How Prisoners Get Compassionate Care Releases

Experts tell how decisions to release terminally ill prisoners are made.

August 20, 2009, 5:07 PM

Aug. 21, 2009&#151; -- In two separate cases Thursday, convicted murderers were released from prison on compassionate grounds, because each had only a few months to live.

Abdel Baset al-Megrahi, convicted in the bombing of Pan Am Flight 103 over Lockerbie, Scotland, which killed 270 people, was released from a Scottish prison after he was given three months to live from his terminal prostate cancer. And, in California, Deborah Peagler, convicted in the murder of her abusive boyfriend, was released after Gov. Schwarzenegger let the parole board's opinion stand, owing to her diagnosis with terminal lung cancer.

Meanwhile, Susan Atkins, convicted for her role in the murders of Sharon Tate and Jay Sebring in 1969, has been unable to gain a compassionate release from prison for more than a year despite her diagnosis of terminal brain cancer.

While regulations vary by state and country, these decisions bring light to a system designed to allow some compassion to prisoners in their final months, weeks or days.

"Generally, patients have either a 'terminal' disease or have a serious, irreversible condition which renders them incapacitated," said Dr. Joseph Blackston, assistant clinical professor of medicine at the University of Mississippi School of Medicine and adjunct professor of law at Mississippi College School of Law. "An example of the latter might be someone in a persistent coma, vegetative state, or someone who is totally paralyzed."

He has worked as both a doctor for terminally ill inmates, as well as a lawyer.

Most patients, like those making headlines, have been diagnosed with incurable cancer, likely having widespread disease.

Outside the prison walls, these same patients would be the ones considering hospice care, a comfort-only level of care, performed on an inpatient or outpatient basis. Hospice patients, in general, no longer qualify for further diagnostic testing or extraordinary therapies. Under Medicare guidelines, they are, to the best of the treating physician's estimation, not likely to live longer than six months.

A large number of the aging prison population could be eligible for compassionate release but, Blackston said, "Only a fraction of inmates who might actually meet the medical criteria for release end up being released."

'Two Sides of the House'

Gaining release is a result of decisions by two separate bodies.

"In correctional care, you've got two sides of the house," said Dr. Kim Dunn, formerly the vice chairwoman for the Texas Department of Criminal Medicine. "They're really two distinct reasoning processes that have to come to bear."

On one side, there are the clinicians, who determine a patient's likely time for survival, while on the other side is what Dunn referred to as the "security side of the house," which determines the risks an inmate might pose when released.

"You cannot know what that individual did," Dunn said of being on the physician's side. "It's not part of their medical record -- you don't know, and as a physician you stay on your side of the house in terms of doing your best for the patient, because that's the oath that we took."

Dunn recalled one patient she attended to where she arrived at the room and found he had four armed guards.

"It was one of those times where you really have to dig deep as a doctor," she said.

While she took care of the patient, she said she took some extra precautions when students working with her had to enter the room.

"In terms of taking care of the patients, that is first and foremost from the physician's side," Dunn said.

While the physician's responsibility is to certify the severity of the inmate's disease, regardless of his or her criminal history or sentence, the ultimate decision for release usually rests with administrative personnel, who consider medical, legal, and social factors involved in each individual case.

Release on this basis, however, does not constitute a pardon, Blackston said.

An Inexact Science

Clearly, terminally ill patients don't always conform to the expectations. Despite petitioning for release more than a year ago, Atkins is still alive despite her initial prognosis of six months to live.

"Cancer does funny things -- it sometimes gets better for periods of time, but the key issue is if you stop active treatment, if you're no longer able to actively treat a patient, by definition they're terminal," Dunn said.

Indeed, predicting time left can prove a complex enterprise.

"We know there are diseases for which we don't have a cure," said Dr. Brie Williams, an assistant professor of medicine at the University of California-San Francisco, who has worked extensively with inmates.

"For those patients with an incurable condition, prognostication is based on a complicated combination of factors including: disease [for example, metastatic cancer or advanced dementia], functional status [such as whether the patient can eat or get out of bed], social support, and access to medical care," she said. "However, prognostication of death is an inexact science and physicians prognosticate most accurately when death is imminent [in the days, weeks and perhaps months leading up to death].

"The more imminent that death is, the better physicians are at prognosticating, but we are not very good at prognostication when it gets beyond that time frame," Williams said.

Affecting Survival

But, in general, terminal patients do not tend to live long.

Drs. Nicholas Christakis and Jose Escarce looked at that question in a 1996 study at the University of Chicago. In their article, published in the New England Journal of Medicine, median survival in the 6,451 hospice patients they examined was only 36 days, with approximately 16 percent dying in the first week. Only about 15 percent of these hospice patients were still alive at six months.

Re-enrollment is required by Medicare at six months for further hospice care. For all prisoners, that cost falls to the government.

"The financial responsibility for all medical care for prison inmates is with the state or federal government," Mississippi's Blackston said. "If the patient is discharged from custody, then usually private insurance, Medicaid, or Medicare is relied upon as the payor source."

Surprisingly, a patient like Susan Atkins might actually live longer in prison.

"We would hope that her medical care, while incarcerated, is certainly equivalent to that in the 'private' sector and, in many cases, it may indeed be better, given that if she [or any other incarcerated patient] is released, she may not necessarily have ready access to [the same] high=quality medical care," Blackston said.

Ultimately, some prisoners, like Atkins, are not released, but Texas' Dunn said that when that situation arises, things can still be done.

"People that are at great risk of doing harm, they shouldn't be released, but you can do things that are of a compassionate nature," she said, including letting family come to visit more often. "That's a form of compassionate care, should the decision be made to not release someone."

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