Opinion

The right to health care and Georgia’s penitentiary system

by | Dec 28, 2011

Despite the fact that the Ministry of Corrections, Probation and Legal Assistance declared the reform of the penitentiary health care as one of the priority directions and carried our measures in this area, health care in prisons still remains the Achilles’ heel of Georgia’s penitentiary system. The situation is made difficult by the disproportionate distribution of persons deprived of liberty in places of detention, a clearly negative dynamics of the figures of sickness and mortality, disproportion and lack of geographic, physical, and economic access of beneficiaries to health care services, and a number of systemic and local problems that have remained unsolved from year to year.

In the process of the reform of the penitentiary health care, it is clear that the principle of heredity is violated, which implies that the resolution of issues often continues with the principle of “counting and starting from zero” rather than in a continuous regime, which causes irrational spending of resources, time, and other very important means with undesirables consequences. The reform should be uninterrupted and be carried out in stages, and the processes should replace and complement one another logically. And all the aforementioned should be based on adequate research of prisoners’ health care needs which should describe the real situation and be conducted an a real scale.

Despite the numerous memoranda and meetings concluded and held during 2011, the role of the Ministry of Labor, Health and Social Affairs of Georgia in the attainment of the goals of the reform is still unclear. The component of penitentiary health care constitutes an integral part of the country’s general health care system, and it, of course, has its specific aspects due to the special status of the beneficiaries of health care services. Due to this, the Ministry of Labor, Health and Social Affairs of Georgia should be the leading and main directing force of the health care reform, while the specific issues should be agreed with the Ministry of Corrections, Probation and Legal Assistance of Georgia and not vice versa as is the case today. It is impermissible to allow even a formally declared involvement of the heads of penitentiary establishments and other officials in different (health and medical – professional) aspects of the reform, as well as participation of persons who often lack the specific knowledge and experience in the issues of health care and medicine in the reform process. It is also impermissible to acknowledge that in the process of planning and implementation of the reform more importance should be attached to the regime and preventive security measures than to the interests of health and life of patients, even considering the specifics of the penitentiary system. The process of the reform and each of its components should stem directly from the country’s health care legislation. It can be argued that Georgia has one of the most orderly and progressive health care legislation (that regulates penitentiary issues) in terms of rights in the region of Europe. There are only rare countries whose laws on “the protection of health”, “the rights of patients”, “medical activity”, and laws with other titles devote separate chapters to norms regulating penitentiary health care. We consider it necessary that Georgia use this “priority” and “advantage” in the process of regulating the issues of penitentiary health care.

Based on the data of the recent years, the population of Georgia’s penitentiary system tends to increase sharply. Despite the fact that the construction of new penal establishments and the increase in the capacities of the existing infrastructure is also proceeding intensively, the number of prisoners and the existing capacities are still disproportionate. Overcrowding is, indeed, an obvious cause of the creation or exacerbation of a lot of health care problems in prisons. Among these problems, we should first of all single out the increase in the incidence of communicable diseases and the catastrophic scale of the problems of mental health. In the overcrowded establishments, in addition to the fact that the medical personnel that work overtime can no longer cope with the health care needs of patients, there are no resources and funds to resolve medical problems. Cases in point are the sharp delay of transfer of prisoners to medical establishments, the use of less effective or less practical medicines (with the principle – as large coverage as possible), and engagement in illegal medical activity when, due to the lack of specialists, a doctor of another specialization has to carry out an activity that is not within his/her area of competence and in which he/she does not have enough knowledge and experience. Despite the fact that in the first half of 2011 the existing number of prisoners did not exceed the limit established for all the penal establishments of Georgia, this is not the case in separate establishments, and, unfortunately, the problem of overcrowding exists in nine establishments (see the table), with the percentage of overcrowding fluctuating between 8% and 52 %. It is especially alarming that both medical establishments in the system are very overcrowded, which will definitely reflect negatively on the quality of the services rendered.

 

In order to create a clear impression of the existing situation, we are also giving the peculiarities of mortality in the recent years. The data that we obtained and analyzed show that during the past five and a half years (from 2006 up to the first half of 2011) 590 prisoners have died in Georgia’s penitentiary system.

According to the official data, the first half of 2011 is distinguished with the maximum number of deceased prisoners in the system, while, on the whole, the number of deceased prisoners in the first six months of 2011 significantly exceeds the number of prisoners who died in the first six months of the past year. In this respect, the existing figures have reached the peak and indicate a sharp deterioration of the situation.

Based on the several factors that we named, it becomes clear that the system of penitentiary health care today is in a deep crisis from which it is not so easy to find a way out as the Ministry of Corrections, Probation and Legal Assistance considers.

We should consider three main causes or factors that have caused the development of the aforementioned crisis. First of all, we should name the legislative problems. The aforementioned pertain not only to the laws that are in force in the country but also sub-laws issued by both the Minister of Health and the Minister of Corrections which often contradict the laws, one another, and very important international standards. In the final analysis, it can be argued that the international standards of penitentiary health care are reflected very inadequately in the legislative norms now in force.

Lack of will of the persons responsible for this area to regularly comply with the norms in force should be named as the second main cause of the crisis of the penitentiary health care. A case in point is that the regulations of health care that are still in force and are given quite extensively and in detail in the Laws of Georgia on Health Care, on Medical Activity, and on the Rights of Patients are practically ignored. Unfortunately, some high officials know nothing of their existence, while a part of them evade the requirements of the law consciously and try to regulate the aforementioned issue differently. One of the obvious examples of this was the adoption of the “strategy” of the reform of the penitentiary health care which, for some reason, became an end in itself for the Ministry of Corrections, Probation and Legal Assistance. The document does not have any meaning, and almost all the issues listed in it have long been regulated by the legislation in force. The so-called “strategy” should be considered as an act of merely declarative character which is absolutely devoid of any specifics and preciseness. It is obvious that there is no logical connection and heredity between the similar initiatives that have appeared in the past five years. Development and implementation do not occur in stages, and mistakes that have already been made are repeated on numerous occasions. It is obvious that, at present, the persons responsible for the system do not have the will to make any real changes. Obvious examples of the aforementioned are, for example, the statutes of the Medical Institution for Convicts and Indicted persons and the Medical Institution for Treatment of Tubercular Convicts that were approved recently. According to these documents, it is impossible to grant a medical status to these institutions despite the attempts and efforts of the Ministry of Health to support such a development, which is also a sad fact and should be assessed as an example of negative synergism.

The third group of causes of the crisis includes the local problems that abound. A big part of them do not depend on whether any changes or amendments are made to the law or whether a new sub-law is adopted. This creates a somewhat paradoxical situation, though this is also a sad reality of the system. The main essence of the problems in this direction is that the system is managed anyway, and all this happens through verbal directives and orders of individual officials, and sometimes in spite of situations with no way out. Of this group of problems, issues of two groups can be singled out: the issues of the first row are connected with medical personnel and the problems of the second row are created because of beneficiaries of medical services or, in this case, persons deprived of liberty. Among the first row of problems, we should name the issue of the extremely low quality of autonomy of doctors, which is not known to the larger public. Doctors are not free when making clinical decisions. They have to take into account all subjective and objective factors and, ultimately, the interests of a person’s health come one of the last in this spectrum of these considerations. We also know of a number of cases when doctors did not make a decision at all and the services of the regime and security made the decision instead of them. From this group, we should also single out the issues of professional competence of doctors. A virtually full isolation of the system has created a situation in which medical practice is often different in the civilian and penitentiary systems. Here, the issues of medical ethics become absolutely irrelevant; they are absolutely ignored and have become out of place in everyday life. It has already become a norm for doctors to routinely reveal medical secrets, ignore confidentiality, violate the necessary requirements when  filling documents, and take part in inhuman treatment (sometimes in torture) with their actions or inaction – by concealing the traces, silent agreement, or other similar activities. In a number of cases, doctors take part in punishment directly and give their permission for it with their signatures, which is an outrageous fact. Doctors of the penitentiary system are also virtually detached from the third component of medical education (continuous professional development) which should be obligatory for every doctor. The latter is directly proportionate to the quality of medical service. We should also note that the possibilities to regulate medical activity are minimal. The doctors’ activity is not controlled either by professional organizations or by state regulators at the level and on the scale which is the norm in the civilian sector.

As for the problems of the second row in this group that stem from prisoners themselves as beneficiaries of the service, the essence of these problems is that quite a big part of prisoners have psychiatric problems of various severity which are further deepened in the existing reality. The concept called the patient’s obligation is violated. If patients have rights, they also have duties and obligations in the process of administration of medical service. Unfortunately, the situation in this respect is still alarming. The situation is also made difficult by the fact that in some cases prisoners themselves do not try to take preventive measures for such diseases as tuberculosis and virus hepatitis. We can argue that the scale of psychiatric problems is large even according to the statistical data and the analysis and examination of self-inflicted injuries, suicide attempts, and actualized suicides that are given in the Public Defender’s reports. And this is to say nothing about measures aimed to introduce a healthy way of life which we consider a practically impossible task in this reality and at this stage, and starting the reform with it would be an utopist task.

Thus, we have three main groups of causes which create a deep crisis in Georgia’s penitentiary health care system, and real ways out of it are yet to be devised. Turning the situation to the positive requires taking long and overarching measures. First of all, it is necessary to stop the deterioration of the situation and the negative dynamics. To attain this aim, no effort should be spared to achieve the so-called “hibernation” even as a temporary measure. The aforementioned implies stopping the negative dynamics considering the existing reality and resources instead of devising unrealistic plans and making it possible to keep the mortality and sickness figures in check. Unfortunately, this can take quite a long time. Partly in parallel and mainly after achieving this goal, it will already become possible to think about starting to plan the radical measures that will already make it impossible for the situation to turn to the negative and, on the contrary, make it possible for it to turn to the positive. To achieve this aim, the staffing policy should be overhauled and the issue of professional compatibility of some officials who have been participating in these processes should be resolved. It is necessary to conduct a deep and concrete situation analysis which, apart from experts, should involve professional and public organizations. Preparation should start immediately to detach the system of penitentiary health care from the Ministry of Corrections and bring it under civilian management. In this respect, the Public Defender’s Office understands that structural and systemic changes alone won’t produce results. The transfer should cover all the levels of the system and include all aspects of medical activity. Apart from this, the state should realize that keeping a person deprived of liberty and regulating the issues of his/her health care is quite a heavy burden for the state budget. In some cases, the decision to sentence a person to a prison term inflicts more harm to the state budget than the harm that was inflicted by this person. In this respect, the use of alternative measures of punishment should increase tangibly, and the existing system should be fully replaced with a new system which will allow prisoners ill with severe and incurable diseases to serve alternative sentences. The resolution of the aforementioned issues requires utmost care, as well as devising and introducing additional mechanisms.

Judging even from the long-term perspective, it should be noted that it is necessary to start thinking about how to finance health care services. The Georgian Law on the Rights of Patients (Article 45, Paragraph 1) unequivocally and clearly explains that “Access to medical service for persons in pretrial detention or a penal establishment shall be provided through state medical programs.” And funding of the state medical programs is based on the Budget Code of Georgia, with funding included in the allotments designed for the Ministry of Health. The only paragraph relating to the allotments for the Ministry of Health that deals with the issue of health care in the penitentiary system says that the budget funds the joint commission of the Ministry of Health and the Ministry of Corrections. In other words, the budget does not directly fund the resolution of medical and health care issues, or the state health care programs are not funded fully in this direction as is provided by law. It is here that a change should be made, and the program funding of prisoners (or beneficiaries of health care services) should be provided here, in this part of the budget, not in the budget of the Ministry of Corrections which cannot and does not contain concrete details of how much money should be spent on the prevention or treatment of this or that disease. The fundamental resolution of the problem lies here, since if allotments are included at the level of the budget of penitentiary health care, in the funding allotted for the programs of the Ministry of Health, this will of course automatically cause an equivalence of the civilian and penitentiary health care. Apart from this, the control and responsibility of the Ministry of Labor, Health and Social Affairs of Georgia over the expediency and implementation of these programs will be established. Otherwise, we consider providing the Ministry of Health with adequate control on the medical service in the penitentiary system inconceivable. And the control mechanisms at the disposal of the State Agency for Regulation of Medical Activities will become more activated and made more fruitful.

 

Giorgi Tugushi is Georgia’s Public Defender



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