Key Elements
Health staff working in prisons have the same professional and ethical obligations to their patients as staff working in the community health services. However, the particularities of the prison environment in which the main objectives of the administration are security, safety and maintaining discipline can often conflict with the duty of care of the health staff. This leads to so called “dual loyalties” in which the ethical and professional obligations to the patient may be compromised by the duty to the prison administration.
Health staff must be carefully selected to work in places of detention and must be trained in the specificities of prison health, in particular on health and human rights and dual loyalties. They must receive support from the Ministry of Health and professional healthcare bodies. Their professional and ethical independence is crucial to establishing the trust of detainees so that they can provide health care without discrimination.
Analysis
Staffing levels
An adequate number of sufficiently trained health care staff must be allocated to each prison. They should be selected for their professional competencies and personal integrity. The pay and benefits should be equivalent to health staff working in the community so as to attract appropriate personnel. In general the health staff allocated to the prisons should include, as a minimum, General practitioners and Nursing staff. Health staff must be available at all times of the day or night in order to respond to medical emergencies as well as other health issues. Other staff such as psychiatrists and psychologists, dentists, physiotherapists etc. should either be based in, or regularly visit the prison, depending on the size of the prison population.
The actual numbers and specialisation of health staff will depend upon the total population and general profile of the detainees in the specific place of detention. For example, where there is a high turnover of detainees with drug or alcohol dependency a specialist in drug rehabilitation/drug substitution therapy may be warranted. A sufficient number of female health staff must be allocated to prisons, especially those in which women are detained.
Detainees should have access to medical investigations and care that is not available in the prison. This is usually through the referral of the detainee to the local clinic or hospital, although in some settings hospital Specialists may be able to visit the place of detention on a regular basis. This may assist the prison administration in terms of reducing the demand for transport and security to outside health facilities.
Detainees, even those with previous training in health care, should not carry out any duties in the prison health care service. This risks breaches in medical confidentiality and in trust of the independence of the health care service.
Staff training and supervision
After recruitment to the prison health service, health staff must receive initial training on working in the prison environment in general and on health and human rights, including provisions contained in national legislations, as well as international and regional standards.
Detailed training for health care delivery in places of detention must be provided and regularly updated, in particular on infectious diseases, mental health care, self-harm and suicide prevention, harm reduction in relation to drug use, the prevention treatment and care of HIV-AIDS, Hepatitis B and C and other blood-borne infections and the prevention and treatment of tuberculosis, especially multi-drug resistant tuberculosis. The ethical dilemmas and responsibilities of prison health staff are another key area for training.
Focus should also be given to the particular health care needs of female detainees, to minors, persons with disabilities and mental health-care needs, and LGBTI detainees. Prisons are also increasingly housing older detainees who require special attention and even adaptation of the facilities. Thus, the health staff must also become versed in health care for the elderly.
In-depth training must be provided, especially for physicians, in the examination and documentation of cases of torture and other ill-treatment according to the United Nations Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Istanbul Protocol”). Mechanisms must be put in place to allow such cases to be reported to independent and impartial bodies so as to ensure protection of the victim from reprisals and intimidation.
Monitoring and oversight of the level of health care provision and professional and ethical standards should be done by a body independent from the prisons. Ideally, by integrating the prison health service into the national health service, the Ministry of Health would take on the supervisory and monitoring role. The Ministry of Health should also ensure ongoing training and professional exchange with health colleagues in the community since working in prisons can lead to professional isolation.
Training in basic first aid should be provided to Prison guards since they will most often be the first responders to emergencies in the prison cells or sections. Prison health staff or external organisations such as national Red Cross or Red Crescent societies should provide regular refresher courses. Prison staff should also be trained in basic health promotion and prevention of disease so as to reinforce messages given by the prison health staff.
Dual loyalties of health care staff
Prison health staff are often employed by the Ministry responsible for prisons (usually the Ministry of Justice, but sometimes the Ministry of Interior) and therefore may feel subordinate to these authorities. However, the main duty of the health staff must be to the protection and promotion of the health of the detainees. Health care must be provided in full professional independence, without discrimination and with the autonomy and informed consent of the detainee-patient. Careful attention must be given to the ethical obligations to detainee-patients and awareness of, and approach to, situations of dual loyalties.
Common areas where this arises may be the request for medical clearance for the infliction of punishments, monitoring of detainees in solitary confinement, and the role of health care staff in hunger strikes and force feeding. Health care staff must never be involved in assessing fitness for, approving or inflicting disciplinary punishments. Similarly the prison health staff should not be involved in intimate body searches (body cavity searches) of detainees, which is a security function and not a health care matter. Where intimate body searches are authorized by law they should be performed by non-prison health staff so as not to interfere with the trust between the detainees and the prison health staff.
Health care staff and in particular physicians, have a particular obligation to document and report cases of ill-treatment that may have occurred before or after arrival in the place of detention.
One important measure to prevent and protect against such ethical dilemmas in prisons is the integration of the prison health service into the national health service. This will guard the professional and ethical independence of the health staff, as well as providing recourse to an independent body in case of conflicts.
Legal Standards
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
Rule 25
1. 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.
2. The health-care service shall consist of an interdisciplinary team with sufficient qualified personnel acting in full clinical independence and shall encompass sufficient expertise in psychology and psychiatry. The services of a qualified dentist shall be available to every prisoner.
Rule 27.2
Clinical decisions may only be taken by the responsible health-care professionals and may not be overruled or ignored by non-medical prison staff.
Rule 32
1. The relationship between the physician or other health-care professionals and the prisoners shall be governed by the same ethical and professional standards as those applicable to patients in the community, in particular:
(a) The duty of protecting prisoners’ physical and mental health and the prevention and treatment of disease on the basis of clinical grounds only;
(b) Adherence to prisoners’ autonomy with regard to their own health and informed consent in the doctor-patient relationship;
(c) The confidentiality of medical information, unless maintaining such confidentiality would result in a real and imminent threat to the patient or to others;
(d) An absolute prohibition on engaging, actively or passively, in acts that may constitute torture or other cruel, inhuman or degrading treatment or punishment, including medical or scientific experimentation that may be detrimental to a prisoner’s health, such as the removal of a prisoner’s cells, body tissues or organs.
2. Without prejudice to paragraph 1 (d) of this rule, prisoners may be allowed, upon their free and informed consent and in accordance with applicable law, to participate in clinical trials and other health research accessible in the community if these are expected to produce a direct and significant benefit to their health, and to donate cells, body tissues or organs to a relative.
Rule 33
The physician shall report to the prison director whenever he or she considers that a prisoner’s physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.
Rule 34
If, in the course of examining a prisoner upon admission or providing medical care to the prisoner thereafter, health-care professionals become aware of any signs of torture or other cruel, inhuman or degrading treatment or punishment, they shall document and report such cases to the competent medical, administrative or judicial authority. Proper procedural safeguards shall be followed in order not to expose the prisoner or associated persons to foreseeable risk of harm.
Rule 35
1. The physician or competent public health body shall regularly inspect and advise the prison director on:
(a) The quantity, quality, preparation and service of food;
(b) The hygiene and cleanliness of the institution and the prisoners;
(c) The sanitation, temperature, lighting and ventilation of the prison;
(d) The suitability and cleanliness of the prisoners’ clothing and bedding;
(e) The observance of the rules concerning physical education and sports, in cases where there is no technical personnel in charge of these activities.
2. The prison director shall take into consideration the advice and reports provided in accordance with paragraph 1 of this rule and rule 33 and shall take immediate steps to give effect to the advice and the recommendations in the reports. If the advice or recommendations do not fall within the prison director’s competence or if he or she does not concur with them, the director shall immediately submit to a higher authority his or her own report and the advice or recommendations of the physician or competent public health body.
Rule 46
1. Health-care personnel shall not have any role in the imposition of disciplinary sanctions or other restrictive measures. They shall, however, pay particular attention to the health of prisoners held under any form of involuntary separation, including by visiting such prisoners on a daily basis and providing prompt medical assistance and treatment at the request of such prisoners or prison staff.
2. Health-care personnel shall report to the prison director, without delay, any adverse effect of disciplinary sanctions or other restrictive measures on the physical or mental health of a prisoner subjected to such sanctions or measures and shall advise the director if they consider it necessary to terminate or alter them for physical or mental health reasons.
3. Health-care personnel shall have the authority to review and recommend changes to the involuntary separation of a prisoner in order to ensure that such separation does not exacerbate the medical condition or mental or physical disability of the prisoner.
Rule 47
1. The use of chains, irons or other instruments of restraint which are inherently degrading or painful shall be prohibited.
2. Other instruments of restraint shall only be used when authorized by law and in the following circumstances:
(a) As a precaution against escape during a transfer, provided that they are removed when the prisoner appears before a judicial or administrative authority;
(b) By order of the prison director, if other methods of control fail, in order to prevent a prisoner from injuring himself or herself or others or from damaging property; in such instances, the director shall immediately alert the physician or other qualified health-care professionals and report to the higher administrative authority.
Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Principle 4
It is a contravention of medical ethics for health personnel, particularly physicians:
a) To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments;
b) To certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments.
European prison rules
Rule 41.1
Every prison shall have the services of at least one qualified general medical practitioner.
Rule 41.2
Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.
Rule 41.3
Where prisons do not have a full-time medical practitioner, a part-time medical practitioner shall visit regularly.
Rule 41.4
Every prison shall have personnel suitably trained in health care.
Rule 41.5
The services of qualified dentists and opticians shall be available to every prisoner.
Recommendation n° R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organisational aspects of Health Care in Prison
Paragraph 34
Prison doctors should be well versed in both general and psychiatric disorders. Their training should comprise the acquisition of initial theoretical knowledge, an understanding of the prison environment and its effects on medical practice in prison, an assessment of their skills, and a traineeship under the supervision of a more senior colleague. They should also be provided with regular in-service training.
Paragraph 35
Appropriate training should also be provided to other health care staff and should include knowledge about the functioning of prisons and relevant prison regulations.
Extract from the 3rd General Report on the CPT's activities [CPT/Inf (93) 12]
Paragraph 71
The health-care staff in any prison is potentially a staff at risk. Their duty to care for their patients (sick prisoners) may often enter into conflict with considerations of prison management and security. This can give rise to difficult ethical questions and choices. In order to guarantee their independence in health-care matters, the CPT considers it important that such personnel should be aligned as closely as possible with the mainstream of health-care provision in the community at large.
Paragraph 72
Whatever the formal position under which a prison doctor carries on his activity, his clinical decisions should be governed only by medical criteria […].
Paragraph 73
A prison doctor acts as a patient's personal doctor. Consequently, in the interests of safeguarding the doctor/patient relationship, he should not be asked to certify that a prisoner is fit to undergo punishment. Nor should he carry out any body searches or examinations requested by an authority, except in an emergency when no other doctor can be called in.
Paragraph 75
Prison doctors and nurses should possess specialist knowledge enabling them to deal with the particular forms of prison pathology and adapt their treatment methods to the conditions imposed by detention.
Questions for Monitors
How many staff are based at the prison (physician(s), nurse(s), psychiatrist(s), psychologist(s), dentist(s))?
Which days are they present? (How many days per week? What schedule?)
What are health care staff qualifications and competencies?
Are prison staff paid on an equivalent level to health staff in the community?
Do hospital specialists visit the prison?
Do gynaecologists visit women detainees? If so, on what frequency?
Do paediatricians visit minors? If so, on what frequency?
How are health staff recruited?
What initial and ongoing training do health staff undergo?
Are there regular exchanges with the community health services for support and training?
Are there mechanisms in place for the documentation and reporting of cases of torture or ill-treatment?
Are prison health staff under the Ministry responsible for the prisons or the Ministry of Health?
Are prison health staff trained specifically in ethical dilemmas that they may face in prisons?
Do health staff have any role in security or disciplinary measures within the prison?
Further Reading
Dual Loyalty and Human Rights In Health Professional Practice; Proposed Guidelines & Institutional Mechanisms. A Project of the International Dual Loyalty Working Group Guidelines for Prison, Detention and Other Custodial Settings. 2002, Physicians for Human Rights and School of Public Health and Primary Health Care, University of Cape Town, Health Sciences Faculty