6. HEALTH-CARE HOW SHOULD HEALTH-CARE BE ORGANIZED IN PRISONS? INDEPENDENCE OF HEALTH-CARE STAFF [6.1] Health-care staff operating in prisons should be independent of the prison administration to ensure that clinical and any health assessments of detainees are based solely on medical criteria. To guarantee the independence of physicians practicing in a police or prison setting, direct hierarchical or even contractual relationships with prison management should be avoided. Nursing staff may only receive medical instructions from the attending physician. Irrespective of their conditions of employment (whether they are a civil servant, public employee or private contractor), physicians must always be independent of police or prison authorities. The WHO and UNODC argue that the best way to safeguard the independence of health-care staff is to ensure that they are employed by health-care authorities rather than correctional authorities.334 The WMA states that individual physicians should “have the freedom to exercise their professional judgment in the care and treatment of their patients without undue influence by outside parties or individuals” and that “clinical independence [is] not only [important] as an essential component of high quality medical care and therefore a benefit to the patient that must be preserved, but also as an essential principle of medical professionalism”.335 6 If health-care staff are not independent of prison management, they may experience a conflict of interest and feel a greater sense of duty towards the prison administration, as their employer, than the patient. They may also operate in fear of negative consequences, including dismissal, if they do not comply with requests from prison staff, and may themselves be subjected to retaliatory actions. 144 The independence of health-care staff is crucial for prisoners to feel that they can trust the health-care provider regarding their health conditions, but can also speak to them openly to report torture or other ill‑treatment. If health-care staff are directly employed by the prison service, or if they appear to be overly friendly with regular prison staff, prisoners are unlikely to trust them, particularly if they have been ill-treated by prison staff. STATE RESPONSIBILITY [6.2] The provision of health-care for prisoners is a responsibility of the state. States bear a particular duty of care for those detained because prisoners have no alternative but to rely on prison authorities to promote and protect their health. Prisoners, as human beings, retain their right to health enshrined in Article 12 of the ICCPR and Principle 9 of the Basic Principles for the treatment of Prisoners. The WHO and UNODC have pointed out that “the management and coordination of all relevant agencies and resources contributing to the health and wellbeing of prisoners is a whole-of-government responsibility” and that “health ministries should provide and be accountable for health-care services in prisons and advocate healthy prison conditions”.336 EQUIVALENCE OF HEALTH-CARE [6.3] Health-care professionals themselves have a duty to provide equivalence of care, meaning that they must provide the same standard of health-care a prisoner could expect to receive in the outside world. As is explained in the UN Principles of Medical Ethics “[h]ealth personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained”.337 If prison administrations are to provide the same standards of health-care available in the outside world, then they must be able to employ sufficient numbers of suitably trained staff. 334 335 336 337 334. Good Governance for Prison Health in the 21st Century: A policy brief on the organization of prison health, United Nations Office on Drugs and Crime (UNODC) and World Health Organization (WHO), 2013. 335. Declaration of Seoul on Professional Autonomy and Clinical Independence, 59th World Medical Association General Assembly, October 2008 at www.wma.net/policies-post/wma-declaration-of-seoul-on-professional-autonomy-and-clinical-independence. 336. Good Governance for Prison Health in the 21st Century, UNODC and WHO, op. cit., note 334, p. viii. 337. 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, General Assembly resolution 37/194, 18 December 1982, Principle 1. Guidance document on the Nelson Mandela Rules