1
Similarly, the American Public Health Association requires that "full confidentiality should be maintained at all times" within certain legal and moral limits such as when there are clear and present dangers to the patient if information is withheld.
State laws governing medical privacy extend to those treated in correctional facilities. Exceptions to confidentiality are also established by state regulation, which can vary from jurisdiction to jurisdiction. Commonly, exceptions involve mandatory reporting requirements for child abuse or certain infectious diseases, or Tarasoff duties for patients who pose a danger to themselves or others.
Incarceration may impose unique circumstances that require the clinician to interpret statutes in a way that considers the structured and secure nature of the environment. For instance, when faced with a Tarasoff duty, the clinician must interpret the meaning of "imminent" danger differently if the intended victim is someone in free society as opposed to someone within the institution. Similarly, the term "danger" may refer to potential threats to institutional security rather than a threat to a specific individual. Most institutional regulations require correctional staff to respond to potential security breaches such as plans for escape or possession of contraband.
State laws also control the use of treatment information in criminal and civil proceedings. These limits to confidentiality are particularly pertinent for pretrial detainees and parole violators with open charges, where information obtained during the course of treatment may be used as evidence of mens rea. Many states allow for disclosure in civil proceedings such as malpractice actions.
In correctional facilities, a direct parallel would be the inmate grievance regarding medical or mental health care. When investigating an internal grievance, the warden or his/her designee may have access to treatment records in order to investigate an alleged treatment deficiency. Similarly, courts with jurisdiction in civil rights litigation may appoint masters who have the authority to review treatment information. Case law also establishes a legal groundwork for confidentiality. In Ruiz v. Estelle, the maintenance of confidential treatment records was one of the six minimum criteria established for adequate prison mental health services.2
The main difficulty for clinicians with regard to confidentiality arises in situations where there are no clear guidelines, or where existing regulations conflict with accepted clinical standards. For example, states that have sexual predator commitment laws may require the institutional clinician to identify patients who may be eligible for indefinite commitment under the statute. Institutional regulations may also require that mental health professionals participate in decisions regarding parole, or acceptance to certain rehabilitation programs. In these cases the clinician would do well do discuss in advance with the patient the limits and potential use of information gathered in the course of treatment. If possible, clinicians should separate therapeutic from administrative roles to avoid this conflict of interest.
Confidentiality is an issue when communication with inmates’ families is necessary to obtain historical information or to monitor response to treatment. Written consent to speak to a family member can be difficult to obtain if the inmate is not easily available for transport, such as on segregation. If the family member is simply calling to inform the clinician that an inmate is in need of mental health care, or to provide information regarding medications taken prior to incarceration, the information can be taken without revealing confidential material. If the family member is seeking information about the inmate, a patient release would be required.
This overview can only superficially address a broad range of issues that relate to confidentiality in correctional facilities, but hopefully this column will provide an outline for further study.
References
1. Standards for Health Services in Prisons, National Commission on Correctional Health Care, 2d edition, Chicago, Illinois, 1994, pg. 7.
2. Ruiz v. Estelle, 503 F. Supp. 1265 (1980).