Medical ethics in prisons: Issues concerning patients, doctors, and facilities from the perspective of international standards
People being held in penal detention facilities encounter injury and disease in their daily lives just like ordinary members of society. What becomes important in such cases is the healthcare system, and the “Act on Penal Detention Facilities and Treatment of Inmates and Detainees” stipulates that “hygienic and medical measures adequate in light of the public standards of hygiene and medical care shall be taken in order to maintain the health of the inmates and the hygiene inside the penal institutions.” Here I would like to examine the nature of appropriate medical care in penal detention facilities, drawing on the guidelines and declarations issued by the United Nations and the World Medical Association.
-  For reasons of space full citations have been omitted here. For details please see Aizawa (2017)
The rights of detainees as patients and the obligations of doctors
In ordinary society, doctors have an obligation to respect the lives of their patients and act in their best interests. According to the WMA, the obligation of doctors to their patients requires acting on the basis of a higher standard than the law, and demands that doctors disobey laws that compel unethical behavior. This organization also asserts that patients have the right to receive medical care in accordance with their best interests on the basis of their own judgment.
This relationship between the obligations of doctors and the rights of patients can also be deemed valid within penal detention facilities. The United Nations’ “Mandela Rules” (MRs) state that the “relationship between the physician or other health-care professionals and the prisoners shall be governed by the same ethical and professional standards as those applicable to patients in the community.” This uniformity between medical care in penal detention facilities and ordinary society is particularly important when it comes to access to medical care, standards of care, confidentiality, and patient consent.
Detainee access to medical care is often fraught with difficulties in penal detention facilities. The Council of Europe asserts that detainees in penal institutions must always have access to a doctor, regardless of the detention system or their legal status. The European Committee for the Prevention of Torture (CPT) holds that access must be guaranteed in each of the following cases: a health examination upon entering a facility, when treatment is desired, and emergency response/follow-up care.
The consistency of medical ethics also means a consistent standard of medical care. The CPT asserts that an inadequate level of medical care can directly lead to “inhuman and degrading treatment,” and that there must be “equivalent conditions” to those in the outside community. The MRs state that these must be to the “same standards” available in the outside community, and the European Prison Rules stipulate that “health policy in prisons shall be integrated into, and compatible with, national health policy.” Close cooperation with ordinary hospitals on the outside is emphasized in order to secure this uniformity of medical care.
The duty of confidentiality concerning health care must also be respected and maintained just as strictly as it is in regard to ordinary citizens. The CE requires measures such as highly confidential methods of requesting treatment (e.g. sealed envelopes), the prohibition of screenings by non-medical personnel, the principle of individual treatment, and the prohibition of non-medical personnel being present in the room during treatment, as well as the management of health care information by doctors.
In addition, patient consent to medical procedures is required even in the case of treatment inside penal detention facilities. The MRs require strict protection of detainee autonomy regarding health and observance of informed consent between patients and doctors. One issue that can be particularly problematic in this regard within penal detention facilities is detainee hunger strikes. Here an ethical conflict arises between the patient’s right to self-determination regarding their own body (and right to self-expression based on it) and the doctor’s duty to protect life in regard to their patient. The legal system of most European countries and fundamental principles of international medical ethics hold that an adult with the capacity for judgment can refuse medical measures even if these measures are intended to save their life. Of course, such patients are not simply “left to die,” and there are detailed protocols spelled out by the WMA and other bodies, including measures such as an evaluation of the mental capacity of the person in question by a doctor, confirmation of their medical history, confidential and ongoing communication, prohibition of inappropriate pressure, confirmation of their intent, and the prohibition of forced feeding. Careful deliberation is required in order to reconcile a doctor’s duty of care with a patient’s self-determination.
Autonomy/independence of medical professionals
In addition to these issues between patients (detainees) and doctors, difficult problems regarding medical care in penal detention facilities have also been identified in the relationship between doctors and facilities (the authorities). These problems arise because there are often cases in which health care professionals’ duty of care comes into conflict with the management and security of the facility or even considerations of the safety of society. As a result, the judgment of doctors and other such professionals is subject to negotiation with the facility and the risk of pressure being applied from that side. It is easy for this kind of “dual loyalty” to arise when doctors belong to an organization whose aims differ from the original purpose of their profession. Typical instances of this kind of role include military doctors, industry doctors, and penal detention facility doctors.
The international dual loyalty working group prohibits the involvement of doctors in the execution process, and United Nations medical ethics principles prohibit doctors from applying their medical knowledge to interrogation. The WMA also prohibits doctor participation in the process of determining disciplinary punishment. In collaboration with the national doctors’ associations of various countries the WMA has also called for protection to be given to doctors facing threats or retaliation for refusing to cooperate in torture or other unethical activities. Doctors should always pursue their patients’ best interests, and their professional autonomy and the independence of their field must be secured.
I also believe that this autonomy and independence should be secured for other professions outside of medicine. Recently in Japan human service professionals have become involved in the treatment of offenders, and I think care must be taken to ensure they are able to perform the duties of their profession autonomously/independently without becoming merely “subcontractors of the judiciary.”
The gist of the above can be summarized as, “even inside penal detention facilities, doctors are doctors and patients are patients.” In the special environment of a detention facility, however, special (often painstaking) measures must be taken to provide normal medical care. The following are what I think are the most plausible criticisms that can be made of this stance.
First, there is the criticism that the standards laid out above are too idealistic, and lack a sense of reality. The standards being demanded are indeed high, but there are countries in which these kinds of reforms are actually being implemented. In France, for example, in 1994 responsibility for medical care in detention facilities was transferred from the Ministry of Justice to the Ministry of Social Affairs and Health, and was made consistent with ordinary medical care. Following this, local hospital clinics were set up inside penal detention facilities, and doctors from these hospitals started treating patients directly. Secure wards were added to major hospitals outside of detention facilities, and a system was put in place for patients requiring long-term hospitalization. Convicts are enrolled in the same health insurance as ordinary citizens when they enter a penal detention facility, and this enrollment is maintained for a certain period after their release. These sorts of reforms aimed at providing ordinary medical care in penal detention facilities have also been pursued in other countries such as Norway, the U.K., and Taiwan.
Second, there is the criticism that this kind of system that can be seen as “special treatment” cannot receive the “understanding” and “approval” of the general public. In response it has been argued that healthcare is a basic human right, and must be guaranteed regardless of public opinion, but here I think it is also possible to question whether the lack of public “understanding” and “approval” this criticism assumes reflects the actual state of affairs. According to a survey I conducted in 2017 (n=725), for example, regarding the “appropriate” standard of medical care in penal detention facilities, 54% of respondents said it should be “the same standard” as in ordinary society (40% answered “a lower standard”), and 44% “approved” of convicts entering the public medical insurance system (17% “opposed”). Putting aside a detailed analysis for the time being, at very least these results suggest it cannot necessarily be said that “understanding” and “approval” cannot be obtained regarding such reforms.
-  An outline of this survey will be published in “18th Conference Workshop: 3 issues concerning the lack of advancement of reforms and public awareness regarding human rights – On the potential of research and education,” Japanese Journal of Law and Psychology, Volume 18 Number 1 (to be published in 2018).
Of course, I have no doubt that there are various real obstacles standing in the way of the reform of medical care in penal detention facilities. Nevertheless, health care is a crucial benefit no one can do without, and a basic human right that cannot be taken away even in the application of punishment. While drawing on the practices observed in other countries, we must undertake the work of bridging the gap between ideals and a properly understood reality. Along with being a task I myself must engage in going forward, it is also a domain that requires the collaborative research of professionals and practitioners in a wide range of fields.
- AIZAWA, I. (2017). International Standards of Medical Ethics in Prison, Ritsumeikan journal of human sciences, 36：55-66
- Lehtmets, A. and Pönt, J.（2014）Prison health care and medical ethics. A manual for health-care workers and other prison staff with responsibility for prisoners’ well-being. Strasbourg: Council of Europe（https://rm.coe.int/publications-healthcare-manual-web-a5-e/16806ab9b5）.