Right to Medical Care in Prison

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Contents

Background

Failure to provide adequate medical care continues to pose one of the greatest threats to prisoner's around the world. In some parts of the world, HIV and other prison diseases pose the greatest threat to life. In some of these places, a sentence is the functional equivalent of the death penalty.

HIV/AIDS and Tuberculosis

In prisons located in developing countries preventing the spread of and treating HIV/AIDS and Tuberculosis (TB) is a constant struggle. Overcrowding, deteriorating facilities, and a lack of proper medical care continue to plague prison systems in African countries like Zambia, foiling any attempt to bring HIV/AIDS and TB under control.

Currently, about 15% of the adults in Zambia are infected with HIV.[1] The percentage of people infected in prison is significantly higher. About 27% of the men and 33% of the women are infected.[2] From 1995 to 2000, roughly 2,400 inmates and 260 prison staff died from illnesses related to AIDS. [3]

TB is the most common opportunistic infection upon HIV infected people in Africa. TB's rate of occurrence is greatly increased in prisons in southern Africa because overcrowding, poor ventilation, and poor medical care.[4] While the precise rate of infection is impossible to determine a 2000-2001 study suggests as many as 20% of the prisoners are infected with pulmonary TB.[5]

Despite the prevalence of HIV/AIDS and TB in Zambia prisons, as of Oct. 2009, Zambia only employed 14 health staff (only one physician) to serve over 15,000 prisoners.[6] Of its 86 prison, only 15 had a sick bay or health clinic. [7]

International Law

All people, including prisoners, have a right to certain level of health care. According to Article 12 of the International Covenant on Economics, Social and Cultural Rights, there is a universal "right to everyone to the enjoyment of the highest attainable standard of physical and mental health." [8]

Under United Nations' General Assembly Resolution 44/111, "Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation." [9]

One way to ensure that all prisoners have access to health services is to link together prison and public health care. The World Health Organization made several recommendations to this effect in the Declaration on Prison Health as Part of Public Health (2003):

  • Member governments are recommended to develop close working links between the Ministry of Health and the ministry responsible for the penitentiary system so as to ensure high standards of treatment for detainees, protection from personnel, joint training of professionals in modern standards of disease control, high levels of professionalism amongst penitentiary medical personnel, continuity of treatment between the penitentiary and outside society, and unification of statistics.
  • Member governments are recommended to ensure that all necessary health care for those deprived of their liberty is provided to everyone free of charge.
  • Public and penitentiary health systems are recommended to work together to ensure that harm reduction becomes the guiding principle of policy on the prevention of HIV/AIDS and hepatitis transmission in penitentiary systems.
  • Public and penitentiary health systems are recommended to work together to ensure the early detection of tuberculosis, its prompt and adequate treatment, and the prevention of transmission in penitentiary systems.
  • State authorities, civil and penitentiary medical services, international organizations and the mass media are recommended to consolidate their efforts to develop and implement a complex approach to tackle the dual infection of tuberculosis HIV.
  • Governmental organizations, civil and penitentiary medical services and international organizations are recommended to promote their activities and consolidate their efforts in order to achieve quality improvements in the provision of psychological and psychiatric treatments to people who are imprisoned.
  • Member governments are recommended to work to improve prison conditions so that the minimum health requirements for light, air, space, water and nutrition are met.
  • The WHO Regional Office for Europe is recommended to ensure that all its specialist departments and country officers take account in their work of the health care needs and problems of penitentiary systems and develop and coordinate activities to improve the health of detainees.[10]

European Prisons

In 1973 the Council of Europe adopted the European Standard for Medical Treatment of Prisoners, which was modeled after the Standard Minimum Rules for the Treatment of Prisoners that was passed by the United Nations in 1953. [11] In 1987, the Council of Europe adopted new European Prison Rules, which they revised in 2006.[12] The 2006 revisions included an obligation on the prison authorities to safeguard the health of all inmates and refer to the need for a close relationship between the prison and public health care systems.[13]

Specific Country Examples

United States

Prisoners are the only Americans with a Constitutional right to medical care. [14]

The right to medical care in prison is found within the 8th Amendment's protection against cruel and unusual punishment. The 8th "Amendment embodies 'broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . .,' against which [the Court] must evaluate penal measures." [15] Therefore, the Court has held repugnant to the 8th Amendment punishments that "involve the unnecessary and wanton infliction of pain."[16] Failure to provide adequate medical results in the infliction of unnecessary suffering that is inconsistent with the 8th Amendment. [17]

A constitutional challenge to the adequacy of correctional health care is governed by the test established in Estelle v. Gamble. Under Estelle, a inmate must show that he has a serious medical need and that the institution has been deliberately indifferent to that need. [18] Satisfying this test creates a cause of action under section 1983. [19]

China

All Chinese citizens have "the right to material assistance . . . when they are ill," under Article 45 of the Constitution of the People's Republic of China.[20] Moreover, all new detainees suppose to receive a medical examination and seriously ill prisoners are eligible for parole so they can receive medical treatment. [21]

However, access to health care in China's official prisons, detention centers, and "black jails" is very limited. People held at drug detention centers have reported very limited health care.[22] The centers have no routine medical monitoring and some detainees are even subject to harassment from the guards for taking medication.[23]

Similar treatment has been reported in China's "black jails." Detainees have reported being ignored by the guards when detailing existing medical conditions during the admission procedures.[24] The guards also dismiss requests for medical care, often with threats and insults.[25] One, 70-year-old, detainee was so desperate for medical care that he starved himself for days until the guards had no choice but to send him to a hospital.[26]

India

In Parmanand Katara v. Union of India (1989), the Supreme Court ruled that the government has an obligation to preserve all life, including those criminally liable to punishment. Medical care in Indian prisons, however, is inadequate. Some of the problems stem from overcrowding, as of 2007 the prison system was operating at 135.7% capacity. [27] Other problems are caused by the lack of medical staff. For example, in Karnataka, the government has officially created 83 medical staff positions to care for 12,000 prisoners. As of 2008, however, only 42% of those positions have been filled.[28] Additionally, prisoners are often unable to visit a hospital because there are not enough prison guards available to provide medical escorts. In some prisons medical escorts are only available on the weekends when the guards that are typically used for court escorts are available.[29]

Related Documents

References

  1. Unjust and Unhealthy (HIV, TB, and Abuse in Zambian Prisons), Human Rights Watch, 19 (2010)
  2. Unjust and Unhealthy (HIV, TB, and Abuse in Zambian Prisons), Human Rights Watch, 19 (2010)
  3. Unjust and Unhealthy (HIV, TB, and Abuse in Zambian Prisons), Human Rights Watch, 19 (2010)
  4. Unjust and Unhealthy (HIV, TB, and Abuse in Zambian Prisons), Human Rights Watch, 5 (2010)
  5. Unjust and Unhealthy (HIV, TB, and Abuse in Zambian Prisons), Human Rights Watch, 48 (2010)
  6. Unjust and Unhealthy (HIV, TB, and Abuse in Zambian Prisons), Human Rights Watch, 5 (2010)
  7. Unjust and Unhealthy (HIV, TB, and Abuse in Zambian Prisons), Human Rights Watch, 5 (2010)
  8. Lars Moller et al., Health in Prisons: a WHO guide to the essentials in prison health.
  9. A/RES/45/111 Basic Principles for the Treatment of Prisoners, passed 14 Dec. 1990, available at http://www.un.org/documents/ga/res/45/a45r111.htm
  10. Declaration on Prison Health as Part of Public Health, Adopted in Moscow on 24 Oct. 2003, available at http://www.euro.who.int/__data/assets/pdf_file/0007/98971/E94242.pdf
  11. Lars Moller et al., Health in Prisons: a WHO guide to the essentials in prison health
  12. Lars Moller et. al., Health in Prisons: a WHO guide to the essentials in prison health
  13. Lars Moller et al., Health in Prisons: a WHO guide to the essentials in prison health
  14. Estelle v. Gamble, 429 U.S. 97, 103 (1976)
  15. Estelle v. Gamble, 429 U.S. 97, 102 (1976)(quoting Jackson v. Bishop, 404 F.2d 571, 579 (C.A.8 1968))
  16. Estelle v. Gamble, 429 U.S. 97, 103 (1976)(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976))
  17. Estelle v. Gamble, 429 U.S. 97, 103 (1976)
  18. Estelle v. Gamble, 429 U.S. 97, 104 (1976)
  19. Estelle v. Gamble, 429 U.S. 97, 105 (1976)
  20. An Alleyway in Hell (China's Abusive "Black Jails"), Human Rights Watch, 29 (2009)
  21. An Alleyway in Hell (China's Abusive "Black Jails"), Human Rights Watch, 29 (2009)
  22. Where Darkness Knows No Limits (Incarceration. Ill-Treatment, and Forced labor as Drug Rehabilitation in Chain), Human Rights Watch, 31 (2010)
  23. Where Darkness Knows No Limits (Incarceration. Ill-Treatment, and Forced labor as Drug Rehabilitation in Chain), Human Rights Watch, 31 (2010)
  24. An Alleyway in Hell (China's Abusive "Black Jails"), Human Rights Watch, 29 (2009)
  25. An Alleyway in Hell (China's Abusive "Black Jails"), Human Rights Watch, 29 (2009)
  26. An Alleyway in Hell (China's Abusive "Black Jails"), Human Rights Watch, 30 (2009)
  27. 2009 Human Rights Report: India (Bureau of Democracy, Human Rights, and Labor March 11, 2010).
  28. Conditions of Detention in the Prisons of Karnataka 2007-08 (Commonwealth Human Rights Imitative), 2010, at 12.
  29. Conditions of Detention in the Prisons of Karnataka 2007-08 (Commonwealth Human Rights Imitative), 2010, at 13-14.