Request By:
Mr. W. Robert Lotz, Jr.
Cobb & Oldfield
Attorneys at Law
P.O. Box 1078
211 East Fourth Street
Covington, Kentucky 41012
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
House Bill 50 of the 1979 Extraordinary Session amended KRS 441.010 to provide in effect that medical care necessary for indigent prisoners in county jail must be paid for by that unit of government whose law the prisoner is charged with or convicted of violating. The law, as amended, further provides that the "physician or physicians attending the prisoner" shall certify, under oath, that the prisoner's condition was such that medical care could not be postponed until after the period of confinement without hazard, and that medical procedures were limited to those necessary to preserve the life or health of the prisoner. (Emphas's added).
The statute, as amended, also provides that "Such services shall not include psychological testing, evaluation or care." (Emphasis added). The statute contains no definition of "psychological testing, evaluation or care."
We concluded in OAG 79-314 that, since the statute was obviously intended to provide to indigent jail prisoners medical care by a medical doctor, a physician or surgeon, the exception, dealing with psychological testing and evaluation or care, includes the practice of psychiatry. You disagree with that conclusion and ask us to reconsider.
Upon reconsideration, it is our opinion that the phrase "psychological testing, evaluation or care" includes only such psychological testing, evaluation or care actually conducted by a person who is not a licensed medical doctor.
It is true that since the bill contains the terminology "medical care" and "physicians", the exception as just construed was not really necessary. The bill automatically excludes non-medical care.
However, in order to effectuate the basic purpose of the amendment (providing medical care for indigent county jail prisoners) , we feel compelled to conclude that psychiatric care as administered by a licensed medical doctor is not excluded from the operative provisions of the amendment. It is an established rule that literal language contained in some parts of a statute, in apparent conflict with the general scheme, should surrender to the general purpose and intent of the legislature as gathered from all parts of the statute.
Oates v. Simpson, 295 Ky. 433, 174 S.W.2d 505 (1943) 507. As you say, if the legislature had intended to exclude a facet of medical practice, i.e., psychiatric practice of medicine, it could have easily said so. It is so readily conceivable that many jail inmates may display psychiatric symptoms and require the medical attention of a psychiatrist, a medical doctor, to alleviate his or her mental suffering. In
Bowring v. Godwin, (U.S.C.A. -4, 1977), 551 F.2d 44, the court, in recognizing the need to furnish a prisoner with psychiatric care, as well as other types of medical care where needed, wrote this at page 47:
"We see no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart. Modern science has rejected the notion that mental or emotional disturbances are the products of afflicted souls, hence beyond the purview of counseling, medication and therapy."
The court in Bowring, above, pointed out that a failure or refusal to provide reasonable medical care, as needed, to prisoners could result in the "unnecessary and wanton infliction of pain," proscribed by the Eighth Amendment and the Due Process clause (where death might result) of the Fourteenth Amendment (U.S. Const.)
It is elementary that the courts will construe a statute liberally in order to sustain its constitutionality. 16 Am.Jur.2d, Constitutional Law, § 144, p.p. 345-348. Our construction here is in conformity with that principle.
OAG 79-314 is withdrawn.
We are bringing this matter to the attention of the Legislative Research Commission.