The opinion of the court was delivered by: (judge Caputo)
On June 20, 2008, I issued an Order authorizing Prime Care Medical, Inc. to assure that Abdel Fattah, an inmate at York County Prison under the jurisdiction of ICE, receives adequate nutrition and hydration since his refusal to eat and drink posed an imminent danger to his health. (Doc. 2.) As a part of that Order, I also authorized the use of "any necessary emergency life sustaining medical care, including the forcible use of a nasal-gastric tube or injection to medicate, hydrate and feed . . . Abdel Fattah until such time he is no longer a medical risk." (Id.) Judge Rambo of this Court entered a similar Order on June 20, 2008, in response to a petition from the United States on behalf of the Immigration and Naturalization Service. (Doc. 2, 1:MC-08-165.) The two cases were consolidated by Order of June 23, 2008. (Doc. 4.)
I held a hearing on June 24, 2008, at which Mr. Fattah indicated he wished to be represented by counsel, and thereafter counsel was appointed. The hearing was continued to July 1, 2008.
At the hearing on July 1, 2008, Mr. Fattah was present with counsel. The petitioner presented Jennifer Miosi, the Director of Nursing at York County Prison. She is in charge of Mr. Fattah's condition. She testified she was familiar with hunger strikes, that Mr. Fattah arrived at York County Prison on June 17, 2008, that he would not submit to a physical examination, that he would not permit the taking of his vital signs, and that he did not want food. Mr. Fattah was placed on suicide watch which means that every fifteen (15) minutes he is observed by a corrections officer, every eight (8) hours he is evaluated by medical staff, once a day he is seen by a mental health counselor, and every eight (8) hours he is asked to undergo a physical examination.
She testified she tried to get Mr. Fattah involved with medical staff on June 18 and 19, but he refused. He also continued to reject food and water. Mr. Fattah told her that he could not remember when he last ate and drank.
The evidence is that a lack of water causes an imbalance in electrolytes and potassium. These deficiencies can have serious negative impact on the heart, kidneys and liver. Indeed a blood test revealed lower than normal electrolytes, lower than normal glucose and elevated liver enzymes. After feeding and hydration pursuant to the June 20, 2008 Order, all of these tests improved and in most instances returned to or approached normal.
Since June 23, 2008, the nasal-gastric tube feeding method has been used. Mr. Fattah has resisted this procedure in that he is able to close off the passage in his throat making it difficult to insert the tube into his stomach. It normally takes two (2) minutes to place the tube, but because of Mr. Fattah's constricting his throat, it takes twenty (20) minutes.
The feeding through the nasal-gastric tube has been successful. Mr. Fattah's appearance has improved as have his blood tests. This method is not without negative impact. The nasal passages become irritated and swell, and the throat suffers from the same conditions. Using this method for more than a year is not a good practice, but on a short term basis it is effective and the results outweigh any discomfort.
There is an alternative to feeding someone like Mr. Fattah, and that is the J-Tube. The J-Tube is inserted by means of a surgical procedure which requires an incision and sutures; it is a larger tube and can be used for an indefinite period. It is subject to infection and simple removal by a patient who simply does not want it. The J-Tube is not considered a viable alternative because Mr. Fattah is under an Order of Removal from the United States to Egypt, and the plan is that he be fed until he is strong enough to travel. An attempt was made to place him on a plane prior to these proceedings, but he was apparently disruptive and uncooperative. Long term incarceration at York County Prison is not seen as a reality and thus the J-Tube is not considered a sensible alternative, not to mention the prospect that, because of his refusal to receive nutrition and hydration, he is a candidate to remove the J-Tube.
Mr. Fattah testified that for the past six (6) years he has not been eating. In 2001 or 2002, as a protest to a conviction because of a fight with a neighbor, Mr. Fattah began a hunger strike. He said he was well versed on the subject of hunger strikes because he had studied the subject. While he says he is not now on a hunger strike, he was unclear on when he ceased to be on one. Moreover, he gave vague conflicting testimony on why he does not eat or drink. He said he wanted to die; that he was dying; that his body was breaking down; that his stomach cannot handle that food; that he wants to be healthy; that he wants to go back to Egypt, but not in his current unhealthy condition; and that he only has to stay in jail five and one-half (5 1/2) more months and then will be free. He also testified he wants psychological counseling, but he is not satisfied with the medical health counselor at York County Prison.
Mr. Fattah is sending mixed signals. I am concerned with his inability to say when the hunger strike stopped, his inability to explain why he will not eat or drink, and his reluctance to cooperate with the nasal-gastric feeding. In addition, there is evidence that Mr. Fattah did drink water in his cell, although he denies he actually drank, noting instead he was simply wetting his mouth.
Mr. Fattah indicated he would like the insertion of the J-Tube. The court will not direct a particular methodology of feeding. I will leave that to the medical professionals.
Based on the foregoing, it is difficult to determine what Mr. Fattah is doing or what he wants. While these things would be helpful to know, what is known is that he will not eat voluntarily and that his health has and will suffer as a result. It is also known that his removal is imminent, and a long term method of feeding him involuntarily does not appear indicated, but that decision is but left to the medical professionals on the basis of this record and the fact that the negative side effects of ...