Prisoners and Health Care: Your Rights in the ACT

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Your right to health and proper health care and treatment is protected while you are in prison and you are entitled to the same medical treatment that you would reasonably receive out of prison.

Unfortunately, violations of rights to occur in Australian prisons, including in the ACT. If you believe a family member, friend, or your own right to health has been violated whilst in prison, we can provide you with assistance. Substandard health care is not acceptable.

In the ACT, what are your health related rights in prison?

In the ACT, there are different pieces of legislation that govern your rights in relation to health.

The Corrections Management Act 2007 regulates correctional facilities (this includes prison) in the ACT. All correctional facilities are under an obligation to comply with this act. If you are in detention in the ACT, the facility must:

• Respect and protect your rights;
• Ensure you are treated humanely and with decency;
• Ensure you are not exposed to punishment (in addition to being detained)
• Ensure your living conditions meet the minimum standards, including having access to suitable health services and facilities.

The Corrections Management Act also lists rights you have that are exclusively related to your health;

• In prison, you must receive a standard of care that is the same as what is available to other people in the ACT;
• Arrangements must be made to ensure you receive appropriate health services;
• Your health and wellbeing must be supported by the prison conditions;
• You must have access to regular health checks, hospital care if necessary, quick treatment if necessary and specialist health services as far as possible;
• You may be transferred to an appropriate health facility (this is covered further in this article).

The ACT has the Human Rights Act 2004, which is something not all states have. This Act recognises the vulnerability of detainees, who are deprived of certain liberties, and ensures that prisoners are not exposed to further hardship or limitations while in prison. You should be treated humanely and respectfully. Refusing medical attention or failing to address deteriorating health is a violation of this.

You also are entitled to universal human rights, such as those under the Universal Declaration of Human Rights which allow an appropriate standard of living for adequate health and wellbeing. This includes medical care.

Where do health related human rights abuses in prison happen?

Unfortunately, the violation of health rights does occasionally occur in Australia. We have sadly seen neglect and even cases of death in custody, due to appropriate care not being given. Unfortunately, even with the above legislation in place, the ACT has seen instances of human rights abuses in relation to health.

At elringtons, we have seen situations where a detainee’s requests have been denied and the individual has consequently suffered, due to appropriate health care not being provided. Receiving medical care in a timely manner is also a right, meaning that in circumstances where treatment is received but it is too late, it may be a violation of health rights

In prison, are you entitled to a second opinion or different medical treatment?

In prison, you do not have the same ease and freedom as those out of prison to seek a second opinion or different medical treatment if you have concerns regarding your initial treatment. Communication difficulties are also faced. Additionally, your access to Medicare entitlements are revoked, so with no access to the Medicare system, you are largely at the mercy of the prison and its own health facility.

In the ACT, some medical circumstances, when required, allow you to be transferred to a health facility inside, or outside the prison. If you are to be transferred, an officer can be appointed to escort you to, from or at the health facility. If your medical condition is worsened due to not receiving appropriate or timely treatment (or further treatment you have requested), there is a likelihood that your rights have been breached.

Are there any remedies available if your health rights have been violated?

There are currently no reported cases in the ACT of human rights, relating to health, being violated. A large reason for this may be that there is no concrete legal remedy, or damages available if your rights have been violated under the Human Rights Act 2004. According to this piece of legislation, the Supreme Court may grant relief it considers to be appropriate, but this excludes being awarded damages. So what is the point?

Simply arguing the principle, with no damages or monetary remedy is not appealing enough for many people to make a claim. However, if your health rights have been violated under the Human Rights Act, then there may be a claim for negligence. This is because a prison owes a duty of care to inmates, and if the duty is breached and you have received an injury, a claim in negligence may be made.  Negligence claims are run for the purpose of obtaining compensation for those injured by the negligence.

What do you do if you think your right to health, or a friend or family member’s rights have been abused?

If you are concerned about the health rights of a friend or family member who is in prison, there are options available to you. Similarly, there are options if you believe your own health rights have been violated whilst in prison.

The ACT Human Rights Commission is an organisation that promotes human rights in the ACT that provides a service for a range of complaints. You can contact the Human Rights Commission and make a complaint. Alternatively, elringtons can offer legal advice and provide you with a range of options, such as the remedies listed above.

For more information or to make an appointment in either our Canberra or Queanbeyan office please do not hesitate to contact Matthew Bridger or Thomas Maling