Health Professionals within the Prison System: Their Role in
Protecting the Right to Health and Other Human Rights
Noam Lubell, Human Rights Centre, University of Essex
This paper focuses on certain human rights issues that arise in the work of health
professionals operating within prison and detention facilities. Whilst the
circumstances of dealing with the health of prisoners and detainees raises very
particular difficulties faced by health professionals, these challenges can assist in
defining their roles and responsibilities in protecting the right to health, both in
prisons and in a wider context.1
When it comes to the treatment and rights of prisoners and detainees, there are
obligatory laws, norms and rules accepted by the international community. Health
Professionals working within a prison system, are almost always directly employed by
state or regional authorities. As such, in terms of international human rights law, they
could be regarded as state agents, and the international rules concerning treatment of
prisoners apply to their actions. Additionally, the medical community, like other
professional bodies, has its own specific rules and ethical principles that provide
guidance for particular situations, including the treatment of prisoners.
International Law
Rules concerning the treatment of prisoners and safeguarding their rights are an
integral part of international human rights law. The primary human rights conventions
contain a number of clauses to protect those who have their freedom denied by the
state authorities. The International Covenant on Civil and Political Rights,2 states in
article 7 that “No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment”. Article 10, paragraph 1, stipulates that “All persons
deprived of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person”. Other treaties that include certain similar
clauses, are the UN Convention Against Torture, and the European, African and
American regional human rights instruments. The Geneva Conventions and their
Additional Protocols, also include prohibitions of torture or cruel, inhuman or
degrading treatment or punishment, and require humane treatment of prisoners, even
if they belong to enemy forces. The above obligations are unequivocal and could
mostly be considered part of general international law, binding regardless of whether
a state is party to a specific treaty.3 In particular, the right to health, as it appears in
article 12 of the International Covenant on Economic, Social, and Cultural Rights,4
applies also to prisoners, and states are obligated to respect the prisoners' right to
health.5
1
The international source providing some of the most detailed rules for the treatment of
prisoners, is the UN Standard Minimum Rules for the Treatment of Prisoners.6
Although this document is not a legally binding treaty, it nevertheless contains
detailed norms and standards which can be used by the international community in
interpreting the above prohibitions on cruel, inhuman or degrading treatment or
punishment, and the obligation of humane treatment and respect for human dignity. 7
Furthermore, the Standard Minimum Rules also contain specific provisions on
healthcare for prisoners, including the need for daily medical attention to sick
prisoners, mental healthcare, sanitation inspections and more.8 Other international
instruments containing rules on healthcare for prisoners include the Body of
Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment,9 and the Basic Principles for the Treatment of Prisoners.10
Medical Ethics
A fundamental rule of medical ethics is the Physician’s primary loyalty and obligation
to the patient. This obligation can be found in a number of the key declarations of the
World Medical Association (WMA), such as the 1948 Declaration of Geneva. 11 In
paragraph 10 of the Declaration on the Rights of the Patient it is stated that “the
patient's dignity and right to privacy shall be respected at all times in medical care and
teaching, as shall his/her culture and values.”12 Furthermore, according to the opening
paragraph of this declaration “whenever legislation, government action or any other
administration or institution denies patients these rights, physicians should pursue
appropriate means to assure or to restore them.”13 These are not the only
declarations and documents relating explicitly to the physician-patient relationship.
The 1975 Tokyo Declaration, Guidelines for Medical Doctors Concerning Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to
Detention and Imprisonment,14 gives a clear indication on whose side the physician is
supposed to stand, and that “…the doctor's fundamental role is to alleviate the distress
of his or her fellow men, and no motive whether personal, collective or political shall
prevail against this higher purpose.”
The UN General Assembly, with the assistance of the World Health Organisation
(WHO) drafted and adopted the Principles of Medical Ethics relevant to the Role of
Health Personnel, particularly Physicians, in the Protection of Prisoners and
Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.15
It should be stressed that the above principles are directed at all health personnel and
not just physicians. All medical staff, including nurses, can find themselves treating a
prisoner and faced with similar issues. The International Council of Nurses has also
produced a declaration on the treatment of prisoners and detainees.16 Here too, the
fundamental obligation of the nurse is to restore the health and alleviate the suffering
of the patient, including prisoners, and to protect them from abuse and ill-treatment.
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Health Professionals – violators or defenders of human rights?
The existence of a situation in which the physician is working for the state in a
security establishment, while at the same time entrusted with the best interests of the
individual patient, can lead to opposite results – the physician as a violator of human
rights or the physician as a human rights defender.
Let us first start with the troubling prospect of health professionals as violators of
human rights. The clearest example of this, is the participation of doctors in torture.
Participation can be active or passive. There is no room for doubt that a physician
taking direct part in torture or other unlawful ill-treatment, whether during
interrogation or as punishment, is violating both international human rights law and
medical ethics. However, physicians and other health professionals can also be found
playing a ‘supporting role’ in these unlawful practices. Firstly, prisoners often
undergo a medical examination prior to their interrogation, to ensure that they are fit
enough to endure the impending abuse. Sometimes, when a prisoner isn’t strong
enough to withstand the torture or ill-treatment, a physician might be called to revive
him and return him to the minimal physical condition necessary for the interrogation
to continue. A physician taking part in such practices, might not only be complicit in
the violation of the torture and ill-treatment prohibition, but could also be violating
the right to health and betraying fundamental principles of medical ethics.17
Additionally, physicians who were not present in the vicinity during the unlawful
treatment, may have the prisoners brought to them for medical treatment following
their abuse. The physician is thus one of the first people to see the victim of torture,
and therefore also has the potential to be at the forefront of human rights defenders.
Health professionals can, apart from providing medical treatment to torture victims,
draw attention to unlawful practices and mistreatment of prisoners, and be part of the
effort to protect fundamental human rights. In fact, in some countries health
professionals have undertaken this role (with regard to a much wider range than only
the issue of torture), as can be evidenced in the existence of the many NGOs working
under the banner of ‘Physicians for Human Rights’. Health professionals have also
been the target of persecution on account of their professional activities, for instance
when caring for victims of torture.18
The case of torture is perhaps the most extreme example of the involvement of health
professionals in the protection (or violation) of human rights of prisoners. However,
there are many other areas in which physicians and other health professionals can play
an important role.19 Briefly, these include:

Privacy and confidentiality during treatment – the presence of security
personnel in the treatment room raises privacy issues under both the principles
of medical ethics and human rights. This can take on added importance with
regard to mental health.

Personal medical information – access of state authorities to all medical
information of a prisoner, and the use they make of this information, can
involve human rights issues, as can the matter of the prisoner-patient having
access to his own medical records.
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
Shackling during medical treatment – both in prisons, and in civilian hospitals,
prisoners and detainees are sometimes shackled while undergoing medical
treatment. In addition to it possibly being detrimental to the quality of the
medical treatment, a physician who treats a shackled person loses a great deal
of his status as the guardian of the patient’s best interests, and is unlikely to
hold the patient’s trust. In the eyes of the latter, the physician and the hospital
with him could be perceived as part of the security system responsible for him
being in shackles, whether through direct responsibility or by not taking a
stand against it. The use of shackling in hospitals should be limited to
exceptional cases, where it is obvious that there is a real and immediate danger
of the patient injuring himself or others, and that placing a guard is not
sufficient. Accepting the shackling of a patient lying in a hospital bed, when
there is clearly no such justification, is a betrayal of the physician’s
commitment to the patient. This acquiescence could be regarded as taking a
part, even if passive, in a situation that causes the patient suffering and abuses
his dignity, or in other words – in a violation of his rights as a patient and a
human being.

Prison conditions – The physical conditions inside the prison or detention
facility have direct implications for the health of those in custody. Severe
overcrowding, for instance, can facilitate the spread of disease. The amount of
light, space, exercise time, and the quality of food, are all directly related to
the physical and mental health of the prisoners, and should all be monitored by
the prison physicians.
Dual Loyalties
Running like a thread through all the above is the difficulty, briefly mentioned at the
start, of the doctor being both a state employee working within a security
establishment, while at the same time being bound by medical ethics to hold at heart
the best interests of the patient. The physician may feel torn between loyalty to the
state (whether ideological loyalty, or merely as an employee) and loyalty to the
patient. This becomes especially testing when the physician is asked by the employer
to act in a certain way for security reasons, even though this may appear to be in
contravention of the principles of medical ethics. The pressure to comply may lead to
the patient’s needs taking second place to those of the prison authority.
One possible solution to relieving some of the tension between the dual loyalties, is to
take the health professional out of the direct chain of command within the prison, and
have them employed directly through the relevant health authority. For example,
rather than be employees of the prison and a ministry responsible for the prison
system, they could be employees of the ministry for health. Thus, at least with regard
to their employment contracts and terms, they might feel less pressure to conform, in
the knowledge that their employer is not the one applying the pressure. Placing the
health professionals under a health authority would also hopefully mean that they
would have support when protecting the needs of the patient in the face of nonmedical considerations.
4
In summary, health professionals working within prison facilities, play a pivotal role
in the protection of the right to health, as well as other rights, of prisoners and
detainees. They are often the only daily contact the prisoners have with anyone other
than security personnel, and therefore could have added responsibility to safeguard
the interests of their patients. However, resolving the challenges and difficulties faced
by them, particularly the issue of dual loyalty, is not only up to the individual health
professional, and necessitates that the authorities address the systematic problems, and
recognise the role of the physicians as guardians of the patient and allow them to
assume this role without hindrance.
1
Sections of this paper are based on reports and research undertaken in the past for and by Physicians
for Human Rights – Israel. See for instance reports on shackling of prisoners during medical treatment,
and on maltreatment at the Israel Prison Service Medical Centre (www.phr.org.il).
2
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), U.N. Doc. A/6316
(1966), entry into force Mar. 23, 1976
3
N.Rodley, The Treatment of Prisoners Under International Law (Oxford University Press, Oxford,
1999). p.46-74, 277-279.
4
International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21
U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3,
1976
5
Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest
attainable standard of health, (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000) Par.34.
6
Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc.
A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048
(1957), amended E.S.C.
7
Some of the rules, amongst them the prohibitions on degrading punishment and the use of shackling
as punishment, could be considered to reflect binding legal obligations. Rodley, p.280-281
8
Rules 22- 26, 62.
9
G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988). Principle
24.
10
G.A. res. 45/111, annex, 45 U.N. GAOR Supp. (No. 49A) at 200, U.N. Doc. A/45/49 (1990).
Principle 9.
11
Declaration of Geneva. Adopted by the 2nd General Assembly of the World Medical Association,
Geneva, Switzerland, September 1948
12
World Medical Association Declaration on the Rights of the Patient. Adopted by the 34th World
Medical Assembly Lisbon, Portugal, September/October 1981and amended by the 47th General
Assembly Bali, Indonesia, September 1995
13
Emphasis by PHR-Israel
14
World Medical Association Declaration Guidelines for Medical Doctors Concerning Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and
Imprisonment. Adopted by the 29th World Medical Assembly Tokyo, Japan, October 1975
15
Adopted by General Assembly resolution 37/194of 18 December 1982.
16
Nurses Role in the Care of Prisoners and Detainees, Adopted by the International Council of Nurses,
Geneva, 1998
17
For further readings on the involvement of doctors in torture see Medicine Betrayed: The
Participation of Doctors in Human Rights Abuses (British Medical Association, 1992); Gordon &
Marton (eds) Torture: Human Rights, Medical Ethics and the Case of Israel (London, Zed Books,
1995).
18
See The right of everyone to the enjoyment of the highest attainable standard of physical and mental
health Report of the Special Rapporteur, Paul Hunt, submitted in accordance with Commission
resolution 2002/31 (UN Doc. E/CN.4/2003/58, 13 February 2003) par.97; Harming the Healers:
Violations of the Human Rights of Health Professionals Amnesty International, May 2000 AI Index:
ACT 75/02/00c
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19
For more on this see Coyle, A. A Human Rights Approach to Prison Management (the International
Centre for Prison Studies, 2002) chapter 4: Prisoners and Health Care.
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