Responding sharply to a commenter’s expressed criticism of the argument that convicted classified data leaker Bradley, now Chelsea, Manning, sentenced to Federal prison and seeking treatment as a trans-gendered female, ought to have his treatment needs served by prison authorities at public cost, Ethics Alarms’ own expert on such matters (from Australia), provided this fascinating overview of U.S. law and medical ethics on the topic. Here is zoebrain’s Comment of the Day on the recent post flagging Fox News’ juvenile mockery of Manning’s gender issues, Ethics Dunce: Fox News:
“There are two disputes here. The first is whether prisoners have a right to medical treatment, and if so, to what degree.I’ll deal with that first.
“Brown v. Plata 131 S.Ct. 1910 (2011): “To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may actually produce physical ‘torture or a lingering death.’ ” ….Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”
“So prisoners are entitled to “adequate medical care”, by the 8th amendment. This is not a matter for debate. That leads on to the second dispute: what do we mean by “adequate”? It has been held that, for example, a blanket policy excluding prisoners from even being assessed to see whether they have diabetes is not “adequate”, even if “all prisoners are treated the same” by it. It has also been held that giving a diabetic prisoner a standard 2 aspirin and a band-aid is not “adequate treatment”, even if it may ameliorate the effects of having gangrenous toes. The treatment can’t be ineffective like this.
“It has been held that providing a prisoner with an experimental and expensive pancreas transplant goes well beyond “adequate treatment”. This is because the recognised standard of care is to manage the problem through insulin injections and diet. That latter is deemed “adequate”. Only what is “medically necessary”, but all of what is “medically necessary” is the standard for adequacy. The treatment doesn’t have to be the best imaginable, but it does have to meet the predefined minimum standard for adequacy.
“Cost of treatment is irrelevant, and cannot be used as an excuse not to provide it, though administrative considerations may be. Much latitude is given to prison administrations there, but they can be called on to provide evidence, not just bald assertions, that such administrative reasons are legitimate and not pretextual.
From the medical standards of care for Transsexuality v6 2001 and as affirmed by AMA resolution 122 (Also the APA, Endocrine Society etc):
“In persons diagnosed with transsexualism or profound GID, sex reassignment surgery, along with hormone therapy and real life experience, is a treatment that has proven to be effective. Such a therapeutic regimen, when prescribed or recommended by qualified practitioners, is medically indicated and medically necessary. Sex reassignment is not “experimental,” “investigational,” “elective,” “cosmetic,” or optional in any meaningful sense.”
“Note the key phrases “medically necessary” and not “optional in any meaningful sense”. As for alternate “talking cures” that have been conjectured by the public as viable alternatives, psychiatric therapies of unspecified kinds… another quote, this time from the update Standards of Care v7 of 2011:
“Treatment aimed at trying to change a person’s gender identity and expression to become more congruent with sex assigned at birth has been attempted in the past without success (Gelder & Marks, 1969; Greenson, 1964), particularly in the long term (Cohen-Kettenis & Kuiper, 1984; Pauly, 1965). Such treatment is no longer considered ethical.”
“Or, to put it more succinctly, it’s snake oil, and we’ve know that for decades from experimental results. These “alternatives” don’t work, not that they haven’t been tried again and again and again. This argument has been put before Federal courts many times in the last two decades.
See O’Donnabhain v. Commissioner [134 T.C. 34 (2010)], De’lonta v. Angelone,[330 F.3d 630(2003)] , Fields vs Smith [653 F.3d 550 (2011)], Kosilek v. Spencer [889 F.Supp.2d 190 (2012)] In all cases, it was ruled that the decision of what was “medically necessary” resided with the medical profession, not with medically untrained administrators, legislators, or politicians. Neither does the question of whether a Civil Right should be unilaterally terminated belong with the electorate or fourth estate. Furman v. Georgia, 408 U.S. 238, 269 (1972):
“The right to be free of cruel and unusual punishments, like the other guarantees of the Bill of Rights, may not be submitted to vote; it depends on the outcome of no elections. The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”
“And from Kosilek:
“Denying adequate medical care because of a fear of controversy or criticism from politicians, the press, and the public serves no legitimate penological purpose,..It is precisely the type of conduct the Eight Amendment prohibits.”
“So no, you don’t know what you’re talking about, your views have no place in a civilised society, and no-one has to take them into account. Or so say all the federal courts. I happen to agree with them, though I’d really prefer it if I could put the data that led the courts to these conclusions before you, so you could examine them and come to your own conclusions.
“Whether you end up changing your mind or not is another matter, and not one of any great concern to me I’m afraid. These posts are to inform the unprejudiced and unbigoted. They may end up disagreeing with me regardless, but at least their opinions will be informed.”