Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 17,2003

The Honorable Jeb McNew Opinion No. GA-0042
Montague County Attorney
Montague County Courthouse Re: Whether an inmate in a county jail has
P.O. Box 336 the right to choose a medical provider and
Montague, Texas 7625 l-0336 whether an inmate who refuses to use the
provider designated by the sheriffs office has
refused medical treatment (RQ-0609-JC)

Dear Mr. McNew:

You ask whether an inmate in a county jail has the right to choose a medical provider and,
if an inmate does not, whether an inmate who refuses to use the provider designated by the sheriffs
office has refused medical treatment.

As background to your request, you explain that the Montague County Jail is near two
hospitals, Nocona General Hospital and Bowie Memorial Hospital. Jail personnel summoned
emergency care from Nocona General Hospital for an inmate.’ “The Nocona Hospital [emergency
medical team] responded intending to take the inmate to Nocona General Hospital, however, the
inmate wanted to be transported to Bowie Memorial Hospital and was so transported.” Request
Letter, supra note 1, at 1. Nocona General Hospital emergency medical services (“EMS”) then
complained to the jail administrator that Bowie Memorial Hospital EMS should have been
summoned. Id. (Attachment 1, Sheriffs Memo). In response, the jail administrator advised Nocona
General Hospital EMS that (i) “inmates were required to utilize the medical providers that the jail
provided them,” (ii) “other medical providers would be used only at the referral of these providers,”
and (iii) “if an inmate refused to use the medical provider that the jail summoned . . . that inmate
would be considered to have refused medical treatment.” Id. After Nocona General Hospital asked
for a letter confirming this information, the sheriffs office asked your office to provide advice on
the following questions: “Does the inmate have the right to choose a medical provider while in
custody? If an inmate refuses to use our provider, is he refusing medical treatment?” Id.

‘Letter from Honorable Jeb McNew, Montague County Attorney, to Of&e of the Attorney General, Opinion
Committee (Sept. 11,2002) (letter with two attachments on file with Opinion Committee) [hereinafter Request Letter];
Attachment 1, Sheriffs Memo.
The Honorable Jeb McNew - Page 2 (GA-0042)

-:,
I> *

The Eighth Amendment to the United States Constitution imposes on prison officials the duty
to ensure that inmates “receive adequate food, clothing, shelter, and medical care.” Farmer v.
Brennan, 5 11 U.S. 825, 832 (1994); see also Estelle v. Gamble, 429 U.S. 97 (1976). A prison
official’s deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth
Amendment. See Farmer, 5 11 U.S. at 828. On the other hand, inmates have “no constitutional right
to select which physician will provide medical care.” Bezotte v. Kalmanov, 2001 WL 167830, *2
(N.D. Tex. 2001). Because neither the federal nor state constitution requires the county to allow an
inmate to select a physician, we must determine whether any statute provides such a right or
otherwise addresses the issue.

We have not located any statute that expressly addresses whether an inmate in a county jail
has a right to choose a medical provider. As a general matter, article 16.2 1 of the Code of Criminal
Procedure charges “[ e]very sheriff’ to “safely keep a person committed to his custody.” TEX. CODE
CRTM. PROC. ANN. art. 16.21 (Vernon 1977). Under the Local Government Code, “[t]he
commissioners court of a county shall provide safe and suitable jails for the county.” TEX. LOC.
GOV’T CODE ANN. 8 35 1.OOl (Vernon 1999). “The sheriff of each county is the keeper of the county
jail. The sheriff shall safely keep all prisoners committed to the jail . . . . ” Id. 8 35 1.041(a). The
sheriff may appoint a jailer to operate the jail and meet the needs of the prisoners, “but the sheriff
shall continue to exercise supervision and control over the jail.” Id. fj 351.041(b).

Article 104.002 of the Code of Criminal Procedure, the sole statute that expressly addresses
medical care of county inmates, allocates financial responsibility for inmates’ medical care. It does
not address whether an inmate in a county jail has a right to choose a medical provider, and does not
provide or imply such a right. See TEX. CODE GRIM. PROC. ANN. art. 104.002(a) (Vernon Supp.
2003) (“Except as otherwise provided by this article, a county is liable for all expenses incurred in
the safekeeping of prisoners confined in the county jail or kept under guard by the county.“), id. art.
104.002(d) (duty of county jail inmate to pay for medical, dental, or health related services provided
by a county or a hospital district; county or hospital district’s right of subrogation).

Because there is no statute that addresses this issue, we look to standards adopted by the
Texas Commission on Jail Standards (“the Commission”). The Commission is charged under
section 5 11.009 of the Government Code with adopting reasonable rules and procedures establishing
minimum standards for the “operation of county jails” and for “the custody, care, and treatment of
prisoners.” TEX. GOV’T CODE ANN. 8 5 11.009(a)(1)-(2) (Vernon 1998). Each county jail must
comply with the minimum standards and the rules and procedures of the Commission. See TEX.
Lot. GOV’T CODE ANN. fj 351.002 (Vernon 1999).

The Commission has promulgated a rule that requires county jails to create and implement
a written plan for inmate medical, mental, and dental services that has been approved by the
Commission. See 37 TEx. ADMIN. CODE 0 273.2 (2002) (health services plan); see also id. fj 273.1
(each jail operator “shall provide medical, mental, and dental services in accordance with the
approved health services plan”). The Commission rule specifically requires a plan, among other
things, to provide procedures “for regularly scheduled sick calls, ” “for referral for medical, mental,
and dental services,” and “for efficient and prompt care for acute and emergency situations.” Id. 8
The Honorable Jeb McNew - Page 3 (GA-0042)

273.2(l)-(3). The plan must also “provide procedures for the rights of inmates to refuse health care
in accordance with informed consent standards for certain treatments and procedures.” Id. 0
273.2(8). The rule does not provide that an inmate has any right to select a particular medical
provider. See id.

As required by the Commission rule, the Montague County Sheriffs Office has adopted a
health services plan. It states that “[i]n the event of a medical emergency from injuries or sudden
illness, the Bowie or Nocona EMS will be summoned to the jail for imrnediate care of the inmate.”
Request Letter, supra note 1 (Attachment 2, Montague County Sheriffs Office Jail Division Health
Services Plan, at 2). The county plan directs jail personnel to summon EMS and there is no
indication in the plan that the inmate may choose between the two providers, nor is there any
indication as to which facility the inmate should be taken. See id. “If an inmate is transferred to the
hospital emergency room, a sheriffs deputy or detention officer will accompany the inmate to the
hospital.” Id. With respect to refusal of treatment, the plan provides that “lj]ail personnel will
inform the EMS, Bowie Memorial Hospital, and Nocona General Hospital that they should follow
the community informed consent standards for treatment and procedure that they afford all patients,
including those applicable to minors.” Id. (Attachment 2, at 3).

We conclude that an inmate does not have the right to choose a medical provider under the
Commission rule or the county health services plan. Under the Commission rule and the county
plan, the county is vested with the duty to provide routine medical care and to summon emergency
medical care for inmates. That duty includes the authority to select a medical provider. See 37 TEX.
ADMIN. CODE pj 273.1,273.2 (2002); see also Tex Att’y Gen. Op. No. DM-111 (1992) at 4 (“A
county commissioners court has the authority to contract with a licensed physician to provide
medical services to inmates incarcerated in the county jails. A county sheriff has the authority to
schedule medical services for the county jails.“). Neither the Commission rule nor the county health
services plan provides an inmate with the right to select a medical provider.

You also ask whether an inmate who refuses the medical provider selected by the sheriffs
office refuses medical treatment. You ask this question because Nocona General Hospital EMS has
asked the sheriffs office for a letter confirming that “if an inmate refused to use the medical provider
that the jail summoned . . . that inmate would be considered to have refused medical treatment.”
Request Letter, supra note 1 (Attachment 1, Sheriffs Memo). We have not found any authority that
addresses this question. The Commission rule and the county plan address an inmate’s right to
refuse treatment in accordance with informed consent standards. See 37 TEX. ADMIN. CODE 9
273.2(8) (2002); Request Letter, supra note 1 (Attachment 2, Montague County Sheriffs Office Jail
Division Health Services Plan, at 3). However, the right to informed consent is the right to
voluntarily consent to a particular course of treatment after being informed of benefits and risks of
the treatment and is not directly relevant to whether an inmate’s refusal to use a provider designated
by the sheriff constitutes refusal of medical care. See STEDMAN’SMEDICAL DICTIONARY87 1 (26th
ed. 1995) (defining “informed consent” as “voluntary consent given by a person . . .forparticipation
ina.. . treatment regimen . . . after being informed of the purpose, methods, procedures, benefits,
and risks”) (emphasis added); Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 253 (Tex.
1999) (courts construe administrative rules, which have the same force as statutes, in the same
The Honorable Jeb McNew - Page 4 (GA-0042)

manner as statutes); TEX. GOV’T CODE ANN. 5 3 11 .Ol 1(a) (Vernon 1998) (statutory “[wlords and
phrases that have acquired a technical or particular meaning, whether by legislative definition or
otherwise, shall be construed accordingly”).

In essence, Nocona General Hospital EMS seeks advance permission from the sheriffs office
to deny medical care to inmates in certain situations. See Request Letter, supra note 1 (Attachment
1, Sheriffs Memo). Given a jailer’s constitutional and statutory duty to provide inmates with
medical care, see discussion supra pp. 2-3, and considering the Commission rule and county health
services plan, we caution the sheriffs office against advising Nocona General Hospital EMS that
every inmate who refuses to use the medical provider summoned by the jail has refused medical
treatment. Whether an inmate has refused medical treatment will depend upon the facts of the
particular situation. We do not believe, for example, that an inmate’s stated preference for an
alternate medical provider would, without more, constitute the refusal of any and all medical care.
Alternatively, if an inmate is fully informed that the only medical care he will be provided is that by
Nocona General Hospital, and if the medical care offered addresses the inmate’s medical need and
the inmate refuses that care and says he will only accept care by an alternate medical provider, then
the inmate has refused the care offered to him. In such case, the county is not obligated to provide
care by the alternate provider (unless the county health services plan provides otherwise). Therefore,
the sheriffs office should not advise EMS that an inmate has refused treatment unless the sheriffs
office has considered the facts of the particular situation.
The Honorable Jeb McNew - Page 5 (GA-0042)

SUMMARY

A county jail inmate does not have the right to choose a
medical provider. Whether an inmate’s refusal to use the medical
provider selected by the sheriffs office constitutes refusal of any and
all medical treatment will depend upon the facts.

Very truly yours,

Attomey&eeeral of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee