For “Ask an Ethicist,” members of the SGIM Ethics Committee respond to real ethics cases and questions submitted by SGIM members. Responses are created with input from the Committee but do not necessarily reflect the views of the Committee or SGIM. To submit a case or question, visit: https://www.sgim.org/communities/other-sgim-committees/ethics/ask-an-ethicist.
A 29-year-old man is admitted to the ICU with acute encephalopathy. He came to the hospital from a state prison, incarcerated after a felony conviction. He immediately requires mechanical ventilation and is found to have multiple brain abscesses for which he undergoes surgery and receives antibiotics. More than a week later, a tracheostomy is proposed as his mental status has not improved and prolonged mechanical ventilation is anticipated.
The case manager cautions that performing this procedure would eliminate any discharge options for the patient; only a long-term acute care hospital (LTACH) could take him with the tracheostomy, but no LTACH is willing to take a patient convicted of a felony, and the prison would be unable to meet his medical needs. The ICU team learns that the patient has both a state-appointed guardian and a sister who are willing to make healthcare decisions as his surrogates. The ICU team calls for an ethics consult to ask whether the tracheostomy—making discharge impossible—should be offered, and who should serve as the patient’s surrogate for treatment decisions.
Though prisoners are the only group constitutionally guaranteed health care in the United States (as found in the Supreme Court case Estelle v. Gamble), the guarantee is only for adequate health care. Top-quality, or even equitable care, is not mandated. For many reasons, prisoners are a marginalized population with barriers to outpatient and inpatient care.1
This case raises many ethical and health equity issues including surrogate decision-making and substituted judgement, care for patients who are incarcerated, and quality of life; here we are focusing mostly on the tension between patient beneficence and clinician and system obligations.
The first consideration must be what the patient would want and who can best answer that. For patients who lack capacity, we rely on surrogates to consider the patients’ values and prior decisions and to substitute judgment.2 How would the patient value his current quality of life? Would the patient want a tracheostomy and placement in an LTACH, even if that were possible? If the surrogate decision maker(s) do not feel the patient would want a tracheostomy and aggressive care in this state, the question of whether to place a tracheostomy is moot, and the goals shift to comfort care. While legal factors may influence the decision, ethically we seek the surrogate(s) who knows the patient best and can speak to his wishes. Presumably, a sister would better fit this condition than a state-appointed guardian, but the possible reasons for choosing either are outside the scope of this article. We are assuming that the patient would in fact want aggressive care and that the team feels there is medical benefit to providing a tracheostomy.
For many of us, it may be tempting to ignore the practicality of discharge challenges and proceed with the next step in clinical care. This decision honors the patient’s autonomy and follows beneficence, but it consigns the patient to inpatient status indefinitely. For our patient, a prolonged inpatient stay could either decrease quality of life and lead to increased complications or impose unforeseen expenses on the patient or family. For the healthcare system, issues of distributive justice arise as the care provided is costly and demands resources (e.g., ICU beds and nurses) that may be of need to other patients.
While ignoring the discharge challenges is shortsighted, lowering the quality of our care for this patient because of those challenges is ethically unacceptable.3 Medical ethics pushes us to bridge these seemingly irreconcilable decisions with creativity and perseverance. Involving other relevant parties in the conversation about potential solutions, while holding fast to the truth that standard of care must be upheld, may be effective in a mutually acceptable solution. These parties may include medical personnel from the prison, leadership at the LTAC, and hospital administration. Compassionate release, available in most states, may allow discharge to an LTAC that accepts patients who are formerly but not currently incarcerated. A conversation with the LTAC about the patient’s debility may eliminate safety concerns and allow for a conditional acceptance. Discussing the cost savings of the hospital placing the patient in an out-of-state LTAC that is willing to accept him instead of continuing an expensive inpatient hospitalization may present a potential discharge option. These and other conceivable solutions allow for a discharge option while ensuring standard of care for the patient.
Beyond our ethical obligation to this patient lies our broader obligation to advocate for systemic change.4 Recognizing this potential for disparity of care should inspire us to advocacy for system change and ensure future patients who are incarcerated can be admitted to an LTAC or other appropriate discharge facility. Understanding where our spheres of influence lie has been outlined in JGIM previously.5
In conclusion, holding our moral compass steadfast in the direction of equitable, quality care while not turning a blind eye to systemic practicalities requires creativity and partnership. Ethical analyses—asking “what’s the right thing to do?”—is often the simplest piece of an ethics consult. Determining how to do the right thing becomes the challenge.
- Fuller L, Eves MM. Incarcerated patients and equitability: The ethical obligation to treat them differently. J Clin Ethics. 2017 Winter;28(4):308-313. PMID: 29257766.
- Haber LA, Erickson HP, Ranji SR, et al. Acute care for patients who are incarcerated: A review. JAMA Intern Med. 2019 Nov 1;179(11):1561-1567.
- Karches K, DeCamp M, George M, et al. Spheres of influence and strategic advocacy for equity in medicine. J Gen Intern Med. 2021 Nov;36(11):3537-3540.
- Lyckholm LJ, Shinkunas LA. Navigating the choppy waters between public safety and humane care of the prisoner-patient: The role of the ethics consultant. Am J Bioeth. 2019 Jul;19(7):59-61. doi:10.1080/15265161.2019.1618946.
- Tarzian A. A call to justice in serving hospitalized prisoners. Am J Bioeth. 2019 Jul;19(7):56-57. doi:10.1080/15265161.2019.1619347.
Advocacy, Clinical Practice, Health Equity, Medical Ethics, SGIM, Social Determinants of Health
Dr. George (firstname.lastname@example.org) is the medical director of ethics for Grady Memorial Hospital, past chair of the SGIM Ethics Committee, and an associate professor of internal medicine at Emory University. Dr. Khawaja (email@example.com) is an assistant professor in the Department of Medicine at Baylor College of Medicine and a senior faculty member on ethics committees at the hospital/health system levels. Dr. Berger (firstname.lastname@example.org) is an associate professor of medicine in the Division of General Internal Medicine in the Johns Hopkins School of Medicine and core faculty in the Johns Hopkins Berman Institue of Bioethics.
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