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International Journal of Prisoner Health, December 2006; 2(4): 269 Á280

ORIGINAL ARTICLE

From equivalence of standards to equivalence of
objectives: The entitlement of prisoners to health care
standards higher than those outside prisons

RICK LINES
Irish Penal Reform Trust, Dublin, Ireland

Abstract
It is generally accepted that people in prison have a right to a standard of health care equivalent to that
available outside of prisons. This ‘‘principle of equivalence’’ is one that enjoys broad consensus among
international health and human rights instruments and organisations. However, given the extreme
health problems evident in prisons worldwide, the legal obligations of the State to safeguard the lives
and well-being of people it holds in custody and the implications of poor prison health on overall
public health, this article suggests that Á even if achieved Á standards of prison health care only
equivalent to that in the community would in some cases fall short of human rights obligations and
public health needs. The article argues it is time to move beyond the concept of equivalent standards
of health care, and instead promote standards that achieve equivalent objectives. In some
circumstances, meeting this new standard will require that the scope and accessibility of prison
health services are higher than that outside of prisons.

Keywords: Equivalence, prison health services, human rights, public health

It is generally accepted that people in prison have a right to a standard of health care
equivalent to that available outside of prisons. This ‘‘principle of equivalence’’ enjoys broad
consensus among international health and human rights instruments and organisations
(e.g., Basic Principles for the Treatment of Prisoners, 1990; World Health Organization,
1993; UNODC/WHO/UNAIDS, 2006; Council Of Europe Committee Of Ministers,
2006), and is reflected in the prison policy and legislation in many States (European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, 1992). As such, it is an important tool in advocating for the health rights of
people in detention.
Despite the international consensus supporting the principle of equivalence, the fact
remains that most countries fall far short of achieving this standard. However, this gap
between principle and practice should not deter prison health advocates from seriously

Correspondence: Rick Lines, MA, LLM, Executive Director, Irish Penal Reform Trust, 53 Parnell Square West,
Dublin 1, Ireland. Tel: '/353-(0)1-874-1400. E-mail: rlines@iprt.ie
ISSN 1744-9200 print/ISSN 1744-9219 online # 2006 Taylor & Francis
DOI: 10.1080/17449200601069676

Electronic copy available at: http://ssrn.com/abstract=1837553

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asking whether equivalent standards of care, even if achieved, would be sufficient to meet
the unique and often extreme health problems found in prisons. Is the principle of
equivalence, as it is currently articulated, sufficient in either public health or legal terms?
A discussion about methadone maintenance at a meeting of drugs and HIV workers in
Dublin earlier this year provided an interesting illustration of the limitations of the principle
of equivalence in meeting the health needs of people in prison. In Ireland, people on
methadone in the community are able to continue treatment if arrested and imprisoned.
However, prisoners are not able to initiate a new methadone maintenance regime while
incarcerated. At the Dublin meeting, some argued in favour of allowing prisoners to initiate
methadone as a harm reduction measure. Others suggested that current prison policy was
appropriate. As there was a waiting list in the community to access methadone, it was
reasoned that allowing prisoners to initiate treatment in prisons would enable them to
unfairly ‘‘jump the queue’’ and receive preferential access.
Missing from both sides of this debate was an assessment of whether an equivalent policy
of methadone access between prisons and the community Á even if implemented Á would
meet the health needs of Irish prisoners. While bringing Irish prison policy into equivalence
with community policy would indeed enable prisoners to place their names on the central
methadone waiting list, and initiate treatment when their turn came, it would do little to
reduce the risk of HIV and hepatitis C transmission via syringe sharing in prisons in the
meantime. Unlike people who inject drugs outside of prisons, who may reduce their risk of
infection by accessing syringe exchange programmes, the lack of needle/syringe programmes in Irish prisons means that prisoners who inject drugs would continue to inject
while awaiting methadone treatment, sharing and reusing injecting equipment to do so.
If the public health objective of methadone maintenance is to be achieved Á that of
reducing injecting and the attendant risk of HIV and hepatitis C transmission Á Irish
prisoners should in fact be entitled to a standard of access greater than that available in the
community. Indeed, without such enhanced access, the efficacy of methadone in this regard
would be largely undermined. Therefore, the ability of prisoners to ‘‘jump the queue’’
would be a preferable and sensible policy, as opposed to a merely equivalent policy that
would ensure the continuation of high risk injecting.
This is but one example where an equivalent standard of care falls short of meeting the
unique health needs and circumstances of people in prison, therefore undermining broader
public health objectives. It illustrates that the principle of equivalence, even if achieved, is a
standard insufficient to meet the requirements of responsible public health practice in many
circumstances. Rather than equivalence, States therefore have a responsibility to provide a
higher standard of health in prisons than is generally available to people outside of prisons
when necessary to ensure that the health of detainees is protected. Anything less not only
violates the rights of persons in prison, but fails to address the numerous public health crises
that are concentrated and exacerbated by the fact of incarceration.
The global scope of prison health problems
Over nine million people are incarcerated in penal institutions worldwide (Walmsley, 2005).
As this figure represents only the prison population at any moment in time, it significantly
underestimates the total number of persons who pass through prisons each year, often for
short periods of detention. Indeed, annual admissions to prisons in countries across the
world are estimated to be at least double, and in some cases ten times, the actual number of
people incarcerated on any single day (Human Rights Watch, 1993).

Electronic copy available at: http://ssrn.com/abstract=1837553

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It is the experience in countries around the world that health problems are more
common, severe and complex in prisons than they are in the general population outside of
prisons. For example, the rate of tuberculosis (TB) infection among incarcerated
populations is as much as one hundred times higher than that found outside of prisons
(International Committee of the Red Cross, 2006), and in many countries is one of the
leading causes of mortality among prisoners (International Committee of the Red Cross, no
date). According to Dr. Jaap Veen, ‘‘There is a clear relation between TB and poverty.’’
Given that ‘‘Prisoners generally come from the most deprived strata of society,’’ he
concludes that it is ‘‘no wonder that TB in prisons in generally more prevalent than in civil
society in general’’ (Veen, 2006).
Within prisons, the risk of the spread of TB is heightened by poor and overcrowded
prison conditions (Maher et al., 1998), illustrating the relationship between environmental
conditions in prisons and the health status of detainees. Inadequate medical infrastructure,
or inconsistent access to medications, heightens the risk of developing multi-drug resistant
strains of TB within prison populations (Bone et al., 2000). As a result, multi-drug resistant
TB is common in the prison systems of both high income and low income countries (Bone
et al., 2000). These multi-drug resistant strains of the disease, which often are not treatable
with available TB therapies, pose an increased risk of illness, or even death, to prisoners and
prison staff, as well as the population outside of prisons.
TB is only one example of health problems that are magnified within the prison
environment. According to the World Health Organization (WHO), prisons are places
where ‘‘two of the greatest public health problems facing all societies overlap: the epidemic
of HIV/AIDS and the pandemic harmful use of psychotropic substances such as alcohol
and illegal drugs.’’ (World Health Organization, 2005) In many countries, this intersection
fuels high rates of blood-borne infections, such as HIV and hepatitis C, among prisoners
who share syringes to inject drugs. As a result, rates of HIV and hepatitis C infection are
significantly higher among prison populations than in the community outside of prisons
(Ju¨rgens, 2006).
As with TB, HIV infection can spread with alarming speed in prisons, particularly among
prisoners who inject drugs. For example, in 2002 an HIV outbreak among injecting drug
using prisoners was identified at the Alythus Prison in Lithuania, during which time 263
prisoners tested positive for HIV within the space of a few months. Before this outbreak,
testing had identified only eighteen HIV infections in Lithuania’s entire prison system, and
only three hundred persons were known to be living with HIV in the country as a whole
(Ju¨rgens, 2002). This example illustrates the implications of inadequate prison health
systems on overall public health, and national levels of disease and ill-health.
High rates of HIV and other infectious diseases in prisons can lead to alarmingly high
rates of mortality among prisoners. In South African prisons, where high rates of both HIV
and TB infection are evident, officials recorded a 584% increase in ‘‘natural deaths’’ of
prisoners between 1995 and 2000. When the Department of Correctional Services
examined post-mortem reports on these deaths in 1999, it concluded that ninety percent
were HIV-related. Based upon these figures and the continuing growth of the South African
prison population, the study predicted that, by 2010, 45,000 people would die in the
country’s prisons (Goyer, 2003).
In addition to infectious diseases, mental health in prison is a growing international
concern. The UN Special Rapporteur on the Highest Attainable Standard of Health has
expressed concern that people with mental health problems are often ‘‘misdirected towards
prison rather than appropriate mental health care or support services’’ (Commission on

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Human Rights, 2005), creating a disproportionately high rate of mental illness within penal
institutions. In Europe, the WHO estimates that as many as 40% of prisoners suffer from
some form of mental illness (World Health Organization Europe, no date), and, as a result,
are up to seven times more likely to commit suicide than are people outside of prisons. The
Special Rapporteur has noted that although poor prison conditions ‘‘tend to exacerbate
mental disabilities . . . there is often little access to even rudimentary mental health care and
support services.’’ (Commission on Human Rights, 2005) Prisoners with mental illness are
also particularly vulnerable to violence. For example, the Special Rapporteur on Violence
Against Women has noted that, ‘‘mentally ill women are at high risk of sexual abuse in
custodial settings. Consequently, it is imperative that prisons have adequate facilities to
meet the needs and ensure the protection of such women.’’ (Commission on Human
Rights, 1999)
Despite the demonstrable need for States to provide medical and mental health care to
meet these extreme conditions, few prison regimes boast health services that meet
international human rights standards. As reported by Human Rights Watch,
Complaints about medical care, or lack thereof were . . . among the most frequent we
heard in prisons throughout the world . . . A complaint we heard almost everywhere was
that prisoners were denied medical care because of indifference [and] neglect . . . Health
care for most of the world’s poor is inadequate; for prisoners, often the poorest of the
poor, it is usually miserable.’’ (Human Rights Watch, 1993)
Human Rights Watch has also documented consistent problems with environmental health
in prisons, including overcrowding, poor sanitary conditions, inadequate lighting and
ventilation, extremes of temperature, insect and rodent infestation and insufficient/nonexistent personal hygiene supplies. According to the report, any one of these factors can
negatively affect a prisoner’s health, and ‘‘Inadequate diet and unhygienic living
conditions . . . contribute to an extremely high rate of disease and death.’’ (Human Rights
Watch, 1993)
While the Human Rights Watch report dates from 1993, little has changed in the
intervening years. A 2001 review of international prison conditions noted, ‘‘Living
conditions in prisons have certainly not improved uniformly in the past decade and in
many countries overcrowding has made these conditions even worse. The recognition of the
rights of prisoners across jurisdictions has been uneven and progress uncertain.’’ (van Zyl
Smit & Dunkel, 2001)
The evidence clearly illustrates the degree to which the health needs of prisoners are far
from being met around the world. Indeed, in all regions of the globe, the people committed
to prison are those whose social and economic marginalisation places them at increased risk
of physical and mental health problems. They are incarcerated in overcrowded, unsanitary,
stressful and violent conditions, alongside others who share the same increased health
vulnerabilities. As a result, the prison environment is one marked by disease transmission,
environmentally exacerbated health decline and death, and heightened risk of mental
illness. In the words of the WHO, ‘‘Ill-health thrives in settings of poverty, conflict,
discrimination and disinterest. Prison is an environment that concentrates precisely these
issues.’’ (Bone et al., 2000)
The failure of Governments to address these health concerns has implications beyond
detainees and prison authorities. Indeed, health experts and international organisations have consistently emphasised the fact that prison health cannot be isolated from
broader public health concerns (e.g., World Health Organization Europe, 2003; Dublin

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Declaration , 2004; UNODC/WHO/UNAIDS, 2006). Therefore, the provision of health
services sufficient to meet these needs is not only a matter of pressing concern for persons in
detention, it is also integrally linked to State obligations to fulfill the right to health within
the population as a whole.
Given the extreme nature of prison health problems Á problems exponentially more
severe in many cases than those found in the population outside of prisons Á providing a
standard of health care in prisons equivalent to that outside prisons would not be sufficient
to meet the need in many cases. Given the scope and urgency of the issues involved,
Governments have a legal and ethical obligation to provide a standard of health care greater
than that available in the community. Equivalence is only a minimum acceptable standard,
rather than an ideal one.
The principle of equivalence in an historical context
The argument that the State has a higher obligation to provide health care to people in
detention is not a new one. Indeed, the basis for this position can be found in the very
earliest prison health legislation.
In 1774, the Parliament of the Great Britain passed the Act for Preserving the Health of
Prisoners in Gaol, and preventing the Gaol Distemper (see Appendix A). The Act was the first
Parliamentary legislation in Great Britain to specifically address health in prisons. As such,
it was likely one of the earliest pieces of such legislation in Europe, if not the world.
Writing in 1777, three years after the Act became law, the English prison reformer, John
Howard, described the content in this way.
The late act for preserving the health of prisoners requires that an experienced Surgeon or
Apothecary be appointed to every gaol: a man of repute in his profession. His business is,
in the first place, to order the immediate removal of the sick, to the infirmary; and see that
they have proper bedding and attendance. Their irons should be taken off; and they
should have, not only medicines, but also diet suitable to their condition. He must
diligently and daily visit them himself; not leaving them to journeymen and apprentices.
He should constantly inculcate the necessity of cleanliness and fresh air; and the danger
of crowding prisoners together: and he should recommend , what he cannot enforce. I need
not add, that according to the act, he must report to the justices at each quarter-sessions,
the state of health of the prisoners under his care. (Howard, 1777) [emphasis in original]
The principles enshrined in this 230-year-old law are notable for their relevance to a
contemporary examination of prison health standards, and the legal context of the principle
of equivalence. More than two centuries later, these principles continue to form the
framework of State obligations in international law to safeguard the health of prisoners.
They also describe a legal duty upon the State to provide a standard of health services in
prisons superior than for people outside of prisons in 18th century England.
At the most fundamental level, in ordering the appointment of a ‘‘Surgeon or
Apothecary . . . to attend each Gaol or Prison respectively’’, the Act enshrined the legal
obligation of the State to provide universal access to medical care for all prisoners. In
specifying that this surgeon or apothecary be ‘‘experienced’’, it mandated that prison
medical staff meet recognised qualifications and standards.
The Act required that every prison have an acceptable medical infrastructure. It ordered
that ‘‘Two Rooms in each Gaol or Prison, One for the Men, and the other for the Women,
to be set apart for the Sick Prisoners, directing them to be removed into such Rooms as

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soon as they shall be seized with any Disorder, and kept separate from those who shall be in
Health.’’ These medical units were required to be maintained in a hygienic manner, and
were ‘‘to be regularly washed and kept clean, and constantly supplied with fresh Air, by
Means of Hand Ventilators, or otherwise’’.
The Act identified the State’s responsibility ‘‘for restoring or preserving the Health of
Prisoners’’, therefore suggesting an obligation to provide both primary medical care for sick
prisoners (restoring), as well as preventative health measures (preserving). The Act’s
attention to issues hygiene, cleanliness and ventilation, as well as the requirement to
separate ill prisoners from the rest of the prison population, underlines the responsibility to
take measures to prevent the spread of infectious diseases.
The legal obligation of the State to provide these medical services in prisons was
highlighted by the fact that health care was to be paid for out of taxation. It was reinforced
most vividly by the stipulation that if ‘‘any Gaoler or Keeper of any Prison shall, at any
Time, neglect or disobey’’ the legislation, they were liable for prosecution, fine and possible
imprisonment.
In each of these cases, the legal standards of care articulated in the Act were higher than
those existing outside of prisons in that era and people in prison were entitled to be
provided health services by the State that they were not entitled to outside of prisons. This
entitlement is recognition that the very nature of the relationship between the State and the
detainee, defined as it is by the authorities’ complete control over the day-to-day lives of
incarcerated individuals, necessarily places upon the Government a higher level of
responsibility to protect the lives and well-being of prisoners.
The principle of equivalence in a contemporary legal context
While the 1774 Act for Preserving the Health of Prisoners established this legal concept early
on, the notion that the State owes a higher duty of care to those it imprisons than it does to
those outside of prisons also features in modern human rights law. It is on this basis that it
can be reasonably argued that the principle of equivalence is at best a minimum acceptable
standard, and that State obligations to protect people in their custody require it to provide a
higher level of care to persons deprived of liberty when demanded by circumstance or
conditions.
One contemporary example is found in the work of the African Commission on Human
and People’s Rights, the body responsible for monitoring State compliance with the
provisions of the African Charter on Human and Peoples’ Rights. The Commission takes the
approach that the State’s obligation to fulfill the right to health contained in Article 16 of
the African Charter ‘‘is heightened in cases where an individual is in its custody’’ because the
person’s ‘‘integrity and well-being is completely dependent upon the actions of the
authorities.’’ (International PEN and Others v Nigeria , 1998) This articulates a higher
standard of care owed by the State to prisoners than to non-prisoners. According to the
Commission, ‘‘The State’s responsibility in the event of detention is even more evident to the
extent that detention centres are its exclusive preserve, hence the physical integrity and
welfare of detainees is the responsibility of the competent public authorities.’’ (Malawi
African Association and others v Mauritania , 2000) [emphasis added]
The United States Supreme Court has also found that the Government has an obligation
to provide people in prison with access to health services, a duty it does not owe to people
outside of prisons. The late Justice Thurgood Marshall, writing the majority opinion in the
1976 case of Estelle v Gamble , affirmed

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the government’s obligation to provide medical care for those whom it is punishing by
incarceration. An inmate must rely on prison authorities to treat his medical needs; if the
authorities fail to do so, those needs will not be met. In the worst cases, such a failure may
actually produce physical "torture or a lingering death,’’ . . . In less serious cases, denial of
medical care may result in pain and suffering which no one suggests would serve any
penological purpose. (Estelle v Gamble, 1976)
The US Supreme Court’s approach confirms that the very nature of the custodial
relationship between State and prisoner places obligations on the Government to provide
access to health care above and beyond that owed to people outside of prisons. While this is
not to suggest that health care standards in US prisons are sufficient, the Court’s decision
does endorse the principle that the Government is legally obligated to provide a higher level
of health services to people in prison. In this sense, this decision builds upon the case law of
the North Carolina Supreme Court, which stated in 1926 that ‘‘it is but just that the public
be required to care for the prisoner, who cannot by reason of the deprivation of his liberty,
care for himself" (Spicer v Williamson , 1926).
The South African High Court has also taken the position that there is an increased duty
upon the State to provide medical care to people in prison, and as a result the Government
may be obligated to provide prisoners with a standard of care beyond that provided to the
general public. In the 1997 case of Van Biljon and Others v The Minister of Correctional
Services , the Court found there to be a higher obligation on the Government to provide
medical care for particularly vulnerable prisoners, such as those living with HIV/AIDS, than
to comparable patients outside of prisons (Van Biljon and Others v The Minister of
Correctional Services , 1997; Gutto, 1998; Canadian HIV/AIDS Legal Network/UNAIDS,
2006). On this basis, the Court ordered the State to provide HIV anti-retroviral treatment
to the imprisoned plaintiffs at a time when such treatment was rarely available in the general
population (Ngwena and Cook, 2005; Van Biljon and Others v The Minister of Correctional
Services , 1997; Canadian HIV/AIDS Legal Network/UNAIDS, 2006).
This position also finds support from the UN Human Rights Committee in the 2002 case
of Lantsova v The Russian Federation . The prisoner’s mother, who took the case on behalf of
her deceased son, alleged that he was in good health when he entered the prison, but soon
fell ill due to poor conditions. It was claimed that the prisoner ‘‘received medical care only
during the last few minutes of his life’’ and ‘‘that the prison authorities had refused such
care during the preceding days and that this situation caused his death.’’ (Lantsova v Russian
Federation , 2002).
The Human Rights Committee found that the failure of the authorities to provide a
‘‘properly functioning medical service’’ to diagnose and treat the prisoner’s medical
condition violated his right to life (Lantsova v Russian Federation , 2002). Lantsova therefore
suggests that providing a ‘‘properly functioning medical service’’ in prisons is a legal
requirement of States under Article 6(1) of the International Covenant on Civil and Political
Rights , an obligation that does not exist for non-incarcerated persons under the same treaty.
This view is echoed by the European Court of Human Rights, which found in the 2002 case
of Edwards and another v United Kingdom that the failure of the State to provide medical care
and mental health screening systems in prison, which in this case resulted in the death of the
applicant, violated the right to life in the European Convention on Human Rights (Edwards
and another v UK , 2002).
Indeed, the European Convention provides another basis in law to argue that a higher
standard of health care is owed to people in prison. For example, while the Convention does

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not contain a general right to health for European citizens, it does articulate a right to health
of persons in prison under Convention Article 3, the prohibition of torture and inhuman or
degrading treatment. The case law of the European Court of Human Rights is clear that the
failure to provide necessary medical attention to prisoners Á which unnecessarily
exacerbates the person’s suffering Á can constitute a violation of Article 3. According to
the Court, ‘‘the authorities are under an obligation to protect the health of persons deprived
of liberty and the lack of appropriate medical care may amount to treatment contrary to art
3’’ (Rohde v Denmark, 2005; see also Kudla v Poland, 2000; Melnik v Ukraine , 2006).
Furthermore, the prohibition of inhuman or degrading treatment imposes upon States a
‘‘positive obligation’’ to take proactive measures to prevent the occurrence of inhuman or
degrading treatment (e.g., Keenan v UK , 2001; Hurtado v Switzerland , 1994; Pantea v
Romania , 2005). If inadequate medical services in prisons can constitute a violation of
Article 3, it can be argued that the State’s positive obligations to take action to prevent the
occurrence of inhuman or degrading treatment requires it to implement effective and
proactive medical services. As a result, it can be argued that providing a proper standard of
medical care in prisons is a legal requirement under European law, and one not found to
extend to persons in the general community for whom the Convention does not provide a
generalised right to health. Once again, this higher standard of health care is owed by virtue
of the custodial relationship between the keepers and the kept.
Related to this issue is the fact that the health decline of persons in prison Á physical,
mental and/or the contracting of diseases Á has been cited by the European Court (e.g.,
Kalashnikov v Russia , 2003; Nevmerzhitsky v Ukraine , 2005; I.I. v Bulgaria , 2005; Alver v
Estonia , 2005), the UN Human Rights Committee (e.g., Williams v Jamaica , 1997; Cabal
and Pasini v Australia , 2003; Matthews v Trinidad and Tobago, 1998) and the Inter-American
Court of Human Rights (Caesar v Trinidad and Tobago, 2005) as contributing to overall
prison conditions that are cruel, inhuman or degrading and therefore illegal. This would
therefore suggest that taking preventative health measures in prisons, such as those to
prevent infectious diseases or mental health deterioration, is also a legal duty of the State.
Principle of equivalence in a public health context
Incarcerating an individual, by definition, places increased obligations on State authorities
to protect his or her well-being, an increased obligation that necessarily brings with it
increased responsibilities to provide health care services, even when those services exceed
the scope or quality of those provided outside prisons. A failure to provide such services,
which can result in the health deterioration or even death of a detainee, can violate State
obligations in law.
However, the obligation to provide a higher standard of care to persons in detention is
also a public health imperative. In an era where prisons are major sites fuelling the
international pandemics of HIV, hepatitis C and (multi-drug resistant) tuberculosis, where
prisons are becoming warehouses for persons with mental illness and people who use drugs,
the mere achievement of equivalence is not only insufficient in human rights terms, it is an
insufficient public health response.
A significant proportion of prisoners in most countries are members of groups that suffer
social, economic or ethnic/racial discrimination in the broader society. Many of the same
factors that make these populations more likely to find themselves in conflict with the law,
and therefore incarcerated, also mean that they suffer disproportionately from a poor health
status (Bone et al., 2000; UNODC/WHO/UNAIDS, 2006). According to the WHO,

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In all countries of the world, it is people from the poorest and most marginalized sections
of the population who make up the bulk of those serving prison sentences, and many
of them therefore have diseases such as tuberculosis, sexually transmitted infections,
HIV/AIDS and mental disorders . . . Penitentiary populations [therefore] contain an overrepresentation of members of the most marginalized groups in society, people with poor
health and chronic untreated conditions (World Health Organization Europe, 2003).
As a result, the health needs of people in prison are necessarily more intensive and
complex than those outside of prison, demanding a more intensive and complex health care
response. Clearly, the public health risks associated with failing to provide increased
services to meet these increased needs have disproportionate implications for overall
community health.
Conclusion
Whether examined from the perspective of public health or human rights, achieving
equivalence standards of health care in prisons is not sufficient to fulfill State obligations to
protect the health of people it holds in detention. It is therefore time to move beyond the
concept of equivalent standards of health care, and instead promote standards that achieve
equivalent objectives. This necessitates an analysis of those circumstances in which health
services equivalent to those outside the prison environment still fall short of what is
necessary to achieve the same health outcomes. While prison heath standards must never
fall below those available outside of prisons, equivalence is a minimum standard, rather
than one that satisfies the legal or health obligations of States. As was illustrated by the
methadone discussion in Dublin, the unique challenges and barriers inherent to places of
detention can mean that achieving equivalent health objectives will sometimes require
enhanced services and standards in prisons.
In a context where even equivalent health standards in prisons are far from achieved,
where prisoners are demonised and stigmatised by political leaders, and where poor prison
conditions are at best met with indifference from the public, a call for a higher standard of
health may seem a pointless and unrealistic exercise. However, the rights of people in
prison, and the demands of prison health and human rights advocates, must not be
curtailed by Governments’ failure to meet their obligations. Nor should the rights and
entitlements of vulnerable or marginalised populations be dictated by public prejudice,
apathy or hostility.
In prisons, where health problems are more extreme, complex and widespread than in
the general population Á a situation driven by State criminal justice and prison policy
decision-making Á a response merely equivalent to that outside of prison is by definition not
enough. In the words of the UN Human Rights Committee, ‘‘the State . . . by arresting and
detaining individuals takes the responsibility to care for their life.’’ (Lantsova v Russian
Federation , 2002) Because ‘‘the State party remains responsible for the life and well-being of
its detainees’’ (Fabrikant v Canada , 2001) it is "incumbent on States to ensure the right of
life of detainees’’ is protected (Lantsova v Russian Federation , 2002).

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Appendix A: An Act for preserving the Health of Prisoners in Gaol, and preventing
the Gaol Distemper
14 Geo.3 c.59
Seventh Session of the Thirteenth Parliament of Great Britain (13 January 1774)
Whereas the malignant fever, that is commonly called The Gaol Distemper , is found to be
owing to a want of Cleanliness and fresh Air in the fever Gaols in England and Wales , and
the fatal Consequences of that Disorder, of which there has been, of late, too much
Experience, might be prevented, if Justices of the Peace were duly authorised to provide
such Accommodations in Gaols as may be necessary to answer this salutary Purpose: May it
therefore please Your Majesty that it may be enacted; and be it enacted by the King’s most
Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled, and by the Authority of
the same, That the several Justices of the Peace, in that Part of Great Britain called England
and Wales , within their several Jurisdictions, in their Quarter Sessions Assembled, are hereby authorised and required to order the Walls and Ceilings of the several Cells and Wards,
both of the Debtors and the Felons, and also of any other Rooms used by the Prisoners in
their respective Gaols and Prisons, where Felons are usually confined, to be scraped and
white washed, Once in the Year at least; to be regularly washed and kept clean, and
constantly supplied with fresh Air, by Means of Hand Ventilators, or otherwise; to order
Two Rooms in each Gaol or Prison, One for the Men, and the other for the Women, to be
set apart for the Sick Prisoners, directing them to be removed into such Rooms as soon as
they shall be seized with any Disorder, and kept separate from those who shall be in Health;
to order a Warm and Cold Bath, or commodious Bathing Tubs, to be provided in each Gaol
or Prison, and to direct Prisoners to be washed in such Warm or Cold Baths or Bathing
Tubs, according to the Condition in which they shall be at the Time, before they are
suffered to go out of such Gaols and Prisons upon any Occasion whatever; to order this Act
to be painted in large and legible Characters upon a Board, and hung up in some
conspicuous Part of each of the said Gaols and Prisons; and to appoint an experienced
Surgeon or Apothecary, at a stated salary, to attend each Gaol or Prison respectively, who

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R. Lines

shall, and be hereby directed to report to the said Justices by whom he is appointed, at each
Quarter Sessions, a State of the Health of the Prisoners under his Care or Superintendance.
And be it further enacted by the Authority aforesaid, That the said Justices of the Peace,
in their said Quarter Sessions assembled, are hereby authorised to direct the several Courts
of Justice within their respective Jurisdictions to be properly ventilated; to order Cloaths to
be provided for the Prisoners when the see Occasion; to prevent to Prisoners from being
kept under Ground, whenever they can do it conveniently; and to make such other Orders,
from Time to Time, for restoring or preserving the Health of Prisoners, as they shall think
necessary.
And be it further enacted by the Authority aforesaid, That the Expences attending the
Execution of the Orders of the said Justices, made in pursuance of this Act, so far as the
same shall respect County Gaols and Prisons, and Courts of Justice belonging to the
Counties, shall be borne and defrayed, at all Times, out of the respective County Rates; and
so far as the same shall respect the Gaols and Prisons, and Courts of Justice, or particular
Cities, Towns Corporate, Cinque Ports, Liberties, Frannchises, or Places, that do not
contribute to the Rates of the Counties in which they are respectively situated, such
Expences shall be defrayed out of the Publick Stock of Rates of such Cities, Towns
Corporate, Cinque Ports, Liberties, Franchises, or Places, having such exclusive Jurisdictions, to which such Gaols, or Prisons or Courts of Justice, shall respectively belong: And if
any Gaoler or Keeper of any Prison shall, at any Time, neglect or disobey the Orders of
such Justices made in pursuance of this Act, he may be proceeded against in a summary
Way, by Complaint made to the Judges of Assize, or to the Justices, in their Quarter
Sessions; and if found guilty of such Neglect or Disobedience, he shall pay such fine as the
Judges of Assize, or Justices, shall impose, and shall be committed in case of Nonpayment.

 

 

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