ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES When read together with Rule 25, the Essex Group suggested that a clear way to understand the requirement to provide health-care free of charge is to understand it as all treatment and medicine that a qualified clinician deems necessary. Medical necessity can only be determined by medical staff and on a case-by-case basis (see Rule 27(2)). Rule 24 should therefore be read together with Rules 30(a) and 25(2) on clinical independence; Rule 27(2) providing that clinical decisions are the sole province of health-care professionals; and Rule 32(1) providing that treatment can only be based on clinical grounds. The Essex Group noted that ‘necessary’ does not refer only to life-saving treatment, procedures or basic healthcare. Rather, it refers to the care that is necessary to maintain the established health needs of the prisoner238 in line with Rule 25 and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment239. The Essex Group noted that Rule 24(1) requires that free health-care is provided ‘without discrimination on the grounds of their legal status’.240 The experts pointed to the particular risk to non-national prisoners and pre-trial detainees and underscored that the requirement to provide health-care free of charge applies to all prisoners without distinction on grounds of nationality or otherwise. The Essex Group pointed out that prisoners’ health problems can be aggravated by the prison facilities. Therefore, Rule 24 should be read together with the obligation of the prison administration to ensure that prisons are safe as set out in Rules 12, 13 and 35 by ensuring that the prison is maintained in a way that does not worsen or aggravate prisoners’ health. Medical Ethics The Essex Group recalled that informed consent, patient autonomy and confidentiality are key components of the right to health and the cornerstones of a trustful patient-doctor relationship which is also a precondition for effective public health. Rule 32(1) provides that the same ethical and professional standards shall apply to the relationship between the doctor and the prisoner-patient as between the doctor and the patient in the community241. Rule 31(1)(d) also sets out, ‘[a]n 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’. Council of Europe: Committee of Ministers, Recommendation No. R (98) 7 of the Committee of Ministers to member states concerning the ethical and organisational aspects of health care in prison, 1998 (available at: https://rm.coe. int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804fb13c ) makes clear that “necessary” refers to established health needs of individual prisoners according to their right to health, see: Main characteristics of the right to health care in prison. A. Access to a doctor. 2. “In order to satisfy the health requirements of the inmates, doctors and qualified nurses should be available (..), depending on the number and the turnover of inmates and their average state of health.” 238  Council of Europe: European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CPT standards, 2015 (CPT/Inf/E (2002) 1 - Rev. 2015) Standard on Health care services in prisons, No. 30 p. 38: “An inadequate level of health care can lead rapidly to situations falling within the scope of the term ‘inhuman and degrading treatment’”. Available at: http://www.cpt.coe.int/en/documents/eng-standards.pdf (CPT Standards) 239  UN Committee against Torture, Observations of the Committee on the revision of the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMR), 16 December 2013, UN-Doc. CAT/C/51/4, para. 24 (CAT SMR revision observations). 240  The World Medical Association (WMA) gives a good collection of useful resources regarding Medical Ethics. See: http://www.wma.net/en/20activities/10ethics/ 241  Penal Reform International and the Essex Human Rights Centre | 66