1. Several international standards
establish that people deprived of their liberty shall have access
to health care and define the quality of care that should be provided
to them. Most of these are legally non-binding instruments and are
referred to in the explanatory memorandum. However, their principles
all derive from the same fundamental right that is the right to
health, first proclaimed by the Constitution of the World Health Organization
adopted in 1946, then by the Universal Declaration of Human Rights
two years later (Article 25.1). In 1996, Article 12.1 of the United
Nations International Covenant on Economic, Social and Cultural
Rights enshrined for the first time in a legally binding international
instrument “the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health”.
2. According to the United Nations Committee of Economic, Cultural
and Social Rights, access to health care is a key aspect of the
right to health and States are under the obligation to respect this
right by,
inter alia, refraining
from denying or limiting equal access for all persons, including
prisoners or detainees, minorities, asylum seekers and illegal immigrants,
to preventive, curative and palliative health services.
It follows that the International
Covenant on Economic, Social and Cultural Rights is at the heart
of the international standards mentioned above and should be included
in the list of key instruments cited in the draft recommendation, together
with the revised European Social Charter (ETS No. 163) which is
its Council of Europe equivalent
(Amendment
F).
3. Moreover, the draft resolution and the draft recommendation
should follow the appropriate terminology relating to the right
to health and thus refer to “the right to equal access to health
care” rather than “the right to equivalent medical care”, and to
“access to adequate health care” rather than “adequate health care”.
In this latter case, there is also no need to add the term “medical
treatment” after “health care”, as the former is an aspect of the
latter, which is a wider concept that includes diagnostic, preventive,
therapeutic and rehabilitative interventions (Amendments A and E).
4. The report only marginally addresses the needs of specific
groups of detainees in terms of health care (for example psychological
treatment for migrants in immigration detention, see paragraph 38
of the explanatory memorandum). Though understandable in terms of
the already very large scope of the report,
I think
that the case of detainees giving birth deserves particular attention.
In fact, while pregnancy is not an illness, labour has considerable
risks and can quickly turn into a life-threatening situation. In
such cases, special medical care at an outside facility becomes
critical and lack of efficient transport may result in the deaths
of both the mother and the child. Therefore, in the draft resolution
I propose including a specific recommendation on this issue (Amendment
B).
5. Also in the draft resolution, there seems to be confusion
about who should receive palliative and end-of-life care. End-of-life
care, which typically includes palliative care, is for patients
who are terminally ill. As for palliative care aimed at
managing
pain and other distressing symptoms of an illness, it should
be made available to all seriously ill individuals regardless of
prognosis. Hence, while an elderly person can be terminally or seriously
ill and require end-of-life or palliative care, to link these two
types of care with elderly people, as suggested by the draft resolution,
is simply confusing, not to say wrong. If one wants to address the
specific problems of elderly people, reference should be made to
geriatric care, which is aimed at treating the common geriatric
syndromes such as falls, dementia, incontinence and sensory impairments.
With a view to clarifying these aspects, I propose to reformulate
the relevant paragraph of the draft resolution (Amendments C and
D).