Correctional System Delivery of Mental Health Services in a Post COVID-19 World
Within the Framework of the Eighth Amendment and Deliberate Indifference
Robert J. Marcello, Ph.D., LCP, CCHP, Licensed Clinical Psychologist and Correctional Health Expert weighs in on the correctional system delivery of mental services in a post COVID-19 world.
May was Mental Health Awareness Month, which gave me pause to reflect on the impact that COVID-19 is having on the correctional system delivery of mental health services. I also thought that it was important to examine this matter within the historical framework of the Eighth Amendment and the concept of Deliberate Indifference.
In my previous article COVID-19 and Its Impact on the Correctional System: Addressing Differential Polices/Practices Concerning “Essential” vs. “Non-essential Personnel, I recommended that organizations consider modifying the manner in which Mental Health services are delivered including encouraging tele-working where possible for essential personnel. For example, if staff reported to the site 3 of 5 days instead of daily and were able to work remotely using tele-health technology (i.e., to provide individual and group therapies, conduct assessments, provide crisis intervention, etc.), service levels could be maintained while simultaneously promoting social distancing and reducing the level of potential exposure to the COVID-19 virus. Staggering schedules of Monday-Friday staff would promote further social distancing, and in fact, some correctional organizations have implemented such changes, significantly altering the correctional system delivery of mental health services. Similar changes are also being made in the community at large due to COVID-19, with tele-health rapidly becoming a preferred method of service delivery. It remains to be seen whether such changes will be maintained following COVID-19 (or any reprise of COVID-19), and whether they will be determined to be improvements or compromises in the way Mental Health services are delivered both in the community as well as in correctional systems. If it is determined that these changes have resulted in improved service delivery, then perhaps this will be a positive side effect of the COVID-19 pandemic.
Another impact that COVID-19 is having upon the delivery of Mental Health services within correctional settings involves the anxiety/fear of contracting COVID-19 that affects both staff and inmates. From an inmate perspective, this reality-based anxiety may result in increased requests for Mental Health services by inmates who are either currently receiving these services, as well as by inmates who ordinarily might not seek such services. Increased caseloads result in increased stress levels for staff, and for those staff who are not able to provide services via tele-health, their anxiety is compounded by fears of contracting COVID-19, thereby putting their health as well as the health of loved ones at increased risk. This phenomenon has been reported widely by healthcare providers both in correctional settings as well as in the community and has been referred to as the “working worried.”
Mental Health services are now required in prison systems throughout the country; however, this has not always been the case. Prior to the late 1970s, the level of services varied dramatically from system to system, as there were few standards established for minimally acceptable Mental Health services. As a result of multiple lawsuits citing violations of the Eighth Amendment (cruel & unusual punishment), prison officials were, and are, obligated to provide inmates with adequate medical care – including mental health care (1). Mental health care of inmates is governed by the same constitutional standard as is medical care, and “adequate care” is generally defined as the “minimum” standard of care that is considered acceptable in the community; that is, the Community Standard (2).
Related to these Eighth Amendment cases is the concept of Deliberate Indifference. Deliberate Indifference is defined as the “conscious or reckless disregard of the consequences of one’s acts or omissions.” And further, as occurring “when a professional knows of and disregards an excessive risk to an inmate’s health or safety.” And still further, it “entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. In law, the courts apply the deliberate indifference standard to determine if a professional has violated an inmate’s civil rights.” (3)
To illustrate the difference between negligence/malpractice and deliberate indifference, consider the following hypothetical events resulting in a completed suicide in a correctional setting. If a mental health provider were to miss signs of increasing suicidality such as expressions of hopelessness, giving away possessions, or statements such as “This will be over soon,” he or she could potentially be found liable for negligence or malpractice. If on the other hand, there was proof (e.g., documentation in medical record) that this same professional was clearly informed that an inmate stated that he planned to kill himself, and this professional made an active decision to not initiate suicide precautions in spite of this information stating “he’s just faking, he’ll never do it,” or “let him go ahead, it’ll save the state a lot of money,” then there is a stronger possibility for this to be considered a case of deliberate indifference.
Other examples of deliberate indifference include: intentionally refusing to respond to an inmate’s formal requests for mental health services, and/or documented complaints about services that have been delivered; and, intentionally delaying prescribing or administering psychotropic medication despite clearly documented symptoms warranting such treatment. The operative word is “intentionally,” because as indicated earlier, while providing substandard care may warrant liability for negligence or malpractice, the bar for deliberate indifference has been set at a higher level, requiring a willful intent to harm an individual by either purposefully delivering inadequate care, or intentionally withholding needed care.
As it relates to COVID-19, Eighth Amendment/Cruel and Unusual Punishment-related legal actions have been filed in several states, including Virginia, Connecticut, Oregon, Texas, Louisiana, Illinois, and New York, alleging that overcrowding in prisons and jails has created conditions that unduly expose inmates to the possibility of becoming infected with the COVID-19 virus, due at least in part, to the inability to practice social distancing as has become the standard in the non-custodial community. (It should be noted that this author is not aware of any such cases being filed alleging that the quality of Mental Health services has suffered specifically due to changes implemented in response to COVID-19 (e.g., increased reliance on tele-health technology)). The ACLU has filed suits in several of these states including Oregon and Connecticut, and a Charlottesville, Virginia attorney filed a suit in Virginia on behalf of 27 inmates located in 12 prisons throughout the state, seeking a reduction in overcrowding, typically via early release of “lower risk” inmates into the community. (4)
To the author’s knowledge, only the Connecticut case alleged deliberate indifference, however, it remains to be seen if such claims are made in future cases. In the case of overcrowding, a finding of deliberate indifference would require that states knowingly created these conditions, and intentionally decided not to take what would be judged as reasonable steps to alleviate such conditions. In such instances, expert opinion would support or refute that such intentional acts caused harm. Similarly, if the states failed to take reasonable steps to protect inmates at-risk due to other medical conditions, as was the allegation made in the Connecticut case, a finding of deliberate indifference could be supported. In fact, a federal judge ruled on May 12, 2020 that Connecticut officials acted with deliberate indifference by failing to take steps to reduce overcrowding in a reasonable and timely manner (5). Specifically, it was ruled that: “the four lead plaintiffs in a federal civil rights lawsuit, all inmates at FCI Danbury, had showed that prison officials are making only limited use of their home confinement authority, as well as other tools at their disposal to protect inmates during the outbreak, and that these failures amount to deliberate indifference to a substantial risk of serious harm to inmates in violation of the Eighth Amendment.”
COVID-19 is presenting all of us, including correctional organizations, with challenges that most of us have not faced in our careers. We have also been presented with opportunities to change, and improve, the way we conduct business, such as providing Mental Health services, on a daily basis.Professionals in the community and correctional organizations have responded by implementing strategies such as expanded use of tele-health technology to provide Mental Health services in safer and potentially more efficient ways, and many believe that these strategies are improvements over how such services have traditionally been provided.
Eighth Amendment (i.e., cruel and unusual punishment)-related cases have established the “community standard” as the benchmark against which correctional Mental Health services are measured. Since COVID-19 has resulted in changes in service delivery both in the community and in the correctional setting, it could be argued that the benchmark for Eighth Amendment-related cases has also changed. While several Eighth Amendment-related cases have been filed and some have met with success on the basis of overcrowding, this author is not aware of any such cases being filed alleging that the quality of Mental Health services has suffered specifically due to changes implemented in response to COVID-19. This may be because, as many believe, that providers have been able to maintain quality of services, while concurrently improving safety and efficiency. In the aftermath of Mental Health Awareness Month, it’s worth noting that Mental Health professionals in the community and in correctional settings remain dedicated to ensuring that their patients continue to receive the quality of services that they both need and deserve in the face of COVID-19 related challenges, and they are providing these services in the face of increased risk to their health and well-being, as well as to the health and well-being of their significant others.
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- Estelle v. Gamble, 429 U.S. 97, 103 (1976).
- J Gen Intern Med. 2015 Apr; 30(4): 503–507.
- Richmond Times-Dispatch, Apr. 9, 2020: 6