Towards Equivalent Health Care of Prisoners: European Soft Law and Public Health Policy in Geneva

Journal of Public Health Policy,  2008  by Elger, Bernice S

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ABSTRACT

Prisoners have a right to health care and to be protected against inhumane and degrading treatment. Health care personnel and public policy makers play a central role in the protection of these rights and in the pursuit of public health goals. This article examines the legal framework for prison medicine in the canton of Geneva, Switzerland and provides examples of this framework that has shaped prisoners' medical care, including preventive measures. Geneva constitutes an intriguing example of how the Council of Europe standards concerning prison medicine have acquired a legal role in a Swiss canton. Learning how these factors have influenced implementation of prison medicine standards in Geneva may be helpful to public health managers elsewhere and encourage the use of similar strategies.

Journal of Public Health Policy (2008) 29, 192-206.

doi:10.1057/jphp.2008.6

Keywords: prison, human rights, international law, public health

INTRODUCTION

Human rights law goes behind prison walls (We employ the following terminology: prison medicine in its British meaning is used synonymously with the German expression "intramural medicine" and the US term "correctional health care". When we refer to "prisons" this term is meant to include all places of detention including police stations, remand prisons (US: jails), or penitentiaries (US: prisons). A prisoner is any person detained in any of these facilities.). Prisoners have a right to health care and the right to be protected against inhumane and degrading treatment. Health care personnel and public health authorities play a central role in the protection of these rights and in the pursuit of public health goals (1). Everywhere, however, the local legal context influences their actions significantly. The example of the Swiss federal democracy shows how health professionals have been able to exert critical influence on the legal framework in a small canton, winning powerful legal protection for prisoners' rights and realising key public health objectives.

This article examines the canton of Geneva's legal framework for prison medicine and presents examples of how the legal framework has shaped medical care provided to prisoners, including preventive health care measures in line with internationally recognised public health strategies. How have the Council of Europe standards on prison medicine acquired a legal basis in a Swiss canton? Demonstrating which factors have influenced prison medicine standards and their implementation in Geneva might help public health managers elsewhere encourage the use of similar strategies. We describe legally relevant international provisions concerning health care for prisoners enacted by the United Nations and the Council of Europe, followed by a history and synopsis of the Geneva legal framework, enriched with examples to show how the legal framework has influenced health care.

THE INTERNATIONAL LEGAL CONTEXT (UNITED NATIONS, EUROPE)

The United Nations has adopted several recommendations that deal with prisoners' rights to health care. It should be noted that it took the UN system a long time to correct its blind spot concerning prisoners, neglecting the problem of prisoner rights until the 19808. The AIDS pandemic and its dramatic effects within prisons seemed to trigger change. The WHO's 1987 statement on AIDS in prison came close to the principle of equivalence (z). Lack of enforcement of UN recommendations has remained a problem. These quasi-legal instruments, from the UN or the Council of Europe, are often called "soft law" because they are not legally binding, in contrast to conventions that have been ratified by a state.

The corpus of UN soft law (3-11) includes the Basic Principles for the Treatment of Prisoners (11) as well as the Principles of Medical Ethics relevant to the Role of Health Personnel (7). Both article 9 of the Basic Principles for the Treatment of Prisoners as well as principle 1 of the Principles of Medical Ethics relevant to the Role of Health Personnel affirm the principle of equivalence of health care, which means that "[prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation (11)".

Furthermore, the Principles of Medical Ethics relevant to the Role of Health Personnel prohibit the involvement of health care personnel in any form of torture or other cruel, inhuman, or degrading treatment or punishment (principle 2), as well as involvement "in any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental health" (principle 3). Physicians are not allowed to "assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health" (principle 43), nor 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 (principle 4b). Further, the United Nations proscribes physician participation "in any procedure for restraining a prisoner or detainee unless such a procedure is determined in accordance with purely medical criteria" (principle 5) and insists in principle 6 that "[t]here may be no derogation from the foregoing principles on any ground whatsoever, including public emergency" (7).