Adherence to the rights of a person deprived of liberty in a
medical institution can not be less than in a penitentiary institution
The Human Rights Defender has published an extraordinaryreport stating that the constant presence of a penitentiary officer in the
hospital room of a person deprived of liberty is impermissible and violates his
rights (following the example of a detainee).
The point is that there is a single penitentiary staff
member on a regular basis in the hospital room of a detainee or prisoner
receiving medical treatment who either does not leave the ward at all or leaves
it at the request or demand of the treatment recipient. At the heart of this
vague concept are practical legal solutions from the perspective of individual
rights.
In fact, the following presumption should work. The
permanent presence of a penitentiary officer should, as a general rule, be
ruled out. This can only be done in exceptional cases when, for safety reasons,
a doctor or other medical staff member requests the presence of a penitentiary
officer.
Therefore, the constant presence of a guard at a detainee's
hospital room is problematic in terms of the care provided to him, his dignity,
his privacy, and even the dignity and privacy of his caregivers. In other
words, in this situation, issues of violation of the law arise, which must be
considered from the point of view of both the 3rd and 8th articles of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, as well
as the Constitution of the Republic of Armenia (RA).
Consequently, the physically permanent presence of a
penitentiary officer in the hospital room of a person deprived of liberty
undermines the essence of the state's positive obligations to him. It does not
reflect a fair balance between public and private interests and leads to
disproportionate state interference with human rights.
Such a conclusion was based on the study and analysis of the
complaints addressed to the Defender on the issue, the monitoring of the
National Prevention Mechanisms, the existing legislation, and international
standards.
In particular, in a number of cases recorded as a result of
the ombudsman's direct observation, the guard's service was performed inside
the medical room of the medical institution, directly next to the door and
bathroom, where a chair was placed for him to sit. The guard’s chair was
separated from the rest of the ward by a blind, which had a certain degree of
permeability, was placed on the floor, and did not reach the ceiling. The
report also discusses this issue in terms of security and, in particular, the
presence of a penitentiary officer, for example, in the corridor, in the
immediate vicinity of a hospital room.
In the conditions of round-the-clock presence of the guards,
the persons deprived of their liberty do not have the opportunity to talk
freely about their health problems with both the medical staff and their
caregivers. Third parties are also informed about their health condition. In
turn, the medical staff, is also equally constrained by that circumstance. In
addition, the constant presence of a penitentiary officer in a hospital room is
problematic in that, all matters relating to the detainee's private life and
conversations with the caregiver reach and are overheard by the custodial
officer, which directly leads to an unlawful interference with the right to
privacy.
In view of all this, in the case of a person deprived of his
or her liberty, the issues related to his/her health, medical care in general,
and medical treatment specifically, should be considered first of all in terms
of excluding ill-treatment and guaranteeing privacy in certain situations, as
accepted in international law.
The level of medical care for a person deprived of liberty
may not be less than the level of medical care and service available to the
general population of the country.
For this purpose, the referenced documents provide that, if
necessary, when the penitentiary system can not meet the required standards,
medical care and services should be provided in a civilian facility, including
a specialized civilian medical institution, with proper provision of all
necessary conditions. These rules are critical to eliminate discrimination.
First of all, it is necessary to state that, in general, to
guarantee the right to healthcare of a person deprived of liberty,
international requirements for proper medical care and service presuppose the
physical presence of a penitentiary officer only in exceptional cases — when
requested to do so by a doctor for security reasons.
This approach is based on the basic principle that the
degree of adherence to the rights of a person deprived of liberty in a medical
facility can not be less than in a penitentiary institution. For example, in a
penitentiary institution, based on the same principle, a penitentiary officer
is not always physically present in a person's cell.
Therefore, before embarking on changes to the law, it is
necessary to change these practices, taking into account the issues set out in
this Special Report, in order to improve standards with a more fictional
emphasis on legal standards, free from formal approaches which infringe on
individual rights.
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