Prisoners Should Not Be Used as Human Guinea Pigs in COVID-19 Cultural Wars

Posted in: Constitutional Law

The COVID-19 pandemic has been extraordinarily hard on people everywhere, creating personal, social, and economic hardships and leaving an almost unimaginable death toll. It has been particularly devastating in nursing homes, assisted living facilities, and other kinds of congregate housing. Thus it is not surprising that inmates in American prisons and jails would be among the hardest hit segments of the population.

The COVID Prison Project reports that “People who live in correctional settings are at a high risk of exposure to COVID-19. In fact, a majority of the largest, single-site outbreaks since the beginning of the pandemic have been in jails and prisons.” As of January 18, 2022, there were 494,528 cases among people in prison and 2,748 inmates have died from the virus. In addition, 159,984 prison staff have contracted COVID-19, and 259 have died from it.

The severity of COVID-19 outbreaks does not follow the usual blue state/red state breakdown. California and Texas each lead the nation in COVID-19 cases among the incarcerated. Together they have had more than 100,000 cases in their prisons.

The everyday uncertainty and terror of trying to live with and through a pandemic is compounded many times over behind bars. Overcrowded conditions make social distancing impossible; health care in prisons is notoriously inadequate even when COVID-19 is not raging. Prison medical personnel invest little time and energy in keeping up with the latest in COVID-19 protections.

All of these things may be the predictable consequences of life behind bars during a pandemic.

But this week’s news that officials in Arkansas’s Washington County Detention Center have been administering to COVID-positive patients drugs that are not approved to fight the disease, and not getting consent from the inmates for those drugs, is shocking. CBS News reported that “medical staff gave them the anti-parasite drug ivermectin last year, without their consent, to treat COVID-19, while telling them the pills were ‘vitamins.’”

The American Civil Liberties Union has filed suit on behalf of four of those inmates who say that had they “been informed that the drugs they were given included the dewormer ivermectin and informed of its nature and potential side-effects, they would have refused to take it.”

The news about the lawsuit and the possible violations of the prisoners’ rights serves as a reminder of the profound vulnerability of all inmates to the skill, judgment, and concern of medical personnel who are assigned to care for them.

That COVID-19 culture wars and unreliable information are now influencing medical decisions in prisons means that legislatures and courts must be especially vigilant in ensuring that prison doctors recognize and respect the right of inmates to “informed consent” to any medical treatment provided to them.

Ivermectin was developed forty years ago as a drug for livestock and quickly became a big moneymaker for pharmaceutical giant Merck. Ivermectin has been recognized to have limited human uses. It has been approved only to treat diseases like river blindness, intestinal problems caused by roundworms, head lice, and rosacea.

A National Public Radio report on its use as a treatment for COVID-19 notes that in “June 2020, a group of Australian researchers published a paper showing that large quantities of ivermectin could stop the coronavirus from replicating in cell cultures.” But, as the NPR report notes, “The amount of ivermectin a person would need to take to achieve that effect is up to 100 times the dose approved for humans. “

As a result, the Food and Drug Administration has not approved its use as a COVID-19 treatment and the Centers for Disease Control and Prevention have warned against using the drug for that purpose.

The FDA went as far as tweeting out a reminder last year on August 21: “You are not a horse. You are not a cow. Seriously, y’all. Stop it.”

Despite, or perhaps because of, the FDA and CDC position, ivermectin has come to play an important role in COVID-19 culture wars. Anti-vaxxers and mask skeptics have embraced it and claimed it is a miracle cure for COVID-19.

Acolytes of former President Trump like Texas Congressman Louis Gomert and Wisconsin Senator Ron Johnson have ivermectin as an important part of the effort to defeat COVID-19. Fox News personalities, including Tucker Carlson and Sean Hannity, have also promoted the drug.

Perhaps this is why the Washington County Detention Center’s Dr. Robert Karas started doling out ivermectin to inmates with COVID-19. Karas has been a vocal advocate for using the drug during the pandemic. On January 15 he boasted about its use at the prison.

“Inmates aren’t dumb,” he said, “and I suspect in the future other inmates around the country will be suing their facilities requesting the same treatment we’re using at WCDC—including the Ivermectin.”

It is of course one thing for an inmate to request a particular treatment, but quite another for Dr. Karas or any other doctor to give it to them without their consent.

Courts have long recognized that physicians and other medical personnel must obtain informed consent before treating patients.

As a New York appellate court put it in a 1914 decision, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.”

And what applies beyond prison walls also applies on the inside as well.

The National Commission on Correctional Healthcare notes that “Any procedure requiring written consent in the community also requires a signed consent from an inmate in a correctional setting.”

And some state correctional departments have codified that right in regulations and policy directives. For example, the Michigan Department of Corrections states that “Informed consent shall be obtained when consent is required under prevailing medical community standards before medical care is provided, unless the medical treatment or procedure is authorized by state or federal law or Department policy (e.g., blood sample for mandatory DNA or HIV testing or, body cavity search), including situations set forth in this policy.”

The American Medical Association calls for “respecting the autonomy and obtaining informed consent from the incarcerated patient…[A] physician must ‘be able to conclude, in good conscience and to the best of his or her professional judgment, that to the extent possible the patient voluntarily gave his or her informed consent, recognizing that an element of coercion … is inevitably present.’”

The AMA is right to recognize the coercive environment in which inmates live. But recognizing that fact means that medical personnel must make special efforts to be sure that treatment is as voluntary as it can be.

Dr. Karas and his Arkansas colleagues seem to have ignored that obligation in their COVID culture war zeal. In a letter to the Arkansas Medical Board, Karas made the stunning admission that inmates had not been given necessary information about ivermectin. Only after the media got wind of the situation, Karas acknowledged, were steps taken to “assuage any concern that any detainees were being misled or coerced into taking the medications….”

Writing a decade ago about severe inadequacies in medical care provided in California prisons, former Supreme Court Justice Anthony Kennedy rightly observed that the Constitution recognizes that “Prisoners retain the essence of human dignity inherent in all persons.” Using them as guinea pigs in COVID-19 culture wars is surely incompatible with that constitutional command.

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