A/HRC/42/20
treatment.101 A lack of adequate access also results from organizational and structural
lacuna, for example a lack of means of transportation or personnel to transfer inmates from
detention facilities to hospitals102 or an absence of personalized medical records.103
Decisions on health care services are also often taken by penal-oriented administrators
instead of independent public-health actors. Access to health-care services is often
dependent on negotiations with staff tasked with security, sometimes resulting in a denial of
access to appropriate medical services and preventable deaths. 104 Persons deprived of their
liberty can often only access a limited range of treatments compared with those available in
the community and, in some cases, external heath facilities refuse to admit and treat persons
deprived of their liberty.105
32.
Lack of health care or inadequate treatment in detention for persons who use drugs
can also contravene the right to health106 and contribute to deaths in detention. Detainees’
access to medical treatment, including access to opioid substitution therapy, is often
severely restricted even if it has been demonstrated that such therapy is the most effective
intervention available for the treatment of opioid dependency and that it contributes to
reducing mortality.107 Persons who use drugs may also face multiple forms of violence
under the guise of treatment when placed in mandatory administrative detention.108
33.
Deaths in custody also result from lack of medical treatment for injuries and
illnesses stemming from torture and inadequate conditions of detention. Lack of basic
medical attention and denial of access to medicine make otherwise treatable conditions,
such as infected wounds, asthma and diabetes, fatal.109
34.
Detainees should enjoy at least the same level of access to health care as that
available in the community, which takes into account the additional risks linked to
incarceration.110 The Nelson Mandela Rules offer extensive guidance to States on how to
implement access to health care in detention in a manner that will contribute to reducing
deaths in custody. In addition, the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health has formulated
numerous recommendations in this regard in a recent report on the right to health in the
context of confinement and deprivation of liberty. 111
III. Measures to address violence and prevent deaths and serious
injury in situations of deprivation of liberty
A.
Accountability
35.
By depriving persons of their liberty, States assume responsibility to care for their
lives and bodily integrity. Due to this heightened duty of care, States must take all
necessary measures to protect the lives of individuals deprived of their liberty. 112 The
adoption of such measures requires the identification of the causes of violence, death and
serious injury in custody. This can be done in a comprehensive manner by initiating and
conducting investigations into these incidents and collecting and analysing detailed data on
them. Adequate investigations pave the way for holding to account individuals responsible
for incidents of violence, death and serious injury, while the collection of data contributes
101
102
103
104
105
106
107
108
109
110
111
112
10
See CAT/OP/MNG/1; CAT/OP/UKR/3.
Submission of the Defensor del Pueblo de la Nación (Argentina).
See CAT/OP/BEN/3.
See A/HRC/38/36.
Submission of the Defensor del Pueblo de la Nación (Argentina).
See A/65/255; CAT/C/CPV/CO/1; CAT/C/CHN/CO/4.
See A/HRC/10/44 and A/HRC/10/44/Corr.1.
Submission of Harm Reduction International.
See A/HRC/31/CRP.1
See ICRC, “Guidelines for Investigating Deaths in Custody”.
See A/HRC/38/36.
Human Rights Committee, general comment No. 36.
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