Bioethics Forum Essay
Breaking Boundaries: Reframing Clinical Ethics Discussions of Health Care for Incarcerated Patients
On August 2, Hastings Bioethics Forum published an essay in the new Clinical Ethics Case Studies series titled “Should an Incarcerated Patient Get an Advanced Heart Therapy?” The case concerned W, a 32-year-old Black man, incarcerated for 10 years of a life sentence without the possibility of parole, who had recently been diagnosed with heart failure and was failing medical management. The clinical ethics team was consulted to help resolve different opinions between members of the heart failure team regarding W’s appropriateness for advanced heart therapies such as a ventricular assist device or a heart transplant. In the end, he was deemed ineligible for a transplant but was offered a vascular assist device and underwent the procedure successfully.
The authors identified and explored many of the typical ethical questions embedded in the clinical dilemma of how best to care for a patient experiencing incarceration and its associated constraints–on his health care access and quality of care, social support, and his overall life trajectory. We argue that this case presents an opportunity to regard the clinical dilemma in the broader context of the injustices of mass incarceration in the United States and recent calls to action for the field of bioethics to engage with them.
We assume this rising awareness, and a simultaneous need to collectively consider what bioethics owes people experiencing incarceration beyond research protections, motivated the 2023 Hasting Center Report issue focused on mass incarceration. In the editors’ introduction, Gregory Kaebnick stated, “As a field, bioethics shoulders a responsibility to scrutinize the mass incarceration system both because of bioethicists’ roles in providing guidance to medical professionals and institutions, which need guidance in navigating engagements with criminal law enforcement, and because of the expanding understanding of health and of what contributes to health, which in turns expands the social responsibilities of health-related fields.”
The lead piece by Sean Valles provided cogent and exhaustive evidence of the history of mass incarceration and its ill effects at the individual and community levels, which are predominantly shouldered by poor, disabled, black and brown men and the communities that love them. Jennifer James advocated for bioethics not just to acknowledge the harms of mass incarceration, but also to engage with seriously with the principles of abolition by identifying and removing carcerality from health care. This ranges from the overt (shackling pregnant patients) to the insidious (coercing patients into treatment compliance with threats of state surveillance).
The authors and editors of the issue acknowledge that moving from thought to action is the next step in reckoning with this broad injustice. “There is much bioethical work left to do, and the process of doing it should also help advance the professional question of how advocacy ought to mesh with scholarship in bioethics,” wrote Valles. The next step is working to translate our rising collective consciousness into our work as theorists or bedside consultants.
Clinical ethics consultation is often simultaneously a form of advocacy and a synthesis of existing scholarship. By reanalyzing the case of W through an explicitly anti-carceral and abolitionist lens, we find opportunity to take up Valles’s charge. We discuss an approach to using abolition principles to advocate for a justice-based solution to a health care dilemma.
Abolition calls us to radically reconsider ordinary and untouchable facets of our political and cultural existence. The most potent example, activism against American chattel slavery, brought to light an obvious but willingly overlooked injustice despite its profound incompatibility with the liberal democracy of the new American republic. The wakeup call that was needed was a critique so fierce as to suggest fully dismantling a system that, at the time, was foundational to the economic stability of the country. Abolition encourages us to see the most far-reaching possibilities and to imagine what a world could look like without those institutions that cause more harm than good but that we still take for granted. It asks us not to compromise, not to accept the good with the bad.
The abolition lens is effective for the theoretical and practical work of dismantling large structures and for addressing the impacts of oppressive policies for those in the grasp of those unjust structures. Bioethics might be uniquely positioned to apply such a lens to address injustices within health care, structural and clinical. Because our field is interdisciplinary, we have the potential to see more of the prism because we are situated across multiple disciplines and knowledge domains. We have suggestions for how we might apply the abolition bioethics lens to the case at issue.
The most ethically sound and justice-serving solution to the barriers arising from W’s incarceration is to mitigate them with compassionate release. Most of the ethical questions at play in his case are related to, if not caused by, the fact that he is incarcerated. We predicate this argument on the following assumptions: (1) that W would be released to the family described in the case, (2) that his family would provide the necessary support to make all therapeutic options viable, and (3) that he would qualify for a comprehensive insurance plan that would augment family support and allow the same therapeutic options to remain under consideration, which is likely because of his chronic illness.
Regardless of the severity of his crime, what we know for certain from the clinical ethics essay is that W will not receive the care he needs due entirely to his circumstance of incarceration. Unlike other more challenging clinical ethics cases, where there seem to be no good solutions, here the fix is simple. Removing W from prison will make it possible for him to receive the best possible treatment—one which has manifested at an extraordinarily young age (a fact we cannot ignore because it is likely that his incarceration caused or hastened his disease). The most ethical solution is to clear the way for him to receive appropriate care, which requires removing him from prison.
In our experience, advocating for release as the maximally ethical solution generates two counterarguments. First, that he is in jail for a reason, and to advocate for release circumvents the purpose of incarceration (giving him a “free pass”). As a corollary, his life sentence is an indication that what he was convicted of was severe or that he cannot be reintegrated into society. Second, that this kind of advocacy inappropriately extends the clinical bioethicist far beyond the bedside. The authors allude to this when questioning whether the resources allocated to addressing this complex injustice is drawing away from other patients that we must assume have more straightforward, classical clinical ethics problems that are easier to “solve” within the existing systems.
To the first counterargument we provide the following rebuttal. Many people who are incarcerated, even for long sentences, are there for nonviolent offenses. The likelihood of over-sentencing is higher if you are Black, brown, poor, or have a mental illness or other disability. It is inappropriate to make any assumptions about the nature of the crime he was convicted of, or even the likelihood that he committed a crime. However, it is also inappropriate to attempt to be blind to the stigma embedded in his incarceration. The state has already judged and reduced W’s social worth. For clinical ethicists not to explicitly consider social worth in their analysis is to effectively cosign the unjust determination by the state that W and many others like him are less deserving of safety, well-being, and comprehensive health care.
Moreover, any argument that is contingent on the details of the crime is antithetical to a core principle of the prison abolition argument–incarceration in the way it manifests in the American prison industrial complex is simply never justified.
To address the second counterargument, we offer the following. Often, clinical ethicists feel a professional obligation not just to attend to the case at hand, but to recommend policy or practice changes for their facilities, or even for health care at large, when the case is part of a pattern. For example, if a team consults on a brain death case and finds that the hospital does not have the most up to date guidelines on brain death, they may recommend or draft such guidelines. They may write commentaries or participate in research reflecting their experiences addressing barriers to caring for patients ethically at the end of life. This is not outside of the scope of clinical bioethics as it is currently practiced.
In W’s case, in addition to advocating for the release of a particular prisoner, the clinical ethics team can engage in broader advocacy toward the dismantling of the prison industrial complex—the structure that creates and sustains mass incarceration. Recognizing, as they would from W’s case, that prisons and jails unethically constrain health care options, implicating both autonomy and justice, they might decide to advocate for the compassionate release of all incarcerated people with serious health conditions. They might advocate for a radically different approach to deterrence and justice, a radically different view of the humanity of people whom society deems criminal. This can and should be the work of the clinical bioethicist, just as the bedside dilemma of the brain death case translates to a broader advocacy for patients at the end of life.
Our vision for the future is one of a radical, more imaginative future for bioethics. Bioethics need not constrain itself with what is feasible or even what is currently conceivable. By imagining a world beyond the possible, bioethics can forge a path toward new futures. We recognize that this is a utopian view, and that clinical ethics is situated in the space between the possible, the ideal, and the limitations of our current circumstances. However, speaking truth to power is the precursor to change. And change can be slow and stepwise until, suddenly, the ground shifts and new ways of doing things are revealed.
Whitney Cabey, MD, MAUB, MSHP, is an assistant professor in the Center for Urban Bioethics, and Department of Emergency Medicine at the Lewis Katz School of Medicine at Temple University.
Nicolle Strand, JD, MBE, MPH, is an associate professor and director of the Center for Urban Bioethics at Lewis Katz School of Medicine at Temple University. @Nicolle_Strand
Peter Simonsson, PhD, MSW, LCSW, is a criminologist and an assistant professor in the Center for Urban Bioethics at Lewis Katz School of Medicine at Temple University. @petesimonsson
Really appreciate this reframing of the case here, though want to press slightly on the presumption that compassionate release is the “most ethically sound and justice-serving solution.” It might be, but “most” is a high bar, and the authors make a series of assumptions in order to substantiate this conclusion (including assumptions about access to health insurance and access to the required available caregivers within the patient’s family structure to receive the care in question). It is worth also exploring obligations of carceral systems, insofar as they continue to exist while reforming or abolishing them, to provide care to incarcerated persons. Perhaps asking more of the State, and expecting it to fulfill its custodial duties to incarcerated people that it takes on by choosing to incarcerate them, including fulfilling its constitutional obligation (per Supreme Court rulings) to provide health care, is a way of holding the State more accountable for meeting these duties and obligations while also challenging the very legitimacy of using incarceration as a form of punishment if the State cannot fulfill such duties and obligations.