Position Statements

Use of Shackles on Pregnant Inmates, adopted August 10, 2009

Background
According to Bureau of Justice Statistics, there were 115,779 females incarcerated in US prisons (6.9%) and 99,673 females incarcerated in US jails in June of 2008 (12.6%).(1) It has been reported that 6 % of all incarcerated females are pregnant.(2) Currently only three states and the Federal Bureau of Prisons have policies that expressly prohibit the use of restraints or shackles during labor and delivery; many states’ policies do not specifically address the issue.

The Standards of the National Commission on Correctional Health Care and the American Correctional Association mandate that correctional facilities meet recognized community standards for inmate healthcare. The NCCHC position statement on Women’s Health states that Correctional Health Services and Women’s Advocacy Groups should collaboratively develop policies and procedures that address the unique health needs of incarcerated females. It further states that guidelines established by specialty professional groups such as the American College of Obstetricians and Gynecologists (ACOG) should be used to guide the care of incarcerated women.

The American College of Obstetricians and Gynecologists have publicly supported a ban on the use of shackles during labor and delivery, stating, in part, “Physical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and the fetus, and have similarly made the labor and delivery process more difficult than it needs to be; thus, overall putting the health and lives of the women and unborn children at risk. Typically these inmates have armed guards on-site, which should be more than adequate to protect personnel helping a pregnant, laboring woman or to prevent her from fleeing.” (3)

The United Nations Human Rights Committee reported in their Eighty-seventh session, July 2006, that the continued shackling of detained women during childbirth after a previous recommendation to cease this practice went unheeded by the United States was against the International Covenant on Civil and Political Rights. (4)

Position Statement
ACHSA supports banning the use of leg irons/shackles and restraints for pregnant women during labor and delivery and immediately after they have given birth.

While it is understood that security is vital in the off-site transportation of any incarcerated individual, ACHSA recommends that the pregnant inmate’s individual health as well as incarceration history be considered in the decision to utilize restraints during transport and that restraints only be used on pregnant women in their third trimester when they are required as a precaution against escape or to prevent an inmate from injuring herself or other people or damaging property.

ACHSA recommends that women in their second and third trimester of pregnancy be handcuffed in the front for safety reasons if they must be restrained.
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1. Bureau of Justice Statistics, March 2009, NCJ225619.
2. Fearn N. E, Parker K. Washington State’s residential parenting program: An integrated public health, education and social service resource for pregnant inmates and pregnant mothers. California Journal of Health Promotion. 2004; 2(4): 34–48.
3. Open letter dated June 12, 2007 to Malika Saada Saar, Executive Director, The Rebecca Project for Human Rights.
4. United Nations Human Rights Committee, Eighty-seventh session, July 2006, page 11.

Forced and Involuntary Psychotropic Medication, adopted August 12, 2006

A patient’s right to refuse treatment is well-established and protected by case law.  For the inmate patient, however, this right is not absolute, and its limitations have also been established by case law.  The legitimate interest of the state in the safety and security of the correctional institution, in preventing unnecessary inmate death, and in preventing harm to self or others will prevail over the inmate’s right to refuse treatment.  However, involuntary treatment only to render an inmate competent to stand trial is not clearly permitted as being within constitutional bounds.  Likewise, treatment to restore competence to be executed is clearly unethical.

In an emergency situation, where there is an imminent danger of harm to self or others, a physician may order a one time involuntary administration of a psychotropic drug.  As in all cases of forced medication, an effort must first be made to obtain informed consent.  When consent is refused, the patient should be asked to sign a formal refusal of medication.  If the patient refuses to sign the refusal form, a second health care staff member should witness that fact.  Since both signed consent and signed refusal are unlikely in an emergency situation, it is imperative that a careful clinical note is written documenting the condition requiring involuntary treatment, the inmate’s reason for refusing treatment (if given), the treatment given and its necessity.

If the condition requiring emergency intervention is not resolved with a one time dose of forced medication, then additional steps are constitutionally required, to provide adequate evaluation and justification of the need for further involuntary treatment.  Some states follow the procedure established by the U.S. Supreme Court in the case of Washington v. Harper, which states:

  • Only a psychiatrist may order the drug.
  • The patient is entitled to an administrative hearing before professional staff not currently involved in the treatment.
  • The patient may attend the hearing, present and cross-examine witnesses, and have the assistance of a lay advisor with psychiatric knowledge.
  • Minutes must be kept, with judicial review available.
  • Continuation of the medication is subject to periodic review

Other states seek a judicial process, in which the psychiatrist petitions the court to permit involuntary medication approved by a court-appointed mental health treatment guardian.  This process involves a court hearing attended by the inmate patient as well as the treating psychiatrist, attorneys for both parties, and the potential treatment guardian, who may be a member of the inmate’s family.

Correctional health care programs need to have policies, procedures, and multidisciplinary education/training covering forced and involuntary medication.  State mental health codes and relevant case law should be consulted and legal guidance sought.  Since individual cases vary greatly, any policies need to recognize this fact and allow for a variety of approaches.

The treatment chosen must follow the principle of the least intrusive, least drastic, and least hazardous intervention that is judged to be effective.  Adverse reactions should be watched for and vital signs monitored.  Medication chosen should also minimize the effect on the patient’s mental clarity and ability to make informed decisions and participate cooperatively in treatment.

In summary, it is essential to establish policies and procedures that meet legal requirements or guidelines, and that protect the patient’s rights to make decisions about his/her own health care.  The administration of involuntary treatment must be based on careful consideration of the conflict between the patient’s expressed wishes and a medical judgment of the need to protect the patient from morbidity or mortality, or to protect the patient from harm to self or others.  In emergency situations the decision of the physician shall prevail, but when the emergency situation has passed, others must be involved as described above.  Once involuntary or forced treatment has been instituted, ongoing assessment is important so that the treatment or its forced nature can be terminated as soon as it is no longer necessary.
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Relevant Case References:
Washington v. Harper, 494 U.S. 210 [1990]
Riggins v. Nevada, 504 U.S. 792 [1992]
Ford v. Wainwright, 477 U.S. 399 [1986]
Louisiana v. Perry, 610 So2d 746 [La 1992]
American Medical Association Code of Medical Ethics, Council on Ethical and Judicial Affairs, Current Opinions with Annotations, 2004-2005 Edition, Rule 2.06, Capital Punishment.
Singleton v. Norris, 319 F.3d 1018 (8th Cir) (en banc)
Sell v. United States 02-5664 [2003]
Vitek v. Jones, 445 U.S. 480 [1980]
John Doe v. United States, 150 F.3d 170 [2d Cir. 1988]