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Behind bars:
providing care in custody

Conducting medical assessments of patients in custody is an area of medicine that is fraught with difficulties, yet is too often overlooked. Rachel Seddon looks at the potential risks of dealing with detainees

When doctors receive a call from the Gardaí asking for a medical assessment or treatment of a detainee, many will feel their heart sink.

Whilst in some areas this can be a fairly common request, learning how to assess patients in custody does not make up any part of the formal medical training scheme, meaning doctors can feel nervous about carrying one out. Equally, with no dedicated forensic physicians in Ireland and no official guidance for doctors, it’s not surprising that many don’t know who to turn to for help when dealing with these tricky situations.

Because there are no official forensic physicians, any doctor may be called upon to conduct a medical assessment of someone who has been detained in custody – either at the request of the patient or the Gardaí. These patients will often be unlike those on a typical GP’s practice list, and will have unique problems that will need a doctor’s expertise to assess. Even detainees with common medical problems will often be more challenging to deal with due to the lack of available equipment or supplies needed to treat them.

Guidance on prisoners’ rights says doctors should treat detainees “with the same dignity and respect as patients would receive outside”1 at all times, offering them the same medical treatment as they would to other patients whilst being mindful of the unique needs detainees might have.

Before you start

Upon arriving at a Garda station, anything could be waiting for you: violent detainees, a detainee who has been assaulted, people with signs of substance abuse; the list goes on. The Garda Member in Charge will need you to assess the patient to determine their current medical state and also their fitness to be detained and interviewed.

The first thing a doctor must do is ensure the patient understands what is happening and to gain their consent before proceeding with a medical assessment.2 Part of the process of obtaining consent has to include building up trust between yourself and the patient, and for this, you will need to communicate openly with the patient.

As soon as possible after arriving at the station, speak to the Member in Charge to establish whether there is somewhere private that you and the patient can go to talk confidentially

One of the main problems in custody settings is the lack of resources available to allow doctors to carry out an appropriate assessment. Dr George Fernie, senior medicolegal adviser at MPS, says: “It is rare to find designated medical examination rooms in Garda stations; this can make it very difficult to conduct a confidential discussion with, and examination of, any patient being detained in custody.”

As soon as possible after arriving at the station, speak to the Member in Charge to establish whether there is somewhere private that you and the patient can go to talk confidentially. Joint guidance from the Irish Council for Civil Liberties and the Irish Penal Reform Trust says: “Prisoners can expect the same level of confidential treatment as they would get in any other healthcare setting outside the prison.”3 The only exception to this would be if you felt unsafe being alone with the detainee; in which case, you can request for a Garda Member to be present during the consultation.4

During the consultation, introduce yourself and explain why you have been called. Reassure them that you owe them a duty of care and are not there to cast judgments on them. Outline the nature of the assessment or treatment you plan to provide, and give them an opportunity to ask you any questions.

You should explain the differences between your forensic and therapeutic roles, and make sure the patient knows that while you owe them a duty of care, the Gardaí might need to keep the results of any tests you conduct for evidence. While patients do have a right to refuse testing or withhold consent for disclosure, explain that you will have to tell the Garda Member in Charge about the refusal and this might have implications if the case goes to court.

Of sound mind?

When a patient has been detained emotions may be running high, making it difficult to assess their mental capacity. Doctors may find detainees behave erratically, are unusually loud or aggressive; others may refuse to say anything at all.

With the absence of any statute-based legislation relating to assessing mental capacity, doctors have to rely on their own clinical judgment. If you have never come into contact with the patient before, you will not be in a position to determine what constitutes normal behaviour for them. In these cases, use skills developed during your medical training to decide if a detainee has the capacity to consent to a medical assessment or to determine if they are fit to be interviewed.

The standard test of capacity is in three parts, all of which have to be fulfilled for a patient to be deemed competent:

Capacity can fluctuate in some patients at different times of the day, particularly if the patient has taken certain medications
  1. Can the patient comprehend and retain treatment information for long enough to make a decision?
  2. Does the patient believe that information?
  3. Can the patient weigh that information, balancing risks and needs, to arrive at a choice?5

You also need to ensure the patient can communicate their decision to you successfully. Remember, capacity can fluctuate in some patients at different times of the day, particularly if the patient has taken certain medications. If you have doubts over the detainee’s capacity, any consent they have given could be deemed invalid. It could also cast uncertainty over other information they have given, such as their past medical history.

Assessing capacity is the cornerstone of your entire visit. Doctors who fail to spend enough time establishing capacity may later find they had based clinical decisions on information that was incorrect. Always keep detailed contemporaneous notes on the discussions you had with the patient and record how you arrived at your decision.

Don’t give in to pressure

Some detainees, particularly those who have a history of drug abuse or opiate dependency, may deliberately provide misleading information about their medical history to get you to prescribe medication. Because many detainees are brought in outside normal working hours, it will not always be possible to get a copy of their medical records – or to contact someone who can verify the information – at the time of assessment.

“Don’t prescribe until you are cast-iron sure,” says Dr Andrew Wilkinson from the department of Forensic and Legal Medicine at UCD. “If necessary, treat withdrawal as and when symptoms occur, but do not prescribe medications such as methadone unless you are certain about the patient’s course of treatment.” Detainees may be well-versed in convincing a visiting doctor that they can be trusted, but always remember that powerful drug addictions can lead to highly manipulative behaviour; always err on the side of caution and wait until you have seen their medical records or spoken to their GP if you are unsure.

Detainees may be well-versed in convincing a visiting doctor that they can be trusted, but always remember that powerful drug addictions can lead to highly manipulative behaviour

Training is key

Although specific training on assessing patients in a custody setting is rare, all doctors should make an effort to familiarise themselves with the potential risks, in case they are next to be called up by the Gardaí. Doctors shouldn’t feel pressured to carry out impairment testing if you have not been trained or don’t feel adequately equipped.

If you are asked to assess patients in custody, talk to experienced colleagues, consider completing a course or attending CPD sessions6 and read any material you can get hold of, such as FFLM publications,7 which discuss the main risks and pitfalls to avoid; or call MPS for advice.

Above all, don’t forget that the key medicolegal concepts – assessing capacity, obtaining consent, maintaining confidentiality, keeping detailed records, safe prescribing and undertaking a comprehensive medical history and examination – apply in these difficult situations just as much as they do in the practice consulting room.

References
  1. Irish Council for Civil Liberties/Irish Penal Reform Trust, Know your rights: Your Rights as a Prisoner 2012 (p.19)
  2. Consent to medical and surgical procedures
  3. Irish Council for Civil Liberties/Irish Penal Reform Trust, Know your rights: Your Rights as a Prisoner 2012 (p.19)
  4. Ibid
  5. MPS booklet, Consent to medical treatment in Ireland
  6. University College Dublin, courses in forensic medicine and sexual assault forensic examinations
  7. Faculty of Forensic and Legal Medicine, The role of the Independent Forensic Physician (2010)
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