Every prison shall have in place a health-care service tasked with evaluating, promoting, protecting and improving the physical and mental health of prisoners, paying particular attention to prisoners with special health-care needs or with health issues that hamper their rehabilitation.
Key Elements
Some individuals and groups in detention may have specific health care needs that need to be addressed on an equivalent level to that in the community. In some cases there may need to be additional resources available in the prisons due to the increased incidence and prevalence of certain diseases.
Analysis
Women
Barriers to health in the community may mean that women have lacked access to health care before detention. In some contexts, the initial health screen might therefore be their first contact with health services. Due to the increased risk of physical, sexual and psychological violence in the community there should be specific screening for this upon admission and access to confidential psychological and medical support. Women may also be more at risk of drug and alcohol misuse and so, as well as assessment for rehabilitation, they should also be offered screening and any required prevention, treatment and care for HIV, Hepatitis B and other sexually transmitted infections (STI’s).
Although the initial health screening on admission should determine the reproductive health history of the woman detainee, including current or recent pregnancies, childbirth and any related reproductive health issues, it must be stressed that the individual retains her right to confidentiality of her sexual health history. This includes a specific prohibition of virginity testing. Virginity testing is discriminatory, humiliating and causes pain and suffering as well as being an intrusion of privacy. It may be considered a form of cruel, inhuman or degrading treatment or torture, and also rape.
There should be free sanitary towels and hygiene facilities provided for women, and advise on health and nutrition for pregnant women, breastfeeding mothers and for babies, children. Children accompanying their detained mother must also have access to an initial medical screening, and ongoing health care to ensure their physical, mental and social development. This should preferably be by a paediatrician.
Prison health services must provide preventive health measures that are specific for women including cervical smears (Papanicolaou or Pap test) for cervical cancer, breast and other gynaecological cancers. To protect the dignity and privacy of women during consultations and treatment there should be sufficient numbers of female health care staff appointed to prisons housing women. In situations where only male health staff are available there should at least be a female chaperone present during consultations and examinations.
Children
Children in prison, including children accompanying imprisoned parents, have the same right to health as children in the community. The best interests of the child must be taken into account in decision making involving the health of the child, and in decisions involving the primary caregiver in the case of children of imprisoned parents. Special care should be taken to ensure that girls are not discriminated against in all health care related issues.
Any children admitted to a prison, including children who accompany a detained parent, should undergo health screening on arrival, preferably by a child health specialist. As well as assessing existing mental and physical health problems and treatments, the children should be assessed for substance misuse, previous torture, ill-treatment and sexual violence. Particular attention must also be made to their physical, psychological and social development.
The prison environment for children should resemble as closely as possible that for children in the community. The children must have access to the same health promotion and prevention programs as children in the community, in particular to all the immunisations recommended by the public health service. To ensure their proper development they will also require good, balanced nutrition in sufficient quantity and regular exercise. The prison health staff should be able to recommend special diets to children, especially if they note problems with growth.
In detention centers for juveniles and in prisons where there are a significant number of child detainees a paediatrician should routinely visit the place, or otherwise the children should be referred to the nearest community health facility. The paediatrician should not just see sick children, but should routinely see all the children to monitor their physical, psychological and emotional development, screen for diseases, and provide immunisations. The children should also have access to other specialised health care, such as psychiatrists, ophthalmologists etc.
Children in detention are particularly at risk of physical, sexual and psychological abuse from both staff and co-detainees. Health staff must be especially vigilant for signs of abuse, as well as the risk of self-harm or suicide, since the child may very well not make any direct complaint or express any fears. If the health staff note any health issues that may be further compromised by continued detention, with the consent of the child the health staff should discuss these with the director and other related independent bodies and seek appropriate action.
Children with mental health problems should imperatively be diverted from the criminal justice system at every opportunity. Children requiring specialised care for mental health problems whilst in detention should be referred to an appropriate mental health facility in the community.
The health staff, in conjunction with the prison administration, must pay particular attention to the health and social well-being of the child during the pre-release period. It is essential that there is continuity of care and that the child is referred to the relevant health and social services in the community upon release.
Persons with disabilities
The right to health applies equally to detainees with mental or physical disabilities without discrimination. Detainees with disabilities retain exactly the same rights to autonomy, informed consent, confidentiality and privacy in their health care. As far as the prison environment allows, detainees with disabilities must be allowed to have the maximum independence, as well as inclusion and participation in daily prison life and activities. Those necessary adjustments or modifications to the prison environment must be made to allow detainees with disabilities the enjoyment of the same rights as other detainees. The prison service must ensure that accessibility to health services takes into consideration persons with disabilities.
Detainees with disabilities must be provided with the specific health care that they may need in relation to the disability, including rehabilitation programs, but also to protect them from further disability or other health problems. The training of prison staff, including the health care staff, must include the rights and specific needs of those with disabilities.
The initial medical screening should include an individualised and gender sensitive assessment of any disabilities and any necessary adaptations required in the prison regime and habitat. Self-harm and suicide need careful assessment and care, treatment or referral as needed. Women in particular, especially those admitted to prison for the first time, are particularly at risk of self-harm or suicide.
Minorities, indigenous people and foreigners
When accessing healthcare some minorities, indigenous people and some foreign detainees may require interpretation if they do not speak the national language. Interpretation is essential for ensuring that the detainee can properly communicate their health problem, and also receive a clear explanation of any diagnosis and treatment. The provision of an interpreter should be free of cost to the detainee. Ideally there should be independent interpreters available who work only for the health service. Such interpreters may be available at community hospitals or in the social services. It is important that interpreters are not members of the prison security staff since this would interfere with medical confidentiality and trust in the health service. Similarly co-detainees should not be used. However, in the event that there is no other alternative a co-detainee that is chosen by the person with the health complaint could be used, but the health staff must insist that they do not share the information with others.
To assist in the protection of the mental health of foreign nationals they should be permitted regular access to their family and children through family visits, letters and telephone calls and other means of communication such as email where feasible.
LGBTI persons
Prison health staff must be aware of, and make provisions for the specific health care needs of LGBTI detainees. LGBTI detainees are particularly vulnerable to physical, psychological and sexual violence, including bullying and intimidation. However, due to the acknowledged negative health effects of solitary confinement, this does not mean that LGBTI detainees should be isolated from the general prison population for their protection.
LGBTI detainees may also face discrimination in access to health care in the prison and in referrals to community health facilities. In some States there may be specialised health programmes for transgender individuals, including gender reassignment, and transgender detainees should have the possibility to access these, especially if they were already enrolled on these healthcare programs before detention. Since such programs are rare, access may be facilitated by transferring the detainee to a prison located close to the program. There should also be access to specialised psychological support within the prisons. Health care personnel should use the information about detainees’ sexual orientation with caution and ensure confidentiality of personal data.
Elderly persons
In many contexts, the prison population has an increasing proportion of elderly detainees. Some of these elderly detainees may present additional challenges to the prison health care service such as multiple chronic illnesses, like heart disease, diabetes, chronic lung disease etc. that require regular monitoring and management, including referrals for specialist consultations. There may also be reduced mobility related to joint or bone disorders or to neurological diseases such as Parkinson’s disease. The elderly detainees may also present with cognitive health problems such as dementia related to Alzheimer’s or other causes. The elderly may well also present with terminal illnesses that will not only require specialist health care management but which may also trigger requests for release on medical or humanitarian grounds.
Persons with specific diseases
Factors such as poor conditions of detention, especially a lack of hygiene, poor nutrition, lack of ventilation, lack of access to good health care and overcrowding can encourage the spread of diseases in prison, in particular HIV, Hepatitis B and Tuberculosis.
The prison authorities must include initiatives on HIV (as well as Hepatitis) prevention, treatment and care in closed settings promoted by the World Health Organisation and the United Nations Office on Drugs and Crime. This includes the introduction of specialised treatment programs for injecting drug users and specific harm reduction measures. The prevention of mother to child transmission of HIV must be available for pregnant and breastfeeding women detainees. The prison health staff should recommend voluntary HIV testing and counselling (VCT) to all detainees during medical examinations, in particular if someone has signs or symptoms indicating possible HIV infection, or if they have Tuberculosis, as well as to any pregnant female detainees who arrive at the place of detention.
Overcrowding and poor conditions of hygiene and nutrition contribute to the spread of tuberculosis in places of detention. Health care staff should receive specific training on the control of tuberculosis in prisons in co-ordination with the national tuberculosis program and conduct routine screening and where necessary active case finding. In some parts of the world tuberculosis has become multi-drug resistant and access to treatment for such cases is often limited and expensive. Due to the increased risk of contracting the disease, detainees who are known to be HIV positive should be routinely screened for TB.
Victims of violence
There must be screening of all new admissions for signs and symptoms of mental or physical violence, including sexual violence and torture. Screening should not only be for individuals who allege they were ill-treated, but for any case which the physician has reason to believe that they might have been a victim of such violence. Physicians in particular who work in places of detention must be trained on how to examine and document victims of torture and other ill-treatment according to the principals of the Istanbul Protocol.
Legal standards
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
Rule 25.1
Rule 28
In women’s prisons, there shall be special accommodation for all necessary prenatal and postnatal care and treatment. Arrangements shall be made wherever practicable for children to be born in a hospital outside the prison. If a child is born in prison, this fact shall not be mentioned in the birth certificate.
Rule 29
1. A decision to allow a child to stay with his or her parent in prison shall be based on the best interests of the child concerned. Where children are allowed to remain in prison with a parent, provision shall be made for:
(a) Internal or external childcare facilities staffed by qualified persons, where the children shall be placed when they are not in the care of their parent;
(b) Child-specific health-care services, including health screenings upon admission and ongoing monitoring of their development by specialists.
2. Children in prison with a parent shall never be treated as prisoners.
Rule 31
The physician or, where applicable, other qualified health-care professionals shall have daily access to all sick prisoners, all prisoners who complain of physical or mental health issues or injury and any prisoner to whom their attention is specially directed. All medical examinations shall be undertaken in full confidentiality.
Rule 109
1. Persons who are found to be not criminally responsible, or who are later diagnosed with severe mental disabilities and/or health conditions, for whom staying in prison would mean an exacerbation of their condition, shall not be detained in prisons, and arrangements shall be made to transfer them to mental health facilities as soon as possible.
2. If necessary, other prisoners with mental disabilities and/or health conditions can be observed and treated in specialized facilities under the supervision of qualified health-care professionals.
3. The health-care service shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.
Rule 110
It is desirable that steps should be taken, by arrangement with the appropriate agencies, to ensure if necessary the continuation of psychiatric treatment after release and the provision of social psychiatric aftercare.
United Nations Rules for the Protection of Juveniles Deprived of their Liberty
Rule 53
A juvenile who is suffering from mental illness should be treated in a specialized institution under independent medical management. Steps should be taken, by arrangement with appropriate agencies, to ensure any necessary continuation of mental health care after release.
UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules)
Rule 10
1. Gender-specific health-care services at least equivalent to those available in the community shall be provided to women prisoners.
2. If a woman prisoner requests that she be examined or treated by a woman physician or nurse, a woman physician or nurse shall be made available to the extent possible, except for situations requiring urgent medical intervention. If a male medical practitioner undertakes the examination contrary to the wishes of the woman prisoner, a woman staff member shall be present during the examination.
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/28/68, 5 March 2015
Paragraph 85
85. With regard to the vulnerability of children deprived of their liberty and policy reform, the Special Rapporteur calls upon all States:
(d) To ensure that paediatricians and child psychologists with trauma-informed training are available on a regular basis to all children in detention, and to establish specialized medical screenings inside places of deprivation of liberty to detect cases of torture and ill-treatment, including access to forensic evaluation;
Principles and Best Practices of the Protection of Persons Deprived of Liberty in the Americas
Principle X - Health
Persons deprived of liberty shall have the right to health, understood to mean the enjoyment of the highest possible level of physical, mental, and social well-being, including amongst other aspects, adequate medical, psychiatric, and dental care; permanent availability of suitable and impartial medical personnel; access to free and appropriate treatment and medication; implementation of programs for health education and promotion, immunization, prevention and treatment of infectious, endemic, and other diseases; and special measures to meet the particular health needs of persons deprived of liberty belonging to vulnerable or high risk groups, such as: the elderly, women, children, persons with disabilities, people living with HIV-AIDS, tuberculosis, and persons with terminal diseases. Treatment shall be based on scientific principles and apply the best practices.
Principle X - Health
[…]
Women and girls deprived of liberty shall be entitled to access to specialized medical care that corresponds to their physical and biological characteristics, and adequately meets their reproductive health needs. In particular, they shall have access to gynecological and pediatric care, before, during, and after giving birth, which shall not take place, as far as possible, inside the place of deprivation of liberty, but at hospitals or appropriate institutions. If a child is born in a place of deprivation of liberty, this fact shall not be mentioned in the birth certificate.
In women’s or girls’ institutions there shall be special accommodation, as well as adequate personnel and resources for pre-natal and post-natal care and treatment of women and girls.
European Prison Rules
Rule 34.4
Arrangements shall always be made for prisoners to give birth outside prison. Where nevertheless a child is born in prison, the authorities shall provide all necessary support and facilities, including special accommodation.
Extract from the 10th General Report on the CPT's activities [CPT/Inf (2000) 13]
Paragraph 27
It is axiomatic that babies should not be born in prison, and the usual practice in Council of Europe member States seems to be, at an appropriate moment, to transfer pregnant women prisoners to outside hospitals.
Nevertheless, from time to time, the CPT encounters examples of pregnant women being shackled or otherwise restrained to beds or other items of furniture during gynaecological examinations and/or delivery. Such an approach is completely unacceptable, and could certainly be qualified as inhuman and degrading treatment. Other means of meeting security needs can and should be found
Paragraph 32
It is also essential that the health care provided to persons deprived of their liberty be of a standard equivalent to that enjoyed by patients in the outside community.
Paragraph 32
Insofar as women deprived of their liberty are concerned, ensuring that this principle of equivalence of care is respected will require that health care is provided by medical practitioners and nurses who have specific training in women's health issues, including in gynaecology.
Moreover, to the extent that preventive health care measures of particular relevance to women, such as screening for breast and cervical cancer, are available in the outside community, they should also be offered to women deprived of their liberty
Paragraph 43
A mentally ill prisoner should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff. That facility could be a civil mental hospital or a specially equipped psychiatric facility within the prison system
24th General Report of the European Committee for the Prevention of Torture
Paragraph 115
All juveniles should be properly interviewed and physically examined by a medical doctor, or a qualifed nurse reporting to a doctor, as soon as possible after their admission to the detention centre; preferably, on the day of arrival. If properly performed, such medical screening on admission should enable the establishment's health-care service to identify young persons with potential health problems (e.g. drug addiction, sexual abuse and suicidal tendencies). The identifcation of such problems at a sufciently early stage will facilitate the taking of efective preventive action within the framework of the establishment's medico-psycho-social programme of care.
Paragraph 116
It is also widely recognised that detained juveniles have a tendency to engage in risk-taking behaviour, especially with respect to drugs, alcohol and sexual practices, and that they are more likely to engage in self-harm. In consequence, in every detention centre for juveniles, there should be a comprehensive strategy for the management of substance abuse (including prevention and treatment) and the prevention of self-harm and suicide. The provision of health education about transmissible diseases is another important element of a preventive health-care programme. Juveniles with mental-health problems should be cared for by psychiatrists and psychologists specialising in the mental health of children and adolescents.
Paragraph 117
Particular attention should always be paid to the health-care needs of female juveniles: access to gynaecologists and education on women's health care should be provided. Pregnant juvenile girls and juvenile mothers in detention should receive appropriate support and medical care; as far as possible, alternatives to detention should be imposed. In this regard, the relevant standards on women deprived of their liberty which the CPT elaborated in its 10th General Report apply equally to detained female juveniles.
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa
32. Women
b. Safeguards for arrest and detention
If arrest, custody and pre-trial detention is absolutely necessary, women and girls shall:
v. Be provided with the facilities and materials required to meet their specific hygiene needs, and offered gender-specific health screening and care which accords with the rights to dignity and privacy, and the right to be seen by a female medical practitioner.
(...)
vii. Have access to obstetric and pediatric care before, during and after birth, which should take place at hospitals or other appropriate facilities, and never be subject to physical restraints before, during and after childbirth.
33. Persons with disabilities
d. Accessibility and reasonable accomodation
States shall take measures to ensure that:
v. The right of persons to informed consent to treatment is upheld.
Committee on the Rights of Persons with Disabilities, Guidelines on article 14, The right to liberty and security of persons with disabilities, Adopted during the Committee’s 14th session, September 2015
V. Non-consensual treatment during deprivation of liberty
11. The Committee has emphasized that States parties should ensure that the provision of health services, including mental health services, are based on free and informed consent of the person concerned. In its General Comment No. 1, the Committee stated that States parties have an obligation to require all health and medical professionals (including psychiatric professionals) to obtain the free and informed consent of persons with disabilities prior to any treatment. The Committee stated that, “in conjunction with the right to legal capacity on an equal basis with others, States parties have an obligation not to permit substitute decision-makers to provide consent on behalf of persons with disabilities. All health and medical personnel should ensure appropriate consultation that directly engages the person with disabilities. They should also ensure, to the best of their ability, that assistants or support persons do not substitute or have undue influence over the decisions of persons with disabilities.”
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57, 5 January 2016
Paragraph 25
Most prison health policies and services are not designed to respond to women’s specific health needs and fail to account for the prevalence of mental health and substance abuse problems among female prisoners, the high incidence of exposure to different forms of violence, and gender-specific sexual and reproductive health concerns.The provision of appropriate health-care services, including comprehensive, interdisciplinary and rehabilitation-oriented mental health-care programmes, as well as the provision of training and capacity-building to prison staff and health-care personnel to identify specific physical and mental-health needs of female detainees, are key to preventing mistreatment.
Paragraph 26
Of particular concern are a lack of specialist care, including access to gynaecologists and obstetric health-care professionals; discriminatory access to services like harm-reduction programmes; lack of private spaces for medical examinations and confidentiality; poor treatment by prison health staff; failures in diagnosis, medical neglect and denial of medicines, including for chronic and degenerative illnesses; and reportedly higher rates of transmission of diseases such as HIV among female detainees. The absence of gender-specific health care in detention can amount to ill-treatment or, when imposed intentionally and for a prohibited purpose, to torture. States’ failure to ensure adequate hygiene and sanitation and to provide appropriate facilities and materials can also amount to ill-treatment or even torture. It is essential to engage in capacity-building and adequate training for detention centre staff and health-care personnel with a view to identifying and addressing women’s specific health-care and hygiene needs.
Paragraph 70
With regard to women, girls, and lesbian, gay, bisexual and transgender persons in detention, the Special Rapporteur calls on all States to:
[...] (k) Account for women’s gender-specific health-care needs and provide individualized primary and specialist care, including comprehensive and detailed screenings and prerelease preparations, in a holistic and humane manner, in line with the Bangkok Rules; provide preventive and gender-sensitive care designed to safeguard women’s privacy and dignity, including as regards mental health, sexual and reproductive health, HIV prevention and treatment and substance abuse treatment and rehabilitation programmes; and ensure that female detainees are examined and treated by female health-care professionals if they so request, except in emergency situations, when female staff should be present; [...]
Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles
Principle 9 (Relating to the Right to Treatment with Humanity while in Detention)
"States shall:
H) Adopt and implement policies to combat violence, discrimination and other harm on grounds of sexual orientation, gender identity, gender expression or sex characteristics faced by persons who are deprived of their liberty, including with respect to such issues as placement, body or other searches, items to express gender, access to and continuation of gender affirming treatment and medical care, and “protective” solitary confinement"
Council of Europe, Recommendation CM/Rec(2012)12 of the Committee of Ministers to member States concerning foreign prisoners, October 2012
Health
31.1. Foreign prisoners shall have access to the same health care and treatment programmes that are available to other prisoners.
31.2. Sufficient resources shall be provided to deal with specific health problems which may be faced by foreign prisoners.
31.3. Medical and health care staff working in prisons shall be enabled to deal with specific problems and diseases which may be encountered by foreign prisoners.
31.4. To facilitate the health care of foreign prisoners, attention shall be paid to all aspects of communication. Such communication may require the use of an interpreter who is acceptable to the prisoner concerned and who shall respect medical confidentiality.
31.5. Health care shall be provided in a way that is not offensive to cultural sensitivities and requests by foreign prisoners to be examined by a medical practitioner of the same gender shall be granted as far as possible.
31.6. Where possible, psychiatric and mental health care shall be provided by specialists who have expertise in dealing with persons from different religious, cultural and linguistic backgrounds.
31.7. Attention shall be paid to preventing self harm and suicide among foreign prisoners.
31.8. Consideration shall be given to the transfer of foreign prisoners, who are diagnosed with terminal illnesses and who wish to be transferred, to a country with which they have close social links.
31.9. Steps shall be taken to facilitate the continuation of medical treatment of foreign prisoners who are to be transferred, extradited or expelled, which may include the provision of medication for use during transportation to that State and, with the prisoners’ consent, the transfer of medical records to the medical services of another State.
Women
33.1. Special measures shall be taken to combat the isolation of foreign women prisoners.
33.2. Attention shall be paid to meeting the psychological and healthcare needs of foreign women prisoners, especially those who have children.
33.3. Arrangements and facilities for pre-natal and post-natal care shall respect cultural and religious diversity.
Questions for monitors
Are there female health care staff or chaperones available in the prison health service? When and at what frequency?
What questions are asked on sexual and reproductive history of new women detainees?
What specific health and sanitary provisions are there for pregnant, breast feeding and menstruating women?
Are specific gynaecological preventive screening tests available?
Are children given an initial health screening on arrival in the prison?
Are paediatricians available in the prison or by referral to a near-by community health centre?
Are the same paediatric health programs available in the prison as in the community (e.g. routine vaccinations)?
What mechanisms are in place for documenting and reporting cases of physical, psychological or sexual abuse of children?
Does the initial screening enable the diversion of persons with severe mental disorders to appropriate health care settings?
Have any modifications or adjustments been made in the prison to accommodate detainees with disabilities?
Are there specific habilitation and rehabilitation programs available to detainees with disabilities?
Is consent of detainees with disabilities sought before any treatment is decided?
Are interpreters available to the prison health service?
Do foreign detainees and those from remote areas of the country have access to communication with and visits from family?
Are specialised health programs in the community, in particular for transgender individuals, available to transgender detainees?
Do transgender detainees have access to specialized health care programmes?
Do detainees who have started gender reassignment programmes in the community have the possibility to continue their treatment while in detention?
Has the prison health service taken any special measures to care for the health of older detainees?
Are national programs for the prevention, treatment and care of HIV and Hepatitis incorporated into the prison health service?
What specific interventions to prevent the spread of HIV and Hepatitis have been introduced into the prisons?
Do national Tuberculosis screenings and treatment programmes include the prisons?
Are health staff, particularly physician, trained in the documentation of torture using the Istanbul Protocol?
What mechanisms are in place for the confidential reporting of cases of alleged torture and ill-treatment, and for the protection of the victims?
Further reading
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