38/36 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health - Note by the Secretariat
Document Type: Final Report
Date: 2018 Apr
Session: 38th Regular Session (2018 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.18-05613(E)
Human Rights Council Thirty-eighth session
18 June–6 July 2018
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health, prepared pursuant to Council resolution 33/9. In the
report, the Special Rapporteur addresses the relationship between the right to health and
specific forms of deprivation of liberty and confinement in penal and medical regimes.
Detention and confinement remain the policy tool preferred by States to promote public
safety, “morals” and public health, doing more harm than good to public health and the
realization of the right to physical and mental health. The Special Rapporteur calls for the
full implementation of the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules) and for the development of supportive community-
based services as alternatives to detention and confinement in various cases.
United Nations A/HRC/38/36
Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
Contents
Page
I. Introduction ................................................................................................................................... 3
II. The right to health in the context of confinement and deprivation of liberty ............................... 5
A. Intrinsic links, systemic omissions ....................................................................................... 5
B. Right-to-health framework .................................................................................................. 6
III. Relationship between mental health and forced confinement and deprivation of liberty .............. 10
IV. Children deprived of liberty .......................................................................................................... 11
A. Overview .............................................................................................................................. 12
B. Penal institutions ................................................................................................................... 12
V. Women, the right to health, and confinement ............................................................................... 14
A. Addressing the gendered pathways of incarceration ............................................................. 15
B. Conditions of incarceration ................................................................................................... 16
C. Women with disabilities ....................................................................................................... 17
VI. From confinement to community: ending public-health detention ............................................... 17
A. Criminalization as a determinant of the right to health for people living with tuberculosis . 18
B. Community-based care and tuberculosis .............................................................................. 19
VII. Conclusions and recommendations ............................................................................................... 19
I. Introduction
1. In previous reports and country missions, the Special Rapporteur has attempted to
shed light on how exclusion has negatively affected the right to health of those deprived of
basic liberties and freedoms. In the present report, he uses a right-to-health framework to
problematize the global approach to deprivation of liberty and confinement, pointing
towards transformative directions for reform.
2. Given the breadth and scale of these issues, a comprehensive assessment is not
possible within the space constraints of the present report. This is an initial contribution,
focused on some practices where the right to health is a key element in meaningful
assessment and guidance.
3. The report is a synthesis of insights acquired during country missions, literature
reviews and multiple assessments of cases brought to the attention of the Special
Rapporteur through the communications mechanism of the special procedures. The report
was significantly informed and enriched through extensive consultations with a wide range
of stakeholders, including people who have been deprived of their liberty, civil society
representatives, members of the prison abolition movement, public-health experts, the
World Health Organization (WHO) and academic experts. The Special Rapporteur is
grateful for their generous commitment of time, energy and meaningful contributions.
4. Deprivation of liberty is a legally grounded term, and involves severe restriction of
motion within a space that is narrower than that of other forms of interference with liberty
of movement. It should be based on a judicial sentence, and is imposed without free consent.
It is not prohibited per se, but such detention must be lawful and not arbitrary. Deprivation
of liberty takes many forms, including police custody, remand detention, imprisonment
after conviction, house arrest and administrative detention, as well as both involuntary
hospitalization and institutional custody of children resulting from legal proceedings.1
5. Confinement is a term widely used in health and social welfare settings to indicate
the restriction of an individual within a limited area, following medical or social-welfare
advice. It may occur with or without the consent of the person and may include some
generally accepted health-grounded practices, such as those applied in the context of the
recovery period after a woman has given birth.2
6. While some forms of confinement, including retention in hospitals and in psychiatric
and other medical facilities, may constitute de facto deprivation of liberty,3 virtually all
forms of confinement without informed consent represent a violation of the right to health.
7. Around the world, more than 10 million adults are imprisoned in penal settings.4
These statistics fail to capture the global scale of persons restricted in other settings. For
example, it is estimated that at least one million children are being held in other settings,
that half a million adults are in compulsory drug detention and that thousands of women are
being held in hospitals for non-payment of bills. An inestimable number of adults and
children are confined in medical and social institutions, including persons with tuberculosis
who are forcibly isolated for long durations, sometimes in prison-like settings. While the
places of confinement differ, the shared experience of exclusion exposes a common
narrative of deep disadvantage, discrimination, violence and hopelessness.
8. Restrictions on the liberty of movement have emerged in the past two centuries as
the default tool of social control to promote public safety, “morals” and public health. This
has included the detention, on the grounds of behaviour socially labelled as “immoral”, of,
1 See Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,
paras. 3, 5–6 and 10–14; see also E/CN.4/2005/6, para. 54.
2 See Committee on the Elimination of Discrimination against Women, general recommendation No.
24 (1999) on women and health, paras. 2, 8, 22, 26 and 31.
3 See A/HRC/30/37, para. 9.
4 Roy Walmsley, World Prison Population List, 11th ed. (World Prison Brief and Institute for Criminal
Policy Research).
among others, lesbian, gay, bisexual, transgender and intersex persons, rebellious young
persons, drug users and women exercising their right to make choices concerning
pregnancy prevention and termination. Confinement has become an institutional response
to complex social problems, particularly affecting groups and communities left behind by
public and socioeconomic policies. Some argue that prison systems and institutions are
powerful instruments aimed at silencing the opposition or the “other”, through either
criminal sanctions or medical diagnosis and isolation.
9. The latter part of the twentieth century was marked by a rapid increase in rates of
confinement within punitive legal and policy frameworks, including in relation to the drug
trade, that laid the foundation for modern day, fast-track prison pipelines. Rapid
deinstitutionalization in some countries, without corresponding investment in quality
community-based services, occurred in parallel. People living in poverty and/or belonging
to racial and ethnic minorities were caught in a widening punitive net with inadequate
social, economic and legal protections.
10. The 2030 Agenda for Sustainable Development reflects the ambitious aspiration to
end the vicious cycle of hopelessness, violence, exclusion and discrimination by addressing
social inequalities and human rights so that no one, including persons confined or deprived
of their liberty, is left behind.5 There is strong evidence that any form of violence, including
inside prisons and centres of confinement, poses a risk for the full realization of the right to
health.6 Many promising innovations are prioritizing investment in early childhood, healthy
adolescence, competent parenting, good mental health and well-being, gender equality and
the protection of women from violence, giving hope that the world can and will become
less violent and that detention and confinement will decrease substantially.
11. For the first time, the field of mental health, supported by the Convention on the
Rights of Persons with Disabilities other powerful political commitments,7 is on the verge
of freeing itself from a pattern of coercion and institutionalization in mental health settings.
12. Similarly, drug prohibition is increasingly acknowledged as a failed practice that has
devastating consequences in terms of the right to health. A growing number of countries
and municipalities are replacing punitive approaches to the use of drugs with modern
policies based on public health and human rights principles, including decriminalization or
legal regulation of drug markets and scaled-up investments in community-based social and
health-care services, including harm reduction.8 These promising trends give hope that the
practice of mass incarceration of drug users may end.
13. New and stronger international political commitments to reduce incarceration where
appropriate have been established.9 A number of United Nations entities and human rights
mechanisms have called for the immediate closure of all compulsory drug detention centres
and/or movement towards the decriminalization of non-violent drug offences.10 The global
study on children deprived of liberty commissioned by the Secretary-General at the
5 For more on the 2030 Agenda in the context of the right to health, see A/71/304.
6 See, for example, World Health Organization, World Report on Violence and Health (2002).
7 See, for example, Human Rights Council resolution 36/13.
8 United Nations Development Programme, Reflections on Drug Policy and Its Impact on Human
Development: Innovative Approaches (2016).
9 For example, the Doha Declaration on Integrating Crime Prevention and Criminal Justice into the
Wider United Nations Agenda to Address Social and Economic Challenges and to Promote the Rule
of Law at the National and International Levels, and Public Participation.
10 See A/65/255; A/HRC/32/32; joint statement by United Nations entities on compulsory drug
detention and rehabilitation centres, issued in March 2012, available from
www.unodc.org/documents/southeastasiaandpacific//2012/03/drug-detention-
centre/JC2310_Joint_Statement6March12FINAL_En.pdf; joint United Nations statement on ending
discrimination in health-care settings, issued in July 2017, available from
www.unaids.org/sites/default/files/media_asset/ending-discrimination-healthcare-settings_en.pdf;
“Tackling the world drug problem: UN experts urge States to adopt human rights approach”, press
release, available from www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=
19833&LangID=E.
invitation of the General Assembly holds much promise in terms of elevating the movement
towards ending children’s imprisonment.
14. On the other hand, there are many signs of increases in the use of confinement for
minor offences and as the default response to problems relating to public safety, social
order, immigration, political opposition or “morality”. In some cases, punitive responses are
applied disproportionately to address violence or radical extremism among young people.
Growing numbers of women are being incarcerated, with a worrying number detained for
choices regarding their reproductive health rights. The warehousing of refugees and
migrants seeking safety and refuge remains a critical challenge.
15. Improving the conditions of the daily existence of the millions held in locked cells
and wards and radically reducing the rates of such imprisonment remain of paramount
importance. Equally important is the forging of efforts to fortify and transform communities
to support reintegration, inclusive education, socioeconomic empowerment and well-being
and, hence, the meaningful fulfilment of the right to the highest attainable standard of
mental and physical health.
16. We are at a crucial point in terms of influencing how we conclude this decade and
shape the next as regards ending the cultural dependence on confinement and incarceration.
II. The right to health in the context of confinement and deprivation of liberty
A. Intrinsic links, systemic omissions
17. Ensuring dignity by protecting the right to health has been an objective of prison
reform legislation and advocacy since the earliest days of the modern prison. The current
structures of confinement produce a vast geography of pain that transcends borders,
resource settings and political systems. This is intimately linked to the right to health and
well-being, not only of those deprived of liberty and confined, but also of communities,
families, children and future generations. It is vital to consider the cyclical and
transgenerational harm these systems produce.11
18. Securing the right to health is necessary for the enjoyment of a range of other rights.
In contexts of confinement and deprivation of liberty, violations of the right to health
interfere with fair trial guarantees, the prohibition of arbitrary detention and of torture and
other forms of cruel, inhuman or degrading treatment, and the enjoyment of the right to life.
Violations of the right to health emerge as both causes and consequences of confinement
and deprivation of liberty.
19. The Special Rapporteur highlights five ways in which the links between the right to
health and confinement and deprivation of liberty are evident:
(a) Failure to secure the right to health in early childhood through a
comprehensive system of health care contributes to inequalities, poverty, discrimination
and poor health in adulthood, feeding facilities of detention and confinement. The vast
majority of people in closed settings come from marginalized and low-income communities;
(b) Punitive legal frameworks and public policies that make incarceration likelier
hinder the realization of the right to health. Such frameworks and policies include laws
criminalizing certain behaviours, identities or status (sex work, sexual orientation, gender
identity, drug use, HIV status, non-adherence to tuberculosis treatment and exposure to
infectious diseases) and health services needed only by women (i.e., abortion); the selective
enforcement of loitering, vagabond and public disorder laws against those living in
marginalized situations; and prohibitionist drug laws and policies that produce, inter alia,
violent illicit drug markets and that lead to incarceration, driving people who use drugs
away from community health care while providing little for health care inside prisons.
11 Bruce Western and Becky Pettit, “Incarceration & social inequality”, Daedalus (summer, 2010).
Broad and sweeping public-health frameworks established by law limit the toolbox
available to policymakers for addressing health challenges, making detention and
confinement the dominant and most restrictive means for addressing health concerns that
are, according to evidence, better responded to in supportive community environments;
(c) The dominance of detention and confinement as a response to issues of
public safety and public health has led to a monopolization of resources that should be
redistributed to support the progressive development of robust health-care systems, safe and
supportive schools, programmes to support healthy relationships, access to development
opportunities and an environment free from violence;
(d) Safeguarding the right to health once a person is incarcerated is a challenging
task. Prison itself becomes a determinant of poor health as a result of poor conditions of
detention, the provision of health care under surveillance and/or a lack of access to health
care, the enormous psychosocial pain and hopelessness linked to being deprived of liberty,
and untreated pre-existing health conditions attributable to the conditions of living in
poverty.12 Mortality rates are high; in many cases, suicides and premature deaths in custody,
almost all preventable, conclude harrowing tales of lives cut short;
(e) Detention and confinement among young, low-income families who have lost
breadwinners and primary care providers to incarceration have a devastating impact on the
social fabric of communities. Upon release, people commonly receive no health-care
support when reintegrating into society. Furthermore, without robust health-care systems in
the community, deinstitutionalization may lead to tragedy.13 Criminal records, post-release
surveillance and commitment orders follow individuals into their political, social and
working lives, lowering resilience, creating barriers to opportunity and integration and
ultimately undermining the right to health.
20. In sum, the enjoyment of the right to health in the context of confinement and
deprivation of liberty is conspicuous by its absence.
B. Right-to-health framework
21. Human rights standards aimed at safeguarding persons deprived of liberty, or in
confinement, against violations of their rights exist. However, the specificity of the
normative scope and a lack of political will restrict the scope of responses to this highly
complex social phenomena. A structural assessment, from a right-to-health perspective, of
the “climate” of prison, detention and confinement, that is, how people experience life and
survive once inside, how power is structured and organized and the structural factors that
enable practices and institutions to persist, would help to broaden such responses.14
Obligations of the State
22. Under article 12 of the International Covenant on Economic, Social and Cultural
Rights, States have the obligation to respect, protect and fulfil the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health. The Committee
on Economic, Social and Cultural Rights has stated that, under the same article, States are
obligated to refrain from denying or limiting equal access for all persons, including
prisoners or detainees, to preventive, curative and palliative health services. 15 Other
12 Dora M. Dumont and others, “Public health and the epidemic of incarceration”, Annual Review of
Public Health, vol. 33 (April 2012), and Ernest Drucker, A Plague of Prisons: The Epidemiology of
Mass Incarceration in America (New York, New Press, 2013).
13 See, for example, the joint urgent appeal, dated 28 November 2016 addressed to the Permanent
Mission of South Africa to the United Nations Office and other international organizations in Geneva.
Available from
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=22868.
14 Tomas Max Martin, Andrew M. Jefferson and Mahuya Bandyopadhyay, “Sensing prison climates:
governance, survival and transition”, Focaal, No. 68 (2014).
15 See general comment No. 14 (2000) on the right to the highest attainable standard of health, para. 34.
international human rights treaties also contain provisions to protect the right to health of
specific groups, including persons in situations of deprivation of liberty and confinement.
23. The Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules) include provisions on the responsibility of States regarding health care for persons
detained in prisons (rules 24–35). For example, States have the obligation to ensure that
medical services in prisons guarantee continuity of treatment and care, including for HIV
infection, tuberculosis and other infectious diseases, and drug dependence. Also set out in
the Rules is the obligation to transfer prisoners requiring specialized treatment to
specialized institutions or civil hospitals, and to ensure that clinical decisions are taken
solely by responsible health-care professionals and not overruled or ignored by non-medical
prison staff.
24. Bearing in mind the goal of the progressive realization of the right to health,
measures are needed to ensure its realization in closed settings, including a plan to end
forced confinement in hospitals and long-term care institutions. Such a plan must be
supported by strategies to strengthen community-based alternatives.16
Informed consent17
25. The right to informed consent is a fundamental element of the right to physical and
mental health. Informed consent involves a voluntary and sufficiently informed decision,
and serves to promote a person’s autonomy, self-determination, bodily integrity and well-
being. It encompasses the right to consent to, refuse or choose an alternative medical
treatment.18
26. While the right to consent to and refuse treatment involves careful consideration in
the context of life-saving procedures, it must otherwise be respected, protected and fulfilled,
notably in cases of isolation and confinement, where support and encouragement must be
provided so that treatment is completed voluntarily. However, the right to consent to
treatment continues to be ambiguously applied among those deprived of liberty, who
remain at a high risk of being subjected to coercive, involuntary or mandatory testing and
treatment, including compulsory drug testing, research trials and, among hunger strikers,
force-feeding; in other cases, organs have been removed from executed prisoners without
prior consent. These types of practices are harmful and some have implications on the
reporting of symptoms for testing and treatment of stigmatized infections, such as HIV
infection and tuberculosis.
Equality and non-discrimination
27. Entrenched inequalities and discrimination characterize the experience of
deprivation of liberty and confinement, from the discriminatory apprehension of persons to
the discriminatory and inequitable arrangement of services once a person is deprived of
liberty or confined.
28. Health and prison officials often perpetuate discrimination through the denial of
health care, including opioid substitution therapy, clean needles and syringes, antiretroviral
therapy, and sexual health supplies or contraceptives. The status of being incarcerated can
elicit prejudicial action by prison and health officials. Those seeking health care in prisons,
detention centres and settings of confinement, particularly those with serious health issues,
are often denied access as a form of informal punishment; access has also been denied
where they are wrongly deemed to lack legal capacity on the basis of a perceived or actual
impairment or other reasons. Barriers to ensuring non-discriminatory access to health care,
including health-care facilities that are independently regulated outside the penal system,
must be addressed immediately. The failures of staff training in this regard demonstrate the
need for alternative and assertive approaches.
16 A/HRC/35/21.
17 For more on the issue of informed consent, see A/64/272, paras. 9, 28, 34 and 79–84.
18 Ibid., para. 10.
International cooperation and assistance
29. International human rights treaties recognize the obligation of international
cooperation, which includes cooperation regarding the right to health. International
cooperation linked to the realization of a wide range of rights is also recognized in
Sustainable Development Goal 17. Higher-income States have a particular responsibility to
provide assistance in the area of the right to health, including as it relates to adequate access
to health care in prisons and other settings of detention and confinement. International
assistance should not support prison and health systems that are discriminatory or where
violence, torture and other human rights violations occur. This is particularly so in the cases
of drug detention centres, large psychiatric institutions and other long-term segregated care
institutions.19
30. Through international cooperation, support for community-based health
interventions should be scaled up to effectively safeguard individuals from discriminatory,
arbitrary, excessive or inappropriate deprivation of liberty and confinement. It is worrying
to see the continued imbalance between multilateral and bilateral assistance provided for
the administration of justice and that provided for rights-based community investment.
More work is needed to better understand the full scope of projects that continue to fund
closed settings and impede community-based investment in health and social welfare.
Underlying determinants of health
31. Various factors affect the physical environment of persons who are deprived of
liberty or confined. Adverse conditions can include poor sanitation and poor access to
nutritional food, fresh air and potable drinking water. Some facilities were constructed on
land contaminated with carcinogens.20
32. In these settings, including but not restricted to prisons, violence is common and
takes many forms, including physical and sexual abuse by staff and peers, the use of
physical and chemical restraints, forced medical treatment and solitary confinement.
Furthermore, sexual violence against women has shown in multiple cases to be systematic
and widespread. The most silent forms of adverse conditions of detention and confinement,
including boredom and powerlessness, can often prove to be the most severe, notably
affecting mental health while giving rise to feelings of hopelessness and despair and suicide
attempts.
33. Overall, centres of detention or confinement are not therapeutic environments. In a
previous report, the Special Rapporteur identified the underlying determinants of the right
to mental health, including the creation and maintenance of non-violent, respectful and
healthy relationships in families, communities and society at large. 21 In detention or
confinement, where the person is surrounded by staff tasked with restricting freedom, it is
difficult to establish these type of relationships, which hinder the full and effective
realization of the right to mental health.22 Even with noble efforts to establish a strong
culture of respect and care, violence and humiliation usually prevails, adversely affecting
the development of healthy relationships.
Health care
34. As elsewhere, for the right to health to be enjoyed in detention centres, health-care
facilities, goods and services must be available, accessible, acceptable and of good quality.
35. Even with the most comprehensive health system in place, structural barriers may
impede the full and effective realization of the right to health. Centres of detention and
19 A/65/255, A/HRC/35/21.
20 Judah Schept, “Sunk capital, sinking prisons, stinking landfills: landscape, ideology and the carceral
state in Central Appalachia”, in Michelle Brown and Eamonn Carrabine (eds.), Routledge Handbook
of Visual Criminology (New York, Routledge, 2017).
21 A/HRC/35/21.
22 Peter Stastny, “Involuntary psychiatric interventions: a breach of the Hippocratic oath?” Ethical
Human Sciences and Services, vol. 2, No. 1 (spring, 2000).
confinement often concentrate people from the most vulnerable situations, including those
who are medically vulnerable. The centres are often characterized by inhumane physical
and psychosocial environments and unequal structures of power frequently rooted within
racist and violent pasts. The unpopularity and powerlessness of those deprived of liberty
and confined leave them with no voice and few defenders to advocate for their dignity.
These factors shape an ecology of deprivation that significantly compromises the ethical
and effective organization and delivery of health care.
36. The availability of health-care services in detention and confinement centres is often
compromised by managerial procurement decisions, particularly when those services are
segregated from mainstream public-health infrastructure. Decisions to not make available
certain health-care services are often taken by penal-oriented administrators instead of
independent public-health actors, and security and punishment eclipse concerns for health.
In many low-income settings, prison health systems lack the resources necessary to ensure
the most basic provisions of health care.
37. In such settings, the accessibility of available health-care services is often dependent
on negotiations with staff tasked with control and containment. Many people are denied
access to appropriate medical services because of punitive or negligent actions of security
staff. This has led to egregious violations of human rights, including preventable deaths.
38. In terms of acceptability, health-care services must: respect human rights and
medical ethics; be culturally appropriate, sensitive to gender and life-cycle requirements
and designed to respect confidentiality; and improve the health status of those concerned.
Services in settings of confinement and deprivation of liberty must be culturally appropriate,
as well as acceptable to adolescents, women, older persons, persons with disabilities,
indigenous persons, minorities and lesbian, gay, bisexual, transgender and intersex persons.
39. As regards quality, evidence-based health-care protocols and practices must be used
to support people who are deprived of liberty or confined, the majority of whom, because of
their structural situation of disadvantage, will require significant provision of quality
physical and mental health care. However, the delivery of such services faces systemic
obstacles. The climate of deprivation and control adversely affects relationships,
undermining the quality of health care. The absence of resources, particularly in low-
income settings, further exacerbates this environment. The inappropriate use or
overprescription of psychotropic medications, common in prisons as a means of behaviour
control, and the use of solitary confinement, isolation and forced medical treatment are
issues of quality of care and do not promote and protect the right to health. In higher-
resource prison settings, cognitive-behavioural and other behaviour modification
programmes raise serious questions of quality. Such programmes perpetuate individualistic
approaches to offending as “abnormal”, masking the political and social contexts that shape
the lives and choices of those who have been detained or confined.
Participation
40. The effective realization of the right to health requires the participation of everyone,
including those deprived of liberty or confined, or most at risk, in decision-making at the
legal, policy and community levels, in particular in the area of health care. At the
population level, enabling everyone to participate meaningfully in decisions about their
right to health requires inclusive engagement, such as with those currently and formerly
deprived of liberty and confined, their families, police, prison administrators, medical
professionals, social workers, penal reformers and abolitionists and the wider community.
41. Health-care services in closed settings must empower users as rights holders to
exercise autonomy and participate meaningfully and actively in all matters concerning them
and to make their own choices about their health, with appropriate support where needed.
42. The inclusion of the voices of those directly affected must be encouraged, although
this remains complicated owing to deeply unequal penal and medical power dynamics.
Prisoner-led trade unions, voting rights movements and documentation projects, and
movements of users and survivors of mental health systems, as well as the inclusive
engagement of academia and the non-governmental sector, are powerful means for
promoting meaningful participation.
Accountability
43. Accountability for the realization of the right to health requires three elements:
monitoring; review, including by judicial, quasi-judicial and political or administrative
bodies and social accountability mechanisms; and remedies and redress. Accountability is
vital if the right to health inside prisons and other confinement settings is to be realized in
practice.
44. Despite the commendable efforts of several monitoring mechanisms, human rights
violations in prison and other centres of detention and confinement continue to be
committed with impunity in a widespread and systematic manner. Individuals held in such
centres often have limited or no access to independent accountability mechanisms,
frequently because no monitoring body exists. Mechanisms charged with monitoring
centres of deprivation of liberty rarely consider structural barriers, such as the
disproportional detention of people in situations of vulnerability, including medical
vulnerability, the existence of unequal power structures, often rooted in racist and violent
pasts, and the little to no access to channels through which to voice demands, including
health-care related demands.
45. The Special Rapporteur encourages national human rights institutions and national
preventive mechanisms to give attention to those structural challenges. A right-to-health
approach can be a useful tool in their monitoring and promotion functions. Persons
formerly or currently deprived of liberty or confined, their families and civil society should
be engaged in the development and implementation of accountability arrangements.
III. Relationship between mental health and forced confinement and deprivation of liberty
46. Actual and de facto deprivation of liberty has adverse effects on mental health,
which may amount to violations of the right to health. Solitary confinement and protracted
or indefinite detainment, including decades of detention in prisons or other closed settings,
negatively influence mental health and well-being. The rates of poor mental health in
prisons worldwide far exceed the rates in the general population. Being deprived of liberty
itself is an emotionally fraught experience, carrying with it potential exposure to inhumane
and crowded conditions, violence and abuse, separation from family and community, the
loss of autonomy and control over daily living and an environment of fear and humiliation,
and the absence of constructive, stimulating activities. Suicide rates in prisons are at least
three times higher than those in the general community.23
47. While there has been a surge in research on mental health in prisons, it has been
mostly limited to academic psychiatry and focused on disease prevalence and on improving
services during confinement. There remains a dearth of research on how the constraints of a
closed environment itself, particularly a punitive one, presents significant obstacles to the
delivery of quality health care to those who are most in need.
48. Apart from recognizing that many people who are currently detained or confined
should not be, there is an emerging consensus that prisons are not conducive to effective
mental health treatment and that they are not the place for people identified as having a
mental condition. This view, however, has led to forced confinement in mental health
facilities, sometimes for indefinite periods, without meaningful safeguards to protect the
right to health, to build on recovery or to guard against arbitrariness. For example, persons
with intellectual and psychosocial disabilities who are in conflict with the law and who are
deemed incapable of forming a rational judgment about their conduct (“insanity” defence)
end up being held in custody in medical or security facilities instead.
49. The Convention on the Rights of Persons with Disabilities includes relevant
provisions in this connection (arts. 12 and 14). The Committee on the Rights of Persons
with Disabilities has established that the provisions represent an absolute prohibition on
23 Seena Fazel and Jacques Baillargeon, “The health of prisoners”, The Lancet, vol. 377 (2010).
involuntary confinement, including involuntary commitment of persons with intellectual
and psychosocial disabilities to mental health facilities, strictly on the basis of actual or
perceived impairment, as such confinement carries with it the denial of the person’s legal
capacity to decide about care, treatment, and admission to a hospital or institution.24
50. In accordance with the above-mentioned Convention, the recognition of legal
capacity, including of persons with intellectual and psychosocial disabilities, applies to all
aspects of life, including for the purposes of equal standing in courts and tribunals. In this
regard, the Committee has recognized that if persons with disabilities, including intellectual
and psychosocial disabilities, in conflict with law are deprived of liberty through a lawful
and non-arbitrary process, they must be provided with reasonable accommodation that
preserves their dignity, including in prison.25
51. The Special Rapporteur acknowledges these provisions. He echoes his previous call
for a paradigm shift in the field of mental health, which abandons outdated measures
resulting in the forced confinement of persons with intellectual and psychosocial disabilities
in psychiatric institutions. He calls on States, international organizations and other
stakeholders to undertake concerted efforts to radically reduce the use of institutionalization
in mental health-care settings, with a view to eliminating such measures and institutions. He
also calls on States to provide reasonable accommodation inside prisons for persons with all
forms of disability lawfully and non-arbitrarily deprived of liberty, in a way that preserves
their dignity.
52. Foundational to the way forward is the need for serious discussion about the role
that perceptions of mental conditions play in propagating structures of confinement,
underpinned by a false dichotomy that an individual coming into conflict with the law is
either “mad” or “bad”. People in conflict with the law, including those who may have a
mental health condition, cannot be reduced to this binary categorization. The Special
Rapporteur welcomes the growing debate around the subjective labelling of individuals and
the inherent risks of diversion into coercive mental health settings. A fundamental part of
this debate must include how the “insanity” defence and other criminal justice tools, such as
mental health courts and security measures, may perpetuate systemic human rights failures
in prisons and mental health settings. Many initiatives to provide mental health services in
the community, without coercion or confinement, have shown promise. Empowerment is a
basic precondition for the recovery of many persons who struggle with critical psychosocial
challenges. Empowerment and recovery cannot happen in closed settings. Healthy,
therapeutic relationships, based on mutual trust, should be fostered between users and
providers of mental health-care services.
IV. Children deprived of liberty
53. The scale and magnitude of children’s suffering in detention and confinement call
for a global commitment to the abolition of child prisons and large care institutions
alongside scaled-up investment in community-based services.
54. The Standard Minimum Rules for the Treatment of Prisoners, the first such rules
adopted in the United Nations context, deliberately did not prescribe conditions and
protection for child detainees, because they contained the principle that young persons
should not be sentenced to imprisonment, which was repeated in the Nelson Mandela Rules.
For over 30 years, United Nations rules in respect of juvenile justice have required that
children be placed in institutions only as a measure of last resort and for the minimum
duration possible. 26 States members of the United Nations long ago committed to
depenalization and non-custodial measures for both children and adults. 27 Diverting
24 Guidelines on the right to liberty and security of persons with disabilities.
25 Ibid.
26 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing
Rules”), rule 19.1; see also the United Nations Rules for the Protection of Juveniles Deprived of their
Liberty (“the Havana Rules”), rule 1.
27 United Nations Standard Minimum Rules for Non-custodial Measures (“the Tokyo Rules”).
children from contact with the criminal justice system is now considered part of a strategy
for ending violence against children within criminal justice settings.28 The global study on
children deprived of liberty commissioned by the Secretary-General is to include
recommendations for the implementation of that strategy.29
55. Many of the damaging characteristics of prisons that we know to critically impede
the enjoyment of the right to health by detained children, especially in terms of their
psychological and emotional development, are also evident in large institutions nominally
aimed at securing their welfare, including infant homes and education, health and welfare
facilities for children with disabilities. Additionally, penal institutions are used to
administratively detain children for political “offences”, national security and immigration
control. As such, all forms of detention severely compromise children’s enjoyment of the
rights to health, to healthy development and to maximum survival and development, in
contravention of the International Covenant on Economic, Social and Cultural Rights (art.
12) and the Convention on the Rights of the Child (arts. 6 and 24).
A. Overview
56. There are no global statistics on the total number of children deprived of their liberty.
Around one million children were estimated to be in detention in criminal justice systems at
the turn of the millennium; in some countries, the majority were awaiting trial. Many were
detained for non-criminal behaviour associated with poverty and discrimination, themselves
breaches of children’s rights. The independent expert for the United Nations study on
violence against children found violence to be widespread in penal institutions.30
57. The likelihood of being detained as a child is linked to the social determinants of
health. 31 Poverty, social exclusion, militarized school systems, gender, ethnicity and
disability are all factors associated with the loss of liberty in childhood. Children from
economically and socially disadvantaged communities, including those from ethnic
minorities and indigenous populations, as well as those in care systems, are
disproportionately deprived of liberty. Children with disabilities are more likely to be held
in institutions, and to suffer appalling violence, often in the guise of “treatment”.32 Scaled
up investment in tackling these underlying determinants of health is not only an obligation
for the progressive realization of the right to health, but a promising strategy to prevent
incarceration over the long term.
58. The Special Rapporteur has witnessed children with disabilities growing up entirely
within the forced confines of large institutions, eventually moving into social welfare
institutions for adults. While designed with good intentions, such paternalistic models are
not compliant with various provisions protecting children’s rights, including their right to
healthy development. This sad legacy of confinement begins at the start of life in infant
homes, characterized by emotional neglect that is itself a form of institutional violence. The
Special Rapporteur reiterates previous calls to fully eliminate institutional care of children
under 5 years of age and replace it with a comprehensive family support system.33 This
single measure, if taken seriously, could prevent millions from being deprived of their
liberty.
59. While the Convention on the Rights of the Child does not exclude the detention of
children, the strongest of presumptions against it are established (art. 37 (b)). Children may
be detained only as a measure of last resort. This standard is not to be used retrospectively
to justify existing structures. Instead, it is an obligation to exhaust all other strategies at the
macro level and all other interventions at the micro level.
28 See the United Nations Model Strategies and Practical Measures on the Elimination of Violence
against Children in the Field of Crime Prevention and Criminal Justice, paras. 30–31.
29 General Assembly resolution 69/157.
30 See A/61/299, paras. 61–62.
31 A/HRC/7/11 and Corr.1.
32 Paulo Sérgio Pinheiro, World Report on Violence against Children (2006), pp. 185 and 188.
33 See, for example, A/70/213.
B. Penal institutions
60. Penal institutions were designed principally for adults. At best, separate facilities are
provided for children, but they are still modelled on adult prisons. Prison is one of several
forms of immigration detention used around the world. The fundamental right of the child
to care and protection can never be realized within penal institutions.34
61. Children have been confined in cells, wards, corridors, exercise yards and visiting
areas for weeks, months or even years. Childhood is a uniquely precious time in a young
person’s development; in penal settings, fresh air, windows and opportunities to play,
exercise and explore outside are strictly limited, if available at all. A lack of nutritious and
wholesome food saps children’s energy; squalid conditions spread infection and disease.
For children in immigration detention, release from captivity prior to deportation equals the
loss of places they call home and the people linked to those places. Escorted transfers from
an institution to an aircraft robs children of any final opportunity to say goodbye.
62. The impact of penal institutions stretches far beyond the curtailment of children’s
physical freedom; their mental well-being and potential for psychological and cognitive
growth are all deeply and negatively affected. Research evidence shows that immigration
detention aggravates pre-existing trauma in children. For some it is the worst experience of
their lives.35
63. Adolescence is a critical period of cognitive and emotional development, affecting
the whole of adulthood. The Special Rapporteur remains deeply concerned about how
punitive responses to youth violence affect adolescent health and development. 36
Criminalization and incarceration have increased, despite the evidence that public-health
approaches deliver better results.37 In reality, children held in penal institutions, including
for acts of violence, are those whose early childhood needs and rights have not been
fulfilled. International human rights law requires children to be treated in accordance with
their age and best interests.38 Ensuring the full and harmonious development of children in
society, from infancy to adolescence, is a core strategy for preventing youth crime.39
64. Since the entry into force of the Convention on the Rights of the Child, neuroscience
research has revealed that the brains of adolescents are still developing in many critical
ways. This calls into serious question the rationale for punitive, closed environments and
methods of control. 40 Corporal punishment, humiliation, coercion and the denial of
supportive environments that can ensure healthy, non-violent relationships and physical
comfort can never elicit positive, long-term change in a child’s behaviour.41
65. Many children are detained due to their mother’s incarceration, when it is considered
in the child’s best interests to remain with his or her mother. The Special Rapporteur is of
the view that this is too limited as an assessment of best interests. States must weigh the
34 See the Convention on the Rights of the Child, arts. 3 (2) and 40.
35 International Detention Coalition, Captured Childhood: Introducing a New Model to Ensure the
Rights and Liberty of Refugee, Asylum Seeker and Irregular Migrant Children Affected by
Immigration Detention (2012), p. 49.
36 The Committee on the Rights of the Child expressed similar concerns; see its general comment No.
13 (2011) on the right of the child to freedom from all forms of violence, para. 15 (c).
37 Arianna Silvestri and others, Young People, Knives and Guns: A Comprehensive Review, Analysis
and Critique of Gun and Knife Crime Strategies (London, Centre for Crime and Justice Studies,
2009), pp. 61–67.
38 Convention on the Rights of the Child, arts. 3 and 37, Convention on the Rights of Persons with
Disabilities, art. 7 (2).
39 See United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines),
paras. 1–6.
40 Barry Goldson and Ursula Kilkelly, “International human rights standards and child imprisonment:
potentialities and limitations”, The International Journal of Children’s Rights, vol. 21, No. 2 (2013). 41 WHO and International Society for Prevention of Child Abuse and Neglect, Preventing Child
Maltreatment: A Guide to Taking Action and Generating Evidence (2006); Global Initiative to End
All Corporal Punishment of Children, “Corporal punishment of children: review of research on its
impact and associations”, working paper (2016).
societal interests in punishing women with incarceration, for what are most often non-
violent offences, with the best interests of the child and the obligation set out in article 37
(b) of the Convention on the Rights of the Child. That obligation requires the
implementation of all means possible to avoid the detention of the child, including
alternative models and responses for mothers.
66. The solitary confinement of children and the degrading and humiliating conditions
in detention have been described as mental violence. 42 Many other daily forms of
“organized hurt”43 are perpetrated though no less pernicious means. Children’s creativity,
communication, sleeping, waking, playing, learning, resting, socializing and relationships
are compulsively controlled in detention and transgressions punished, while those
administering the punishment enjoy impunity.
67. Daily deprivations are often complemented by behavioural interventions in order to
“treat” and “reform”. Such “treatment” approaches further entrench the idea of a troubled
child “in need of repair”, ignoring that changes are needed to address right-to-health
determinants, such as inequalities, poverty, violence and discrimination, especially among
groups in vulnerable situations. This, in turn, leads to children living in forced confinement
and fuels their struggles. Such oversimplified strategies are not in conformity with the right
to health.
68. Coping mechanisms employed by stressed and desperate children, which include
assaults against themselves and others, are perceived by society and judicial and welfare
systems as acts that are self-harming, anti-social and/or violent. The harm inflicted by
institutions themselves too often goes unacknowledged.
69. There can be no hesitation in concluding that the act of detaining children is a form
of violence. The Convention on the Rights of the Child prohibits the use of detention as a
default strategy. Looking forward, a child rights-based strategy must strengthen even
further the presumption against detention of children with a view to abolition.
V. Women, the right to health, and confinement
70. Women comprise a small minority (7 per cent) of the global prison population, but
the number of incarcerated women is increasing and at a greater rate than that of
incarcerated men.44 The number of women and young girls held outside of criminal justice
settings worldwide is unknown. Most are first-time offenders suspected of, or charged with,
minor, non-violent offences, pose no risk to the public and should probably not be in prison
at all.45 Paradoxically, the meteoric rise of women in detention regimes over the past two
decades has brought greater visibility and gender-focused reforms, but with limited
improvements as regards the suffering of detained women and the increase in their
numbers.46
71. The suffering experienced by women who are imprisoned or involuntarily confined
and the related negative impact on the enjoyment of their right to health is understood to be
significantly greater than that experienced by men. Power and authority in prisons and other
places of detention and confinement, such as large psychiatric institutions, emerge from
historical patriarchal, hyper-masculinist constructions of punishment and control. 47 The
acceptability of such environments for the realization of the right to health and for the well-
being of women is thus questionable.
42 See Committee on the Rights of the Child, general comment No. 13, para. 21.
43 Hans von Hentig, Punishment: Its Origin, Purpose and Psychology (1937); Barry Goldson, “Child
imprisonment: a case for abolition”, Youth Justice, vol. 5, No. 2 (August 2005).
44 Roy Walmsley, World Female Imprisonment List, 4th ed. (2017).
45 United Nations Office on Drugs and Crime (UNODC), Handbook on Women in Prison, 2nd ed.
(United Nations publication, Sales No. E.14.IV.3).
46 Cassandra Shaylor, “Neither kind nor gentle: the perils of ‘gender responsive justice’”, in Phil Scraton
and Jude McCulloch, eds., The Violence of Incarceration (Routledge, 2008).
47 M. Bandypadhyay, “Competing masculinities in a prison”, Men and Masculinities, vol. 9, No. 2
(2006).
72. The manner in which women are actually or de facto deprived of liberty arises from
structural inequalities and discrimination, harmful gender stereotypes and deep
disadvantage, which lead to failure to secure their rights to social and underlying
determinants of health, to reproductive autonomy, to an environment free from gender-
based violence, and to services and support in the community. Once women are inside, the
gendered and challenging environment of detention and confinement compounds their
immediate and long-term health risks, reproduces past violence and trauma, and
undermines the full and effective realization of the right to health for themselves and their
dependent children and families left on the outside.
A. Addressing the gendered pathways of incarceration
73. Studies in several countries have found that violence, sexual, physical and emotional
abuse and economic dependence are linked to women’s incarceration. Many women in
prison are mothers and the primary, if not only, caregivers for their children or other family
members. In many countries, prison sentences for women lead to the incarceration of their
infants or young children. Children left behind have limited contact with their mothers,
often struggling to cope, living in street situations, in institutions, in foster care or with
relatives.48
74. In some countries, pregnant women who use drugs, including legally prescribed
drugs, face civil or criminal detention for extended periods of time, sometimes for the
length of the pregnancy. This can have a discriminatory impact on women with disabilities
who take prescription drugs while pregnant.49 In other countries, women are imprisoned for
“moral crimes”, such as adultery or extramarital relationships, or to protect them from
gender-based violence (“honour crimes”).50
75. Criminal laws and legal provisions that restrict access to sexual and reproductive
health goods, services and information also contribute to women’s imprisonment.51 In some
States, dispensing information on preventing interrupting pregnancy or materials deemed to
conflict with notions of “morality” or “decency” is criminalized with punishments ranging
from fines to imprisonment. Criminal laws have also been used to prosecute women for
other conduct, including failure to follow a doctor’s orders during pregnancy, failing to
refrain from sexual intercourse and concealing a birth.52 Where abortion is illegal, women
may face imprisonment for seeking an abortion and emergency services for pregnancy-
related complications, including those due to miscarriages. Fear of criminal punishment for
“aiding or abetting” abortions can lead health-care providers to report people suffering from
pregnancy complications to authorities.53
76. A substantial proportion of women in prison are incarcerated for non-violent, low-
level drug offences: between 40 and 80 per cent in some countries in the Americas, Europe
and Asia.54 While men are more likely than women to be involved in the drug trade, a
48 United Nations Development Programme, Addressing the Development Dimensions of Drug Policy
(2015), p. 26; Moira O’Neil, Nathaniel Kendall-Taylor and Susan Nall Bales, “Communicating about
women and criminal justice in the United Kingdom”, FrameWorks Research Brief (June, 2015), p. 3;
Carolyne Willow, Children Behind Bars: Why the Abuse of Child Imprisonment Must End (Policy
Press, 2015).
49 Amnesty International, Criminalizing Pregnancy: Policing Pregnant Women Who Use Drugs in the
USA (2017).
50 A/68/340.
51 A/66/254, A/68/340 and A/HRC/14/20.
52 See A/66/254, paras. 18, 38 and 62.
53 See, for example, CEDAW/C/SLV/CO/8-9, paras. 37–38.
54 See A/68/340, paras. 23–24; Rebecca Schleifer and Luciana Pol, “International guidelines on human
rights and drug control: a tool for securing women’s rights in drug control policy”, Health and
Human Rights Journal, vol. 19, No. 1 (2017); Thailand Institute of Justice, Women Prisoners and
the Implementation of the Bangkok Rules in Thailand (2014).
significantly higher proportion of women than men are imprisoned for drug-related
offences.55
77. In many countries, the proportion of women held in pretrial detention is equal to or
larger than that of convicted female prisoners. 56 This heightens vulnerability to sexual
abuse and other forms of coercion that can be used to extract confessions 57 and is
compounded by race, disability, foreign national status and other situations of social
discrimination.
78. Keeping women out of the criminal justice system in the first place by, for example,
repealing laws criminalizing access to, and information about, sexual and reproductive
health-care services, consensual adult sex, “morality” and minor drug offences is critical to
protecting the right to health.
B. Conditions of incarceration
79. Once incarcerated, women often face discrimination based on sex and/or disability
and are subjected to treatment and conditions that mirror the violence and abuse the
majority have experienced prior to their detention. In a number of countries, because of the
limited accommodation available for women prisoners, women are subjected to security
levels not justified by the risk assessment undertaken on admission.58 The lack of available
medical or mental health services may also result in women being placed in more secure
facilities than otherwise indicated. 59 The situation is exacerbated for women with
disabilities because of the scarcity of facilities to accommodate them, and even more so for
women with psychosocial or intellectual disabilities, whose actual or perceived impairment
is often used as the basis for higher levels of security.60
80. Like their male counterparts, women in prisons recurrently face overcrowding,
violence and unsanitary conditions detrimental to their mental and physical health and
conducive to the spread of disease. It is frequently the case that little or no attention is paid
to women-specific health-care needs, such as those related to menstruation, pregnancy and
childbirth, menopause and sexual and reproductive health.61 The lack of gender-specific
health care in prison, including the lack of specialized obstetric and reproductive health
services, poor treatment by staff, medical neglect and denial of medicines, lack of privacy
for medical exams and confidentiality, and discrimination regarding access to harm
reduction services, may amount to ill-treatment or in some cases torture,62 and amounts to a
violation of the right to health.
81. International standards require “special accommodation for all necessary prenatal
and postnatal care and treatment” in women’s prisons,63 and that “adequate and timely food”
and a healthy environment be provided free of charge for, among others, pregnant women
and breastfeeding mothers.64 However, prenatal care is inadequate or non-existent in many
prisons, even where widely available in the general population, and nutrition substandard.65
55 Joanne Csete and others, “Public health and international drug policy”, The Lancet, vol. 387 (April
2016); A/68/340, para. 26; CEDAW/C/BRA/CO/7 and Corr.1, para. 32; A/54/38/Rev.1, part two,
para. 312.
56 UNODC, Handbook on Women and Imprisonment.
57 Open Society Justice Initiative, Presumption of Guilt: The Global Overuse of Pretrial Detention
(New York, Open Society Foundations, 2014); UNODC, Handbook on Women and Imprisonment.
58 UNODC, Handbook on Women and Imprisonment.
59 See, for example, Anti-Discrimination Commission Queensland, Women in Prison (2006). Available
from https://www.adcq.qld.gov.au/__data/assets/pdf_file/0018/5148/WIP_report.pdf.
60 UNODC, Handbook on Women and Imprisonment.
61 A/68/340. See also Human Rights Watch, Going to the Toilet When You Want: Sanitation as a
Human Right (2017).
62 See A/HRC/31/57, para. 26.
63 The Nelson Mandela Rules, rule 28.
64 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women
Offenders (the Bangkok Rules), rule 48.
65 A/68/340.
Mistreatment of women during childbirth has been reported in prisons and immigration
detention centres. Punishment by closed confinement and disciplinary segregation should
not be applied to pregnant women, women with infants and breastfeeding mothers.66
C. Women with disabilities
82. Women with disabilities, especially psychosocial disabilities, are disproportionately
represented in prisons, both as compared to the general population and vis-à-vis male
prisoners.67 The closure of psychiatric institutions and the lack of adequate housing, mental
health and social services in communities have contributed to the increase in the population
of women with psychosocial disabilities in prison. 68 The medicalization of women’s
behaviour and the construction of women in conflict with the law as “mad”, “irrational” and
“in need of repair” has contributed to the labelling of women in prison as having mental
health conditions where men would not have been, and in turn, to the over-prescription of
psychotropic medications for women suffering from normal levels of distress associated
with detention.
83. Many prisons fail to provide reasonable accommodation to people with disabilities,
which has significant consequences on their enjoyment of the right to health and, in some
cases, may violate prohibitions against torture and ill-treatment.69 The misclassification of
women with mental disabilities as higher risk also impede their chances of early release,
exacerbating existing mental health conditions.
84. The story of how women end up actually or de facto deprived of liberty, and the
high levels of violence and suffering they experience once inside detention facilities, is
closely linked to failures to respect, protect and fulfil their right to health. Gender-
responsive reforms have failed to effectively address these challenges, which
disproportionally affect women in vulnerable, disadvantaged and marginalized situations.
VI. From confinement to community: ending public-health detention
85. Confinement has long constituted a public-health strategy to stem the spread of
infectious diseases and viruses, including leprosy, HIV and tuberculosis. Various legal
frameworks, including national mental health laws, legitimize forced confinement on broad
and subjective grounds, including medical necessity and dangerousness. Routinely, and in
some cases increasingly, confinement is the policy instrument of choice for addressing
complex social and public-health issues. Guided by worst-case scenarios, policies and
practices regularly have a significant impact on groups in marginalized situations,
entrapping them in criminal or public-health detention regimes on the basis of a health
condition. This is despite mounting evidence that health outcomes for these groups, and for
the communities in which they live, are better with health care and support in community
settings. The place of public-health detention in our rapidly changing global world is a
topical and important debate. In the light of the upcoming high-level meeting on the fight
66 The Bangkok Rules, rule 22.
67 United States of America, Department of Justice, “Disabilities among prison and jail inmates, 2011–
12” (2015); Janet I. Warren and others, “Personality disorders and violence among female prison
inmates”, Journal of the American Academy of Psychiatry and the Law, vol. 30 (2002); Emma Plugge,
Nicola Douglas and Ray Fitzpatrick, The Health of Women in Prison: Study Findings (University of
Oxford, 2006).
68 Jennifer M. Kilty, “‘It’s like they don’t want you to get better’: Psy control of women in the carceral
context”, Feminism & Psychology, vol. 22, No. 2 (April 2012).
69 European Court of Human Rights, Price v. the United Kingdom, application No. 33394/96, judgment
of 10 July 2001, and D.G. v. Poland, application No. 45705/07, judgment of 12 February 2013;
United States Court of Appeals, Sixth Circuit, Stoudemire v. Michigan Department of Corrections et
al., case No. 14-1742, decision of 22 May 2015.
against tuberculosis, to be held pursuant to General Assembly resolution 71/159, in the
present chapter the Special Rapporteur will focus on the illustrative case of tuberculosis.
86. Few populations experience more risk factors for tuberculosis than people deprived
of liberty, owing to factors ranging from poor nutrition and unhygienic conditions to poor
medical care. Prevalence rates in prisons are 3 to 1,000 times higher than those among the
general population; prison populations account for 25 per cent of the tuberculosis burden in
some countries.70
87. Rights violations contributing to the spread of tuberculosis result not only from the
conditions of detention, but also from punitive responses to this and other infectious
diseases, including criminalization, isolation, coercion and forced hospitalization. Too often,
today’s approaches to tuberculosis are as archaic as the disease itself and lack a modern,
community-based approach to secure the right to health and better address the disease.
Realization of the right to health requires a full commitment to developing responses to
tuberculosis in the community, moving towards the full elimination of the use of punitive
measures, including confinement, as a response.
A. Criminalization as a determinant of the right to health for people living
with tuberculosis
88. Incarceration and detention approaches not only impede the realization of the rights
to health, to informed consent, to privacy and to freedom from treatment, from inhuman
and degrading treatment and of movement, but can also worsen social inequalities and lead
to a paradoxical increase in tuberculosis incidence.71
89. In some countries, national laws permit mandatory hospitalization and forced
treatment for persons with tuberculosis, in contravention of the right to informed consent,
further creating fear and stigmatization of both the disease and people suffering from it.
This drives people with tuberculosis symptoms away from the needed health care. Certain
laws explicitly provide that examinations, hospitalization and observation may be carried
out, isolation may be imposed and medical treatment may be provided without consent, in
some cases without a court order. Some countries have tuberculosis-specific laws that
include stigmatizing language, for example suggesting that people with the disease
maliciously evade treatment, and authorize non-consensual hospitalization. Such legal
frameworks reflect outdated approaches to health care, including approaches in which the
amount of funding a health facility receives is determined by the number of occupied
hospital beds.
90. People who are deprived of liberty disproportionately come from groups in
disadvantaged situations who often have inadequate access to health-care services. Placing
them in closed settings increases the risk that they will not have access to health care and
can lead to the spread of tuberculosis where prison conditions, including overcrowding,
poorly ventilated spaces, inadequate prevention, medical care and treatment, stress,
malnutrition and denial of harm reduction services, elevate the risk of infection and
transmission,72 as does the high HIV rate in prisons.73 People in detention often do not have
adequate access to counselling and information about medicine and the side effects of
treatment. Lack of access to quality diagnostic tools and medicines further contribute to
70 See www.who.int/tb/areas-of-work/population-groups/prisons-facts/en/; F. Biadglegne, A. Rodloff
and U. Sack, “Review of the prevalence and drug resistance of tuberculosis in prisons: a hidden
epidemic”, Epidemiology & Infection, vol. 143, No. 5 (April 2015).
71 G. Mburu and others, “Detention of people lost to follow-up on TB treatment in Kenya: The need for
human rights-based alternatives”, Health and Human Rights Journal, vol. 18, No. 1 (2016), abstract.
72 Masoud Dara, Dato Chorgoliani and Pierpaolo de Colombani, “TB prevention and control care in
prisons”. Available from https://pdfs.semanticscholar.org/c9d4/e241b8d4204108df36c16ad4e7
cea4d8e56f.pdf.
73 Stop TB Partnership, Key Populations Brief: Prisoners. Available from
www.stoptb.org/assets/documents/resources/publications/acsm/KPBrief_Prisoners_ENG_WEB.pdf.
prisons as tuberculosis incubators, with as few as 18 per cent of prisons in high-burden
tuberculosis countries having access to such tools.74
91. Excessive hospitalization, in some cases in prison-like hospital conditions for
multidrug-resistant (MDR) and extensively-drug resistant (XDR) tuberculosis, is also an
issue of concern. Many countries default to isolation, particularly in the context of such
drug-resistant strains of tuberculosis. This results in fear and mistrust in public-health
systems and inadequately supports the realization of the right to health of people with
tuberculosis. Prolonged isolation, used for lengthy treatment of such drug-resistant
tuberculosis, has also shown to induce feelings of fear, anger, self-blame, depression and
suicide; there have been similar findings among incarcerated individuals. 75 This is
unsurprising, as persons with the disease perceive prolonged isolation as imprisonment.
B. Community-based care and tuberculosis
92. WHO recognizes that community-based care can achieve results comparable to
those of hospitalization and may result in decreased nosocomial spread of tuberculosis, and
emphasizes that community-based care should always be considered before isolation. 76
Forced isolation is unethical and is not in conformity with the right to health.
93. Despite the evidence, and ethical and rights-based considerations, some criminal
laws provide for confinement and punitive practices as part of national responses to
tuberculosis. While these may be perceived as “public-health” measures to stem the spread
of the disease, they entail significant human rights violations and further harm public health,
undermining efforts to effectively address the disease. Rather than relying heavily on
confinement, a rights-based approach calls for the development of well-resourced
community health-care options, ensuring that persons with tuberculosis have adequate
information, nutritional support and income and other support while undergoing treatment
and/or if tuberculosis results in a loss of employment. While underresourced, small-scale,
innovative, community-based treatment models have proven extremely effective, with high
treatment completion and cure rates.77
94. Confinement as a response to tuberculosis increases stigmatization of people with
the disease, driving those most at risk underground and away from health care. Confining
people with tuberculosis not only puts them at risk by placing them in settings often
characterized by inadequate access to treatment and support, but also fuels the spread of the
disease within these settings. As a particularly stark example, incarceration has been
utilized to isolate persons with tuberculosis, punishing them for not adhering to the
treatment, even though violations of the right to health led to their non-adherence in the
first place. Confinement inappropriately places the burden of tuberculosis treatment and
care on the person, effectively isolating and criminalizing those who are sick instead of
providing the health care and support needed to complete treatment. These practices must
be brought to an end.
VII. Conclusions and recommendations
95. Deprivation of liberty and confinement, when they are used as widespread
forms of addressing various social, and often non-criminal, issues, create an
environment that is detrimental to the enjoyment of the right to physical and mental
74 Banuru Muralidhara Prasad and others, “Status of tuberculosis services in Indian prisons”,
International Journal of Infectious Diseases, vol. 56 (2017).
75 Kingsley Lezor Bieh, Ralf Weigel and Helen Smith, “Hospitalized care for MDR-TB in Port Harcourt,
Nigeria: a qualitative study”, BMC Infectious Diseases (2017).
76 WHO, Guidelines on Ethics of Tuberculosis Prevention, Care and Control (2010), pp. 11–12.
77 See, for example, WHO, Regional Office for Europe, Good Practices in Strengthening Health
Systems for the Prevention and Care of Tuberculosis and Drug-resistant Tuberculosis (Copenhagen,
2016). Available from www.euro.who.int/__data/assets/pdf_file/0010/298198/Good-practices-
strengthening-HS-prevention-care-TBC-and-drug-resistant-TBC.pdf.
health. While reality is such that certain cases of imprisonment may always be
justified, it is unacceptable that in the twenty-first century detention and confinement
continues to be regularly used for minor offences and for addressing public-health
issues.
96. It is unacceptable that States continue to use detention and confinement as a
preferred tool to promote public safety, “morals” and public health, doing more harm
than good to social justice, public health and the realization of the right to physical
and mental health.
97. Sustainable Development Goal 3 on ensuring healthy lives and promoting well-
being for all at all ages will not be reached if the global community neglects to
seriously address the use of detention and confinement as a public-health policy and to
prioritize the development of effective alternatives. This retains its importance at all
stages of life, starting in early childhood, moving through adolescence and youth and
providing opportunities for healthy and dignified aging in community-based settings.
98. The Special Rapporteur urges States to:
(a) Fully abide by, and implement, the Nelson Mandela Rules, in particular
as regards the provision of health care in prisons;
(b) Redistribute funds that currently support detention and confinement on
the basis of public safety and public health towards enhancing public-health systems
that include safe and supportive schools, programmes to support healthy relationships,
access to development opportunities and an environment free from violence;
(c) Develop measures to address, on a non-discriminatory basis, the barriers
faced by people in prison and other settings of detention and confinement in gaining
access to health care, particularly women, children, drug users, persons with
disabilities and persons with tuberculosis;
(d) Enhance community-based facilities that empower and promote
recovery and healthy relationships, while radically reducing and progressively
eliminating non-consensual measures and institutionalization in mental health-care
settings;
(e) Effectively provide reasonable accommodation for imprisoned persons
with disabilities, particularly those with psychosocial or intellectual disabilities;
(f) Implement national strategies towards depenalization and non-custodial
measures for children in conflict with the law or who are already imprisoned;
(g) Fully eliminate institutional care of children under 5 years of age and
replace it with a comprehensive family-support system;
(h) Scale up investment to deinstitutionalize children of all ages confined on
health or social-welfare grounds in large institutions, such as infant homes and closed
social care and mental health facilities, particularly children from vulnerable groups,
including ethnic minorities and indigenous populations, and children with disabilities;
(i) Implement policies and specific measures to avoid by all means the
detention of children, including the development of alternative models and responses
for incarcerated mothers;
(j) Repeal laws criminalizing access to, and information about, sexual and
reproductive health-care services, including with regard to the prevention and
termination of pregnancy and consensual adult sex;
(k) Effectively provide special accommodation for prenatal and postnatal
care and treatment in prisons and detention centres, jointly with adequate and timely
food and a healthy environment, free of charge, for pregnant women and
breastfeeding mothers, in accordance with the Bangkok Rules;
(l) End the criminalization, incarceration and confinement of persons with
tuberculosis as a public-health measure, while developing community-based services
that ensure access to adequate information, nutritional support and income;
(m) Implement measures to empower detained and confined persons to
exercise meaningful autonomy and participate in health-care decisions, with
appropriate support and accommodation where needed;
(n) Promote the participation of formerly or currently detained or confined
persons and their families and civil society in accountability arrangements, while
developing strategies within national human rights institutions and national
preventive mechanisms for the inclusion of a right-to-health approach in monitoring
and promotion functions.
99. The Special Rapporteur calls on the international community to scale up
support for community-based interventions that effectively safeguard individuals
from discriminatory, arbitrary, excessive or inappropriate confinement.
100. The Special Rapporteur urges other relevant stakeholders to include in debates
on mental health the issue of the “insanity” defence and of other criminal justice tools,
such as mental health courts and security measures, considering how they may
reinforce systemic human rights failures in prisons and mental health settings.