ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES Should a direct link be found between the conduct and the prisoner’s ‘mental illness or psychosocial disability’,291 then no sanction may be imposed, in line with Rule 39(3). The Rule seeks to account for limitations persons with disabilities might have in regulating independently their behaviour in relation to obeying a norm. The participants recommended that any suspicion that mental health problems may have contributed to an infraction should trigger a process which involves consultation with relevant staff, such as psychologists and medical staff. When external medical practitioners are consulted on a prisoner’s mental health status or intellectual or psychosocial disability in relation to a disciplinary infraction, the reasons for the consultation and their role within that process must be made clear to them. The participants stressed that such assessments should be inter-disciplinary and should take into account the psycho-social condition of the prisoner. In this context, the experts recalled Rule 46, according to which ‘[h]ealth-care personnel shall not have any role in the imposition of disciplinary sanctions or other restrictive measures’. (See Chapter 4, Health-care – medical ethics) It was noted that in a well-functioning prison system, prison officials are aware of physical, mental, intellectual or sensory illnesses or disabilities of prisoners, as they are required to ensure their full and effective participation, inclusion and access to prison life in line with Article 3(c) of the CRPD and Rules 5(2) of the Nelson Mandela Rules. The Essex group recalled the confidentiality of medical records (Rule 26), but noted the recognised practice of information being provided to prison staff on a need-to-know basis, which protects privacy and confidentiality of sensitive information while enabling prison staff to fulfil their task, including provision for individual needs of prisoners in line with Rule 2(2). The participants suggested that it may be useful to consult prison staff who are familiar with the prisoner alleged to have committed an infraction, especially in a dynamic security setting, which is based on frequent interaction and constructive relationships with prisoners. (See Chapter 2, Prison management) Procedural rights in disciplinary proceedings The experts clarified that the ‘principles of fairness and due process’ (Rule 39(1)) must be interpreted in line with the principles reflected in Article 14 of the International Convention on Civil and Political Rights (ICCPR). They drew on guidance provided by international human rights instruments, bodies and jurisprudence to list the following, non-exclusive elements of due process in disciplinary proceedings: •  information about the charges •  right to defence •  legal representation 291  The experts expressed their preference for the terminology used in the UN Convention on the Rights of Persons with Disabilities (CRPD) (‘person with disability’) as the internationally agreed and less ambiguous term. Penal Reform International and the Essex Human Rights Centre | 81