California ruling may stop the practice of jailing TB patients for noncompliance

Two cultures collide over detention ruling

A recent court ruling in California may put the brakes on the practice of jailing noncompliant TB patients, predicts a lawyer involved in the case. In the decision, a Superior Court judge ruled that Fresno County, CA, can no longer use its jail to exercise civil detention for noncompliant TB patients.

"Now that word on this is out, I don’t think there’s any place in the nation where you’ll be able to incarcerate someone simply for being noncompliant," says Catherine Campbell, the attorney for a 51-year-old Laotian plaintiff diagnosed with multidrug-resistant TB. "From now on, I think incarceration will be reserved for only the most egregious of cases, when people are completely out of their minds and unable to control their own behavior — not just for being noncompliant."

The ruling doesn’t explicitly forbid the county from bringing criminal charges against a noncompliant patient. Even so, the notoriety the case has generated in the region may have a similar chilling effect against the uses of criminal detention, Campbell adds. "If you charge someone with a misdemeanor, that assures they’ll be assigned a public defender," she says. Given all the publicity the case has garnered, "public defenders will be on top of the issue, and they’ll do everything they can to make sure their client gets home detention, not a jail sentence."

Campbell also has filed a civil lawsuit against both the state and the county seeking unspecified monetary damages on behalf of her client.

The facts of the case are anything but straightforward. Because the plaintiff is still undergoing treatment, it’s hard for county health department rep - re sen tatives to speak freely about what happened, says Betty Tarr, MSN, FNP, CIC, the county’s division manager for communicable disease. By comparison, the plaintiff and her lawyer suffer no such restrictions, she adds. As she talks about the case, speaking hesitantly, Tarr frames some of her statements in hypothetical terms.

The patient, a 51-year-old Laotian who immigrated to the United States more than a decade ago, sought care at a hospital in July 1998. The diagnosis was reactivation of old disease that proved resistant "to almost all TB medications," she says. That wasn’t all, she suggests: "I haven’t found anyone with multidrug-resistant disease that doesn’t have multiple life issues that complicate compliance," she says.

Misunderstanding or denial?

To begin with, one of the four Southeast Asian outreach workers the county employs — Tarr points out that the worker speaks four languages, including Lao — went to the patient’s house to explain the disease, its treatment, and the gravity of the situation.

The patient had trouble understanding her situation, Tarr says, but not the kind one might suppose. "You may understand my words, but not their seriousness. Maybe you just can’t take it all in," she suggests. "Maybe in your culture, TB is considered such a taboo and such a black eye that even though you understand the words that I say to you, you go into denial."

Perhaps for that reason, after a few months of putting up with unpleasant side effects from the drugs, the patient made it clear she was finished with treatment. Worse, Tarr says, the patient may have tried to abscond from the scene. "Let’s just say that you tell us you’re going to visit relatives in another state," she says. "And then let’s say we find that you’ve never arrived. After a couple of months, we find you in our own community."

Faced with a patient with MDR-TB who seemed not only noncompliant but duplicitous as well and who, on top of everything else, has several teenage children living at home, the health department decided it had to take action, Tarr says. Armed police officers were dispatched to take the patient to the county jail.

She says the impact of the ruling against the county is to take away the only truly useful means available to her for coping with unruly patients. Two out-of-county detention facilities soon may become unavailable under a contract the county is negotiating, "but the question is, will these places take a patient who’s infectious?" she asks. Probably not, she says. So what is she to do with people who are infectious because they won’t take their pills?

"I’m glad that this is America, and I’m glad people have freedoms and rights. But what about the state law that gives the county health officer the ultimate authority to use any means to protect the health of the county?" she says.

As Campbell, the plaintiff’s attorney, tells it, certain gray areas do exist. "I’m no psychologist," she says, "and frankly, the cultural divide between me and my client is so wide that I don’t think I can judge whether she is truly mentally competent or not." Even so, with a Lao interpreter, client and lawyer have managed to understand each other, she adds. (See story on interpreters, p. 24.) Lack of understanding is where Campbell thinks things went wrong from the start.

It’s true that the outreach worker assigned by the county to work with the patient, a Hmong woman, does speak Lao, Campbell says. But for a Laotian Hmong, Lao is no more than a second language learned at school and used in certain formal situations.

"The two languages have different structures and roots, much as Basque and Spanish," says Campbell. "It’s like using an American [as an interpreter] who’s gone to China and studied Chinese." Class differences and historic tensions between the Hmong and Laotians only complicate matters, she adds.

The second set of problems arose every time the outreach worker would use the patient’s teenage children, who speak English well, to help explain things to their mother, says Campbell. The children, who’ve grown up in America hearing Lao spoken only at home, aren’t fully competent in Lao either, she says.

Misunderstandings began to pile up. At first, Campbell says, the patient thought she was told she’d have to take medicine for only six months. After six months of enduring side effects, she balked at taking more medication.

At that time, Campbell says, the patient claims the outreach worker told her "the medication would kill her" but that she needed to keep taking it anyway. At that point, the patient decided to leave Fresno, where (as she’s explained to Campbell) bad luck seemed to be dogging her, and move to Ohio, where her immigration sponsors lived. There, she hoped, the health department, which by now had been contacted by Fresno County officials — who believed their client would relocate in Ohio — would be more understanding.

But trouble arose when the woman called her eldest son, who lives in Ohio. He couldn’t afford another responsibility, he told his mother; she would have to stay in Fresno. With no other options and without telling health authorities, Campbell says her client began hiding out at friends’ houses in Fresno County.

The meaning of I want to die’

When police arrived at the woman’s home, she reportedly screamed and struggled. At the jail, she declared to a Hmong interpreter that she wanted to die. But she didn’t mean she literally planned to take her life, Campbell argues; she was speaking metaphorically, meaning she felt despondent enough to die.

Campbell says her client was transferred to a medical ward of the jail, an intravenous line in the woman’s arm. She promised to cooperate if she could go home. Her daughters — and a son who traveled to Fresno from out of state to plead with jail officials — made the same promise, but to no avail. Campbell’s client eventually was moved off the medical floor and into a general-population cell.

Ten months passed. Finally, the patient’s Ohio immigration sponsors, informed of the situation, contacted the California legal aid association. Legal aid recruited Campbell, who specializes in women’s health and prisoners’ rights.

Aside from failing to follow due process — the patient never had a court hearing, Campbell claims, even though civil detainees are required by law to have a hearing before 60 days elapse — the county displayed enormous cultural insensitivity, she charges.

"I think there was a cultural divide and deep-seated hostility. The county brought to this case a criminal justice mentality rather than a health care mentality," she says.

Other TB controllers’ reactions to the case and the ruling have been mixed.

"When it comes to the public health, legislators in this state don’t give a hoot about what some court in California says," says one southern TB program manager. In Denver, Randall Reves, MD, the city’s TB controller, expresses dismay and bewilderment at Fresno County health department’s actions.

"Every TB program knows the [ability to detain patients] is like a seat belt law — most people put on a seat belt simply because there’s a law. To say that because someone’s noncom pliant, she has to spend the whole course of treatment in jail, . . . I wouldn’t want to do that," he explains.

As part of her civil suit against the state and county, Campbell is asking that Fresno County be required to hire interpreters certified as competent in Lao and that health department employees undergo cross-cultural training.

If the civil suit goes the way Campbell hopes, her client soon will have a settlement big enough for all of her children "to attend any college or university in the country they like," she says.