This editorial appears in the March Issue of the American Journal of Bioethics
The recent increases in the number of persons detained by ICE in the United States is affecting health care. Many health-care professionals and facilities that serve immigrant communities report a chilling effect on the number of patients willing to seek care. This problem was anticipated based on experiences in the first Trump administration. Similarly, hospitals prepared for the possibility that ICE would seek information regarding patient immigration status or come to a hospital seeking a particular patient. As a result, hospitals refreshed their “front-door policies” that require a judicial warrant in order to release information or to admit ICE agents to enter any private areas such as examination rooms. However, most hospitals did not prepare for an increase in the number of visits by patients presenting for care who are already in ICE custody. For instance,
A 24 year old woman is brought to the emergency department by three Immigration and Customs Enforcement (ICE) officers. The patient reports that she is pregnant and may be in labor. The emergency medicine physicians and staff wish to examine her and evaluate whether admission to the Labor and Delivery (L & D) unit is appropriate.
The ED resident physicians wish to take a complete history and examine the patient privately. They ask the ICE officers to step out of the patient’s room. The officers expressed that they preferred to remain in the room. The nurses contacted the hospital security office for assistance knowing that their security officers are familiar with the process of handling interactions with law enforcement agents who are guarding a patient.
A security officer arrived and provided the ICE agents with a summary sheet of the hospital’s Forensic Patient Policy. As that sheet did not specifically address the patient’s right to privacy, the officers remained at the bedside during examinations. They also handcuffed one of the patient’s arms to the bed rails as the policy directed. On the second day, the agents began to interfere with the patient’s meals. That is, they would move the food tray out of reach of the patient for several hours after it was delivered, presumably to motivate the patient to seek discharge.
Most hospitals have long had policies that govern the care of patients in the custody of law enforcement. These policies are called forensic patient policies and are largely unknown to most physicians and health-care workers. They are draconian and have ethically failed patients for many years. In the current environment, they motivate the hospital to engage in the moral mistreatment of patients in ICE custody. We suggest that bioethicists and health-care providers must advocate for the revision of these policies to support the mission of delivering humane patient care.
The Problem of Forensic Patient Policies
Perhaps the best guidance for health-care professionals and facilities confronting novel and stressful situations is to treat patients as patients. The health-care professionals in the situation described tried to respect basic patient privacy and dignity by asking the ICE agents to step outside the room. They were distressed that agents would handcuff a patient to the bed who posed no discernible safety concern.
Of course, hospitals cannot have different policies based on which law enforcement agency brings the patient to the facility and patients in ICE custody are assimilated to their forensic patient policies. As a result, this patient who posed no discernible threat to anyone in the facility was treated similarly to a violent criminal who poses an immediate threat.
The hospital security officer provided the ICE agents with the hospital protocol governing forensic patients. This protocol informed the agents that the hospital (a) required them to restrain the patient at all times by handcuffing at least one wrist to the bed railing, (b) that the law enforcement officers have jurisdiction over “patient privileges” and may restrict them at any time, and (c) that the agents must “guard” the patient at all times. The protocol also asserted that the medical and nursing staff will have control over all aspects of the patient’s medical care. However, it did not mention any of the usual patient rights such as privacy, confidentiality, or the requirements of informed consent for treatment.
Forensic patient policies are written from the perspective of hospital security and hospital general counsel. The overriding theme of such policies is minimizing the danger to hospital personnel. This is a highly laudable goal and health-care professionals are too often subject to violence and abuse. Nevertheless, the sudden arrival of an increased number of patients who are detained only for lack of immigration authorization, possessing no criminal history and posing little threat, calls for forensic patient policies that have greater flexibility. This will not only be more just for patients detained by ICE but for all forensic patients.
Forensic patient policies should platform good patient care and patient rights in addition to safety considerations. In doing so, they also lay out what law enforcement officers can expect and what is expected of them. Policies and protocols should assert that the facility respects the rights of patients as articulated by federal and state laws and established medical ethics. Thus, the facility supports patient privacy during history taking and medical examinations and interventions, the minimal use of restraints necessary, and access to basic human needs such as food, clothing, and toilets (Working Group on Policing and Patient Rights, Georgetown University Health Justice Alliance).
Similarly, the heart of contemporary medical ethics is the right of patients to make their medical decisions according to the established norms of informed consent. The policy should state clearly that forensic patients retain this right. Similarly, any patient “privileges” such as access to phones and outside visitors that may be under the discretion of the law enforcement officials should be clearly identified and noted as limited to those enumerated. This will avoid misunderstandings resulting from expansive interpretations of what constitutes a privilege, e.g., meals, by law enforcement officers.
Finally, health-care facilities should consider outlining an expectation of law enforcement officers that they will minimize their movements within the facility. The appearance of law enforcement officers in hospitals can be unexpected and unsettling to patients. As a result, the facility should consider offering assistance such as bringing meals to officers in order to avoid unsettling patients in areas such as cafeterias.
Let’s Do No Harm
In sum, the arrival of a new category of forensic patients, often vulnerable and nonviolent, has thrown a spotlight onto the failing of our forensic patient policies that are driven by fear and worst-case scenarios. We have an opportunity to develop new policies that balance safety with respect for the dignity of patients and help law enforcement officers to carry out their work without jeopardizing established norms of patient care.
Forensic patient policies and protocols should be thought of mainly in terms of their moral force and suasion. Law enforcement is most likely to respect these protocols because they understand that health-care institutions have particular norms that do not jeopardize their law enforcement mission.
While much attention may be justly focused on the inadequacies and irregularities of the way ICE agents conduct their business, bioethicists and hospitals can no longer dodge our responsibility to reform our practices and procedures. Failures to treat detainee patients with dignity and respect have an origin in the established policies of our institutions. We must do better for them and other forensic patients.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Mark Kuczewski, PhD; Amy Blair, MD; Theresa Nguyen, J.D.; M. Laura Garcia-Izaguirre, J.D; Gregory Dober, MA