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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

EXPLANATORY MEMORANDUM
to Recommendation Rec(1993)6 on Prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison

(Adopted by the Committee of Ministers on 18 October 1993, at the 500th meeting of the Ministers’ Deputies)

1. In response to the challenge to the prison service posed by the HIV/Aids epidemic, member states are invited to devise and implement a policy for combating HIV/Aids in prison, addressed to all prison inmates and prison staff, in keeping with national, European and worldwide strategies.

The general direction of this recommendation favours an approach based on the right to health care, which is a fundamental right for all people. The recommendation is based on the principles of equivalence of preventive measures and health care, of equal access to health services, of the observance of ethical and legal rules and of seeking to make prisoners responsible for their own behaviour.

2 & 3. Rule 29 of the European Prison Rules states :

"The medical officer shall see and examine every prisoner as soon as possible after admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all measures necessary for medical treatment ; the segregation of prisoners suspected of infectious or contagious conditions ; the noting of physical or mental defects which might impede resettlement after release ; and the determination of the fitness of every prisoner to work."

Medical examination on entry and subsequently is indeed an important intervention which facilitates effective health care and counselling of prisoners. Obviously, segregation of prisoners suffering from an infectious condition can only be justified on medical grounds. In this context, it must be emphasised that compulsory testing for HIV/Aids has been rejected by the World Health Organisation and by the Parliamentary Assembly of the Council of Europe. Furthermore, segregation and isolation of HIV-infected persons has no medical justification. Such measures should therefore not be applied to prisoners.

Recommendation No. R (89) 14 adopted by the Committee of Ministers of the Council of Europe on 24 October 1989 concerning the ethical issues of HIV infection in the health care and social settings states : "In the light of present knowledge, voluntary testing, integrated into the process of counselling, is the approach which is most effective from the public health point of view, and most acceptable ethically and legally...."

4. The principle of equivalence means that prison health services must be of the same quality and meet the same standards as those in the outside community. Co-operation between prison medical services and the community health system is essential to ensure compliance with these standards and continuity of necessary treatment both for those entering and for those leaving prison.

5. Rule 32 of the European Prison Rules states :

"The medical services of the institution shall seek to detect and shall treat any physical or mental illnesses or defects which may impede a prisoner’s resettlement after release. All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner to that end."

This provision applies to HIV/Aids. The prison medical and social services therefore have a duty to provide medical and psychosocial care for HIV-infected prisoners and to ensure, as far as possible, the continuity of such care on release, and in the absence of adequate family support, appropriate social services and housing.

6. The provision of information and education plays a key part in national and global strategies to combat HIV/Aids. Thus the provision of regularly updated information and health education to both staff and prisoners is essential to encourage responsible behaviour, reduce risk activities and dispel the myths, mistaken ideas and unfounded fears about HIV/Aids. To this end, account should be taken of language and cultural differences within the prison.

7. Access to the means of protection is an essential corollary to point 6 concerning the role of information. Prison authorities must work to dispel the reluctance which often arises on the part of staff or prisoners in relation to the availability of condoms in prison.

8. It is essential, whatever the difficulties, to observe the principle of medical confidentiality with regard to prisoners. In this respect, it is entirely a matter for the prison doctor to decide, in accordance with the rules of medical ethics and with legal provisions, what information may be strictly necessary to give to the other members of the health team or the prison authorities.

9. The prison authorities must, on the one hand, ensure the protection of all prisoners and, on the other, guard against discrimination concerning HIV infected prisoners and that isolation or ostracism - in any case, medically useless - is avoided. However, the prison doctor may occasionally order the placing of prisoners in individual cells on medical grounds, for example during certain phases of pulmonary tuberculosis.

When prisoners try to sexually assault other prisoners or, more generally, try to harm other prisoners or staff, disciplinary measures or solitary confinement may be justified.

Such measures should be taken by the prison authorities, regardless of serological status.

10. The principle of equivalence means that the prison authorities should install sanitary facilities which comply with hygiene standards defined by public health legislation. The general availability of such facilities would promote decent and human conditions for prisoners as well as reducing the risk of transmitting certain infectious illnesses. Sanitary facilities specially adapted for handicapped prisoners should be available.

11. Staff and prisoners should be issued with the items needed to allow them to observe the rules of hygiene effectively, for example gloves, toilet kits and disinfectants.

12. As in the outside community, screening tests must be preceded and followed by counselling and be accompanied by psychological support. The stress caused by the test, and possibly a positive result, is often greater in prison than in the community, because the prisoner lacks the support of his family and friends. For this reason, it falls to the prison medical service to organise psychological and social support for the person involved, in collaboration with the services concerned.

Medical and psychological treatment begun in prison is only meaningful if it is continued following release. From this point of view, it is essential that the prison medical service provide the prisoner with all the necessary information on the appropriate specialist centres and services. It is thus important to direct released prisoners towards appropriate specialist centres.

13. The principle of non-discrimination against seropositive prisoners implies that they should be able to benefit from all individualised sentencing measures available and particularly placement in open or semi-open facilities, where their return to the community can be better prepared.

14. Early release of prisoners in the final stages of Aids may be recommended both for humanitarian and medical reasons, as for other terminal diseases. It is generally up to the prison doctor to take the initiative in such cases, referring the matter via the prison director to the judicial or administrative authority empowered to decide. A favourable decision enables the patient to receive the palliative treatment required by his condition, surrounded by his/her family, in a hospital in the community.

15. The fight against HIV/Aids and transmissible diseases has focused attention on prison medical services, revealing their inadequacies and lack of resources. The public authorities must therefore give prisons the human and financial resources needed, not only to combat HIV/Aids and other transmissible diseases but also to improve health services provided for all prisoners in a more general sense. It is essential that prisoners receive the same standard of care and treatment as outside patients. One possible way of ensuring this could be to make the community health and welfare system responsible for health expenditure in prisons.

16. Rule 27 of the European Prison Rules states :

"Prisoners may not be submitted to any experiments which may result in physical or moral injury".

Although it is clearly unthinkable that prisoners should be subjected, without their consent or knowledge, to experimental procedures which may damage their physical or mental health, the principle of equal treatment with outside patients suggests that excluding them totally from such treatment may be unethical. This mostly applies to persons who had been undergoing clinical trials before imprisonment and for whom it seems indispensable to continue the trials during detention.

It is therefore recommended that prisoners should be given the benefit of clinical trials if the following conditions are satisfied : the prisoner must give his informed and written consent and must be able to withdraw at any time ; the expected effect of the treatment should be, in principal, beneficial ; the procedures must be approved by an ethical committee independent of both the doctor carrying them out and the prison authorities, in conformity with national legislation. This ethical committee should include such diverse people as medical practitioners, academics, theologians, lawyers, etc. Its task would be to decide whether the guarantees that ethical rules would be respected were sufficient for it to authorise the projected research or therapeutic procedures in a prison context.

Another essential recommendation is to establish conditions for epidemiological monitoring of prisons in order to assess the prevalence of transmissible diseases and to adjust health policies accordingly. Co-operation with the national health monitoring services is necessary. In the HIV/Aids field, co-operation with the EU/WHO Collaborating Centre, based in Paris, would be useful.

17. Stringent control and security measures (in particular the searching of cells and prisoners), must be taken by prison staff, to reduce the entry of illicit drugs into prison. The medical staff must not take part in control measures of prisoners, in order not to compromise the confidential relationship with their patients. Special training to make prison personnel more aware of the problems of drug misuse would also contribute towards limiting the entry and consumption of drugs within prisons. However, care should be taken not to jeopardise the opening up of prisons to the outside which has developed over recent years, in particular by allowing outsiders extensive access and providing visiting rooms without barriers or without surveillance, in all cases where there is no significant danger of abuse.

18. Preventing HIV/Aids in prisons depends firstly on setting up educational programmes and secondly on providing access to effective means of protection. Assuming that the risks of continuing intravenous drug use in prison are genuine despite existing control and security measures, it is essential to warn prisoners of the risks of infection from contaminated needles or the sharing of syringes and to give them the means of reducing these risks in practice, particularly by providing them with a disinfectant : for example, correctly and freshly diluted bleach. This can in any case reasonably be made available in prisons for general hygiene purposes and its availability should accordingly meet with general approval.

19. Prison provides an opportunity which should be used to inform drug abusers about health care and social services in the community which can help them on release, by continuing the treatment started in prison. Encouragement to assist in planning their own rehabilitation and to accept treatment schemes is important.

20. The serving of sentences in the community not only avoids imprisonment and its desocialising effects, but also makes it possible to address the psychological and social aspects of drug taking more effectively.

The courts or administrative authorities with jurisdiction should make more use of measures which combine supervision with greater possibilities of rehabilitation. It is therefore recommended that these authorities and the social workers employed by them encourage convicted persons to comply with such measures.

Probation services must have recourse to a very wide range of services specialising in treatment of drug addiction and HIV/Aids, and must make full use of local resources which can facilitate the rehabilitation of convicted persons.

21. In states with unsupervised visiting programmes where sexual intercourse can take place, it is essential, for the purpose of preventing transmissible diseases including HIV/Aids, to provide both prisoners and their partners with information and counselling, as well as the means of prevention.

22. In general, those states which have legislation allowing voluntary interruption of pregnancy include as a justification for such termination the presumption that the unborn child would suffer from significant malformations or serious illness. Such a risk exists for children born of HIV-infected mothers.

The principle of equivalence implies that pregnant seropositive women prisoners should have access to the same information on this subject as pregnant HIV-infected women in liberty, in order that they understand the risks and can take a decision freely. For the same reason, the authorities, in those countries in which interruption of pregnancy on demand is legally accepted, should ensure that this choice is available to women prisoners.

Whenever infants are allowed to remain with imprisoned mothers in the circumstances covered by Prison Rule 28-2, HIV-infected infants must be given the same care as other infants, but also, the special treatment which their state of health requires.

23. Given the special vulnerability of young prisoners and the need to encourage responsible conduct in order to prevent the spread of transmissible diseases, prison authorities must develop special health education programmes for them. The risks of HIV or hepatitis B or C infection through sexual contacts or intravenous drug use should be particularly stressed.

24. The fundamental principles of impartiality and non-discrimination set out in particular in Rule 2 of the European Prison Rules mean that foreign HIV-infected prisoners must receive the same treatment as others.

25. Prisoners sentenced abroad who wish to serve their sentence in their country of origin should not be excluded from bilateral or multilateral agreements governing the transfer of sentenced persons on the grounds that they have Aids or are infected by HIV. The medical report provided for in Article 6 paragraph 2.d of the Council of Europe Convention on the Transfer of Sentenced Persons must remain confidential and be sent directly by the medical service in the sentencing state to the medical service in the enforcing state.

26. Humanitarian considerations may lead states to suspend a deportation order issued against foreign prisoners with Aids whose state of health may call in question the desirability of moving them or necessitates treatment in hospital.

27. The approach adopted by the Council of Europe member states is based on a global strategy of prevention making everyone aware of his or her responsibilities in combating transmissible diseases, including HIV/Aids.

28. The criminal law response of states should essentially be limited to punishing the behaviour of those who transmit or who attempt to transmit an infection to another person with the clear intention of damaging his or her health or life. It must be the last resort in the control of transmissible diseases, including HIV and Aids. This might be so in the case, for example, of a person who injures or who attempts to injure another person with a contaminated syringe.

There is no need for special criminal laws on the voluntary transmission of HIV/Aids.

The criminal law of most Council of Europe member states, in fact, contains provisions on public health protection which make the transmission of human contagious disease an offence. There are, moreover, general offences such as poisoning, bodily injury and homicide which may apply in certain cases of the intentional infection of another person with HIV.

29. In general, it seems that negligent or risky behaviour on the part of infected individuals who infect their partners as a result of failing to take precautions, particularly during casual sexual contacts, should not be liable to prosecution. Other types of behaviour might, however, in the opinion of certain countries, give rise to criminal sanctions. In those countries for example, in the case of stable sexual partners who have established a relationship of mutual trust, the partner who knows himself/herself to have a sexually transmissible disease should have a special legal obligation to prevent contamination of the partner by informing him or her of the danger.

30. There are criminal provisions making it possible to prosecute health care and laboratory staff for professional negligence which causes patients to become infected. Criminal proceedings must be brought only if such negligence is considered serious, although proceedings for civil damages remain possible in all such cases. In cases of massive contamination by laboratories, hospitals or blood transfusion centres, it should be added that there would be grounds for prosecuting the persons administratively in charge of these facilities.

Disciplinary or criminal proceedings may also be brought against health care personnel who refuse to treat infected persons and so commit the offence or ethical breach of failing to assist a person in danger.