“The Warden wants to talk with you!” I don’t get a phone call from the Warden of the Penitentiary very often.  “What could this possibly be about?”  I picked up the phone.

“I get to decide if a prisoner has a DNR order – not you.” A cold, low voice announced.

Earlier that day I had seen an older gentleman in our hospital. He was a prisoner; he had lung cancer and despite radiation and chemotherapy it had spread throughout his body. We both knew that time was short.  After completing my assessment we had a difficult discussion about prognosis, limits to cancer directed treatment and next steps. One thing we did discuss was a plan to allow a natural death when that time came.  He was teary as the first opportunity for parole would be more than five years away and his life was now foreshortened. Parole, certainly not a guarantee, was off the table.

Usually the guards are bored and seem to be paying no attention but today the guard had been actively eavesdropping. I told him I would put in a DNR order and he said “We’ll see.”

I explained to the warden that the prisoner was terminally ill and I had counseled him as I would any other patient. He reminded me that prisoners “don’t got no rights” as a result of their crime.  I thought he was going to countermand the DNR order just out of spite but ultimately he let it stand with a stern warning to call when this happened again.

I know it seems far-fetched and barbaric but then, just this month, I am caring for another prisoner and he has lost capacity. We are forbidden from trying to contact family or someone to be his surrogate decision maker.  Ultimately, we, the providers, were making decisions using a “best interest” standard.

In a recent JAMA article Scarlet and colleagues describe the problem of “Surrogate Decision Makers for Incarcerated Patients.”  There is no standard approach for the over 2 million Americans who are incarcerated.  This is a vulnerable population, who are very sick with a death rate much higher than other Americans.  As they succinctly say:

“When needed, incarcerated patients should have a surrogate decision maker who can advocate for their preferences, values, and previously expressed wishes or, at a minimum, act in their best interest. Although incarceration is designed to strip away many rights of individuals, values-based medical decision making should not be one of them.”

Read more at Surrogate Decision Making for Incarcerated Patients