Healthcare rights in prison

Everyone in prison has important rights when it comes to healthcare.

Some examples of your healthcare rights in prison are:

• All medical treatment given in prison must be voluntary. You can’t be forced to have treatment or medication.
• You have the right to ask questions about any treatment, and all treatment options should be fully explained to you.
• You have the right to have an interpreter at a medical appointment if you need one (this comes from part 2.09 of the Deputy Commissioner’s Instructions).

Your healthcare rights in prison come from:

• Corrections Act 1986 (Vic)
• The Victorian Human Rights Charter
• Corrections Victoria policies and standards, like the Justice Health ‘Healthcare Services Quality Framework for Victorian Prisons’
• Australian legal cases
• International law

Below is a summary of some of the most important healthcare rights for people in prison.

Equivalent care

People in prison have the right to access the same standard of healthcare that other people in the community an access through the public health system. This is called the right to equivalent care.

Healthcare in prisons should allow you to have the same standard of health as other people in the community. This comes from a Supreme Court case called Castles v Secretary of the Department of Justice [2010] VSC 310 and is in the Justice Health ‘Healthcare Services Quality Framework for Victorian Prisons’. This framework sets out minimum standards for healthcare services in Victorian prisons.

Healthcare rights from the Corrections Act

Healthcare rights come from section 47 of the Corrections Act 1986 (Vic). They are:

1. The right to reasonable medical care and treatment that is necessary to maintain your health
2. The right to see a private doctor, dentist, chiropractor or physiotherapist outside prison (with the approval of Corrections Victoria)
3. The right to reasonable dental care that is necessary to maintain your dental health
4. The right to special care and treatment if you have a mental illness or disability

Healthcare rights from the Victorian Human Rights Charter

Access to proper medical care in prison is relevant to rights in the Victorian Human Rights Charter (known as ‘the Charter’):

• The right to life
• The right to be treated humanely while deprived of liberty
• The right to protection from torture, cruel and inhuman or degrading treatment

For more information on Charter rights, click here.

Healthcare for Indigenous people

The United Nations Declaration on the Rights of Indigenous People (UNDRIP) has a list of rights belonging to Indigenous people around the world, and minimum standards for their treatment by countries.

UNDRIP is not legally binding, but is recognised around the world. It was endorsed by Australia in 2009.

UNDRIP says that Indigenous people:

• Have the right to access, without any discrimination, all health services
• Have the right to the highest achievable standard of physical and mental health, equivalent to the rest of the community

UNDRIP says all countries should take the steps needed to make sure these rights are maintained.

Prison healthcare in the Mandela Rules

The Mandela Rules are minimum standards for the treatment of prisoners around the world. They were adopted by the United Nations in 1955.

The rules are not legally binding, but they are recognised around the world and provide important guidance to correctional services like prisons. Corrections Victoria refers to the Mandela Rules on their website and in their policies.

Rules 24 – 35 relate to healthcare in prisons. Some of the important guidance provided in these rules includes:

• People in prison must have the same standard of healthcare as the rest of the community
• Healthcare must be available to all people in prison without discrimination and regardless of their custody status (remand or sentenced)
• Every person who comes into prison must be seen by a medical professional as soon as possible
• There must be continuity of care for everyone, including people with infectious diseases and drug dependence
• Prison healthcare services must keep up-to-date, accurate and confidential health records, which people in prison can access if they ask
• There must be prompt medical responses to urgent cases
• Decisions made by doctors cannot be overruled or ignored by non-medical prison staff
• A doctor must report to a prison director if they think a person in prison’s physical or mental health will be ‘injuriously affected by continued imprisonment or by any condition of imprisonment’
• If healthcare professionals become aware of any signs of torture or other cruel, inhuman or degrading treatment or punishment, they must document and report it to a medical, government or judicial authority