Prisoners' rights to equivalent health and social care

Thu, 26 Mar 2020

This article is part of the Prison law during the coronavirus pandemic series:

Health care

Rule 20(1) of the Prison Rules 1999 provides that: ‘The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service’ [emphasis added].

The principle of ‘equivalence’ means that the same standard of healthcare should be available for prisoners as the general public receives from the NHS. It also means that, when receiving healthcare—insofar as it is compatible with the custodial setting—a prisoner should be treated as a patient. It follows that a prisoner must be afforded the same rights as they would have in the community in this regard; a right to refuse treatment, a right to confidential medical consultations, and to data protection for their medical records: Razumas v Ministry of Justice [2018] EWHC 215 (QB) at [13]-[14].

Section 249(1) of the National Health Service Act 2006 and relevant Prison Service Orders and Instructions—see in particular PSO 3200 (health promotion), PSO 3050 (continuing healthcare) and PSO 3100 (clinical governance)—reinforce the need for partnership and  cooperation between prisons and the NHS to achieve the principle of equivalence. A standard annex underpins all prison healthcare specifications commissioned by NHS England and a National Partnership Agreement sets out the intentions of the relevant statutory bodies for the implementation and operation of the service.

Social care

In the community, local authorities are responsible for meeting eligible care and support needs for people ‘ordinarily resident’ in their area.  The Care Act 2014 provides that adults who are detained in prison or residing in approved premises in England are to be treated as if they were ordinarily resident in the area where the prison or approved premises is located, regardless of where they have lived prior to imprisonment. (The position is different for those entitled to section 117 aftercare funding under the Mental Health Act 1983, but that is beyond the scope of this short article: see PSO 03/2016, §4.3.)

PSO 03/2016 mandates (at §§1.12-1.13) that probation services must give consideration to the care and support needs of offenders/defendants in the community (including pre- and post-custody) and must work in partnership with offenders and local authorities where such needs exist, or may exist.

If a prisoner is being denied access to the same level of care he or she is entitled to in the community then redress is possible through the courts.

Philip Rule, Head of Public Law, No5 Barristers' Chambers Chambers

Ian Brownhill, Deputy Head of Public Law, No5 Barristers' Chambers.

Stuart Withers, Barrister

Benjamin Harrison, Barrister

Avril Rushe, Barrister

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