Force Feeding for Hunger Strikes
By Marc F. Stern, MD, MPH
Posted on April 15, 2009 – Whether you think it’s a step forward or backward, the Supreme Court of Washington State recently issued a ruling in a case that adds some clarity to how correctional health care physicians should deal with hunger strikers. The events in the case, McNabb v. Department of Corrections (WDOC), (112 P.3d 592; Wash. Ct. App. 2005) took place in 2004; the Court heard the case in 2005 and handed down its ruling in 2007. Mr. McNabb arrived in WDOC from jail after being sentenced for starting a fire in which family members were hurt. He had been on a hunger strike for 5 months and had lost around 90 pounds upon admission to WDOC; therefore, WDOC began force feeding the patient via nasogastric tube. Shortly after beginning force feeding, the patient volunteered to eat, but brought suit against WDOC claiming WDOC had violated his right to refuse treatment under his right to privacy. He asked the Court to declare WDOC’s force feeding policy unconstitutional.
The Court concluded that WDOC was correct in force feeding Mr. McNabb. In arriving at their decision (which can be viewed at http://www.courts.wa.gov/opinions/pdf/773599.no1.pdf or http://srch.mrsc.org:8080/wacourts/template.htm?view=mainresults), the Court did not deny that Mr. McNabb has a right to refuse artificial nutrition. However, they felt that the state has a greater interest in force feeding him. Specifically, they wrote: “… the court will weigh McNabb’s right to refuse artificial means of nutrition and hydration against the existence of five compelling state interests:
(1) the maintenance of security and orderly administration within the prison system,
(2) the preservation of life,
(3) the protection of innocent third parties,
(4) the prevention of suicide, and
(5) the maintenance of the ethical integrity of the medical profession.”
This is the first time a court has used this particular set of litmus tests in this combination. However, the component tests are not new. Indeed, the first test is also known as the Turner Rule. In Turner (Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), a case regarding an inmate’s right to marry, the US Supreme Court found that the state’s interest outweighs the inmate’s interest when the state has a legitimate penologic interest to deny the inmate’s right. So, for example, if the state felt that the inmate’s hunger strike might spread to other inmates, impairing the state’s ability to maintain safety and order, then the Turner Rule would be satisfied. Incidentally, the risk of a hunger strike spreading is not just theoretical. In fact, it is what happened in New York DOCS when Mark David Chapman (sentenced in the death of John Lennon) stopped eating in protest. The second through fifth tests were borrowed from another Washington State Case (Welfare of Colyer, 99 Wn.2d 114, 660 P.2d 738 (1983).
In its decision, the Court referred frequently to WDOC’s force feeding policy, including the fact that the policy was applicable to this situation and was properly executed by WDOC. Thus the policy itself has now been subject to judicial review and has survived. This may provide some guidance to other jurisdictions. As of this writing, the 2007 policy in effect (http://www.doc.wa.gov/, then Polices>Offender Health Care>Force Feeding of Offenders) is essentially the same as the one reviewed by the court, except that it affords WDOC the authority to obtain clinical data from the patient against his/her will in order to monitor the patient after force feeding is initiated. Such data includes vital signs, blood tests, and urine tests. An updated version of the policy, about to be published, will extend that authority to the pre-force feeding period when staff is trying to determine whether or not the patient’s condition is serious enough to begin force feeding.
It is interesting to note that unlike the WDOC’s policy on involuntary medication administration for severe mental disease (which was upheld by the Supreme Court in the well-known case Washington DOC v. Harper, No. 88-599, 494 U.S. 210; 1990), WDOC’s force feeding policy does not include a due process component. The current court did not take issue with this. They noted and were satisfied, that medical staff issued a written determination.
Whether increased authority on the part of correctional systems to force feed inmates is a good thing, is not a settled question. That, certainly, is an ethical question for each of us to ponder. However, from a legal standpoint, at least, not all courts have agreed with the Washington State Supreme Court that prison walls separate citizens from their constitutional rights. At least three state courts have reached an opposite conclusion (1. CA Supreme Court: Thor v. Superior Court (Andrew), #S026393, 21 Cal.Rptr.2d 357, 855 P.2d 375, 1993; 2. Georgia Supreme Court: Zane v. Prevatte, #38375, 286 S.E.2d 715, 1982; 3. Florida appeals-level court: Singletary v. Costello, #95-0774, 665 So. 2d 1099; Fla. App. 4th Dist. 1996; all cited in AELE Monthly Law Journal 2007 (12) AELE Mo. L. J. 301, Jail & Prisoner Law Section – December, 2007)
Finally, the reader should carefully note that all the cases discussed above concerned inmates who were otherwise in good physical health. In the case of a patient with a severe debilitating or terminal disease they would not, and should not, apply.
At the time this article was written, Dr. Stern was Health Services Director at Washington State Department of Corrections. Readers may contact him at mfstern@u.washington.edu.
