A/HRC/38/36
international human rights treaties also contain provisions to protect the right to health of
specific groups, including persons in situations of deprivation of liberty and confinement.
23.
The Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules) include provisions on the responsibility of States regarding health care for persons
detained in prisons (rules 24–35). For example, States have the obligation to ensure that
medical services in prisons guarantee continuity of treatment and care, including for HIV
infection, tuberculosis and other infectious diseases, and drug dependence. Also set out in
the Rules is the obligation to transfer prisoners requiring specialized treatment to
specialized institutions or civil hospitals, and to ensure that clinical decisions are taken
solely by responsible health-care professionals and not overruled or ignored by non-medical
prison staff.
24.
Bearing in mind the goal of the progressive realization of the right to health,
measures are needed to ensure its realization in closed settings, including a plan to end
forced confinement in hospitals and long-term care institutions. Such a plan must be
supported by strategies to strengthen community-based alternatives.16
Informed consent17
25.
The right to informed consent is a fundamental element of the right to physical and
mental health. Informed consent involves a voluntary and sufficiently informed decision,
and serves to promote a person’s autonomy, self-determination, bodily integrity and wellbeing. It encompasses the right to consent to, refuse or choose an alternative medical
treatment.18
26.
While the right to consent to and refuse treatment involves careful consideration in
the context of life-saving procedures, it must otherwise be respected, protected and fulfilled,
notably in cases of isolation and confinement, where support and encouragement must be
provided so that treatment is completed voluntarily. However, the right to consent to
treatment continues to be ambiguously applied among those deprived of liberty, who
remain at a high risk of being subjected to coercive, involuntary or mandatory testing and
treatment, including compulsory drug testing, research trials and, among hunger strikers,
force-feeding; in other cases, organs have been removed from executed prisoners without
prior consent. These types of practices are harmful and some have implications on the
reporting of symptoms for testing and treatment of stigmatized infections, such as HIV
infection and tuberculosis.
Equality and non-discrimination
27.
Entrenched inequalities and discrimination characterize the experience of
deprivation of liberty and confinement, from the discriminatory apprehension of persons to
the discriminatory and inequitable arrangement of services once a person is deprived of
liberty or confined.
28.
Health and prison officials often perpetuate discrimination through the denial of
health care, including opioid substitution therapy, clean needles and syringes, antiretroviral
therapy, and sexual health supplies or contraceptives. The status of being incarcerated can
elicit prejudicial action by prison and health officials. Those seeking health care in prisons,
detention centres and settings of confinement, particularly those with serious health issues,
are often denied access as a form of informal punishment; access has also been denied
where they are wrongly deemed to lack legal capacity on the basis of a perceived or actual
impairment or other reasons. Barriers to ensuring non-discriminatory access to health care,
including health-care facilities that are independently regulated outside the penal system,
must be addressed immediately. The failures of staff training in this regard demonstrate the
need for alternative and assertive approaches.
16
17
18
A/HRC/35/21.
For more on the issue of informed consent, see A/64/272, paras. 9, 28, 34 and 79–84.
Ibid., para. 10.
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