by Dr. Róisín Mulgrew
Lecturer in Criminology and Criminal Justice, University of Galway and Irish Centre for Human Rights
The Protective Role of Prison Healthcare
Prison healthcare teams can play an important role in the protection of prisoners’ rights. They are bound to protect health on clinical grounds only and to uphold the absolute prohibition on engaging actively or passively in any act that may constitute torture or other cruel, inhuman or degrading treatment or punishment. They must document and report any signs of ill-treatment to a competent medical or judicial authority. They must regularly inspect and advise prison directors on conditions of detention such as the quantity and quality of food and water, hygiene, sanitation, temperature, ventilation and the suitability and cleanliness of clothing and bedding.
Every prisoner should be examined by a medical practitioner (or nurse) as soon as possible after admission, and thereafter, whenever necessary. Such examinations serve a protective role for reporting and recording any signs of ill-treatment or withdrawal from drugs or alcohol and to identify psychological stress brought upon by detention and solitary confinement.
The Right to Healthcare in Prisons
Human rights law recognises the right to the ‘highest’ or ‘best’ attainable standard of physical and mental health. States are obliged to ensure that measures are put in place to protect health and ensure medical treatment is provided to those that require it. For persons deprived of their liberty, States must provide healthcare free of charge. In particular, each prison must have a healthcare service to evaluate, promote, protect and improve the physical and mental health of prisoners, and to detect and treat physical or mental illnesses which prisoners may suffer from.
The fundamental principle of equivalence of care should underpin all healthcare policies and practices in prisons. Prisoners must be given access to services equivalent to those available in the community at large. This includes preventive, curative and palliative care and all medical, surgical and psychiatric services. Sufficient financial and human resources must be provided to cater for the health issues affecting prisoners.
Timely Treatment
The right to freedom from inhuman treatment can be violated by a failure to provide timely and adequate medical treatment. All prisoners should be able to access medical care promptly. Prisoners should have access to a doctor at any time of day or night, as well as a person trained in first aid. Those requiring treatment or surgery that is not available in prison should be transferred to specialist institutions or hospitals.
When considering if timely treatment has been provided, courts have looked at such factors as the prisoner’s health or illness, the length of time that has elapsed during which the prisoner has gone without treatment, the cumulative physical and mental effects of the delay and the prisoner’s sex and age. State authorities are obliged to ensure prompt and accurate diagnosis and care in prison hospitals, and to employ a comprehensive therapeutic strategy to cure or prevent disease.
Sources
Council of Europe
Rules 39, 40, 41, 42, 46 European Prison Rules 2020 (Recommendation Rec(2006)2-rev)
Recommendation No R(93)6 concerning prison and criminological aspects of the control of transmissible diseases including AIDS and related health problems in prison
Recommendation No R(98)7 on the ethical and organisational aspects of health care in prison
Pitalev v Russia, Application No. 34393/03, Judgment, 30 October 2009
United Nations
Rules 24, 25, 27, 32, 35, 46 UN Standard Minimum Rules for the Treatment of Prisoners/Nelson Mandela Rules 2015 (GA Resolution 70/175)
Principle 9 UN Basic Principles for the Treatment of Prisoners 1990 (GA Resolution 45/111)
Principle 24 UN Body of Principles of Persons under any form of Detention or Imprisonment 1988 (GA Resolution 43/173)
Article 12 International Convention on Economic, Social and Cultural Rights 1966
CESCR General Comment No. 14 (2000) on Article 12 ICESCR: The Right to the Highest Attainable Standard of Health
Other Regional Systems
Article 10 Additional Protocol to the ACHR in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) 1988
Principle XI(1), OAS Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas 2008
Article 16 African Charter on Human and Peoples’ Rights 1981
Article 39(1) Arab Charter on Human Rights 2004
Academic
R. Lines, ‘The Right to Health of Prisoners in International Human Rights Law’ (2008) 4(1) International Journal of Prisoner Health 3-53