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Chapter 2

Punish and Care. The difficult apprehension by European law of a paradoxical injunction

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“Prisoners are entitled to medical treatment in conditions comparable to those enjoyed by patients in the outside community and should have access to the health services available in the country without discrimination on grounds of their legal situation” (Wenner v. Germany, no. 62303/13, 1 September 2016, § 66).

Over the last 30 years, the UN and Council of Europe have consecrated that States have a duty of care for the health of prisoners and that prison health care services should be provided in conditions equivalent to the ones enjoyed by the general population.

Still, prisons remain overrepresented by people with poor health status and prevalence rates of infectious and mental health disease in prison are several times higher than in the general population.

Not only do prison health care systems generally show they are incapable of coping with a high and increasing burden of diseases in an ageing prison population, but the enshrinement of prison health care in the security paradigm of the prison institution also creates structural conditions for violations of Article 3 of the European Convention of Human Rights and other violations of fundamental rights of people in prison.

Without an independent prison medicine committed to public health and deontological principles and prioritizing the health needs of the patient over institutional security and investigative interests, prisoners are condemned to see their state of health deteriorating in detention.

At a time when Covid-19 pandemic risks have shown the urgency of considering prison health as public health, formerly incarcerated people who use drugs and who live with HIV, medical doctors, human rights defenders and international experts joined in this Chapter to draw analysis on the efficiency of right to health of prisoners and the structural issue of the independence of prison medicine as a condition for States to implement the principle of equivalence of care.

Leave No One Behind: WHO approach to the principle of equivalence of care
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