As local, state and federal officials race to arrange for the discharge of sick, elderly and non-violent incarcerated persons in response to the COVID-19 pandemic and its swift spread through correctional institutions, a big question arises: Must there be discharge plans for these men and women to help protect their health and that of the public?
It’s been more than 40 years since the U.S. Supreme Court ruled that that the Constitution entitles people held inside jails and prison to necessary medical care. In the 1976 case of Estelle v. Gamble, the Court held that deprivation of health care in correctional facilities constitutes cruel and unusual punishment. This ruling established a de facto right to health care for persons in custody that prohibits ignoring the medical and behavioral health needs of prisoners if the neglect constitutes “deliberate indifference.”
But what happens when these people are discharged?
Discharge planning is widely regarded as an essential component of psychiatric care. For example, patients released from inpatient psychiatric facilities can expect provision of medications and referral for follow-up care after discharge.
Such planning is also an acknowledged component of mental health treatment in jails and prisons according to the American Psychiatric Association, the American Public Health Association and the National Commission on Correctional Health Care.
So, are discharged individuals simply and immediately on their own? What if they were in the middle of a treatment regimen that they would not have resources at their disposal on the outside to continue? Do they have a right to continue to receive treatment?
A recent ruling from an important federal appeals court answered the latter question with a resounding and eminently reasonable “yes.”
Michelet Charles, a long-time, lawful resident in the U.S., was arrested in 2014 on immigration-related charges by agents of Immigration and Customs Enforcement (ICE). Charles had a long history of a psychotic illness successfully managed with medications. After arrest, he was brought to the Orange County Detention Center in New York, where he received medications and other treatment and remained stable during his year-long detention.
A year later, Mr. Charles was brought to Manhattan for a hearing and, ultimately, released outright. Charles was released with no medications, follow-up plan, discharge summary or any treatment documentation. Due to his illness, he was uncertain of his medication regimen.
The next day, Charles and his daughter drove 65 miles back to the detention center to obtain his medications, but were told that the jail did not to provide medications once a person was released. ICE did not respond to requests to obtain the medication and his Medicaid coverage had lapsed while he was in custody. Within two weeks, not surprisingly, Charles was so ill that he required emergency treatment and a two-month hospitalization for a psychotic relapse.
Mr. Charles and another ICE detainee in similar circumstances brought suit in federal court against Orange County and others alleging that the failure to put a discharge plan in place for their care deprived them of their constitutional rights.
While it is widely accepted in the law that government may provide services to individuals without transforming them into “entitlements,” there are some exceptions to the rule, particularly when the government has a “special relationship” with a person, such as holding them in custody. Further, since detainees cannot seek medical treatment on their own, the government is obliged to provide such services when they are medically necessary.
The District Court dismissed the suit, saying the plaintiffs had failed to show that the state manifested ‘deliberate indifference’ to their needs and that the underlying violation was not so severe as to “shock the conscience.”
On appeal, however, the Second Circuit Court reversed and sent the case back down for further consideration. It held that the only two issues to be determined were whether the plaintiffs’ claims involved serious medical needs and whether the defendants could be shown to have been deliberately indifferent to those needs. The court concluded that the mental health treatment issues at stake were plausibly serious and that the defendants were or should have been aware the need to provide adequate discharge planning. The court determined, therefore, that Charles and his co-plaintiff had stated a reasonable claim that their constitutional rights had been violated.
The Charles ruling is the clearest statement to date of a broader constitutional duty to conduct adequate discharge planning before release from a correctional facility. Let’s hope it stimulates further litigation on behalf of people in detention and prods state and federal leaders to appropriate adequate resources so that corrections officials can come rapidly into compliance with generally accepted standards for discharge planning.
Prof. Marvin Swartz, MD, heads the Division of Social & Community Psychiatry in the Department of Psychiatry & Behavioral Sciences at Duke University and is faculty in the Duke Law Center for Science and Justice.