Standard H 04.03.02: Elective Procedures

By Tate McCotter, NIJO Executive Director

Under the Eighth Amendment to the United States Constitution1, jail administrators are required to provide inmates with “reasonably adequate” medical care.2   In 1976, the United States Supreme Court established the standard used by lower federal courts to review claims by prisoners of denial of medical care.  In Estelle v. Gamble, the Supreme Court stated, “Deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.  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.”3

While the need for jail officials to provide medical care is not debatable, how to handle “elective procedures” may be more difficult to decide for administrators.  What is considered to be medically necessary or elective?  Who determines it?  And what liability is on the administration?

Inmates are not entitled to elective health care procedures.  They may claim that medical services offered by a particular administration are limited and may not provide the complete range of medical services within their walls.  They may also want their own doctor or an enhanced procedure than what the jail medical staff has diagnosed or prescribed.

Designated jail staff working with the health-care provider should determine which procedures are medically necessary and which are elective.  The process for determining which health care procedures are necessary and which are not should be determined in a uniform, consistent manner.   It is critical that the jail administration understands and supports the values of the expert opinions and diagnoses the medical provider makes.  Likewise, it is important for the medical provider to understand the short term, long term, and ripple effects that such decisions may make on the jail administration as well as for them as medical providers.  The definition of “elective” care should be clearly understood by the medical provider, officials and inmates.  Generally, it is medical care which is not essential; care which does not involve a serious health-care need.  Jail officials only have an obligation to provide care to prisoners with serious health care needs.4

  • Identify who has the final authority in determining which procedures are essential and which are elective;
  • Determine the circumstances under which elective surgery or other such procedures will be permitted;  (i.e. abortion, sex reassignment surgery5, etc)
  • Determine the process by which inmates may request medical procedures be provided by personal doctors; and
  • Establish the process for ensuring that when inmates are responsible for their own expenses, the arrangements are made to protect the county.
  • When an inmate makes a medical request for health care which is elective or insist that essential procedure done by a physician of their choice, the county should require the inmate to bear those costs.

In a case where officials deemed surgery as unnecessary and elective, the court ruled:

While it is true that the prison asked the [inmate] to utilize [his] insurance to pay for [the] medical care where possible, this fact alone does not demonstrate deliberate indifference. [The inmate] did not establish that asking for assurances as to payment for medical services adversely affected him or improperly delayed surgery from taking place. Especially here, where the prison medical staff disputed the need for surgery . . . [officials] were entitled to insist on payment for surgery they administratively and medically deemed “elective.”6

The fact that the inmate’s wife insisted on the surgery being performed by a physician of the inmate’s choosing was an additional factor in the court’s ruling.7



  1. U.S. Constitution. Amend. VIII.
  2. Estelle v. Gamble, 429 U.S. 97 (1976)
  3. Estelle v. Gamble, 429 U.S. 97 (1976) at 104-05 (citations and footnotes omitted)
  4. Estelle v. Gamble, 429 U.S. 97 (1976); Ramos v. Lamm, 639 F.2d 559 (CA10 1980), cert. denied 450 U.S. 1041 (1981)
  5. See Legal-Based Jail Guideline N04.02.07 GID: Sex Reassignment Therapy
  6. Gomm v. DeLand, 729 F.Supp. 767 (D. Utah 1990), affirmed, 931 F.2d 62 (1991).
  7. Gomm v. DeLand, 729 F.Supp. 767, 781 n. 35 (D. Utah 1990), affirmed, 931 F.2d 62 (1991) (“This conclusion concerning the prison’s requests for the [prisoner] to pay for the surgery is equally true as to [his] out of prison treatment for his back problems. Freestone testified that he was prepared to have the back surgery performed at the UMC at state expense, but at [the prisoner’s wife’s] request allowed [the prisoner’s doctor to perform the surgery at a different hospital].”).


The training materials provided are for use only within the scope of your jail and may not to be distributed otherwise without written permission by NIJO.  The information contained herein is to be used solely for training purposes and shall not be construed as legal advice.  Users of these materials should consult legal counsel to determine how the laws of their individual jurisdiction affect the application of these materials and guidelines to their individual circumstances.

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