Access to Medical Treatment in Detention

Paladi v Moldova [2007] ECHR Application No 39806/05 (10 July 2007)

Summary

The European Court of Human Rights has held that the medical treatment of a prisoner within a remand centre and prison hospital was inadequate and that failure to treat him as an inpatient at a hospital where he could receive the necessary neurological and hyperbaric oxygen treatment amounted to a violation of the prohibition on torture and other cruel, inhuman or degrading treatment.

Facts

The applicant, Mr Paladi, was Deputy Mayor of Chişinău.  He was arrested in September 2004 and charged with corruption and abuse of his position.  He was detained initially in a remand centre and subsequently in a prison.

The applicant suffered a range of serious illnesses, including diabetes, hepatitis, hypertension, chronic pancreatitis and cardiac and neurological problems.  A number of medical practitioners recommended that the applicant be treated as an inpatient in an appropriately equipped hospital and concluded that he required constant medical supervision without which he faced major health risks.  Despite this, the applicant was only visited sporadically by doctors and received urgent medical assistance, including hyperbaric oxygen treatment, in emergencies.  He made a number of unsuccessful habeas corpus applications to domestic courts and continued to be held on remand until December 2005.

Before the European Court, the applicant alleged, among other things, that his inadequate medical treatment in custody amounted to cruel, inhuman or degrading treatment contrary to art 3 of the European Convention.  The government responded that the applicant had received appropriate medical treatment, both in the remand centre and prison and prison hospital.

Decision

The Court reiterated the principles established in Sarban v Moldova that ‘ill-treatment must attain a minimum level of severity if it is to fall within the scope of art 3’.  In Sarban, the Court stated that:

The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.  Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of art 3.

The Court then examined the relevance of art 3 to the medical treatment of persons in detention, concluding that:

Although art 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance.

The Court affirmed the principle set down in Sarban that ‘the right of all prisoners to conditions of detention which are compatible with human dignity’, requires that they are not subject ‘to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention’.

In the present case, the Court considered that the lack of proper medical assistance at the remand centre and in prison, the incomplete treatment of the applicant in the prison hospital and the failure to continue the recommended hyperbaric oxygen treatment ‘unnecessarily exposed the applicant to a risk to his health and must have resulted in stress and anxiety’ which was ‘in excess of the level inherent in any deprivation of liberty’.  The Court concluded that this amounted to a violation of art 3 and awarded the applicant 21,080 euros in damages.

Implications for the Victorian Charter

A number of influential courts and bodies – including the European Court of Human Rights under the European Convention, the UK Court of Appeal under the Human Rights Act 1998, and the UN Human Rights Committee under the ICCPR – have consistently held that the state has a particular duty and responsibility for the health and well-being of those in its custody.

In recent cases, the European Courthas stated that the quality of healthcare to those imprisoned by the state is not to be relative.  While an individual in society may have no right to healthcare as such, where they are in the state's custody the state must ensure that they receive the medical care required (see, eg, Holomiov v Moldova ([2007] ECHR 30649/05); Istratii and others v Moldova ([2007] ECHR 8721/05)).  Both the European Court and UK courts have stated that scarce resources or logistical difficulty will not be legitimate excuses for inadequate medical treatment to prisoners.  In Mamedova v Russia ([2007] ECHR 7064/05), for example, the European Court stated that it is ‘incumbent on the…Government to organise its penitentiary system in such a way that ensures respect for the dignity of detainees, regardless of financial or logistical difficulties’ (see also Frolov v Russia [2007] ECHR 205/02).  Similarly, the UK Court of Appeal stated in R (Noorkoiv) v Secretary of State for the Home Department ([2002] EWCA Civ 770, [31]) that the government could not be excused from what were otherwise breaches of the right to liberty and freedom from cruel treatment in the prison context ‘simply by pointing to a lack of resources that are provided by other arms of government’.  Where authorities decide to place and maintain a seriously ill person in detention, they must demonstrate special care to provide conditions of detention to accommodate the disability (see, eg, Testa v Croatia ([2007] ECHR 20877/04)).

In an Australian context, the Victorian Ombudsman concluded in a July 2006 report entitled Conditions for Persons in Custody that ‘there are significant deficiencies in the health care provided to prisoners’ as a result of factors including ‘insufficient resources’, ‘contractual arrangements with health providers’ and ‘prison regulations which create obstacles to the provision of effective health care’.  Similarly, a July 2007 audit of ACT correctional facilities conducted by the ACT Human Rights Commission concluded that the ACT needs to ‘do much more to ensure that people receive adequate…health care and treatment’.  The Commission stated that:

Health services to detained persons must be equivalent to those available in the community and should form part of, and be broadly consistent with the wider community health system.  When it comes to health, prisoners are patients first.

It is imperative that the Victorian Government review and implement recommendations such as these if Victorian prison conditions and prisoner health care services are to meet the threshold required by s 10 (protection from torture and cruel, inhuman or degrading treatment), s 21 (right to liberty and security of person) and s 22 (humane treatment when deprived of liberty) of the Victorian Charter.

Philip Lynch is Director of the Human Rights Law Resource Centre