“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”
— Nelson Rolihlahla Mandela
18th July of every year marks the birth anniversary of Nelson Rolihlahla Mandela, the first democratically elected President of a free South Africa. Nelson Mandela devoted his life to fight against discrimination and service of humanity — as a human rights lawyer, a prisoner of conscience and an international peacemaker.
On 10 November 2009, in its sixty-fourth session and at its forty-second plenary meeting, the United Nations General Assembly adopted a resolution to designate 18th July as Nelson Mandela International Day to be observed every year beginning in 2010. The General Assembly recognised the long history of Nelson Mandela’s leading role in and support for Africa’s struggle for liberation and Africa’s unity, and his outstanding contribution to the creation of a non-racial, non-sexist, democratic South Africa, and his values and dedication to the service of humanity, as a humanitarian, in the fields of conflict resolution, race relations, promotion and protection of human rights, reconciliation, gender equality and the rights of children and other vulnerable groups, as well as the upliftment of poor and underdeveloped communities. The General Assembly also acknowledged Nelson Mandela’s contribution to the struggle for democracy internationally and the promotion of a culture of peace throughout the world.
In December 2015, the General Assembly decided to extend the scope of Nelson Mandela International Day to be also utilised in order to promote humane conditions of imprisonment; to raise awareness about prisoners being a continuous part of society; to value the work of prison staff as a social service of particular importance. The General Assembly not only adopted the revised United Nations Standard Minimum Rules for the Treatment of Prisoners[1] (originally adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955), but also approved that they should be known as the Nelson Mandela Rules in order to honour the legacy of the late President of South Africa, who spent 27 years in prison in the course of his struggle for global human rights, equality, democracy and the promotion of a culture of peace.
The Nelson Mandela Rules provide useful internationally accepted guidelines for implementation by prison administrations[2]. The objective of the Nelson Mandela Rules is to promote humane conditions of imprisonment, raise awareness about prisoners being a continuous part of society and value the work of prison staff as an important social service. These rules focus on nine thematic areas — (i) Prisoners’ inherent dignity as human beings; (ii) Vulnerable groups of prisoners; (iii) Medical and health services; (iv) Restrictions, discipline and sanctions; (v) Investigations of deaths and torture in custody; (vi) Access to legal representation; (vii) Complaints and inspections; (viii) Terminology; (ix) Staff training.
Today, the 18th July of 2020, which is 102nd birth anniversary of Late Nelson Mandela, we observe the Nelson Mandela International Day amid a fight with Covid-19 pandemic. On 13 May 2020, the United Nations Office on Drugs & Crimes (UNODC), the World Health Organisation (WHO), the Joint United Nations Programme on HIV/AIDS (UNAIDS); and the United Nations Office of the High Commissioner for Human Rights (OHCHR), released a joint statement on Covid-19 in prisons and other closed settings. The joint statement drew urgent attention of world political leaders to the heightened vulnerability of prisoners and other people deprived of liberty to the Covid-19 pandemic, and urged them to take all appropriate public health measures in respect of this vulnerable population. The UN bodies urged political leaders to ensure that Covid-19 preparedness and responses in closed settings are identified and implemented in line with fundamental human rights; are guided by WHO guidance and recommendations and never amount to torture and other cruel, inhuman or degrading treatment or punishment. It was further urged that in prisons, any intervention should comply with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
On this 11th Nelson Mandela International Day, we look at the relevant rules concerning Healthcare Services in prisons as provided by the Nelson Mandela Rules. Here, it is apposite to mention that the Nelson Mandela Rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principles and practice in the treatment of prisoners and prison management. In view of the great variety of legal, social, economic and geographical conditions in the world, it is evident that not all of the rules are capable of application in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations. The Nelson Mandela Rules cover a field in which thought is constantly developing. They are not intended to preclude experiment and practices, provided these are in harmony with the principles and seek to further the purposes which derive from the text of the rules as a whole.
Guiding stars from the Nelson Mandela Rules for response to prisoners’ healthcare management during Covid-19 pandemic:
Rule 24
1. The provision of healthcare for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary healthcare services free of charge without discrimination on the grounds of their legal status.
2. Healthcare services should be organised in close relationship to the general public health administration and in a way that ensures continuity of treatment and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence.
Rule 25
1. Every prison shall have in place a healthcare service tasked with evaluating, promoting, protecting and improving the physical and mental health of prisoners, paying particular attention to prisoners with special healthcare needs or with health issues that hamper their rehabilitation.
2. The healthcare service shall consist of an interdisciplinary team with sufficient qualified personnel acting in full clinical independence and shall encompass sufficient expertise in psychology and psychiatry. The services of a qualified dentist shall be available to every prisoner.
Rule 26
1. The healthcare service shall prepare and maintain accurate, up-to-date and confidential individual medical files on all prisoners, and all prisoners should be granted access to their files upon request. A prisoner may appoint a third party to access his or her medical file.
2. Medical files shall be transferred to the healthcare service of the receiving institution upon transfer of a prisoner and shall be subject to medical confidentiality.
Rule 27
1. All prisons shall ensure prompt access to medical attention in urgent cases. Prisoners who require specialised treatment or surgery shall be transferred to specialised institutions or to civil hospitals. Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide prisoners referred to them with appropriate treatment and care.
2. Clinical decisions may only be taken by the responsible healthcare professionals and may not be overruled or ignored by non-medical prison staff.
Rule 30
A physician or other qualified healthcare professionals, whether or not they are required to report to the physician, shall see, talk with and examine every prisoner as soon as possible following his or her admission and thereafter as necessary. Particular attention shall be paid to:
(a) Identifying healthcare needs and taking all necessary measures for treatment;
(b) Identifying any ill-treatment that arriving prisoners may have been subjected to prior to admission;
(c) Identifying any signs of psychological or other stress brought on by the fact of imprisonment, including, but not limited to, the risk of suicide or self-harm and withdrawal symptoms resulting from the use of drugs, medication or alcohol; and undertaking all appropriate individualised measures or treatment;
(d) In cases where prisoners are suspected of having contagious diseases, providing for the clinical isolation and adequate treatment of those prisoners during the infectious period;
(e) Determining the fitness of prisoners to work, to exercise and to participate in other activities, as appropriate.
Rule 31
The physician or, where applicable, other qualified healthcare professionals shall have daily access to all sick prisoners, all prisoners who complain of physical or mental health issues or injury and any prisoner to whom their attention is specially directed. All medical examinations shall be undertaken in full confidentiality.
Rule 32
1. The relationship between the physician or other healthcare professionals and the prisoners shall be governed by the same ethical and professional standards as those applicable to patients in the community, in particular:
(a) The duty of protecting prisoners’ physical and mental health and the prevention and treatment of disease on the basis of clinical grounds only;
(b) Adherence to prisoners’ autonomy with regard to their own health and informed consent in the doctor-patient relationship;
(c) The confidentiality of medical information, unless maintaining such confidentiality would result in a real and imminent threat to the patient or to others;
(d) An 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.
2. Without prejudice to paragraph 1(d) of this rule, prisoners may be allowed, upon their free and informed consent and in accordance with applicable law, to participate in clinical trials and other health research accessible in the community if these are expected to produce a direct and significant benefit to their health, and to donate cells, body tissues or organs to a relative.
Rule 33
The physician shall report to the prison director whenever he or she considers that a prisoner’s physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.
Rule 34
If, in the course of examining a prisoner upon admission or providing medical care to the prisoner thereafter, health-care professionals become aware of any signs of torture or other cruel, inhuman or degrading treatment or punishment, they shall document and report such cases to the competent medical, administrative or judicial authority. Proper procedural safeguards shall be followed in order not to expose the prisoner or associated persons to foreseeable risk of harm.
Rule 35
1. The physician or competent public health body shall regularly inspect and advise the prison director on:
(a) The quantity, quality, preparation and service of food;
(b) The hygiene and cleanliness of the institution and the prisoners;
(c) The sanitation, temperature, lighting and ventilation of the prison;
(d) The suitability and cleanliness of the prisoners’ clothing and bedding;
(e) The observance of the rules concerning physical education and sports, in cases where there is no technical personnel in charge of these activities.
2. The prison director shall take into consideration the advice and reports provided in accordance with paragraph 1 of this rule and Rule 33 and shall take immediate steps to give effect to the advice and the recommendations in the reports. If the advice or recommendations do not fall within the prison director’s competence or if he or she does not concur with them, the director shall immediately submit to a higher authority his or her own report and the advice or recommendations of the physician or competent public health body
† Legal Editor, EBC Publishing Pvt. Ltd.
[1] Adopted by General Assembly Resolution 70/175 on 17 December 2015.
[2] Inhuman Conditions in 1382 Prisons, In re, (2017) 10 SCC 658