“A Duty to Protect” Prisoners’ Rights to Health in International Human Rights Law

“A Duty to Protect”Prisoners’ Rights to Health in International Human Rights Law Rick Lines, MA Irish Penal Reform Trust Irish Centre for Human Rights International Prisoner Health Conference Tallinn, Estonia 20 June 2006

Thanks Prof. William A. Schabas Dr. Kathleen Cavanaugh Irish Centre for Human Rights

The late Act for Preserving the Health of Prisoners requires that an experienced Surgeon or Apothecary be appointed to every gaol: a man of repute in his profession. His business is, in the first place, to order the immediate removal of the sick, to the infirmary; and see that they have proper bedding and attendance. Their irons should be taken off; and they should have, not only medicines, but also diet suitable to their condition. He must diligently and daily visit them himself; not leaving them to journeymen and apprentices. He should constantly inculcate the necessity of cleanliness and fresh air; and the danger of crowding prisoners together: and he should recommend, what he cannot enforce. I need not add, that according to the Act, he must report to the justices at each quarter-sessions, the state of health of the prisoners under his care. John Howard The State of Prisons in England and Wales 4th edition, 1777

The late Act for Preserving the Health of Prisonersrequires that an experienced Surgeon or Apothecary be appointed to every gaol: a man of repute in his profession. His business is, in the first place, to order the immediate removal of the sick, to the infirmary; and see that they have proper bedding and attendance. Their irons should be taken off; and they should have, not only medicines, but also diet suitable to their condition. He must diligently and daily visit them himself; not leaving them to journeymen and apprentices. He should constantly inculcate the necessity of cleanliness and fresh air; and the danger of crowding prisoners together: and he should recommend, what he cannot enforce. I need not add, that according to the act, he must report to the justices at each quarter-sessions, the state of health of the prisoners under his care. John Howard The State of Prisons in England and Wales 4th edition, 1777

The late Act for Preserving the Health of Prisoners requires that an experienced Surgeon or Apothecary be appointed to every gaol: a man of repute in his profession. His business is, in the first place, to order the immediate removal of the sick, to the infirmary; and see that they have proper bedding and attendance. Their irons should be taken off; and they should have, not only medicines, but also diet suitable to their condition. He must diligently and daily visit them himself; not leaving them to journeymen and apprentices. He should constantly inculcate the necessity of cleanliness and fresh air; and the danger of crowding prisoners together: and he should recommend, what he cannot enforce. I need not add, that according to the act, he must report to the justices at each quarter-sessions, the state of health of the prisoners under his care. John Howard The State of Prisons in England and Wales 4th edition, 1777

The late Act for Preserving the Health of Prisoners requires that an experienced Surgeon or Apothecary be appointed to every gaol: a man of repute in his profession. His business is, in the first place, to order the immediate removal of the sick, to the infirmary; and see that they have proper bedding and attendance. Their irons should be taken off; and they should have, not only medicines, but also diet suitable to their condition. He must diligently and daily visit them himself; not leaving them to journeymen and apprentices. He should constantly inculcate the necessity of cleanliness and fresh air; and the DANGER of crowding prisoners together: and he should recommend, what he cannot enforce. I need not add, that according to the act, he must report to the justices at each quarter-sessions, the state of health of the prisoners under his care. John Howard The State of Prisons in England and Wales 4th edition, 1777

The late Act for Preserving the Health of Prisoners requires that an experienced Surgeon or Apothecary be appointed to every gaol: a man of repute in his profession. His business is, in the first place, to order the immediate removal of the sick, to the infirmary; and see that they have proper bedding and attendance. Their irons should be taken off; and they should have, not only medicines, but also diet suitable to their condition. He must diligently and daily visit them himself; not leaving them to journeymen and apprentices. He should constantly inculcate the necessity of cleanliness and fresh air; and the danger of crowding prisoners together: and he should recommend, what he cannot enforce. I need not add, that according to the act, he must report to the justices at each quarter-sessions, the state of health of the prisoners under his care. John Howard The State of Prisons in England and Wales 4th edition, 1777

Context of the Right to Health in Prisons • Universal human rights • Rights of persons deprived of liberty • Physical and mental health • Environmental health • Rights of individuals • Obligations of States

International Human Rights Law • United Nations System • International Covenant on Economic, Social and Cultural Rights • Committee on Economic, Social and Cultural Rights • Convention on the Elimination of All Forms of Discrimination against Women • Convention on the Rights of the Child • International Covenant on Civil and Political Rights • Human Rights Committee • European System • European Convention on Human Rights • European Court of Human Rights • African System • African Charter on Human and Peoples’ Rights • African Commission on Human and Peoples’ Rights • Inter-American System • American Declaration of the Rights and Duties of Man • Inter-American Commission on Human Rights • American Convention on Human Rights • Inter-American Court of Human Rights

Constitution of the World Health Organization (1946) “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

The Right to Health: The UN Human Rights System Covenant on Economic, Social and Cultural Rights • Article 12 – “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” Convention on the Elimination of All Forms of Discrimination against Women • Article 12 – “take all appropriate measures to eliminate discrimination against women in the field of health care” Convention on the Rights of the Child • Article 24 – “the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.”

The Right to Health: Regional Human Rights Systems African Charter • Article 16 – “the right to enjoy the best attainable state of physical and mental health” American Declaration • Article XI – “the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources” Optional Protocol of the American Convention • Article 10 – “the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being.” European Convention • No explicit right to health • Right to health guaranteed instead in the European Social Charter

Interpreting the right to health for prisoners UN Human Rights Committee General Comment No. 21 (1994) Persons deprived of their liberty may not be “subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment.”[emphasis added]

Interpreting the right to health for prisoners UN Committee on Economic, Social, and Cultural Rights General Comment No. 14 (2000) “States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees…to preventive, curative and palliativehealth services”[boldface added]

The Prohibition of Inhuman or Degrading Treatment in International Human Rights Law International Covenant on Civil and Political Rights • Articles 7 and 10 European Convention • Article 3 African Charter • Article 5 Inter-American Convention • Article 5 American Declaration • Article 25

Obligations Imposed upon States • Negative Obligations – obligation to refrain from inflicting harm on persons in detention (usually applied to torture, beatings, etc.) • Positive Obligations – obligation to protect the well-being of people in detention

Positive Obligations on States in International Law • UN Human Rights Committee– Article 10 of the ICCPR “imposes upon States parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of their liberty.” • African Commission on Human Rights– “obligation to guarantee the…right to the respect of his dignity and freedom from inhuman and degrading treatment under Article 5.” • Inter-American Court of Human Rights– “the State must guarantee to [personsderprived of liberty] the right to life and to humane treatment….[S]ince the State is the institutionresponsible for detention establishments, it is the guarantor of these rights of the prisoners.”

The “positive obligation” to protect health in the European Convention Article 3 imposes upon States: • a “duty to protect” the well-being of people in detention[Keenan v UK (2001)] • “a positive obligation to protect the physical well-being of persons deprived of their liberty”[Hurtado v Switzerland(1994)] • an obligation “to take the practical preventive measures necessary to protect the physical integrity and the health of persons who have been deprived of their liberty”[Pantea v Romania (2003)] • an obligation to “do everything that could reasonably [be] expected…to prevent the occurrence of a definite and immediate risk to [a prisoner’s] physical integrity, of which [the authorities] knew or should have known”[Pantea v Romania (2003)]

The “positive obligation” to protect health in the European Convention • States’ obligations apply regardless of the conduct of the prisoner, even if that conduct is illegal [McFeeley v UK (1981), Chahal v UK(1996),Kudla v Poland (2000), Novoselov v Russia (2005)] • The “duty to protect” the physical integrity of people deprived of liberty includes the obligation to provide them with health care [Hurtado vSwitzerland (1994),Kudla v Poland (2000)] • State’s positive obligations are increased in cases where the person is deemed especially vulnerable (i.e, mental illness, physical disability) [Price v UK(2001),Keenan v UK(2001),Pantea v Romania (2003)]

European Committee for thePrevention of Torture (1993) “An inadequate level of health care can lead rapidly to situations falling within the scope of the term ‘inhuman and degrading treatment’.”

The failure to provide adequate medical care to persons in detention has been found to constitute inhuman or degrading treatment in all international human rights systems.

Environmental Health in Prisons The right to a healthy environment is explicitly articulated in several international human rights treaties • International Covenant on Economic, Social and Cultural Rights • Article 12(2)(c) – “The improvement of all aspects of environmental and industrial hygiene” • Article 11(1) – “the right of everyone to an adequate standard of living..including adequate food, clothing and housing, and to the continuous improvement of living conditions.” • UN Convention on the Rights of the Child • Article 24(2)(c) – “the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution” • American Declaration on the Rights and Duties of Man • Article XI – “the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing” • Optional Protocol of the American Convention on Human Rights • Article 11 – “the right to live in a healthy environment”

Environmental Health in Prisons UN Committee on Economic, Social, and Cultural Rights General Comment No. 14 (2000) “the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safeand potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.” [emphasis added]

Environmental Health in Prisons Consensus among all four human rights systems that the following environmental factors in prisons contribute to conditions that constitute inhuman or degrading treatment, and therefore violate international law • Overcrowding • Inadequate toilet facilites • Inadequate cleanliness and hygeine • Lack of natural light or proper ventilation • Poor quality or inadequate diet

Advocating for prisoners’ right to health “People in prison have the same right to health as people outside, and the lives and health of people in prison are connected to those of people outside prison in many ways.If we protect them, we also protect our broader communities.” Dublin Declaration on HIV/AIDS in Prisons in Europe and Central Asia February 2004 Kamiti Prison Nairobi, Kenya - 2005

Contact Information Rick Lines rlines@iprt.ie Irish Penal Reform Trust www.iprt.ie Irish Centre for Human Rights www.nuigalway.ie/human_rights

“A Duty to Protect” Prisoners’ Rights to Health in International Human Rights Law