Opinion
No. HHD CV 084034912
March 9, 2010
MEMORANDUM OF DECISION
The trial of this case, like the temporary injunction hearing that preceded it, raises the question of whether the state may force feed an inmate who is engaged in a hunger strike as a form of protest. The plaintiff, Theresa Lantz (commissioner) was the commissioner of the Department of Correction (DOC) when this action was initiated. The defendant, William B. Coleman (Coleman) is a sentenced prisoner, under the DOC's care.
On January 9, 2008, the plaintiff filed a verified complaint, seeking both a temporary and permanent injunction to allow the DOC to force feed Coleman. The DOC cites as its interest in obtaining that relief, inter alia, the preservation of human health and life, the maintenance of safety, security and order in a correctional facility, the protection of the interest of innocent third parties and the maintenance of the ethical integrity of the medical profession.
On January 14 and 23, 2008, the court held an evidentiary hearing on the application for a temporary injunction. At the conclusion of the evidence, the court heard oral argument from counsel for each party and issued an order from the bench. On January 23, 2008, this court issued a temporary injunction order stating, in part: "[P]laintiff and any health staff acting pursuant to the statutory duties of the Commissioner of Correction, are authorized to hospitalize Mr. Coleman, or to provide him intravenous fluids and/or nourishment, nasal-gastric feeding, resuscitation in the event of a cardiac event and any other necessary health care measures by use of reasonable force if necessary, and notwithstanding Mr. Coleman's refusal or objection." In a subsequent written decision the court set forth its findings and reasoning. See Lantz v. Coleman, 51 Conn.Sup. 99, 978 A.2d 164 (2009).
This case then proceeded to trial on the permanent injunction in 2009. The trial lasted five days. The plaintiff DOC called as witnesses Edward Blanchette, Suzanne Ducate and then deputy DOC commissioner Brian Murphy. Blanchette has been the clinical director for the DOC since 1990. He supervises the delivery of health care services for all Connecticut inmates. Blanchette is board certified in internal medicine and infectious disease and has been licensed to practice medicine in Connecticut since 1975. He has treated malnourished and dehydrated patients as well as inmates on hunger strikes on prior occasions.
Ducate is the director of psychiatric services for the DOC and oversees the provision of mental health care to its inmates. She has practiced general medicine and psychiatry for twenty years, and is board certified in general, forensic and addiction psychiatry. Ducate has worked with prisoners for approximately twelve years, including with the Texas correctional facilities before the Connecticut DOC. During her residency, Ducate did a rotation at a referral center for eating disorder patients. She has experience with other inmates on hunger strikes in addition to the defendant.
Murphy testified for the plaintiff and is a correctional expert, having worked every operational position within the DOC over the last twenty-seven and one-half years. He has risen from an entry level corrections officer up through the ranks, holding a variety of supervisory positions in Connecticut prisons and, at one point, served as the acting commissioner of the DOC.
The defendant called, in addition to the defendant inmate, Arthur Caplan and Sandra Crosby. Caplan is a Ph.D., chair of the Department of Medical Ethics at the University of Pennsylvania and a professor of bioethics. He has published more than 600 articles on bioethics. He has never worked in the corrections field. Crosby is a medical doctor, an internist, who is an associate professor at Boston University and co-director of the Boston Center for Refugee and Human Rights. She specializes in refugee health and human rights. She has published a commentary on hunger strikes in the Journal of the American Medical Association and participated in hunger strike symposiums. She is also of the opinion that it is unethical for a doctor to force feed a hunger striker. She has never treated an inmate in a correctional setting and disclaims any knowledge of prison administration.
The deposition transcript of Daniel Vasquez was admitted by agreement at trial. Vasquez holds an associate degree in social and criminal justice, has taught classes for the United States Department of Justice and has a long career in the correctional field. He served in different correctional positions, including with the California Department of Corrections as warden for San Quentin, Susanville and Soledad prisons. He has also served as chief of corrections for Santa Clara county and on the California state board of corrections, overseeing fifty-eight county jails in California. Although the defendant disclosed him as an expert, and he testified that he does not believe Coleman will generate a "copycat" hunger striker, significant portions of his testimony were favorable to the plaintiff, including his assessment that Coleman is taking resources from other prisoners, that a correctional official should not ignore a hunger striker and let him die, that such a course is unacceptable in penology and that it could cause a demonstration by other inmates.
Subsequent to the trial, the plaintiff submitted proposed findings of fact and an initial brief, the defendant filed proposed findings of fact with a brief and the plaintiff filed a reply brief. The court also allowed an amici curiae brief in support of the defendant's position, filed by four law school professors and focused on the application of international law to this dispute. The plaintiff filed a reply brief to same.
Upon inquiry by defense counsel, the court scheduled oral argument, which was held on November 10, 2009. After the oral argument and a chambers conference, the court allowed defendant to late file a proposed injunctive order. The defendant did so on November 16, 2009.
The state now seeks a permanent order from the court permitting the commissioner and her agents to use any measures necessary to preserve the defendant's life even if force is necessary, including but not limited to hospitalization, feeding through the use of a tube or intravenous feeding, and resuscitation in the event of a cardiac or other health emergency. Coleman opposes any order allowing for force feeding, claiming that the state has not proven the key elements of its complaint and further raising a variety of special defenses.
Coleman, a British citizen, is currently incarcerated at McDougall-Walker correctional institution. He was convicted, after a jury trial, of sexual assault in a spousal relationship and unlawful restraint in the first degree. Coleman is currently serving a fifteen year sentence, execution to be suspended after eight years of imprisonment, with a maximum discharge date of December 30, 2012. At that time he will be 52 years old.
There is no evidence that Coleman was an extraordinary prisoner until September of 2007. On September 4, 2007, the Appellate Court issued its decision affirming his conviction. Within two weeks, his hunger strike began and he became, eventually, a most unusual prisoner.
See State v. William C., 103 Conn.App. 508, 930 A.2d 753, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007).
Coleman has been determined to be mentally competent every time he has been evaluated during his incarceration. Coleman has never been diagnosed as suicidal. He is presently engaged in a protest, taking the form of a hunger-strike, that began on September 17, 2007, and has continued until this time. The defendant is protesting what he claims to be a broken family and criminal judicial system that led to his wrongful conviction. Coleman maintains that he is innocent of the crimes of which he was convicted. Coleman also insists that his conviction is a form of ongoing abuse to his two sons, aged eleven and thirteen, with whom he has had no contact since his conviction in 2005, and who are in the sole custody of his ex-wife. Through his protest, Coleman wants to raise awareness of what he perceives to be the misuse and abuse of the criminal and family judicial system; in particular, the assertion of false criminal allegations in the context of divorce proceedings.
The defendant clearly knows about the dangers of organ failure and death that could result from the refusal of nutrition, having had many discussions about such problems with health staff and having heard the testimony at the temporary injunction hearing. Coleman insists that the termination of his protest does not depend on receiving anything from the DOC, or the outcome of his habeas corpus proceedings or the outcome of this case. He is clearly willing to continue this protest with no goal, other than the vague one of publicizing his perception of defects in the justice system. It is noteworthy that Coleman has a living will, dated November 26, 2007 (after he commenced his hunger strike), which explicitly provides that Coleman refuses medical intervention for "food and nutrition (i.e. force feeding) in any form."
Coleman failed to prevail in his habeas proceeding and has apparently appealed this result.
It is clear from his correspondence that Coleman has been following his media publicity and has requested publicity vehicles, such as websites, to be set up for him. In early September 2008, the defendant wrote: "So far I have received some good TV, paper and Internet coverage, but it needs to be cranked up again."
Then weighing approximately 237 pounds, and being 5'10" tall, Coleman started restricting nutrition and hydration while he was incarcerated at the Garner correctional institution. Since approximately September 16, 2007, Coleman has not ingested any solid form of nutrition. When Coleman's protest began, he refused to ingest all liquid and solid nutrients.
Coleman's protest changed after he was transferred from Garner correctional institution to MacDougall-Walker correctional institution on September 26, 2007, at which time he began to consume ice chips. By October 9, 2007, the defendant had sustained a significant weight loss and then weighed 203 pounds. By December 2007, the defendant weighed around 165 pounds and had recommenced consuming liquid nutrients in the form of milk and orange juice. By early January 2008 his weight was down to 162 pounds.
Beginning in 2008, Coleman began to consume a commercially available liquid nutritional supplement and, thereafter, began consuming tea and coffee as well. Between mid-January and mid-March 2008, the defendant's weight was remarkably stable, in the mid to high 150 pound range.
The court's order authorizing the state to force feed Coleman, if necessary, was issued in his presence on January 23, 2008.
On May 5, 2008, the defendant was ten pounds above his lowest weight and appeared to be on a trend of gaining weight. By the end of May 2008, he weighed 160 pounds. On June 25, 2008, Coleman was discharged to the general prison population as his clinical status and laboratory work were stable, and his condition could be monitored there.
Prior to that, since shortly after the outset of his hunger strike, Coleman had received special treatment by being placed in a prison infirmary instead of a cell.
In August of 2008, the defendant indicated that while he would continue to take a liquid supplement, he refused to stand in line for it. He said he was concerned with being seen in line obtaining a liquid supplement by other inmates while on a hunger strike. By September 2008, the defendant's weight measurements were relatively stable, and his electrolyte, renal function, and liver function values on laboratory tests remained within reasonable parameters.
In mid-September 2008, Coleman stopped all oral intake. The defendant has now been in an infirmary setting since September 16, 2008, instead of a cell. In doing so, he occupies a bed, and staff time and effort, that would otherwise be devoted to a physically or mentally ill inmate.
By September 18, 2008, the defendant's weight was 151 pounds, down from 160 pounds in late May 2008. Between September 18 and September 22, 2008, the defendant's laboratory values showed increasing signs of dehydration. As of September 22, 2008, he weighed 139 pounds, and his urine output was markedly diminished.
Blanchette saw the defendant on September 22, 2008, at which time he concluded that forced IV hydration was necessary to prevent death or irreversible harm. On September 22, 2008, Blanchette ordered three liters of saline solution to be administered to the defendant over a three-hour period. On September 26, 2008, the defendant again received three liters of IV fluid with IV vitamins over the course of three hours. Coleman received another IV infusion on September 30, 2008. Coleman received additional IV infusions, without complications, on October 3, 7, 17, 21 and 24, 2008.
On October 1, 2008, the defendant's weight was 142 pounds; on October 7, 2008, 137 pounds; and on October 10, 2008, 135 pounds. EKGs of the defendant from October of 2008 indicated an increased risk of tachycardia, i.e., a development of sudden rapid heartbeat. Coleman's blood pressure was also trending downward from October 1 through October 17, 2008, indicative of an increased danger of organ failure.
On October 16, 2008, Coleman said "I lost another 8 pounds. I didn't think I would be going much longer," and "I don't want to go to church but I'd like to see a priest." Beginning that day, the defendant showed low values of potassium, which is an important electrolyte to regulate certain bodily processes, putting the defendant at risk for heart irritability and cardiac arythmias. The defendant weighed 129 pounds on October 17, 2008. On October 23, 2008, Blanchette determined that the defendant was at an ever increasing risk of sudden death or irreversible complications because of his hunger strike. Blanchette determined that it was necessary to place a nasogastric (NG) tube through which liquid nutritional supplement would be given unless the defendant would agree to voluntarily accept at least some liquid nourishment. The defendant declined, so a NG tube was placed for the first time on October 23, 2008.
Coleman had been told on a number of occasions that if he was to be force fed, it would be through a NG tube, which would be inserted through his nose and threaded down into his stomach. This is the simplest, safest method and the preferred procedure to provide artificial nutrition. The NG tube utilizes the gastrointestinal system, and, in general, has fewer risks of complication than any other artificial nutrition method. Placing an NG tube does not usually cause pain and is normally well tolerated.
Ducate has never had any patient experience a great pain with the placement of a NG tube. That includes patients of smaller stature than the defendant, as well as persons receiving a larger diameter NG tube. The placement of a NG tube is neither a difficult nor a risky procedure; doctors are trained in the placement of such tubes in their first year as medical students by practicing on each other. Serious complications from the placement of a NG tube are rare.
On October, 27, 2008, a second NG feeding was done. Coleman claims he suffered excruciating pain on each occasion. He refused to sip water, however, to facilitate the insertion of the tube into his large nasal cavities and down his throat. On each occasion, he twisted during the procedure and the NG tube kinked on the first attempt but was successfully placed on the second attempt. Contrary to his assertion, he did not vomit. There was no perforation of his mucosa. A liquid nutritional supplement was inserted directly into Coleman's stomach via the NG tube on each occasion.
After the second feeding, Coleman resumed taking liquid nutritional supplements. On November 11, 2008, he weighed 151 pounds. By December 1, 2008, he weighed 154 pounds. For the next two months, his weight was relatively stable. Coleman again began refusing some supplements in early December 2008. Coleman admits to have continued taking nutritional supplements since early November 2008, through the last day of evidence. Since the time he started taking nutritional supplements in late October of 2008, his health and appearance have improved markedly. But it is clear that Coleman may resume his fasting at any time and that, but for the IV and NG intervention, he would have died long before this trial. It is also clear that if the DOC lacked the legal means to force feed him during his incarceration, he would starve to death before his sentence is completed.
Inmates outnumber staff in Connecticut prisons and staff carry no weapons inside the prison. Behavioral protests in a prison setting are not allowed by the DOC because of their negative impact on security and safety, having led to disturbances and riots in Connecticut prisons in the past. When there is a death in a correctional facility, the facility is locked down, meaning that all normal activities such as showers, work, school assignments, religious services, recreational activities, visits and substance abuse programs cease, and often inmates are fed in their cells.
Inmates expect DOC staff to intervene and protect them and other inmates from harm and become upset when that does not happen. If correctional staff does not intervene when another inmate is harming himself, the staff will have difficulty with the inmates. It is Murphy's opinion that allowing Coleman to die via his hunger strike would adversely affect correctional staff's ability to do their job safely and securely.
Suicides and suicide attempts are considered security risks in prison, both to the life of the self-harming inmate as well as other inmates. Inmates react when there is a suicide attempt or a suicide. When an inmate either attempts or commits suicide or other self-injurious behavior, other inmates require higher levels of counseling, and sometimes engage in the same types of behavior. Ducate is of the opinion that there is a greater than 70 percent likelihood that if Coleman were permitted to starve to death, there would be similar reactions as to other inmate suicides. Inmates would be distressed, would go on a hunger strike themselves, and would attempt suicide. She is also of the opinion that, with the media attention surrounding Coleman's protest, inmates would quickly find out of Coleman's death, regardless whether it occurred at a prison or at a hospital, and the impact on other inmates in correctional facilities would be the same. She is of the opinion that if Coleman were permitted to starve himself, other inmates would mimic or copycat his behavior.
Permitting the defendant in this case to die would also adversely impact staff morale. Inmate deaths upset DOC staff members, and allowing a healthy inmate to die would certainly lower staff morale. It is probable that some staff would require time off, would have to visit the employee assistance program for state employees, and would require counseling. Staff morale impacts security within correctional facilities.
Even an inmate in just a generally weakened condition from lack of nutrition presents a security issue in a correctional setting. Staff can be required to intervene for a variety of reasons, including increased vulnerability to other inmates. Monitoring a hunger striker requires a significant commitment of limited resources in a prison setting, causing additional security and order concerns.
And since September of 2007, a significant amount of medical and custodial staff time, and resources has been dedicated to caring for the defendant because of his self-induced hunger strike. He has taken an inordinate amount of Blanchette and Ducate's time. Staff has been utilized to restrain or monitor the defendant on a frequent basis, impacting their ability to respond to another emergency in the prison. In addition, Coleman has been occupying, for much of the time since September 2007, one of only 124 prison infirmary beds available in a correctional setting for approximately 20,000 inmates and needed for patients with mental health or physical ailments.
DOC does have a contract with the University of Connecticut hospital, a state facility, to place inmates there when medically necessary.
Injunctive relief is an equitable remedy and the court is to exercise its discretion in determining whether to grant an injunction. Gerald Park Improvement Ass'n. v. Bini, 138 Conn. 232, 236, 83 A.2d 195 (1951). "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court . . . (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992).
The status of the law on the issue central to the state's case — whether the state may use an invasive medical procedure to force-feed a prisoner engaging in a hunger strike — has not changed appreciably in the last two years, although the appellate caselaw on point in the last two years supports the state's position. See, e.g., McNabb v. Department of Corrections, 163 Wn.2d 393, 180 P.3d 1257 (2008). There remains a split among American jurisdictions on this issue and the description of the various points of view on the core issue, as set forth in the temporary injunction decision issued in May 2008, remains accurate today:
"The Supreme Court of the United States has recognized that a competent individual has the right to refuse life-saving medical treatment. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); see also Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). `[N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law . . . This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment . . . Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . The informed consent doctrine has become firmly entrenched in American tort law . . . The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.' (Citations omitted; internal quotation marks omitted.) Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. 269-70.
"Although a prisoner does not forfeit all of his constitutional protections upon incarceration, a certain amount of restriction and limitation necessarily follows. `[S]imply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system . . . The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights . . . There must be a mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application . . . A detainee simply does not possess the full range of freedoms of an unincarcerated individual.' (Citations omitted; internal quotation marks omitted.) Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); see also Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (holding that an incarcerated prisoner has only `those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration') . . .
"The majority of state and federal courts addressing the issue of whether the state may intervene in an inmate hunger strike have made an effort to balance the interests of the state's preservation of life and orderly administration of the prison system and the interests of innocent dependants against the prisoner's right to self-determination and privacy. For one or more reasons, they have upheld the state's right to intervene.
"The five factors stated in case law allowing state intervention has been the orderly administration and security of the prison system, the prevention of manipulation by the prisoner of the prison and judicial system, the preservation of life, the protection of innocent dependents and the maintenance of ethical integrity of the medical professionals involved.
"The Appellate Court of Illinois, fourth district, relied upon the first three factors in People ex rel. Dept. of Corrections v. Fort, 352 Ill.App.3d 309, 314, 815 N.E.2d 1246 (2004). In that case, the prisoner went on a hunger strike to protest his transfer to a different prison. Id., 315. The court determined that `the purpose of defendant's hunger strike was to manipulate [the Department of Corrections].' Id. `The preservation of life, prevention of suicide, and the enforcement of prison security, order, and discipline are legitimate penological interests . . . Further, these interests are superior to the constitutional rights of an inmate whose hunger strike is an attempt to manipulate [the Department of Corrections].' (Citation omitted; internal quotation marks omitted.) Id., 314.
"In State ex rel. Schuetzle v. Vogel, 537 N.W.2d 358, 360-61 (N.D. 1995), the Supreme Court of North Dakota determined that the state could force-feed and administer insulin to a diabetic prisoner who refused to eat or take medicine. Finding that the prisoner attempted this in order to `manipulate the system and . . . blackmail . . . prison officials'; (internal quotation marks omitted) id., 360; the court ruled that `the state's interest in orderly prison administration is the controlling factor here . . ." Id., 361.
"This issue has arisen in federal cases in the specific context of civil contemnors trying to circumvent the judicial process. A civil contemnor being held for refusing to testify before a grand jury went on a hunger strike for political and religious reasons. In re Grand Jury Subpoena John Doe v. United States, 150 F.3d 170, 171 (2d Cir. 1998) (per curiam). In a very brief opinion, the court held that `the district court's force-feeding order . . . does not violate a hunger-striking prisoner's constitutional rights . . . Although Doe, as a civil contenmor, has been convicted of no crime, the institution where he is housed is still responsible for his care while incarcerated. Other compelling governmental interests, such as the preservation of life, prevention of suicide, and enforcement of prison security, order, and discipline, outweigh the constitutional rights asserted by Doe in the circumstances of this case.' Id., 172. The District Court for the Southern District of New York has also addressed this issue in the context of a civil contemnor, focusing on preventing the contemnor from undermining the judicial process. In re Sanchez, 577 F.Sup. 7 (S.D.N.Y. 1983). The court held that `Sanchez is, by his own admission, attempting to bring maximum pressure to bear upon the Judge who will ultimately rule upon his motion to vacate the contempt order. Moreover, the prolongation of this hunger strike will soon render Mr. Sanchez physically or mentally incapable of testifying before the grand jury, thereby rendering further coercive sanctions futile. In one sense, therefore, Mr. Sanchez is attempting to escape from prison and to frustrate the lawful authority of the courts. This is a purpose that we cannot condone.' Id., 9.
"The preservation of life and obligation to act to protect the prisoner in the state's custody is also a factor courts have considered. The Supreme Court of Rhode Island used this reasoning when it addressed the issue of a prisoner starving himself. `It has been argued . . . that starving oneself is not an act of suicide but by some leap of logic constitutes merely setting certain natural forces in motion. The same argument might be presented in the event that a prisoner should slash his wrists with a razor blade and then resist all efforts to staunch the bleeding. The similarity between the two instances is that the person who desires to end his or her life deliberately sets a force in motion that will be fatal unless intervention occurs . . . [T]he state has a right, and indeed a duty, to intervene in such circumstances . . . [T]here is no right under either the State or the Federal Constitution to override the compelling interest of the state in the preservation of his or her life and the prevention of suicide.' Laurie v. Senecal, 666 A.2d 806, 809 (R.I. 1995). Similarly, the Supreme Court of New Hampshire determined that `[t]he State's interests in the preservation of human life and the prevention of suicide are also implicated in this situation.' In re Caulk, 125 N.H. 226, 231, 480 A.2d 93 (1984) . . .
"`The [next] consideration is the protection of innocent third parties . . . Generally this concern arises when the refusal of medical treatment . . . implicates the emotional or financial welfare of the [inmate's] minor children.' Thor v. Superior Court, 5 Cal. 4th 725, 744, 855 P.2d 375, 21 Cal.Rptr.2d 357 (1993) . . .
"Finally, there is one consideration that did not come up explicitly in any case. `Curiously absent from any state arguments or judicial opinions are the more philosophical notions that a prisoner should be forced to live out his sentence as a form of retribution for his crimes . . . The idea is that by permitting an inmate to effectively avoid his mandated time in jail, the state is enabling him to circumvent the punishment society has deemed appropriate . . .' M. Silver, Testing Cruzan: Prisoners and the Constitutional Question of Self-Starvation," 58 Stan. L. Rev. 631, 643 (2005). It should be noted that the New Hampshire Supreme Court approached this line of reasoning in In re Caulk, stating that `[p]risoners are not permitted to live in accordance with their own desires, nor may they be permitted to die on their own terms without adversely and impermissibly affecting the State's legitimate authority over inmates.' In re Caulk, supra, 125 N.H. 231.
"The dissent in In re Caulk reflects on the contradiction of this position with the New Hampshire ethos; "Our State motto proudly proclaims the choice to `live free or die.' If he can't do the former, I would permit the latter for Mr. Caulk.' In re Caulk, supra, 125 N.H. 232-33 (Douglas, J., dissenting).
"In contrast, three courts have decided that the state has no right to force-feed the inmate. The Supreme Court of Georgia affirmed a trial court's decision to deny the state's petition to force feed a hunger-striking inmate. Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (1982). In so doing, the court considered that `[the inmate] is not mentally incompetent, nor does he have dependents who rely on him for a means of livelihood. The issue of religious freedom is not present. Under these circumstances, we hold that [the inmate], by virtue of his right of privacy, can refuse to allow intrusions on his person, even though calculated to preserve his life. The State has not shown such a compelling interest in preserving [the inmate's] life, as would override his right to refuse medical treatment.' Id., 834. The state did not claim any of the traditional factors except a duty to preserve the inmate's health and life.
"In 1993, the Supreme Court of California determined that the state had no authority to interfere with an inmate's hunger strike. Thor v. Superior Court, supra, 5 Cal. 4th 725. The court's holding specified that `under California law a competent, informed adult has a fundamental right of self-determination to refuse or demand withdrawal of medical treatment of any form irrespective of the personal consequences.' Id., 732. The court further stated that `[u]nder the facts of this case, we further conclude that in the absence of evidence demonstrating a threat to institutional security or public safety, prison officials, including medical personnel, have no affirmative duty to administer such treatment and may not deny a person incarcerated in state prison this freedom of choice.' Id.
" Thor involved a prison doctor petitioning the court to allow him to force feed a quadriplegic patient who had decided to die. Id. The court considered four state interests: preserving life; preventing suicide; maintaining the integrity of the medical profession; and protecting innocent third parties. Id., 737. Finally, the court considered how this would affect orderly administration of the prison system. Id., 744. In considering the first four factors, the court noted that this patient was quadriplegic and serving a life sentence; the patient's decision to refuse medical treatment was an informed decision, and there were no other persons involved in this decisions. Id., 743-44. Finally, the state had presented no evidence on the effect this would have on administration of the prison system. Id., 745.
"The third case prohibiting state interference with a prisoner's hunger strike is from Florida. The inmate went on a hunger strike to protest his transfer to a different prison and to protest the lodging of complaints against a prison chaplain. Singletary v. Costello, 665 So.2d 1099, 1100 (Fla.App. 4 Dist. 1996). The court first recognized a strong interest in the inmate's rights to privacy and to refuse medical treatment. Id., 1104. The court then weighed the state's interests in preserving life, preventing suicide, protecting third parties, maintaining the ethics of the medical profession, and maintaining order in the prison. Id., 1105. On the facts of the case, the court stated that `although the state interest in the preservation of life is powerful, in and of itself, it will not foreclose a competent person from declining life-sustaining medical treatment . . . This is because the life that the state is seeking to protect is the life of the same person who has competently decided to forego the medical intervention.' (Citation omitted.) Id., 1109. The court found it important, also, that the prisoner had expressly stated that he does not wish to die; meaning that the state's interest in preventing suicide was not implicated. Id. Finally, no evidence was offered on the other factors; therefore, the court denied the state's petition." Lantz v. Coleman, supra, 51 Conn.Sup. 106-13.
It is noteworthy that in none of the three appellate cases which allowed the inmate to starve did the state present evidence as to the impact upon the orderly administration of the prison. Also, perhaps coincidentally, the three appellate cases denying the state the right to force feed are the three cases where the inmate was apparently serving a life sentence.
The first of the factors that the plaintiff claims as a basis for the injunction it seeks is that it is necessary for "[t]he preservation of human health and/or life" and "[t]he prevention of suicide and/or self harm . . ." The court will address these two almost identical allegations as one.
Paragraph 12(a) of the complaint.
Paragraph 12 (c) of the complaint.
A person needs to have sufficient volume and pressure in the bloodstream to deliver nutrients to the organs and, with severe dehydration, does not have enough blood flow and runs the risk of organ impairment and death. With dehydration, kidneys are the first organ to shut down and the gastrointestinal tract is the next organ to stop functioning properly. Severe dehydration is a medical emergency that can cause death much more quickly than malnourishment. Other outcomes of a sustained hunger strike include heart arrythmia due to electrolyte imbalance, kidney and liver failure and, eventually, death.
It is very clear, from the medical exhibits and testimony, Coleman's testimony and the course of his conduct since the autumn of 2007, that he will kill himself by means of his hunger strike unless the DOC has court authorization to conduct forced feeding and hydration. While he proclaims he does not wish to die, he quickly adds that he is willing to continue this hunger strike until his death, if necessary, and then is consistently unable to articulate any goal or event that would make his hunger strike unnecessary. While he claims he does not wish to die, his insistence that he will continue his hunger strike until his death, without a specific goal or event that will cause him to end it, leads to the inexorable conclusion that he will starve himself to death if the state will allow him to do so. While he may not have been diagnosed as suicidal, his profession that he does not want to die is contradicted by both his stated course of future action and actions to date. Coleman's hunger strike "sets a force in motion that will be fatal unless intervention occurs . . ." Laurie v. Senecal, supra, 666 A.2d 809.
Coleman's actions are contrary to Connecticut's policy of preserving life. General Statutes § 18-7 specifically requires the commissioner to "provide for the relief of any sick or infirm prisoner . . ." This statutory charge reflects a legislative policy in favor of preserving the life and health of inmates. Connecticut also criminalizes the act of assisting a suicide, a further indication of a state policy of preserving human life. See General Statutes § 53a-56(a)(2). Consistent with that policy, a Connecticut court has declined to order the DOC to allow an inmate to commit suicide so that his organs could be harvested. Marra v. Cheshire Warden, Superior Court, judicial district of New Haven, Docket No. CV 02 463847 (May 2, 2002, R. Robinson, J.). The plaintiff has established that a denial of the injunction would be contrary to the Connecticut public policy in favor of the preservation of human life and the prevention of self-harm.
The second factor the state relies upon to justify intervention is "[t]he protection of the interest of innocent third parties." The evidence is that Coleman has two dependents, aged eleven and thirteen, of whom his ex-wife has sole custody. He will be released no later than December 2012, at which time his sons will be approximately fourteen and seventeen years old. At the time of his release, he expects to be deported to Great Britain. He has not seen his children since 2005. The defendant argues that his estrangement from them mitigates any need to protect them from the consequences of his hunger strike and any resultant death. There is no evidence that they will suffer emotional harm if he successfully completes his hunger strike. Once he is released from prison however, he may be held responsible for financial child support. To that extent only, the state has proven the second factor.
Paragraph 12(b) of the complaint.
Another of the grounds pleaded by the plaintiff, and recognized in caselaw, as a reason to allow the force feeding is the "maintenance of the ethical integrity of the medical profession." As Caplan conceded, bioethicists are found on either side of nearly any issue. The state claims that it is necessary to force feed Coleman to meet his treating doctors' ethical obligations. Caplan and Crosby were firm in their opinions that medical ethics prohibit the force feeding of a competent hunger striker. However, both lack experience with the realities of a prison setting.
Paragraph 12(d) of the complaint.
Caplan is clearly eminent in his field. But Caplan's opinions as to force feeding prisoners is heavily influenced by a fear that diminished medical self-determination by prisoners will weaken the cause of the terminally ill to refuse medical treatment, a cause dear to him. He believes strongly in the right to refuse medical treatment.
Indeed, he believes in the right of a patient to refuse medical treatment, even if it causes a significant chance of harm to another person. In his view, harm to another person must be established to a 95 percent probability before the patient's medical wishes may be ethically ignored.
Both Caplan and Crosby rely on the American Medical Association (AMA) position, as well as the Declarations of Tokyo and Malta. A contrary view is taken in the position of the American Correctional Health Services Association (ACHSA), another medical association, which issued the following statement regarding the involuntary feeding of inmates:
"Since force feeding is a form of involuntary treatment, the responsible medical authority must seek the consent of the Court or legally appointed guardian following the local requirements for involuntary treatment. The physician should make it clear to the Court and to others concerned, however, that ethical medical conduct in this setting demands medical intervention to preserve life from actions that are self-destructive."
ACSHA adopted that position in 1994, in response to the Malta statement regarding force feeding prisoners. Of course, ACSHA is composed of individuals who work in a prison setting, is relatively small in membership and, it can be fairly inferred, its members are or have been paid directly or indirectly by correctional authorities.
Weighing the contrary evidence concerning the ethical requirements of Coleman's treating physicians, the court finds that the plaintiff has failed to meet its burden of proof that his force feeding is necessary to the "maintenance of the ethical integrity of the medical profession."
The last of the elements plead by the plaintiff, that force feeding Coleman is necessary for the "maintenance of the safety, security and order of a correctional facility," has been established by the evidence. Connecticut recognizes the importance of security and discipline in a prison environment:
Paragraph 12(e) of the complaint.
"Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree." (Internal quotation marks omitted.) Washington v. Meachum, 238 Conn. 692, 733-34, 680 A.2d 262 (1996).
Defendant relies upon the lack of a prior identical situation and the fact that the plaintiff's witnesses are DOC employees as its primary defenses to this factor. Vasquez, while disputing the copycat claim of the plaintiff, is less kind to the defendant in his other opinions and does not effectively dispute the DOC's other claims. In fact, he agrees with the DOC witnesses that any correctional system in the country would force feed an inmate, if necessary, because from a penological standpoint, it is not acceptable to allow an inmate to die from a hunger strike. And the court finds the DOC employee witnesses credible on this issue.
It is accurate that it is less than certain how prisoners will react and how the security and order of correctional institutions will be affected, if Coleman is allowed to starve himself to death while an inmate. There is no exact equivalent in the history of Connecticut penology. However, the weight of the evidence persuades the court that, in all probability, there will be a negative impact on the safety, security and order of at least the correctional institution where he was last resident before his death.
There will, in all likelihood, be demonstrations, which have a deleterious impact on security and order. The court is persuaded that staff morale will suffer, with attendant negative effects on safety. If Coleman is allowed to starve himself to death, other inmates who want to kill themselves will feel this is one way they can accomplish that goal. Inmates who do not want to kill themselves will be motivated to mimic this behavior in an effort to manipulate the correctional system. One inmate held in a different correctional facility than the defendant has already engaged in a hunger strike mimicking that of the defendant, stating that he wanted the attention that the inmate at Osborn was getting, and thought that a hunger strike was the only way to get what he needed. The inmate at Osborn was, of course, Coleman. This copycat inmate took liquids but not solids, the approach that Coleman frequently utilizes. In addition, during August of 2008, another inmate stated that he was on a hunger strike and would not eat in protest of his treatment by the prosecutor and court.
Plaintiff did not specifically allege that Coleman was trying to manipulate the correctional or judicial system to obtain a specific goal. Nor does the evidence support such a claim.
Finally, allowing Coleman to continue his hunger strike and the resultant weakening of his condition will intensify the disproportionate share of correctional resources that he already utilizes, to the disadvantage of his fellow inmates and the detriment of order in the prison.
In this case, there is no adequate remedy at law for the plaintiff. Nothing short of an injunction will prevent Coleman's death by starvation. The DOC will suffer irreparable harm in such an event, for the commissioner will have failed to preserve an inmate's health and life, the interest of innocent third parties will suffer and the safety, security and order of a prison will suffer. Balancing these factors against the defendant's desire to pursue his protest, the court finds that equity favors granting a permanent injunction to the plaintiff to allow the DOC to force feed Coleman, to preserve his health and life. The exact language of that order is set forth at the end of this decision.
In addition to the factors traditionally cited in the American cases dealing with hunger strikes in correctional facilities, there is one more factor that deserves mention. This court places reduced weight upon it because it has not been explicitly adopted by any appellate court and its consideration does not change the court's decision. It is the argument, made in the Stanford Law Review note cited above, that "a prisoner should be forced to live out his sentence as a form of retribution for his crimes . . . [B]y permitting an inmate to effectively avoid his mandated time in jail, the state is enabling him to circumvent the punishment society has deemed appropriate." M. Silver, supra, 58 Stan. L. Rev. 643. In effect, Coleman is seeking to escape the full length of his sentence by his actions. That fact also supports this court's decision.
Defendant has pleaded six special defenses and raised an additional defense, none of which the court finds proven. They are each addressed, in turn, below.
Coleman, in his testimony, and his attorneys, in argument, claim that his force feeding is legally impermissible because of his living will. That is not the case. Connecticut's living will statute protects physicians from liability for ceasing life-sustaining measures on behalf of a patient who has a terminal condition or is permanently unconscious. See General Statutes § 19a-571. Coleman has no such condition.
Because of the repeated evidence and argument on this issue, the court addresses it. However, it was not pleaded as a special defense, as noted by the plaintiff.
Section 19a-570(8) defines a living will as "a written statement in compliance with [§ ]19a-575a, containing a declarant's wishes concerning any aspect of his or her health care, including the withholding or withdrawal of life support systems."
Section 19a-575a describes a form for living wills. "[A] Living Will need not be in form identical to the statutory form, although the statutory form does delineate the parameters and scope of the Living Will Declaration." R. Cohn, Connecticut Estate Planning, Wills and Trusts Library (2006) § 31.4.
Section 19a-575a provides in relevant part: "(a) Any person eighteen years of age or Older may execute a document that contains health care instructions, the appointment of a health care representative, the designation of a conservator of the person for future incapacity and a document of anatomical gift. Any such document shall be signed and dated by the maker with at least two witnesses and may be in the substantially following form . . .
"To any physician who is treating me: These are my health care instructions including those concerning the withholding or withdrawal of life support systems . . . As my physician, you may rely on these health care instructions . . . if I am incapacitated to the point when I can no longer actively take part in decisions for my own life, and am unable to direct my physician as to my own medical care.
"I, ___________, the author of this document, request that, if my condition is deemed terminal or if I am determined to be permanently unconscious, I be allowed to die and not be kept alive through life support systems. By terminal condition, I mean that I have an incurable or irreversible medical condition which, without the administration of life support systems, will, in the opinion of my attending physician, result in death within a relatively short time. By permanently unconscious I mean that I am in a permanent coma or persistent vegetative state which is an irreversible condition in which I am at no time aware of myself or the environment and show no behavioral response to the environment . . ."
§ 19a-575a provides for two situations in which the declarant may ask his health care provider to decline life saving treatments: "terminal conditions" and permanent unconsciousness. Section 19a-571 provides in relevant part: "If the attending physician does not deem the incapacitated patient to be in a terminal condition or permanently unconscious, beneficial medical treatment including nutrition and hydration must be provided."
Coleman may not use his living will to stop prison officials from administering "artificial means of providing nutrition and hydration" because his hunger strike is neither a terminal condition or permanent unconsciousness, as defined in the living will statute. His hunger strike is not an "incurable or irreversible medical condition" that will cause death if life support systems are not administered within a brief period of time. The simple act of feeding him liquid nutrition will avoid his death. Nor is his hunger strike a "a permanent coma or persistent vegetative state which is an irreversible condition." His expressive demeanor at trial alone, along with his voluminous medical records submitted by plaintiff's counsel, belie that being the case.
Coleman has pleaded as his sixth special defense that the relief sought by plaintiff violates international law. The defendant and the amici curiae have submitted various international legal authorities related to prisoner force feeding. They argue that the weight of this authority condemns prisoner force feeding as medically unethical. The plaintiff argues that these sources are not binding on this court, and do not represent a consensus of international opinion on this issue.
A position that defense counsel agreed with at oral argument.
Our courts may look for instruction from international sources of law to interpret our state and federal constitutions. See, e.g., Roper v. Simmons, 543 U.S. 551, 575, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (international law used to interpret meaning of eighth amendment); Moore v. Ganim, 233 Conn. 557, 638, 660 A.2d 742 (Peters, C. J., concurring) ("wide international agreement on at least the hortatory goals identified in the human rights documents" supported plaintiff's claim of the existence of a right to minimal subsistence under state constitution).
Such authorities are not controlling, however, unless they have obtained the status of customary international law, which is not based on treaty law but rather derived from a state's implied consent. A domestic court may apply customary law if it finds that the custom has "ripened" into a rule of international law through consistent state practice and "a sense of legal obligation." M. Janis, An Introduction to International Law (4th Ed. 2003) § 3A, p. 46. See The Paquete Habana, 175 U.S. 677, 686, 20 S.Ct. 290 (1900) ("By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law," coastal fishing vessels exempt from capture as prize of war.). "In sum, those clear and unambiguous rules by which States universally abide, or to which they accede, out of a sense of legal obligation and mutual concern, constitute the body of customary international law. But where the customs and practices of States demonstrate that they do not universally follow a particular practice out of a sense of legal obligation and mutual concern, that practice cannot give rise to a rule of customary international law." Flores v. Southern Peru Copper Corp., 414 F.3d 233, 252 (2d Cir. 2003).
Often, declarations of an international organization are regarded as a kind of aspirational `soft law': "rules which are neither strictly binding nor completely void of any legal significance. These may in time `harden' into customary international law." (Internal quotation marks omitted.) M. Janis, supra, pp. 52-53. Thus, for a declaration promulgating a rule of medical ethics to become binding international law, an individual claiming the law's protection would have to demonstrate overwhelming global agreement on the issue.
But the weight of authority under international law supports a state's right to administer force feeding over a prisoner's right to conduct a hunger strike in cases where the procedure is necessary to preserve the prisoner's life. The authorities cited by the defendant and amici curaie do not demonstrate a consensus of opinion regarding whether a physician is ethically bound to allow a prisoner on a hunger strike to refuse nutrition when the physician determines that the prisoner may die or be severely injured.
The Tokyo Declaration, which was adopted by the World Medical Association in 1975 and revised in 2006, provides guidelines for physicians concerning torture and inhumane treatment of prisoners. It provides that physicians "shall not be present during any procedure during which torture or any other forms of cruel, inhuman or degrading treatment is used or threatened." Tokyo Declaration, ¶ 4. It further provides that a physician may not artificially feed a prisoner who refuses to eat and, in the physician's opinion, has formed an "unimpaired and rational judgment" concerning the consequences of this decision. Tokyo Declaration, ¶ 6.
The Malta Declaration, adopted by the World Medical Association in 1991 and revised in 2006, explicitly forbids force feeding, and provides in relevant part: "Hunger strikers should not be forcibly given treatment they refuse. Forced feeding contrary to an informed and voluntary refusal is unjustifiable. Artificial feeding with the hunger striker's explicit or implied consent is ethically acceptable." Malta Declaration, ¶ 3. The Declarations of Tokyo and Malta were included as a source of international law in a decision of the European Court of Human Rights (ECHR), Nevmerzhitsky v. Ukraine, App. 54825/00, Eur. Ct. H.R. (2005).
Courts in the United States have incorporated declarations of the World Medical Association as evidence that the international community has accepted a norm of medical ethics as a binding legal obligation. For example, in Abdullah v. Pfizer, 562 F.3d 163, 181 (2d Cir. 2009), the Second Circuit Court of Appeals held that the fact the domestic laws of at least eighty-four countries, including the United States, had incorporated a World Medical Association declaration requiring informed consent of human subjects in medical research was an indication that the declaration had risen to the level of a binding obligation.
It is important, however, not to overstate the effect of multinational declarations on domestic courts. Prior to Abdullah, the Second Circuit had rejected claims that multinational declarations concerning international pollution constituted evidence of customary international law on that subject. Flores v. Southern Peru Copper Corp., supra, 414 F.3d 262. "A declaration, which may be made by a multinational body, or by one or more States, customarily is a mere general statement of policy [that] is unlikely to give rise to . . . obligation[s] in any strict sense . . . In undertaking the difficult task of determining the contours of customary international law, a court is not granted a roving commission to pick and choose among declarations of public and private international organizations that have articulated a view on the matter at hand. Such declarations are almost invariably political statements — expressing the sensibilities and the asserted aspirations and demands of some countries or organizations — rather than statements of universally-recognized legal obligations. Accordingly, such declarations are not proper evidence of customary international law." (Citation omitted; internal quotation marks omitted.) Id. See also Abdullah v. Pfizer, 562 F.3d 163, 198 (2d Cir. 2009) (Wesley, J., dissenting) ("The declarations relied on by the majority were not put forth by a governmental body such as the United Nations but by wholly private organizations, incapable of creating legally binding obligations.").
In the present case, the defendant and the amici curiae have failed to present sufficient legal authority to establish that the Declarations of Tokyo and Malta have become a binding obligations under international law. Furthermore, they have presented sources of law that illustrate the lack of consensus among nations concerning their obligations under those declarations. While the ECHR pointed to these declarations as a source of law, it nonetheless held that force feeding a prisoner was not a per se violation of international law, but only rose to the level of degrading or inhuman treatment if it was not medically necessary or it was performed in an unethical manner under the circumstances. Nevmerzhitsky v. Ukraine, App. 54825/00, Eur. Ct. H.R. (2005).
The conflicting laws among peer nations concerning the force feeding of prisoners demonstrate a lack of consensus on this issue, which also suggests that a general prohibition of force feeding has not risen to the level of customary international law. Courts in the United Kingdom hold that the right to self-determination and autonomy in medical decisions is extensive, such that "[e]ven a detained prisoner, providing always he is of sound mind, can be allowed to starve himself to death." R (On the Application of Wilkinson) v. The Responsible Medical Officer Broadmoor Hospital, [2001] E.W.C.A. Civ. 1545 (October 22, 2001). For example, in Secretary of State for the Home Department v. Robb, [1995] 2 W.L.R. 722, the court held that, on balance, a prisoner's right to self-determination outweighed the state's countervailing interests in preserving life, preventing suicide, maintaining the integrity of the medical profession and protecting innocent third parties. Having identified few domestic legal sources on the subject, the Robb court relied on the California case of Thor v. Superior Court, supra, 5 Cal. 4th 725, which upheld the right of competent prisoners to refuse nutrition. Id. Interestingly, the Robb court did not consider the integrity of the medical profession to be a "distinct consideration" that should be set against the prisoner's right to self-determination. Id. Instead, its decision was grounded in the prisoner's right to self-determination and the state's inability to show any countervailing interest. Id.
The Correctional Service of Canada also does not permit the force feeding of prisoners. Correctional Service of Canada, Commissioner's Directive No. 825, 1995-05-01, provides in relevant part: "The Service shall not direct the force feeding of an inmate who had the capacity to understand the consequences of fasting at the time he or she made the decision to fast."
The Council of Europe reports that some countries, such as Finland and the Netherlands, do not allow force feeding of prisoners, while in others, such as Spain and Sweden, force feeding is permissible "if, in the opinion of the physician, there is immediate danger for the life or the health of the patient." Council of Europe, Report on the Organization of Health Care Services in Prisons in European Member States, ¶ 4.6 (1998). Cases before the European Court of Human Rights (ECHR), demonstrate that force feeding of prisoners by authorities is condoned in Germany, Bulgaria, Ukraine and Moldova. Italy bans force feeding except in cases where the prisoner is no longer able to be aware of the consequences of his or her refusal. Id.
The ECHR has considered a number of cases where prisoners challenge force feeding on the ground of Article 3 of the European Convention on Human Rights, which prohibits torture or "inhuman or degrading treatment or punishment." As the amici curiae note, the ECHR has not found that force feeding is a per se violation of Article 3, and has permitted the properly regulated force feeding of prisoners on at least two occasions.
In X v. Germany, the applicant brought a complaint under Article 3 against prison doctors who force fed him seven times over a four-day period through a feeding tube. X v. Germany, App. 10565/83, Eur. Ct. H.R. (1984). Under German law, force feeding was obligatory if the prisoner's life was in danger. Id., 5. The ECHR held that whether a procedure violates Article 3 is a matter of degree, based on the circumstances of the case. Id., 7. Thus, "forced feeding of a person does involve degrading elements which in certain circumstances may be regarded as prohibited by [Article] 3 of the Convention." Id. Furthermore, the ECHR acknowledged that, in the event of a hunger strike, a conflict exists between the obligation of member states to preserve life under Article 2 of the Convention and an individual's right to physical integrity. Id., 8. The ECHR found, however, that it was "satisfied that the authorities acted solely in the best interests of the applicant when choosing between either respect for the applicant's will not to accept nourishment of any kind and thereby incur the risk that he might be subject to lasting injuries or even die, or to take action with a view to securing his survival although such action might infringe the applicant's human dignity." Id. See also Ilijkov v. Bulgaria, App. 33977/96, Eur. Ct. H.R. (1997) (upholding force feeding of prisoner where procedure was medically necessary to save prisoner's life and performed in a manner that was not degrading or inhuman under the circumstances).
By contrast, the ECHR has held that force feeding violates Article 3 when the state has no medical justification for administering the procedure. Nevmerzhitsky v. Ukraine, App. 54825/00, Eur. Ct. H.R. (2005). The ECHR recently heard an example of such an abuse in Ciorap v. Moldova, App. 12066/02, Eur. Ct. H.R. (2007), where there was no evidence that the prisoner's life was in serious danger prior to the force feeding, but there was evidence that prison officials administered the procedure to punish him for disrupting order in the prison through his hunger strike.
In sum, the ECHR holds that prison officials may force feed a prisoner without violating Article 3 of the European Convention on Human Rights as long as the procedure is medically necessary and is performed in a manner that is not inhuman or degrading.
As stated above, the ECHR's decisions do not bind this court absent a clear showing that they embody principles of customary international law. Regardless, these decisions comport with the majority of prisoner force feeding cases heard in United States courts. Like our domestic courts, the ECHR acknowledges the conflict that prison officials face when they confront a hunger strike between a prisoner's right to self-determination and the state's obligation to preserve life. The ECHR's decisions balance this conflict by allowing force feeding where it is necessary to preserve the prisoner's life or prevent serious injury while accounting for the manner in which officials administer the procedure. The ECHR also considers whether prison officials had improper motives for force feeding, such as using the procedure punitively. Even though the ECHR's decisions do not constitute binding authority upon this court, they support the plaintiff's position in this case.
The various sources of international law provided by the defendant and amici curiae do not establish the existence of a customary rule of international law concerning the right of prisoners to engage in a hunger strike. There is no international consensus as to whether it is unethical or ethical for a physician or correctional authority to allow a prisoner to refuse nutrition if the prisoner may die or suffer severe injury as a consequence. The state of international law and ethics concerning prisoner force feeding do not support the defendant and the amici curiae's position. The defendant has failed to establish his sixth special defense.
The fifth special defense raised by Coleman claims that his forced feeding violates the cruel and unusual punishment provision of the eighth amendment to the United States Constitution. Defendant has cited no authority for this claim in his brief and, at oral argument, defense counsel conceded that he has no such caselaw.
If the DOC ignores an inmate's medical needs, then it may be in violation of the eighth amendment. The United States Supreme Court holds that "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . . proscribed by the [e]ighth [a]mendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." (Citation omitted; internal quotation marks omitted.) Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
Here, the defendant argues that the plaintiff is violating this obligation by force feeding him to prevent his starvation. Because patients have the general right to refuse medical treatment under Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), the defendant contends that ignoring this right by imposing life and health saving treatment constitutes indifference to his medical needs.
This argument is unpersuasive. In a prison setting, the right to refuse life-saving treatment described in Cruzan must be balanced against, inter alia, the state's duty to control its prison population. The plaintiff's actions in force feeding the defendant, which have been taken as a matter of medical necessity under court order to preserve the defendant's life, do not display indifference to his medical needs but the opposite. See In re Fattah, United States District Court, Docket No. 3:08-MC-164 (M.D. Pa. July 8, 2008) (force feeding is not an eighth amendment violation).
As to all of Coleman's other constitutional claims, it is important to note at the outset that they have been raised, in one form or another, by the inmates in those cases which form the majority view of American jurisdictions on the subject of prisoner force feeding, including, inter alia, McNabb, Fort, Laurie, In re Caulk and In re Grand Jury Subpoena John Doe, and rejected in each case by the court. This court similarly rejects Coleman's constitutional claims, relying on the precedential value of those cases, as well as the analysis below.
In his Third and Fourth Special Defenses, Coleman claims that a permanent injunction allowing his forced feeding will violate his free speech rights under the United States Constitution, Amendments I and XIV and under the Connecticut Constitution, Article I, §§ 4, 5 and 14. At oral argument the following colloquy occurred:
THE COURT: . . . how does the Connecticut Constitution's free speech provision provide greater rights or protection than the United States First Amendment? . . .
MR. MURRAY [Defense Counsel] Well, Your Honor, I'm not sure that it does.
Oral argument of November 10, 2009, transcript, page 60.
Under these factual circumstances, the court agrees. Neither the state or federal free speech guarantees allow Coleman to continue his hunger strike in contradiction to the penological needs of the prison.
"The state constitutional framework for protection of the right of free speech rests principally upon the provisions of article first, §§ 4 and 5 of the constitution of Connecticut . . . Article first, § 4, provides that `[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.' Further, article first, § 5, provides that `[n]o law shall ever be passed to curtail or restrain the liberty of speech or of the press.' Also relevant to the defendant's claim, article first, § 14, provides that `[t]he citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.'" (Citation omitted; internal quotation marks omitted.) State v. Linares, 232 Conn. 345, 379-80, 655 A.2d 737 (1995).
In State v. Linares, the Connecticut Supreme Court heard a constitutional challenge to state laws restricting speech at the state legislature. State v. Linares, supra, 232 Conn. 347. In addressing a claim that the restrictions were overbroad in violation of the free speech provisions of the Connecticut constitution, the court "decline[d] to follow the modern, forum based approach currently employed to resolve claims under the first amendment to the United States constitution that concern abridgement of speech on public property. Instead, [the court] . . . adopt[ed] the `compatibility' test, as expressed in Grayned v. Rockford, [ 408 U.S. 104, 116-17, 92 S.Ct. 2294, 33 L. Ed.2d 222 (1972)], for claims brought under the Connecticut constitution that involve restrictions on speech on public property." Id., 379. This test requires a "case-by-case balancing of the right to free speech against the competing interest of preventing unreasonable interference with the `normal activity' of a particular place." Id., 382. Despite adopting this more flexible standard, the court found that the challenged restrictions were not overbroad: "This conclusion recognizes that public expression must yield at the point where the General Assembly is prevented from accomplishing its business in a reasonably efficient manner." (Internal quotation marks omitted.) Id., 387.
Here, on one side is Coleman's right of free speech. On the other side is the DOC's legitimate need for a safe, secure and orderly prison, for the benefit of society, staff and the inmates. Such a status is the normal activity of the prisons where he has been held. To allow Coleman to starve himself as a means of free speech would prevent the DOC "from accomplishing its business in a reasonably efficient manner." (Internal quotation marks omitted.) State v. Linares, supra, 232 Conn. 387.
The defendant has not demonstrated that, on balance, Coleman's free speech rights under the Connecticut constitution should obtain precedence over the plaintiff's valid penological objectives, such as ensuring the safety, order and security of all in the prison. The defendant cannot prevail on his state constitutional claim.
"[W]hen a prison [action] impinges on inmates' constitutional rights, the [action] is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if prison administrators . . ., and not the courts, [are] to make the difficult judgments concerning institutional operations." (Citation omitted; internal quotation marks omitted.) Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
In weighing Coleman's claims that his force feeding violates his federal free speech rights, the court must apply the four-prong test set forth in Turner v. Safley, supra, 482 U.S. 89-91. Turner sets out four factors for the court to weigh in evaluating the constitutionality of the DOC action.
Each party has analyzed the constitutionality of the requested injunction by utilizing the Turner test.
"First, there must be a valid, rational connection between the prison [action] and the legitimate governmental interest put forward to justify it . . . Moreover, the governmental objective must be a legitimate and neutral one." (Citation omitted; internal quotation marks omitted.) Id. Here the DOC seeks to force feed Coleman, not because of the reason he is protesting (his perception of an unjust conviction) but because of its desire to preserve his health and life and justified concerns about his hunger strike's effect upon the security and order of the prison. The court finds a rational, valid connection between the DOC's desire to force feed Coleman and its interest in protecting the safety and security of its prisons and its statutory duty to preserve the health and life of all inmates.
"A second factor relevant in determining the reasonableness of a prison restriction . . . is whether there are alternative means of exercising the right that remain open to prison inmates. Where other avenues remain available for the exercise of the asserted right, courts should be particularly conscious of the measure of judicial deference owed to corrections officials . . . in gauging the validity of the [action]." (Citation omitted; internal quotation marks omitted.) Id. Coleman retains alternative means of exercising his first amendment right of protest. He has corresponded with others, he has at least one website advancing his claims, his cause has been the subject of significant media attention and he retains access to the courts.
"A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. In the necessarily closed environment of the correctional institution, few changes will have no ramifications on the liberty of others or on the use of the prison's limited resources for preserving institutional order. When accommodation of an asserted right will have a significant ripple effect on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." (Citation omitted; internal quotation marks omitted.) Id. As set forth previously in the discussion on safety, security and order in prison, Coleman's hunger strike is having a negative effect on prison resources and his death would have a negative effect on other inmates and staff and order within the prison.
"Finally, the absence of ready alternatives is evidence of the reasonableness of a prison [action]. By the same token, the existence of obvious, easy alternatives may be evidence that the [action] is not reasonable, but is an exaggerated response to prison concerns. This is not a least restrictive alternative test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint. But if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interest, a court may consider that as evidence that the [action] does not satisfy the reasonable relationship standard." (Citation omitted; internal quotation marks omitted.) Id.
There is no "ready alternative" to force feeding Coleman which can meet the state's valid penological goals of preserving safety, security and order in the prison and preserving the inmate's health and life. Either they force feed him and he lives, without jeopardizing the prison's safety or they let him die, which both jeopardizes the prison's safety and defeats the goal of preserving an inmate's life.
Under the Turner test, the state's proposed injunction meets each of the four established factors. The state's request to force feed Coleman does not abridge his federal free speech rights.
Coleman's First and Second Special Defenses allege that force feeding him will violate his right to privacy and bodily self-determination under Connecticut common law, the Constitution of Connecticut, article first, § 7, and the fourteenth amendment to the United States Constitution. The Connecticut Constitution does not extend greater privacy rights to inmates than the United States Constitution. "[C]onsideration of the six factors that we traditionally have considered when determining whether the protections afforded by the Connecticut constitution are greater than those afforded by the federal constitution persuades us that article first, § 7, of our state constitution does not provide inmates with a greater degree of privacy than does the federal constitution." Washington v. Meachum, supra, 238 Conn. 725.
Coleman also asserts that, under McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 553 A.2d 596 (1989), there is a common-law right to bodily integrity and that the court should weigh four state interests set forth in a concurring opinion (Healey, J.) against that common law right to determine if an injunction should issue. However, those factors were not adopted in the majority opinion in McConnell. Subsequently, in State v. Garcia, 233 Conn. 44, 79-80, 658 A.2d 947 (1995), the Supreme Court held that Connecticut common law in this area is no broader than his federal due process rights: "The defendant also claims that our precedents provide him with a greater liberty interest than that defined under the due process clause. Specifically, the defendant relies on McConnell v. Beverly Enterprises-Connecticut, Inc., . . . claiming that we recognized the fundamental right to refuse medical treatment, and the common law right of any individual to the possession and control of his/her own body. That case, however, involved the right to refuse medical treatment by a terminal patient and was decided on statutory grounds. Although we acknowledged the common law right to control over one's body, we neither explored the contours of that right nor did we state that it was absolute in the face of countervailing governmental interests. We are unconvinced that McConnell provides a basis for the defendant's claim that state common law has provided him with a liberty interest broader or more absolute than arises as a matter of substantive due process under the federal constitution . . ." (Citation omitted; internal quotation marks omitted.) Id.
"Under the federal constitution, it is well settled that inmates completely forgo certain of their constitutional rights and may be restricted in their exercise of certain other rights . . . The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities . . ., chief among which is internal security . . . Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction . . . Of those rights that have been curtailed in the prison setting, the fourth amendment right to privacy is one of the most commonly and severely curtailed." (Citations omitted; internal quotation marks omitted.) Washington v. Meachum, supra, 238 Conn. 716-17.
Under the four-prong Turner analysis, the analysis is the same as to the first, second and fourth prong for Coleman's fourteenth amendment claim as for his first amendment claim. As to the second prong, Coleman does have an alternative to having his privacy right violated by forced feeding, which is to voluntarily take sustaining fluids, forego solid foods and pursue his protest by that action and other means. Applying Turner, the court finds that the state's injunction request does not violate Coleman's fourteenth amendment rights.
The state has not asserted a need for Coleman to take solid nourishment.
In sum, the plaintiff has met her burden of proof as to her complaint and the defendant has failed to meet his burden of proof as to his special defenses. Judgment enters for the plaintiff.
The court must consider the scope and language of the permanent injunction that will issue. Each party has submitted a proposed order for the court to review. They are significantly different and careful consideration has been given to each.
Coleman did so without prejudice to his claim for a defendant's judgment.
The court will not order the DOC to allow Coleman to consult, at state expense, with a doctor totally unrelated to the DOC or its vendor, John Dempsey Hospital. He has no legal entitlement to same. There are almost 20,000 inmates in state custody at any given time and to establish a right for any inmate to have a free medical consult, at state expense, beyond the DOC medical staff and vendors is unjustified.
Nor will the court dictate the medical alternative to be used if force feeding Coleman is again medically required. In the past, Coleman's prison doctor has utilized the NG feeding procedure. While the defendant suggests that he be allowed to choose hyperalimentation (the placement of nutrients directly into a vein), the fluid mixture cannot be created in a correctional setting, is more difficult than a NG feeding, and is more invasive and carries more risk of complications, including local or systemic infections, blood clots, or the puncturing of a vital structure. It also cannot achieve the same similarity to regular digestion as a liquid supplement placed directly into the gastrointestinal tract. The court lacks the expertise to dictate to medical doctors which treatment is most appropriate.
Nor will the court dictate which medical doctor should perform the NG procedure. While Coleman may distrust Blanchette as a result of the previous NG feedings, it is likely that he would quickly come to distrust any doctor who administered the NG feedings. Nor will the court order any IV or NG feedings to be videotaped. In addition to the privacy interests of any prison medical staff who would be included, the court has observed Coleman's behavior in the portions of the IV and NG feedings that were videotaped. The presence of a camera fueled speeches by Coleman and false threats toward the medical staff of prosecution in a world court, which alarmed at least some of them. The other inmates would have the benefit of medical staff's time, if they were not listening to Coleman's speeches and threats. The court has adopted some of each parties' suggestions for inclusion in the permanent injunction.
It is ORDERED that a permanent injunction issue, as follows:
Until further order from the Court, and only for so long as the defendant William Coleman (Coleman) remains in the custody of the Commissioner of the Connecticut Department of Corrections (DOC), Coleman and all persons acting in his aid or behalf are hereby jointly and severally commanded to desist and refrain from interfering with the DOC, and any health staff designated by the DOC, who are hereby authorized to treat Coleman by means of hospitalization, intravenous fluids and/or nourishment, nasal-gastric feeding, and any other health care measures medically necessary, to preserve the life and health of Coleman, by use of reasonable force if necessary and notwithstanding Coleman's refusal or objection EXCEPT that no life support systems shall be utilized if Coleman is deemed to be in a terminal condition or determined to be permanently unconscious within the meaning of General Statute § 19a-575a.
Prior to any procedure to medically administer hydration or nutrition to Coleman, the DOC shall inquire of Coleman if he intends to physically resist the procedure and until and unless he does so on any one occasion, he shall not be restrained for such procedure(s). Copies of all medical records documenting the administration of hydration or nutrition to, or the use of life support systems for, Coleman shall be provided within five business days to Coleman's counsel of record, provided that Coleman has filed with the DOC proper medical authorization forms.