Is it morally permissible for hospital nurses to access prisoner-patients’ criminal histories?

Introduction

While there has been a fair amount of research on nurses’ care of prisoner-patients inside prisons, there has been little discussion of nurses’ care of prisoner-patients in hospital settings. Ruth Crampton ¹ has reviewed the literature on nursing care of prisoner-patients and finds “there has been little examination to date of the unique circumstances that RNs face when prisoner-patients are admitted to a general hospital, where the primary goal of treatment is care not custody.” Crampton’s ¹ study found that nurses’ care of prisoner-patients in the hospital was perfunctory and reactive:

…care was given as a duty—it was mechanical or dutiful and provided out of obligation, without affection or genuine feeling…All participants expressed that while they provided care they detached themselves emotionally from prisoner-patients to protect themselves from perceived physical or emotional harm.

Except for the rare case of caring for a high-profile prisoner-patient, nurses in hospital settings are not likely to know a prisoner-patient’s criminal history. However, this information is readily available on the Internet in the United States simply by knowing the prisoner-patient’s name and date of birth. The purpose of this article is to determine whether it is morally permissible for nurses to seek out information about prisoner-patients’ criminal history, given the impact that this seems to have on nurses’ care for prisoner-patients. Crampton’s study of nurses’ care of prisoner-patients in the hospital setting is used to develop and support common arguments that attempt to provide moral justification for nurses to seek out criminal histories of prisoner-patients. The first argument, addressed in the next section, is grounded in nurses’ right to personal safety in the workplace. The second argument, developed in section “The care that prisoner-patients deserve,” is based on the nurses’ perceived duty to provide the care that prisoner-patients deserve, given their status as criminals. Both arguments are evaluated and shown to be faulty. The rejection of these arguments shows only that nurses do not have a moral right to access this information. Section “Nurses’ moral obligation to form caring relationships” provides an argument to demonstrate that nurses have a moral obligation not to do so because accessing information about a prisoner-patient’s criminal history is incompatible with an understanding of nurses’ duty to care, when care is understood as both work and relationship. Finally, some recommendations for hospitals are provided.

Nurses’ safety and prisoner-patients’ criminal histories

Although prisoner-patients are always accompanied by a security guard and typically handcuffed to the bed, one concern nurses report is fear for personal safety when caring for prisoner-patients. One of the nurses in Crampton’s ¹ study expressed her feelings this way:

Sometimes for my safety it’s been something I’ve wanted to know about, especially when they’ve been looking mean and tough and I’m thinking I could get a broken jaw or something out of it. I’d like to know whether I should keep at arm’s length ‘cause sometimes the guards don’t pay enough attention.

Nurses’ concern with personal safety, as found in Crampton’s and White et al.’s studies, can be developed into a moral argument that aims to justify seeking out information about a patient’s criminal history, as follows: (1) nurses have a moral right to be safe at work, and (2) prisoner-patients who have committed a violent crime present an increased threat to nurses’ safety, either in the form of physical harm or transmission of disease. (3) Information about prisoner-patients’ criminal history is useful in making an informed judgment about how to balance the duty of care with personal safety. Thus, nurses have a moral right to prisoner-patients’ criminal histories as a means of respecting their right to be safe at work. Each premise of this argument is evaluated below.

The first premise of this argument is fairly unobjectionable. Nurses, like all workers, have a right to a safe workplace. This right is particularly important to nurses in the hospital setting. According to the Occupational Safety and Health Administration (OSHA), ³ hospitals in the United States are one of the most hazardous workplaces due to high rates of injuries and illnesses, and 9% of all workplace injuries are a result of violence. Still, the right to a safe workplace must be balanced against other moral concerns, such as the prisoner-patients’ rights to equal treatment, high-quality healthcare, and perhaps privacy. If prisoner-patients pose a greater risk to nurses’ safety, then it may be that nurses’ more cautious approach to prisoner-patients is warranted.

Premise (2) asserts that prisoner-patients who have committed violent crimes pose a greater risk to nurses’ safety than other patients. OSHA ⁴ reports that “working directly with people who have a history of violence” is one factor that contributes to making workplace violence more common in hospitals. However, while prisoner-patients may be more likely to have a history of violence than the general public, there is no data to support the claim that prisoner-patients pose a greater threat to nurses’ safety than other patients. The fact that prisoner-patients are already monitored by a security guard and handcuffed to the bed may even make it less likely than they will be the cause of violence than other patients who are not so monitored.

Moreover, a recent study by Arnetz et al. ⁵ examined the causes of patient-to-worker violence in hospital settings and found that violence was related to a number of factors, including patient behavior, such as cognitive impairment and a demand to leave; patient care, including experiencing pain or discomfort; and situational events, such as putting on restraints or intervening to prevent a patient from acting. None of these factors for violence against healthcare workers are likely to be present to a greater degree in prisoner-patients than in the general population. It may well be that prisoner-patients are less likely to be the source of violent behavior than other patients because they are accustomed to restraints and are already being monitored by security guards who can be expected to intervene. The appropriate precautions to prevent violence from prisoner-patients have already been taken.

Patients of any kind may pose a threat to nurses’ safety. For example, patients suffering from dementia or alcoholism may be aggressive or violent toward nurses. It is common to give warning to oncoming nurses while giving report about a particular patient who has been, or who shows signs of becoming, aggressive or violent. What, then, is the difference between telling an oncoming nurse about a dementia patient’s penchant for flailing about or an alcoholic patient’s tendency toward verbal abuse and telling an oncoming nurse that a prisoner-patient’s criminal history includes a violent crime?

In the case of the dementia or alcoholic patient, nurses are reporting about their experience with that particular patient. Rather than basing their judgment solely on the diagnosis, nurses use their knowledge and experience with the patient to determine whether a warning at change of shift is warranted. Similarly, a nurse’s judgment about the risk posed by a prisoner-patient should be based on the experience and relationship the nurse has with that patient. Simply knowing that a patient has dementia, alcoholism, or a criminal record that includes violence should not be the sole basis for a judgment that the patient poses a threat to the nurse. A further difference between these cases is that dementia and alcoholism are ongoing medical problems that the patient is experiencing, while the crime committed by the prisoner-patient may be in the distant past and no longer be relevant to the person’s current condition or mindset.

Premise (3), which asserts that nurses who know the criminal histories of prisoner-patients are better able to determine what safety precautions to take, is thus highly questionable. As already noted, the data supporting the fact that people with a history of violence are more likely to act violently toward nurses may not apply to prisoner-patients, who are already handcuffed and being monitored by security. Moreover, to make an informed judgment about the prisoner-patient’s crime, one would need additional knowledge of all of the social, economic, and situational factors that contributed to the commission of the crime. Even if nurses possessed all of this information, it still may not be helpful. John Iliopoulos ⁶ notes that psychiatrists, who have much more information than nurses about prisoner-patients’ criminal histories and backgrounds, have been unable to predict who is and is not dangerous, and argues that the attempt to do so has been harmful to psychiatry as a discipline. It thus seems unlikely that nurses are able to accurately predict whether a prisoner-patient is likely to be violent or aggressive based solely on the patient’s criminal history.

This is not meant to diminish nurses’ ability to understand their patients. Nurses can and should use their assessment and observational skills to best determine how to approach and care for a patient, while taking appropriate precautions to maintain their own safety. But nurses’ ability to understand their patients results from the relationship they form with their patients. A patient’s criminal history, or any element of their personal history that might be a source of bias, seems more likely to inhibit nurses’ judgment rather than enable it, since it limits the possibility of an open and unbiased relationship with the patient.

The above analysis shows that the argument that nurses have a moral right to seek out prisoner-patients’ criminal histories based on their moral right to personal safety in the workplace has been shown to be faulty. While nurses certainly do have a moral right to a safe workplace, there are good reasons to doubt premises (2) and (3). The next section returns to Crampton’s study in order to develop a different argument that might support nurses’ moral right to seek out prisoner-patients’ criminal histories based on nurses’ moral obligation to provide only the care that prisoner-patients deserve, given their status as criminals.

The care that prisoner-patients deserve

Some may argue that prisoner-patients do not deserve to be treated as well as non-prisoner patients, due to the status of the patients as criminals. While the nurses participating in Crampton’s study stated a belief that prisoner-patients deserved equal care to non-prisoner-patients, care of prisoner-patients was also found to be more reactive and conditional than care of non-prisoner-patients. One study participant said, “if they are nice to me I will be nice in return,” while another stated, “I’ll treat you with respect if you treat me with respect.” ¹ These attitudes reflect a belief that prisoner-patients, unlike regular patients, must earn their healthcare from nurses due to their status as criminals.

This certainly does not mean that nurses deliberately gave poor care to prisoner-patients. Crampton’s study did reveal that care was deficient in that it was reactive and perfunctory, but this was explained by the difficulty nurses had in treating patients they did not feel comfortable around. One can imagine several ways in which the care received by prisoner-patients may be, intentionally or unintentionally, diminished. For example, nurses might give prisoner-patients’ care lower priority than non-prisoner-patients when time is limited. Perhaps more explicitly, nurses might ignore a prisoner-patient’s request for ice chips, jello, or other comfort measures on the grounds that the prisoner-patient does not (or perhaps should not) receive such things while they are in prison. These actions reflect a conscious or unconscious belief that prisoner-patients do not deserve the same level of care as non-prisoner-patients and are consistent with Crampton’s description of nursing care of prisoner-patients as reactive or perfunctory.

If nurses have access to information about the prisoner-patient’s criminal history, they can judge what level of care the patient deserves. For example, consciously or unconsciously, a nurse might require a greater show of respect from someone who has committed murder than from someone who has committed robbery. In order to make a judgment about what a prisoner-patient deserves, nurses must be aware of what crime the prisoner-patient has committed. One participant in Crampton’s study notes that she makes judgments about the severity of the prisoner-patient’s crime by observing the interaction between the prisoner-patient and the guard: “if they’re [guards] really relaxed, I’m not as worried. It doesn’t concern me so much, but if they’re really watching over them like hawks…then I think they must be a really bad person.” ¹ It is the judgment that this prisoner-patient is a “really bad person” that may inform a nurse’s judgment about how to provide care, whether reactive or more proactive, or whether to give attention to interventions that make the patient more comfortable.

Nurses’ concern with the status of the prisoner-patient as a criminal can be developed into a moral argument that aims to justify obtaining information about a prisoner-patient’s criminal history. This argument can be formulated as follows: (1) patients deserve different levels of care depending on their criminal history and (2) nurses need access to patients’ criminal histories in order to determine what level of care patients deserve. Therefore, nurses have a moral right to obtain prisoner-patients’ criminal histories as a means to fulfilling their moral obligation to provide the care that a patient deserves. Each premise of this argument is evaluated below.

Premise (1) entails a rejection of the principle of equality in care. If some patients really do deserve only perfunctory care because of some past action or current behavior, then one can no longer claim to treat all patients equally. Is it really the case that a prisoner-patient does not deserve basic comfort measures such as ice chips or jello, and instead deserves extra suffering, because of a crime the prisoner-patient committed? A system that left this determination up to individual nurses would be fraught with bias. It would also create a slippery slope in which nurses may find other reasons to give patients only perfunctory care—perhaps the patient is dependent on drugs or alcohol, is mean to family members who come to visit, or insists on going out to smoke despite a medical condition. People who do in fact deserve high-quality care may thus not receive it because of a nurse’s bias or mistake in judgment.

Of course, hospitals could develop policies, or society could impose statutes, to determine whether patients deserve only perfunctory care. However, there are significant arguments against utilizing the concept of desert in issues of distributive justice. To cite just one example, John Rawls ⁷ argues that the principles of justice that govern the distribution of primary goods, which includes rights, liberties, wealth, income, and opportunity, in society ought to be made under a veil of ignorance, in which there is no information about particular individuals. This lack of information prevents bias from infecting the choice of principles of justice that will govern society as a whole. For example, if the contractors who are to choose principles of justice for society as a whole do not know what race, religion, or economic class they belong to, then they cannot select principles that provide a personal advantage or that disadvantage others. Similarly, the contractors do not know whether they have committed a crime or are likely to do so. This prevents them from selecting a principle of justice that would permit discrimination against those who have committed a crime. While Rawls’ theory focuses on principles of justice for the governance of society as a whole rather than on individual decision-making, his argument does show that a policy or statute that permitted access to criminal histories for the purpose of discriminating against prisoner-patients in the distribution of healthcare could not be agreed to under the veil of ignorance, and hence is not suitable for a liberal democracy.

Premise (2) claims that nurses need access to patients’ criminal histories in order to determine what level of care patients deserve. One way to support this premise is to consider denial of high-quality care to be a part of the prisoner-patient’s punishment, which just happens to occur outside the prison. Sally Gadow, ⁸ in her study of nursing inside prisons, labels this the “premodern ethical region”:

Nurses practicing within a philosophy of retribution view the offender’s otherness as an unquestioned given. Retribution that is moral or emotional offers no restraints on the harm done to the other in the name of punishment. Offenders can be denied care, treated with negligence, even deliberately harmed by nurses as an expression of their moral or emotional high ground. Nursing becomes an arm of the judicial system and care a vehicle for punishment.

Gadow objects to this connection of the healthcare and criminal justice systems. She notes, “A prison term of 10 y[ears], for example, does not additionally sentence an offender to partial starvation, staff brutality, or poor health care.” ⁸ Moreover, nurses who make judgments about the appropriateness of state-sanctioned punishment are far removed from their area of expertise. Nursing education does not typically include training in criminal justice or philosophy of law and punishment. Regardless of whether nurses possess the expertise to administer punishment, they certainly lack the civil authority to do so. If private individuals, whether in their capacity as nurses, employers, or private citizens, are justified in adding punishment to that which the courts have already sanctioned, then the rule of law means little.

The above analysis demonstrates convincing reasons to reject both premises of the argument. Nurses are thus not morally justified in examining prisoner-patients’ criminal histories in order to determine what level of care these patients deserve.

The rejection of the arguments in this and the preceding section has shown only that nurses do not have a moral right to access prisoner-patients’ criminal histories on the grounds of workplace safety or as a means to determine what level of care prisoner-patients deserve. It remains to be seen, then, why nurses are morally prohibited from obtaining this information. The next section argues that it is morally wrong for nurses to seek information on prisoner-patients’ criminal histories because doing so is a violation of their moral obligation to form caring relationships with their patients.

Nurses’ moral obligation to form caring relationships

Nurses’ care for prisoner-patients in Crampton’s study was far from ideal. For example, Crampton ¹ notes that touch is an essential component of nursing care, and yet her study found a “discernible lack of touch of prisoner-patients, with several participants acknowledging they rarely touch” prisoner-patients. Crampton ¹ further found, “Comfort touch, which is described by Watson as touch that demonstrates an emotional connection used to comfort and reassure was notably absent.” Other interventions that are important to providing high-quality care, such as nursing presence, were also absent. In nursing presence, the nurse must treat the patient as a subject to be with, rather than an object to perform actions upon. Failing to do so, according to Iseminger et al., ⁹ results in more suffering by the patient. Nursing from a checklist, as one participant in Crampton’s ¹ study described caring for prisoner-patients, treats patients as an object of nursing tasks rather than a subject in a caring relationship. Stickley and Freshwater found that nursing presence requires listening with the entire body, as opposed to merely hearing. Some examples of using the entire body for listening include non-verbal signs of being listened to; eye contact, mirrored position, open gestures, smiling, nodding, close proximity, non-rushed movement, and appropriate use of touch. ¹⁰ As Crampton’s ¹ study demonstrates, this was also absent from nurses’ care of prisoner-patients.

Rather than view this as a failure on the part of the nurses, Crampton ¹ instead suggests that current concepts of nursing are not suitable for nurses practicing in difficult situations:

…there are situations and circumstances that can inhibit nurses from enacting trust-based relationships that are altruistic, intimate, or reciprocal. As the findings from this study suggest, the way in which nursing is depicted in literature ought to be tempered with frank and realistic discussion that highlights situations where the ideals of practice may not be achieved.

Crampton ¹ chooses to frame the resulting ethical issue in terms of “whether giving automated or perfunctory care is good enough to satisfy the nursing mandate to care.” Rather than focus on the ideal situation, a consideration of the actual conditions of nursing makes it obvious that nurses are not able to achieve a good, caring relationship with every one of their patients. This may be the result of a variety of factors, such as management’s decision to assign nurses too many high acuity patients, leaving nurses with insufficient time to spend developing good relationships with patients; obnoxious or worried family members that continually interfere with nurses’ attempts to establish rapport with patients; or, as Crampton highlights, the difficulty in forming relationships with prisoner-patients who nurses, consciously or unconsciously, consider to be a threat or undeserving of care. Given all of the external factors that can affect nurses’ ability to provide high-quality care, an approach that focuses on the duty of nurses on one hand, and the rights of patients on the other, seems too limited to adequately address the ethical dilemmas that result from the relationship between nurses and patients, especially prisoner-patients. The issue is more fruitfully framed in terms how nurses fulfill their duty to care by forming good, caring relationships with prisoner-patients.

Sara Ruddick’s ¹³ conception of care as both labor and relationship is useful in addressing Crampton’s concern that an emotional connection with patients is not something that nurses can summon at will. Ruddick finds it important to first consider the relationship between justice and care. If these two concepts are seen as wholly separate, then justice might focus on creating an impartial viewpoint from which each patient is seen equally, while care might focus on establishing an emotional connection with the patient. But the excessive impartiality required by justice, which is achieved by abstracting away from an individual patient’s particular situation, may also inhibit a nurse’s ability to utilize interventions, such as caring touch or nursing presence, that require developing a relationship with the patient as a subject rather than an object needing repairs.

With these concerns in mind, Ruddick describes care as both a service-labor and a relationship. To illustrate the connection between emotion and the work of caregiving, Ruddick describes a scene in which a father hands over a scared and crying child to a day care worker, who assures the man that the child will be fine once he is out of sight. Ruddick ¹³ writes,

The day care worker is an employee trained to care for children, which means, inter alia, trained to respond appropriately to emotions, her own and those of her charges. The father or someone else has dressed and fed the child; the father has driven and sung with her, walked with her, child-pace, to the door. The success of these activities depends upon routine abilities to foster or inhibit emotion, his own and his daughter’s…Caring work is thoroughly intertwined with emotions. That’s the kind of work that caring labor is.

But caring work also requires a relationship between two people. Importantly, the quality of the relationship depends on both the caregiver and the recipient of care, especially for the professional caregiver. Ruddick ¹³ points out,

For the work of care to appear successful, its recipients have to respond appropriately…These effects [of the recipient on the caregiver], even of infants, small children, and dying parents, are more evident if “caring” is seen not only as the work of someone “caring for” but as a relationship dependent on and determined by at least two people.

A consideration of nurses’ moral responsibility to form a caring relationship with their patients helps to identify what seems morally problematic about the nurses’ care of prisoner-patients in Crampton’s study, as well as what is morally objectionable about seeking out information about prisoner-patients’ criminal histories. The nurses in Crampton’s study assumed that prisoner-patients were dangerous and may not be worthy of respect. This attitude inhibited the nurses’ ability to form the relationship that is necessary for interventions such as comfort touch or nursing presence. Crampton ¹ found that knowing or imagining the prisoner-patient’s crime affected nurses’ ability to provide good care. Good caring relationships depend, as Ruddick points out, on the behavior of both the caregiver and the recipient of care. The nurses in Crampton’s study seem to take the patient’s past criminal actions as behavior that makes them either a danger or undeserving of care. This attitude is best understood as a bias, since it may occur prior to the nurse even meeting or assessing the patient. The patient’s status as a criminal is seen as behavior that sours the relationship and inhibits the nurses’ ability to form the type of open and unbiased relationship that is necessary for high-quality care. Seeking out information about the prisoner-patient’s criminal history only further impedes the creation of a good caring relationship. Some of the participants in Crampton’s study recognized this and sought to avoid obtaining information about their prisoner-patients. For example, one participant said, “I don’t want to know what they’ve done because I did know one time—it was a particularly horrendous child murder and I just kind of, I felt myself just shut down emotionally.” ¹

It is morally incumbent on nurses to attempt to eliminate these sorts of biases from their caregiving in order to ensure that they are open to forming good, caring relationships with patients. As Ruddick points out, “Care ethicists also accord it a virtue to acknowledge relationships when others deny them,” ¹¹ such as relationships to prisoner-patients. Moreover, in order to effectively care for patients, one must attend to the specific relationship with the particular patient. This suggests that greater attention to impartiality, in which one abstracts away from the patient’s particular characteristics, risks turning the patient into an object, a list of conditions. This is the opposite of what nursing presence requires. Rather than focus on impartiality, Marilyn Friedman ¹⁴ advocates for focusing on “particular forms of partiality, that is, nameable biases whose distorting effects on moral thinking we recognize and whose manifestations in moral attitudes and behavior can be specific identified.” Nurses who recognize that their treatment of prisoner-patients is of lower quality than their treatment of other sorts of patients should thus be encouraged to examine their own biases.

It has been shown how obtaining information about a prisoner-patient’s criminal history is not morally justified on the grounds of protecting nurses’ safety or enabling nurses to make judgments about the level of care a prisoner-patient deserves. For nurses who struggle with providing high-quality care to prisoner-patients, it seems that obtaining this information can only be a way to reinforce, rather than reduce, bias against the patient. Knowing, for example, that one’s patient committed rape or murder can only impede the formation of an open and unbiased relationship with the patient. Given that caring relationships are essential to nurses’ moral obligation of care, nurses ought not to seek out any information that makes it more difficult to perform this work.

Crampton’s concern that nurses not be obligated to achieve a conceptual level of care that is difficult or impossible to do under actual conditions is respected by the argument given above. It may well be that prisoner-patients—or any patient whatsoever—act in a way that makes it more difficult for nurses to form good caring relationship with them. Nurses are all too familiar with patients and working conditions that make their work more difficult! The argument put forward here only morally obligates nurses to do their part in attempting to form good caring relationships. When caring for prisoner-patients, this means that nurses are morally required to do what they can to avoid judging their patients by seeking out information on their criminal histories, either as a way of prejudging patients or to confirm a negative impression created by patients’ appearances.

Recommendations

While most nursing associations have positions on providing nursing care in correctional facilities, they do not address nurses’ responsibilities toward prisoner-patients in general hospital settings. Hospitals are not likely to have any policies regarding seeking out information about prisoner-patients’ criminal histories. Since information in the United States about an individual’s criminal history is available online, hospitals might be tempted to address this issue by creating or enforcing a policy that limits nurses’ Internet access. This is not a good approach. Doing so only creates resentment, especially, as is often the case, when a policy is enforced with no explanation of its goal or the problem it is meant to address. Instead, hospitals should invest in nursing education. Successful education on this issue will enable nurses to examine their care for prisoner-patients, to recognize any biases that might exist, and to enable them to be more open to relationships that make high-quality care possible. This cannot be a 1-day classroom presentation, but instead must be an ongoing process of reflection by the nurse on his or her practice. In Crampton’s study, an initial dialogical session was used to create an in-depth understanding of nurses’ experience of caring for prisoner-patients. This was followed by an observation of the nurses’ practice, and, 6–12 months later, a second dialogical session in which the nurse and researcher discussed the researcher’s notes on the nurse’s practice. ¹ With minor modifications, this process could be just as valuable for the nurses in identifying themes and potential biases as it was for the researcher.