Reporting detention-related harms

Community-based clinicians sometimes see patients who have been recently released from immigration detention. Those encounters can be challenging, especially when patients reveal health harms experienced while in detention. It is obviously critical that clinicians provide high-quality medical care and address any health issues potentially brought about or exacerbated by their detention history. But do they also have a responsibility to report such instances to anyone? And if so, to whom and how?

Background

We recently published a survey of health professionals throughout the United States who had provided care for people recently released from United States immigration detention facilities, including Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and Office of Refugee Resettlement (ORR). We knew that doctors in the community were treating patients who had just been released from detention and wanted to see if they had observed any health issues that may have been related to their immigration detention.

Detention-related harms

Clinicians who cared for patients recently released from detention reported that their patients had:

• experienced delayed access to medical care and medication in detention
• incurred new or acute health conditions such as infection and injury due to being in detention
• had worsened chronic conditions in detention

The disturbing cases these clinicians described may have involved mistreatment, negligence, and wrongdoing. When asked if they had reported these cases to anyone — the local health department, the Department of Homeland security, Child Protective services (CPS), or to individual attorneys, advocates or social workers — the vast majority reported they did not.

The reasons cited for not reporting:

• not knowing they could report (43.6% of surveyed clinicians)
• not knowing how to report (45.5%)
• believing the cases did not meet reporting criteria (25.5%)
• not wanting to bring add pressure on the patient (21.8%)

Others said they did not report because the patient requested that they not report, or that it seemed futile.

It may be this sense of futility or fear, among other issues, that would likely prevent those held in detention themselves from filing a complaint. Most of them have asylum cases pending and do not want to jeopardize these proceedings. There are also language and education barriers.  Most have limited resources and difficulty accessing legal representation.

How clinicians can help

As the famed German doctor Rudolf Virchow once said, “The physician is the natural attorney of the poor.” While reporting requirements exist for cases involving the abuse of minors, that is not usually the case for adults. Yet reporting harm in detention to the authorities, any authorities, may fulfill a moral, ethical and professional duty, grounded in a desire to offer remedy, change the system, and promote accountability.

There are facility, system, and state standards for reporting patient-safety and preventable and near-miss events internally in most carceral settings. Some physicians or other healthcare professionals who have worked in immigration detention facilities have used whistleblowing processes.

However, there are no real guidelines or well-established reporting mechanisms for external clinicians to report purported medical neglect or substandard medical care experienced within immigrant detention. Although a dedicated mechanism for medical reporting from outside the system is currently lacking, clinicians can use several existing channels to report concerns about mistreatment in immigration detention (see Recommendation 2 below).

Recommendations for action

Below, we propose several recommendations to remove barriers to clinician reporting of detention-related harm, injury, or death.

1. Training, education, screening, and consent

Community-based clinicians who work with people recently released from detention should be aware of what to look for and how to ask about it.

First, clinicians should be informed about the history of substandard clinical care in both federal, state, and private detention facilities, and understand the risks inherent in detention.

They also need training in eliciting, in a trauma-informed manner, patients’ immigration detention history, including conditions at the facilities (e.g. density, temperatures, ventilation, exposure to light, access to clean water and nutritious food, deprivation of sleep, exposure to loud sounds), and access to care in those settings (responsiveness to needs, timeliness of follow up, transfer policies, consent to procedures, access to medications).

Table 1: Suggestions for questions to ask patients who were recently released from Immigration detention.

It is important to acknowledge patients’ suffering and to emphasize that no one deserves poor treatment, no matter their immigration status.

Before any reporting, clinicians must ensure that their patient is aware of the risks and benefits of reporting and that they have followed a process of obtaining meaningful informed consent. In alignment with survivor/patient-centered approaches, patients themselves should guide the process and determine what gets reported, to whom, and when. They should never be coerced to report. Clinicians should ask the patient to sign Form 60-001, Privacy Waiver, before submit any complaint.

2. Reporting to civil society and non-governmental organizations

It may be best to report detention-related harms to non-governmental (NGOs), civil society organizations, or medical-legal partners. These often work in conjunction with legal counsel, such as the American Civil Liberties Union (ACLU) National Prison Project or Physicians for Human Rights (PHR).

For example, the ACLU has a project underway to find out more about ICE’s release of people who are seriously ill or near death as a result of purported medical negligence. PHR has a program to provide medical expert declarations for immigrants, which legal counsel can use in cases of neglect or mistreatment in detention.

Table 2. NGOs and other civil organizations to whom clinicians may report

Ideally, NGOs and other detainee support organizations would set up a clearinghouse for detention-related harms, which could then be presented as part of a broader reporting and accountability measure that targets specific facilities. Doing so would also help address the potential for endangering the patient from retaliation or any future legal cases for malpractice/wrongful death.

3. Reporting to governmental organizations

Federal agencies that operate detention centers have a few mechanisms for reporting already (see Table 3), but they should establish new avenues for reporting specifically for health workers. A clinician-centered reporting channel would increase transparency, allow community health practitioners to provide external oversight, and serve as a part of the solution to transforming medical care in immigration detention.

Reports of potential substandard care could be sent for urgent review by the chief medical officers or their staff, prompting an investigation – and a response – provided to the reporting clinician. This should be the process whether the detention facility is managed directly by a US government agency or by a privately contracted company.

Table 3. Governmental organizations to whom clinicians may report

* There is a risk that a clinician’s report could be used to undermine a patient’s claim or legal process against a governmental organization at some point.

The newly established (2020) Office of the Immigration Detention Ombudsman (OIDO) is an independent office within DHS, not a part of ICE or CBP. According to their website: “OIDO independently examines immigration detention to promote and support safe and human conditions”.

The office’s independent status is critical, because any communication clinicians submit to DHS can be used in any subsequent litigation or civil rights claim. Filing a complaint with DHS directly may have an impact on any pending legal process the immigrant is engaged in. Even if they are no longer in detention custody, they may still be under electronic monitoring, be out on bond, or paroled, all of which still make them vulnerable to retaliation by ICE.

4. Monitoring care and reviewing overall policies

Internal and external reviewers should examine detention center healthcare policies and actions periodically, and revise them when gaps are identified. For example, confiscation of medication and failure to provide needed medication were strong themes in our findings. Based on the potential for severe medical consequences in discontinuing medications, non-medical detention personnel should never withhold medications unless directed to do so by a physician. A physician who directs such confiscation should ensure that replacement medications are provided in a timely manner prior to release.

Historically, internal reporting systems have experienced challenges. For example, an Office of Inspector General report from 2020 about reporting systems related to Office of Refugee Resettlement (ORR) custody noted: “​​ORR needs to improve its incident reporting system and address care provider facilities’ challenges preventing, detecting, and reporting incidents, so it can more efficiently and effectively ensure that facilities address incidents and protect minors from harm.”

External monitoring of all health protocols, policies and their implementation should occur regularly not only by internal actors (such as the Office of Inspector General), but also by independent panels of experts. Findings should be shared with the government and other stakeholders: those affected, the public, and the media.

5. Continuity of care and documentation

Continuity of care could help prevent needless emergency room visits, hospital stays, or worse. ICE 2019 National Detention Standards require that, upon release from immigration detention, individuals should receive up to a 30-day supply of medication, referrals to community-based providers as appropriate, and a detailed medical summary with instructions on how to obtain their medical records.

Conclusion

Clinicians may see patients just released from immigration detention who are exhibiting signs and symptoms of the adverse health impact of spending time in detention, from malnutrition to infectious diseases to the exacerbation of chronic conditions and more. Clinicians should be encouraged to report their findings to the appropriate authorities (e.g., federal, state, or local government, public health department, whistleblower-supporting organizations).

Reporting after the fact may not necessarily help the individual patient, but may help create a record and, perhaps, help drive systemic change. Our recommendations are harm-reduction strategies. Ultimately, one of the best ways to eliminate substandard care in immigration detention is to eliminate immigration detention itself. Immigration detention for families and asylum seekers should be abandoned in favor of proven successful community-based alternatives to detention. Community-based alternatives to detention have been shown to be cost-effective, humane, and to result in improved physical and mental health outcomes.

• Bio
• Twitter
• LinkedIn
• Latest Posts

Ranit Mishori

Professor of Family Medicine at Georgetown University School of Medicine

Ranit Mishori, MD, MHS, FAAFP is a Professor of Family Medicine at Georgetown University School of Medicine, and Senior Medical Advisor at Physicians for Human Rights. Dr. Mishori's areas of interest and expertise include public health, migrant and refugee health, health and human rights.

@@ranitmd

Latest posts by Ranit Mishori (see all)

• Bio
• Twitter
• Latest Posts

Kathryn Hampton

Kathryn Hampton coordinates PHR’s Asylum Network Program, an initiative which recruits, trains, and supports a network of clinicians to provide forensic evaluations for asylum seekers and to advocate for human rights-based immigration policies. Hampton has 10 years of experience in human rights monitoring, analysis, and reporting. Prior to joining PHR, she worked for INGOs and international organizations in Bosnia-Herzegovina, Iraq, Turkey, and Ukraine. he has designed and implemented protection programming for displaced and conflict-affected populations with the Organization for Security and Cooperation in Europe, the International Rescue Committee, World Vision, and the International Commission on Missing Persons. Hampton holds an MSt in International Human Rights Law at the University of Oxford.

@@Kathryn_Opal

Latest posts by Kathryn Hampton (see all)

• Bio
• Latest Posts

Marsha Griffin

Professor of Pediatrics, Director Division of Child and Family Health at University of Texas Rio Grande Valley School of Medicine and Migrant Clinician Network

Marsha Griffin, MD, is Professor of Pediatrics at the University of Texas Rio Grande Valley School of Medicine (UTRGV). She was a founding member of the Executive Committee of the American Academy of Pediatrics (AAP) Council on Immigrant Child and Family Health and co-authored the AAP Policy Statement “Detention of Immigrant Children.” She is also a co-founder of Community for Children, Inc., a non-profit created to benefit immigrant families on the border. Dr. Griffin spent the last ten years writing and speaking both nationally and internationally about her concerns for the trauma inflicted on immigrant children on the border.

Latest posts by Marsha Griffin (see all)

• Bio
• Latest Posts

Nancy E. Wang

Dr. Nancy Ewen Wang is a Professor of Emergency Medicine and Pediatrics. She was Associate Director of Pediatric Emergency Medicine at the Stanford University School of Medicine for more than 20 years. Her career has been committed to serving vulnerable populations as well as decreasing health disparities locally as well as globally. She founded the Stanford section in Social Emergency Medicine, a field which uses the perspective of the Emergency Department (ED) to identify patient social needs which contribute to disease and to develop solutions to decrease health disparities. As such, she directed the Social Emergency Medicine fellowship and was medical director for a student-run group which screened ED patients for social needs (Stanford Health Advocates and Research in the ED (SHAR(ED)). She has worked clinically and educated trainees and faculty globally, including at sites in Chiapas, Mexico; Borneo Indonesia and Galapagos, Ecuador. Her current research and advocacy includes investigating disparities in specialty care access and quality, including trauma and mental health and the impact of the Covid-19 pandemic on Asian American populations. She has been a medical expert for the Flores Settlement Agreement witnessing the conditions of detention for unaccompanied immigrant children. Dr. Wang received a Stanford Impact Lab Fellowship to provide wraparound social and medical services for unaccompanied immigrant children who have settled in the US. Most recently, she has been appointed as Faculty Director of the new REACH MD/MS Program in Health Equity Research at the Stanford School of Medicine. Dr. Wang completed an Emergency Medicine Residency at Stanford and then a Pediatric Emergency Medicine Fellowship between LPCH and Children's Oakland.

Latest posts by Nancy E. Wang (see all)