Reclaiming The Right To Privacy:
Ending the Carceral Clinical Encounter
There is a carceral crisis in American hospitals. Each day thousands of patients' most fundamental medical right, a right to privacy, is ignored. These patients, in the custody of various police agencies, sheriff departments, prison systems, and increasing Immigration and Customs Enforcement are seen in healthcare settings outside of carceral facilities.
Hospitals have abdicated their responsibility to center the needs and rights of patients, allowing this most sacred medical-legal right - a right to privacy - to be systemically eroded. With little protest, the unquestioned status quo has become a guard, or at times two, stationed permanently in the rooms of in custody patients.
Tens of thousands of clinical encounters take place this way each year. With carceral staff able to see and hear all interactions between patient and providers, any semblance of privacy has been shattered. This elimination of privacy, done under the guise of safety, is not based on a careful weighing of evidence, thoughtful interpretation of the law, or nuanced quality improvement initiative. Rather, it is a result of uncritically following the preferences of carceral agencies. With significant harm to patients and no proven necessity, this practice is exceptional for its departure from standard hospital decision making.
At the core of the issue is the subjective interpretation of the patient privacy law. While carceral actors claim any in custody patient has lost all rights guaranteed under HIPAA, any reasonable interpretation of the law makes clear that elimination of patient privacy should be a rare exception, not the rule.
Why is this practice allowed to endure? It is only possible due to the sheer dehumanization of those who are criminalized. Labeled as felons, inmates, convicts, and criminals - they are no longer seen as patients first. They are framed as dangerous and manipulative - treated as a risk to be monitored, not a patient to be cared for.
While there are a number of pressing concerns regarding the treatment of in custody patients in healthcare settings, the right to patient privacy stands out as it is fundamental to patient dignity, mutual respect, and the building of a therapeutic relationship.
Here are a few next steps hospitals should take to improve the quality of care for patients in custody.
1. Remove all carceral agents from patient rooms.
2. Establish a committee, including formerly incarcerated local community members, to oversee the continued expansion of patient centered practices for in custody patients.
3. Any privacy violation request should be submitted with clear rationale to the in custody care committee, making infringements the rare exception not rule.
4. Clear and transparent data collection to ensure policies are based on evidence, not carceral preferences.
Enough is enough - Let’s reclaim the clinical encounter and end the carceral creep into our hospitals.
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