Access to medical care in detention

 

 

The conditions in places of detention in some African countries are still far from being up to par with international human rights standards. One of the issues often encountered is the lack of proper medical care. Proper medical care would require an effective medical system, complete with qualified professionals, sufficient medical effective, accurate diagnosis and treatment, along with the respect of individuals’ consent to any medical procedure. The role of the State in providing medical care is even more crucial in places of detention as detainees’ well-being and health depends entirely on the authorities.

 

The African Commission on Human and Peoples' Rights clearly stated that denying access to medical care in places of detention constitutes a violation of both article 16 and article 5 of the African Charter. The communications dealing with the topic established the obligations placed by both articles on the State Parties. However, despite an effort from the Commission to bring a legal response to a complex problem, evident shortcomings undermine its efforts.

 

A) Medical care and article 16

 

The denial of health care has been established as a violation of article 16 by the Commission in several of its communications. In Media Rights Agenda, constitutional Rights Project, Media Rights Agenda and Rights Project v Nigeria (Media Rights Agenda), the Commission stated that States shall take the necessary measures to protect the health of their people and ensure that they receive medical attention when they are sick[1]. The Commission has made it clear that this responsibility is heightened in cases of detention as the integrity and well-being of the individual are completely dependent on the activities of the State[2]. In all the communications dealing with the issue, the findings were fairly similar.

 

The only communication that particularly stands out is the Purohit and Moore v Gambia (Purohit) communication as it deals with mental disabilities. In Purohit, the Commission stated that the right to health includes the right to health facilities, and access to goods and services to be guaranteed to all without discrimination of any kind.

 

Purohit dealt with the Lunatics Detention Act (LDA), a legislation governing mental health in Gambia, which was considered outdated, discriminatory and arbitrary in the way it regulated the detention of mentally disabled individuals. The legislation was enacted in 1917 and last reviewed in 1964. It did not offer any definition of the term “lunatic” except for “idiot or person of unsound mind”. The legislation did not specify any means of appeal or enough safeguards against abuse for people identified as “lunatics”.

 

In response, the communication emphasized the need to establish special treatment and conditions when dealing with people with mental disabilities, allowing them to maintain an optimum level of independence. The Commission added that mental health care should include an analysis and diagnosis of a person’s mental condition, the treatment of that mental condition and the rehabilitation of a suspected or diagnosed person with mental health problems[3]. All three elements that the Gambian government failed to provide.

 

Overall the Commission seems to emphasized the importance of the right to health which it considers a prerequisite to the realisation of other rights.

 

B) Medical care and Article 5

 

The denial of health services does not only constitute a violation of article 16 but has been held several times by the Commission as violation of article 5 of the African Charter. In all of its communications where the question was brought up, the Commission had no trouble recognizing that denying access to medical services to a detainee qualify as a cruel, inhuman or degrading punishment or treatment.

 

For the Commission the terms cruel, inhuman or degrading punishment or treatment have to be interpreted as to extend to the widest possible protection against abuses, whether physical or mental and therefore includes conditions of overcrowded prisons, beatings and other forms of physical torture, such as deprivation of light, insufficient food and lack of access to medicine or medical care[4].

 

Furthermore, the access to medical services is viewed by the Commission as an element of the protection of individuals against torture, cruel, inhuman and degrading punishment or treatment in places of detention. It stems from the dual obligation imposed by article 5 on State Parties. They should not only refrain from using torture and ill-treatment but also according to the Commission, take positive measures to effectively prevent it.

 

Hence, the necessity for State Parties to adopt certain safeguards such as access to counsel, courts and medical personnel. It is a key element of the protection of detainees as it brings accountability and ensures the inadmissibility of evidence obtained through torture[5].

 

C) Remarks

 

As it appears from the Commission’s communications, a lack of medical care in places of detention can engage the State parties’ responsibility under both article 5 and article 16 of the African Charter. The Commission does not seem to hesitate to conclude to a violation of either or both articles when a detainee is denied medical care.

 

It seems, furthermore, that the Commission attaches a great importance to the right to health and strives to emphasize it in its legal practice. However, and albeit its effort, clear shortcomings make the identification of real standards applicable to health-care in places of detention difficult. The low number of legal cases dealing with this question makes it difficult to establish a definite pattern. The cases are also fairly similar when it comes to the issues raised. This lack of diversity leaves several questions without answers. For example, it appears that the question of unwanted medical procedures has yet to be tackled by the Commission.

 

Cover image credit: MSF

 

[1] 105/93-128/94-130/94-152/96 Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, October 31, 1998, para 89.

[2] 137/94-139/94-154/96-161/97 International PEN, Constitutional Rights Project, Civil Liberties Organization and Interights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria, October 31, 1998, para 112.

 

[3] 241/01 Purohit and Moore v Gambia (The), May 29, 2003, paras 81 and 82.

[4] 292/04 Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, May 22, 2008.

[5] 334/06 Egyptian Initiative for Personal Rights and Interights v. Egypt, March 3, 2011.

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