Immigration Detention: ICE Needs to Strengthen Oversight of Informed Consent for Medical Care
Fast Facts
ICE oversees—and in some cases provides—medical care for people detained in its facilities. Some care is provided onsite and some must be provided offsite, such as at a hospital.
ICE must obtain documentation of "informed consent" from people receiving onsite care. Informed consent involves the medical provider speaking to the person in detail about treatment risks, benefits, and alternatives.
Medical files that we reviewed generally contained documentation of informed consent for medical care provided onsite, but not for care provided offsite. We recommended, among other things, that ICE collect this documentation from offsite providers.
Medical Exam at ICE Facility
Highlights
What GAO Found
U.S. Immigration and Customs Enforcement (ICE) has established policies for obtaining and documenting informed consent for medical care provided on-site at detention facilities. Informed consent involves the provider speaking to the patient in detail about the risks, benefits, and alternatives of individual procedures. Medical care not available at detention facilities is provided off-site at clinics, hospitals, or other facilities. ICE relies on these community providers to obtain and document informed consent for care they provide off-site. However, ICE policies do not require facilities to collect documentation of informed consent for detained noncitizens' off-site medical care from community providers.
The 48 medical files GAO reviewed from selected facilities generally contained documentation of informed consent for care provided on-site at the facilities. However, less than half of the medical files included off-site consent documentation. Establishing and communicating a requirement for detention facility staff to collect informed consent documentation for off-site medical care would help provide assurance that community providers obtain informed consent from noncitizens they treat. Informed consent helps ensure noncitizens have the information needed to make informed choices about their medical care.
Medical Staff and U.S. Immigration and Customs Enforcement (ICE) Detained Noncitizen
ICE uses various oversight mechanisms—such as annual inspections and daily compliance reviews—to help ensure detention facilities are complying with informed consent requirements. GAO identified seven such mechanisms that included reviews for on-site informed consent documentation. However, only one type of oversight, a biannual inspection, includes a review for off-site informed consent documentation. This oversight mechanism identified informed consent deficiencies at 25 facilities in fiscal year 2021. However, it was unclear from the documentation how many of the informed consent deficiencies were related to on-site or to off-site medical care. As discussed above, requiring detention facilities to collect informed consent documentation for off-site care would help provide greater assurance that community providers obtain consent. By requiring its oversight mechanisms to check for this information, ICE could better ensure that community providers are consistently obtaining informed consent from noncitizens in detention.
Why GAO Did This Study
Within the Department of Homeland Security, ICE is responsible for providing safe, secure, and humane confinement for detained noncitizens in the United States. In that capacity, ICE oversees and at some detention facilities provides on-site medical care services. ICE also oversees referrals and pays for off-site medical care when services are not available at detention facilities.
GAO was asked to review issues related to informed consent for medical care for noncitizens in immigration detention facilities. Among other things, GAO examined the extent to which ICE has policies for obtaining informed consent for medical care, and how selected facilities implemented the policies; and oversees implementation of policies related to informed consent to help ensure compliance.
GAO interviewed ICE officials and medical staff from six facilities selected, in part, based on whether ICE staff provided on-site medical care. GAO also reviewed 48 medical files from these facilities. Further, GAO analyzed oversight results for fiscal years 2019 through 2021, and reviewed ICE documentation in light of federal internal control standards.
Recommendations
GAO is making three recommendations, including that ICE require detention facilities to collect informed consent documentation from off-site providers, and then require a review of this documentation as part of its oversight mechanisms for detention facilities. The Department of Homeland Security concurred with each of the recommendations.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| United States Immigration and Customs Enforcement | The Director of ICE should establish and communicate a policy requiring IHSC-staffed detention facilities to collect informed consent documentation for medical care from community providers. (Recommendation 1) |
ICE concurred with our recommendation and stated that the ICE Health Service Corps (IHSC) would revise Directive 02-07, "Treatment Consent and Refusal," dated March 17, 2021, to include a requirement for IHSC-staffed detention facilities to obtain copies of informed consent forms completed by community providers for medical care. ICE officials noted this requirement will be limited to all surgically invasive procedures because not every encounter with an off-site medical provider requires written informed consent. On November 7, 2022, IHSC updated section 6.5 "Invasive Procedures Performed by Off-Site/Community Medical Providers" of Directive 02-07 to add the expectation for request and receipt of all informed consent forms for off-site invasive care provided to patients detained at IHSC-staffed facilities. Specifically, the directive states that invasive procedures performed by off-site providers require informed consent from patients and are to be documented prior to the procedure. All consent forms for procedures performed by off-site providers must be requested and received by IHSC health services staff for inclusion in the patient's health record. Further, on March 9, 2023, the updated directive was disseminated to IHSC staff. Establishing and communicating a policy requiring IHSC-staffed facilities to collect informed consent documentation from community providers helps provide assurance that community providers provide these noncitizens with the information they need to make informed choices for their medical care, and they obtain informed consent from detained noncitizens.
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| United States Immigration and Customs Enforcement | The Director of ICE should require non-IHSC-staffed detention facilities to collect informed consent documentation for medical care from community providers. (Recommendation 2) |
ICE concurred with this recommendation and stated the agency would: (1) review its detention standards, policies, procedures, and processes concerning informed consent for medical care from community providers for non-IHSC staffed facilities to assess the impact to its operations; and (2) identify a solution to ensure the collection of this information and provide assurance that noncitizens in ICE custody continue to receive the necessary medical care from community providers, as appropriate. In April 2023, ICE officials reported that they continue to review their detention standards, policies, procedures, and processes concerning informed consent for medical care from community providers for non-IHSC staffed facilities and will update them accordingly. In March 2024, ICE provided updated documents that it shares with community medical care providers that direct the providers to collect informed consent and provide that informed consent documentation to ICE. However, ICE did not provide documentation showing that it requires non-IHSC facilities to collect this consent documentation from community medical providers. We will continue to monitor ICE's efforts to establish these requirements.
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| United States Immigration and Customs Enforcement | Once ICE establishes and communicates policies and requirements for all detention facilities to collect informed consent documentation for medical care from community providers, the Director of ICE should require that oversight mechanisms include a review of this documentation as part of the agency's oversight of detention facilities. (Recommendation 3) |
ICE concurred with this recommendation and stated that once the update to Directive 02-07, "Treatment Consent and Refusal," is complete, IHSC will incorporate the requirement to review informed consent documentation in the Quality Review Program (QRP) audit tool that will be used by IHSC during all detention facility site visits. The QRP will review this documentation as part of its oversight mechanism to ensure compliance with the updated IHSC Directive 02-07. In April 2023, ICE officials reported they continue to work on incorporating the requirement of reviewing informed consent documentation into its QRP audit tool. Once completed, ICE intends to use the QRP audit tool during all detention facility site visits by IHSC as an oversight mechanism. As we noted in our report, IHSC Directive 02-07 applies to IHSC-staffed facilities, but not non-IHSC-staffed facilities. As of March 2024, ICE provided an example of the QRP tool and stated it is being tested in both IHSC and non-IHSC-staffed facilities. However, it is unclear whether the QRP tool includes checks for all types of informed consent for off-site medical procedures, especially for invasive procedures. We will continue to monitor ICE's efforts to establish these requirements for both types of detention facilities (IHSC- and non-IHSC-staffed facilities).
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