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Justice and Fairness in Prisons · 24 Apr 2020

Everyone matters equally: fair access to healthcare in prison during a pandemic

The government’s guide to pandemic flu planning, last updated in 2017, includes a framework that looks at the ethical aspects of decisions made during a pandemic. One of those ethical aspects is fairness, and the government’s guide defines the principle of fairness as meaning that:

  • everyone matters equally
  • people with an equal chance of benefiting from health or social care resources should have an equal chance of receiving them – however, it is not unfair to ask people to wait, if they could get the same benefit from an intervention at a later date

However, in the most recent government guidance on prevention of infection and communicable disease control in prisons and places of detention – that is, guidance on how to prevent the spread of infection in prisons – there is no mention of ‘fairness’. Moreover, speaking to the Joint Committee on Human Rights on 20 April, the Secretary of State for Justice admitted that measures taken to deal with the pandemic inevitably involve a ‘dilution’ of human rights. There are some very compelling reasons as to why they should not – especially as regards the fair provision of healthcare for people in prison.

In prison, despite the legal requirement for parity of provision, in reality people do not have an equal chance of receiving the same level of health or social care they would receive in the community.

Short-staffed, overcrowded and dilapidated prisons with high churn severely limit access to healthcare and the ability of prisoners to practice social distancing. In 2018, the Health and Social Care Committee reported long delays in healthcare provision. Prisoners with worrying symptoms were not being responded to in a timely manner, if at all. The Committee also heard that prisoners can struggle to get help in an emergency. Her Majesty’s Inspectorate of Prisons told the Health and Social Care Committee that they “consistently observe acute staff shortages within prison health provision and this is often the primary reason for gaps in provision.”

The coronavirus pandemic is compounding an already unequal – and consequently unfair – situation. On 14 April, it was reported that a quarter of all prison staff were absent for coronavirus related reasons, making staff shortages even more acute than they already were. The Howard League have heard multiple reports of people in prison with asthma who were waiting for inhalers before the Covid-19 outbreak and are still waiting. The provision of social care for older or infirm prisoners, already inadequate before the pandemic, is now, in some prisons, virtually non-existent. On 21 April the Justice Committee heard that some older prisoners who would usually be reliant on informal ‘buddies’ (younger or fitter prisoners) to help them with cleaning and mobility issues are now struggling without that widely-relied upon form of support, due to 23-hour lockups in prisons and limited movement between cells and wings.

Equality – which the government’s pandemic preparedness guidance aligns with fairness – is never about treating everyone in exactly the same way. It is about recognising that different people have different needs, and that those different needs all matter equally. For instance, what counts as ‘old age’ in prisons differs from ‘old age’ in the community, as poor living conditions in prisons mean people age more quickly. For this reason, the prison inspectorate uses the age of 50 as a benchmark for defining ‘old age’ in prisons. Arguably, due to this accelerated aging process, all people in prison over 60 or 6.1% of the prison population should be in the ‘shielding’ category that applies to over 70s in the community. This would amount to considerably more than the 1,800 that the Secretary of State for Justice told the Justice Committee ‘would be shielded if they were in the community’ on the 24 March. In addition, the considerable proportion of the prison population who have underlying health conditions should be taken into account.

People in prison have not forfeited the right to access the same quality of healthcare they would have had in the community. The punishment imposed by the courts is judicial decision to deprive a person of their liberty, not a carte blanche for the prison to impose deprivations beyond that. People in prison have already had their liberty taken away. To remove or delay their access to healthcare or social care is a double punishment: it is unfair. And that unfairness will not be confined within prison walls. If coronavirus takes hold in our prisons as a consequence of inadequate healthcare, then the effects of that failure will be felt in the community too. Applying the principle of fairness to the pandemic preparedness of prisons is not merely a matter of ethics; it would be a pragmatic step that would help prevent the spread of infection and save lives inside and outside prison walls.

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