Hill v. Department of Corrections

CONCURRING OPINION BY

Judge McCullough.

I agree with the majority that the Department of Corrections (DOC) may involuntarily examine and test Dwayne Hill and that DOC failed to present sufficient evidence to justify the involuntary administration of nutrition and hydration. However, force feeding an inmate is a grave matter that raises substantial legal, ethical, and medical questions, which are not addressed by the majority opinion or developed by the parties in this appeal. Because the issue of involuntary feeding may return at the permanent injunction stage or in a proceeding involving an ex paHe special injunction (majority op. at 940), I write separately to address my concerns.

I begin with a discussion of the medical procedures utilized to feed an inmate against his or her will.1 A common method is nasogastric feeding, which is performed by inserting a tube through the nose, into the esophagus, and directly into the stomach. Peter Wood, Comment, The Right to Refuse Medical Treatment: Courts Disparate Treatment of Incarcerated Patients, 112 Penn. St. L. Rev. 1167 (2008). As the following examples demonstrate, this method has, at times, been performed in an inhumane manner, causing pain and harm to the prisoner.

In the case of In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984), the dissenting opinion contains this account of the procedure:

Mr. Caulk states in his brief that naso-gastric tube-feeding began on June 1, 1984, in accordance with the May 25, 1984, preliminary order of the superior court. No novocaine was used during the insertion of the tube. He suffered a great deal of pain and discomfort as a result of the constant irritation of the tube on his throat and nasal passages. His efforts to resist the painful swallowing reflex caused him to suffer severe headaches. The tube was removed due *941to the danger of imminent ulceration of his throat and nasal passages.

Id. at 99 (Douglas, J., dissenting). In In re Soliman, 134 F.Supp.2d 1238 (N.D.Ala.2001), vacated as moot, 296 F.3d 1237 (11th Cir.2002), the court recounted the following:

[Mjedical personnel initially inserted a large tube into his nose, which did not fit. The medical personnel then attempted to insert smaller and smaller tubes until Soliman’s nose began bleeding internally. The doctor ordered that Solimán be injected with an anesthetic, and a gastric tube inserted through his mouth.

Id. at 1245.

A prisoner who undergoes the nasogas-tric feeding procedure may be restrained for long periods of time. In Walker v. Horn, 385 F.3d 321 (3rd Cir.2004), a Pennsylvania case, the prisoner stated that he was placed in restraints that immobilized his ankles, wrists, head, and chest for a protracted period of time, and that the feeding tube was kept in place for two days.2 A similar scenario was reported in McNabb v. Department of Corrections, 163 Wash.2d 393, 180 P.3d 1257 (2008), where the prisoner was continuously strapped to a chair for twenty-eight hours and force fed by a tube through his nose. During the procedure the prisoner was unable to sleep and suffered medical complications from the procedure such as bleeding from the nose, pain, and nausea.

A second method of involuntary feeding is the use of a needle inserted into a blood vessel. While this procedure is less harsh and invasive than nasogastric feeding, intravenous feeding is difficult to perform on an inmate who is not sedated and carries a risk of blood loss and infection. Wood, supra-, at 1181.

Force feeding a prisoner creates an ethical dilemma for medical professionals. The World Medical Association, of which the American Medical Association is a member, has articulated a policy that proscribes the force feeding of hunger striking prisoners. McNabb, (Sanders, J. dissenting). The World Medical Association issued this specific guideline:

Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner.

Paragraph 6, World Medical Association, Declaration of Tokyo, revised May, 2006.3 This principle was amplified by the Declaration of Malta, which provides as follows:

Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment.

Paragraph 21, World Medical Association, Declaration of Malta on Hunger Strikers, revised October, 2006.4 Of course, these *942are not binding rules, but they do offer insight into the ethical concerns of the medical profession on this difficult subject.

Despite the foregoing, I am not suggesting that involuntary feeding and hydration should never be ordered or that a prisoner has an unfettered right to refuse to eat. The case law demonstrates that there are valid, competing state interests involving the integrity of the prison system and the need to protect the life of the prisoner. However, to facilitate judicial review and balance the interests of the prisoner and the Commonwealth, I believe that DOC should develop (or incorporate into any such existing policy) a policy on hunger strikes and the involuntary feeding of prisoners that addresses the concerns expressed in this opinion.5 Although such a policy is an administrative matter within the purview of DOC, I suggest that it include the following elements: (1) objective standards to determine when a prisoner is in imminent risk of irreversible harm to his or her body; (2) a requirement to develop a factual record in each case to explain how the prisoner’s refusal to eat impacts on the orderly administration and security of the prison system; and (3) restrictions on the amount of time a prisoner may be restrained for the procedure.6 The possibility of abuse could be further reduced by the addition of guidelines, such as: (1) in the event that force feeding is ordered, the feeding must be performed in a hospital by a licensed physician, if the physician concludes that it is required; (2) the physician who performs the procedure must take all reasonable steps to minimize the prisoner’s pain, discomfort, and the risk of harm; and (3) if the prisoner agrees to eat, the force feeding procedure must be immediately terminated.

It is unfortunate that this issue came before us by way of pro se appeal. If it returns in the future, I hope that we have the opportunity to delve deeper into this issue.

. The complaint and application for a preliminary injunction state that DOC was seeking authorization to administer nutrition and hydration "intravenously or otherwise,” as may be deemed necessary by DOC, to preserve Hill's health and life. (Record item 1, Complaint at 3 and Application for Ex Parle Preliminary Injunction at 2) (emphasis added). DOC did not present any evidence in the trial court proceedings describing the precise procedure it intended to use to feed Hill.

.The prisoner in Walker claimed that the medical staff merely liquefied the regular prison meals — liver and mashed potatoes— and placed them in the feeding tube. He also claimed that he told prison officials while being restrained that he was willing to stop his hunger strike, but the officials informed him that his concession was too late and continued with the force feeding procedure.

. http://www.wma.ne1/en/30publications/l0 policies/c 18/index.html.

. http://www.wma.net/en/30publications/l 0 policies/h31/index.html.

. The certified record does not contain any DOC policies pertaining to hunger strikes and/or force feeding prisoners, and there is no testimony in the transcript that identifies or explains any of DOC's policies. Nevertheless, my research reveals that DOC published a policy on its website, Policy DC-ADM 13.01.01, which establishes detailed procedures for the observation and medical/psychological assessment of inmates who refuse to eat. While it is not clear whether this is the current policy or the only policy governing these issues, I considered DC-ADM 13.01.01 when drafting the policy suggestions in this opinion. http://www.cor.state.pa.us/portal/ server.pt/community/department_of_ corrections/4604/doc_policies/612830.

. DOC may restrain a prisoner when directed to do so by a doctor. 37 Pa.Code § 91.6(4); policy DC-ADM 201.