Tag: prisons

Abortion Behind Bars: Women in Prisons Have Extra Obstacles to Overcome

Photo by Rodnae Productions on Pexels

Writing for GroundUp, Rebecca Gore lays out the challenges of access to abortion for women in South Africa’s prisons.

As the legal researcher to Justice Edwin Cameron, head of the Judicial Inspectorate for Correctional Services (JICS), I’ve visited several women’s prisons. A recent encounter with a nurse in a big overcrowded prison was a poignant reminder of the challenges women in prisons experience, especially when it comes to exercising their sexual and reproductive rights.

Cramped in her consulting rooms, the nurse shut the door to talk to me. Outside, weary inmates sighed and waited in line. We discussed how JICS might try to resolve various issues, from mental health to how regularly doctors visit.

On abortions, the nurse’s eyes sparked with alarm. She told me of a perplexing problem she is faced with when an inmate requests an abortion. Is it enough to notify the head of the prison (or area commissioner) – or must she seek their prior approval?

For her, the healthcare policy is unclear. With pressure from her superiors and rumours about another nurse being reprimanded for not obtaining prior approval, she opts for the more constrictive process.

When I raised the issue with the head of the prison, she pointed out a gap in the Correctional Services Act 111 of 1998.

As a result, the prison has developed its own policy. If the inmate is above 18 years

  • they put their request for an abortion in writing;
  • the nurse facilitates the arrangements; and
  • the head of the prison and area commissioner are merely informed (so that they are aware of the inmates’ movements).

The head of the prison assured me that the Department of Correctional Services does not intervene. She said it is important to ensure the woman is not a minor and to have the request in writing as it shields the department from potential litigation.

Distressed by this interaction, I had to dig deeper.

There are no easily accessible statistics on abortions in South African prisons. But we do know that women comprise less than 3% of the entire prison population. Lillian Artz and Britta Rotmann have found that women prisoners are “among the most socially and economically vulnerable members” of our society. Their imprisonment has “obvious deleterious effects on both children and the remaining family members charged with childcare responsibilities.”

The Choice on Termination of Pregnancy Act

The lodestar for all women seeking abortions in South Africa is the Choice on Termination of Pregnancy Act 92 of 1996. The Preamble recognises “the decision to have children is fundamental to a woman’s physical, psychological and social health” and that the state shoulders the duty to provide reproductive healthcare.

The Act provides that a woman can request an abortion during the first 12 weeks of the gestation period without any constraints. A medical practitioner must be consulted from 13 to 20 weeks to identify risks such as an ongoing pregnancy that may “significantly affect the social or economic circumstances of the woman”, and after 20 weeks, when life and injury-threatening risks are present. While a minor must be advised to consult with her loved ones, she cannot be denied an abortion if she chooses not to.

The policies pertaining to women in prisons are markedly different.

The Correctional Services Act is silent on abortions. But the Department’s Regulations (last amended in 2012) provide that the “National Commissioner may approve an abortion at state expense” – though only in particular circumstances. Strikingly, these do not include when a woman requests an abortion during the first 12 weeks. And they do not extend to women seeking abortions on purely socio-economic grounds.

Unsettling questions

Unsettling questions spring to mind: Why can women prisoners not request an abortion during the first 12 weeks? Why are socio-economic grounds for abortion neglected when socio-economic issues are generally more acute behind bars? Most pressing, how can the deeply personal choice of whether to have an abortion be at the discretion of the National Commissioner?

To complicate matters further, the latest B-Orders – detailed rules the department issues – do not mention abortions. Yet, the older set states under “Women’s reproductive health” that the services rendered include “termination of pregnancy”. No further details. However, the department’s “Health Care Policy and Procedures” provide for termination of pregnancy to be “performed at state costs for medical reasons only”. What about the other legitimate reasons that warrant abortions? This is rights-throttling.

To be clear: Women imprisoned in South Africa do not have the same standard of care when it comes to accessing abortions. They have extra obstacles to overcome. And without clearly outlined and implemented policies, there is room for misuse and, worse, abuse.

More concerns crop up: Does the “equivalence of care” principle not extend to the sexual and reproductive healthcare of women prisoners? Have female inmates been overlooked in the fight for reproductive justice?

Laws and reality

The right to a woman’s bodily autonomy is a burning issue across the world. The recent exposure of a draft majority opinion from the US Supreme Court revealed a sharp repudiation of the right to abortion.

Fortunately for us, in democratic South Africa, the right to abortion is not a lightning rod for the political elite.

The Bill of Rights gives everyone the right of access to healthcare services. Critically, this includes reproductive healthcare. And is further buttressed by the right to bodily and psychological integrity, which expressly includes the right to “make decisions concerning reproduction”.

South Africa has ratified international and regional treaties, including the Maputo Protocol, that explicitly entrench the right to abortion.

Yet, there is a disturbing disparity between laws and reality.

Despite these progressive laws, many women still struggle to access safe abortions at state expense. Instead, some find themselves obliged to turn to illegal, informal and often dangerous means. This has awful consequences, in a country with high levels of sexual and gender-based violence coupled with avoidable maternal deaths.

Hurdles to safe and legal abortions, such as lack of information, stigma, judgmental attitudes and mistreatment by healthcare workers, have been identified by Amnesty International.

These barriers lead to the proliferation of illegal and informal abortion providers and have a brutal and often life-imperilling impact on women from marginalised communities. For instance, a sex worker explained that she would opt for a “backdoor” provider. Why? Because for her, privacy has to trump safety. A recent article in GroundUp revealed how poor treatment and stigma have led to more (sometimes botched) illegal abortions among sex workers.

Equivalence of care

When it comes to prisons, we must remember that by and large prisons are designed with men in mind. It is for this reason that the United Nations Bangkok Rules acknowledges that women prisoners “are one of the vulnerable groups that have specific needs and requirements”, including female-centric healthcare needs. The Rules reaffirm the “equivalence of care” principle – those in prison have a right to the same standard of healthcare as the general public.

When it comes to women prisoners’ access to abortions, the reproductive justice framework is crucial. Researchers from the Black Women’s Health Imperative state that reproductive justice encompasses the “social, political and economic inequalities that affect a woman’s ability to access reproductive health care services”.

According to Rachel Roth, abortions are “deeply personal” and “shaped by the larger political, economic and social context of women’s lives.” In the carceral setting, “[e]very dimension of reproductive justice is negatively affected.” In addition, the Prison Policy Initiative observes that in the US context there are “insurmountable barriers” to accessing abortions behind bars and “people behind bars often have very few – if any – choices and autonomy when it comes to their reproductive health and decisions”.

Political will

With political will, prison policies can be changed so that the law extends abortion rights to these women and guards the exercise of these rights.

JICS is committed to working on this.

But, we need to go further.

We need to ensure that women behind bars know their rights through education and awareness campaigns – and that healthcare workers are well-trained and do not deter or stigmatise abortion seekers.

We must establish independent healthcare in prisons, a point recently raised by Justice Cameron. Without independent healthcare, women prisoners’ access to abortions will be limited by the closed-off and security-focused nature of our prisons. My encounter with the nurse would not have been as frank and candid if a correctional official had been present.

South Africa has a long way to go to guarantee all women and girls access to safe, free and legal abortions with respect for their dignity, privacy, health and bodily integrity. In this fierce battle for reproductive justice, we must break the silence and not perpetuate the invisibility of women and girls behind bars.

Republished from GroundUp under a Creative Commons Attribution-NoDerivatives 4.0 International License.

Gore is legal researcher at the Judicial Inspectorate for Correctional Services.

Views expressed are not necessarily those of GroundUp.

Source: GroundUp

Why Independent Healthcare inside Prisons is Vital

Photo by Emiliano Bar on Unsplash

Judge Edwin Cameron, Inspecting Judge of Correctional Services, writes about the need for healthcare professionals working in prisons should be shifted to the Department of Health.

Our country’s healthcare system is a cumbersome double-decker bus: on top are those of us who have access of some kind to private healthcare (a high estimate is around 27% of the population). The great majority of necessity rely on public healthcare. But, within public healthcare, there is a further divide, an overlooked layer at the very lowermost – the healthcare afforded to people in prison.

During apartheid, healthcare for those inside prison and in police custody was used as a “tool of manipulation and coercion”. There was medical negligence, poor quality care, false medical and autopsy reports, and warped medical ethics. (Bram Fischer, in his dying days, received no treatment for his crippling cancer).

Some doctors and other medics were complicit in abuses, turning a blind eye to what was happening before them.

The Truth and Reconciliation Commission (TRC) Special Hearings on Prisons showed how basic access to medical treatment was used to punish. Henry Magkothi recounted how difficult it was to gain access on Robben Island to the hospital. “The doctor didn’t come often enough and even then there were so many obstacles they placed in your way.”

The problem was not only one of medical ethics. There was a “fragmented approach and a general lack of clarity” in governing what health professionals did to those in their custodial care, wrote Laurel Baldwin-Ragaven, Leslie London and Jeanelle De Gruchy in their book An Ambulance of the Wrong Colour: Health Professionals, Human Rights and Ethics in South Africa.

Not only did doctors have to have security clearance to work in prisons, but there were split institutional loyalties. Some health professionals were employed by the Department of Health and others by the Department of Prisons (now the Department of Correctional Services — DCS). This led to a dilemma of “dual obligations”, where the lines of authority for healthcare and custodial care were blurred. Health professionals owed loyalty to their patients (the inmates). But they had obligations to, and pressure from, their employers (the prison authorities).

Healthcare must be separated from prison administration

This blighted history led Dr Judith van Heerden, an expert in this area, to recommend to the TRC that prison healthcare “must be separated completely from custodial care”. All healthcare professionals in prisons “should be appointed, paid and responsible to the Department of Health” – and no longer to the prison authorities.

The TRC embraced this sound advice in its recommendations. It suggested that: the Department of Health should assume control over prison healthcare; prison health responsibilities and obligations should be clearly defined with an independent line of authority.

These recommendations accord with international guidelines. The UN Mandela Rules entail a demarcation between healthcare and custodial care; there shall be “full clinical independence”. Healthcare professionals “shall not have any role in the imposition of disciplinary sanctions or other restrictive measures”. And clinical decisions may only be taken by healthcare professionals “and may not be overruled or ignored by non-medical prison staff”.

Experts have underscored the importance of providing health services in prison that are separate from the prison administration. The World Health Organisation and the United Nations Office on Drugs and Crime note that healthcare professionals should act “completely independent of prison authorities” and in “alignment with public health services.”

Furthermore, the Association for the Prevention of Torture advocates for the “integration of the prison health service into the national health service” to guard the “professional and ethical independence of the health staff” and “provide recourse to an independent body in case of conflicts.”

Did democratic South Africa heed this advice? No.

Medical ethicist Professor Solomon Benatar observes that the Department of Health “began to dismantle the District Surgeon Services” and “[i]t became possible for DCS to appoint nurses and other medical staff to deliver healthcare” in our prisons.

This is evident in the plain wording of the Correctional Services Act of 1998. Section 12(1) states that DCS “must provide, within its available resources, adequate health care services” and section 12(2)(b) outlines that medical treatment “must be provided by a correctional medical practitioner, medical practitioners or by a specialist or health care institution or person or institution identified by such correctional medical practitioner”. And according to section 12(3), if an inmate opts to be “visited and examined by a medical practitioner of [their] choice” it is “subject to the permission of the Head of Centre”.

Post-apartheid, healthcare in prisons is still not independent. Benatar slates this “retrogressive step”; “diverting some responsibilities for healthcare away from the Department of Health” and towards DCS, diminishes the “loyalty of some health professionals” as it ranks “allegiance to prison authorities higher than professional responsibility to patients.”

A special duty of care

In his book Health and Health Promotion in Prisons, Professor Michael Ross states that depriving inmates of liberty does not mean we may deprive them of access to healthcare. On the contrary, their deprivation of liberty means we owe them a “special duty of care”. Critically, Ross acknowledges that we provide “good care to bad people because we are professional, and because we, and they, are human” and if bad care is given “the humanity we degrade is also ours, not only theirs”.

Those in prison should have the same quality of healthcare as the public outside. This is the “equivalence of care” principle. It means that you don’t add poor healthcare treatment on top of imprisonment to punish. As I have written before, “prison health affects our health” and “equivalence of care” should be considered a minimum threshold. In light of the higher mortality rates in prisons; government may have to provide higher standards of healthcare in prisons.

We know that injuries and the use of anti-depressants are warning signs of trouble. Many cases of claimed abuse (especially sexual violations, assaults, use of force and torture) are reported to nurses and doctors. Later, investigators, both internal and external, rely on medical reports. Ross emphasises that one must ensure health assessments of inmates are based on medical criteria and inmates ought to trust their healthcare providers and feel safe to report and speak out about abuse.

In addition, nurses, psychologists and other medical practitioners play a role in how prisons are run. For example, they are expected to visit inmates in segregation (sometimes in solitary confinement). The Act provides that segregation “must be discontinued” if medical practitioners determine that “it poses a threat to the health of the inmate”.

Further, independent healthcare can provide another significant layer of independent monitoring over our closed-off prisons.

Two parallel healthcare systems are not advisable. Does DCS have adequate training facilities to ensure training and updates on clinical care for clinicians on its payroll? The Judicial Inspectorate for Correctional Services (JICS), which I head, believes not. DCS clinicians often miss out on training opportunities. Further, DCS’s data systems are standalone – they are not linked to the Department of Health’s facilities (connecting them would ensure continuity of care when inmates are released).

And a heartening thought – why not allocate community service doctors to prisons? This would alleviate costs and skills scarcity.

The state of healthcare in our prisons

Grievously, our prisons are a microcosm of all our country’s social ills. This is true of healthcare, but perhaps it is worse, since, notoriously, prisons are epidemiologic pumps for the spread of infectious viruses and diseases.

The 2020-2021 annual report of the Judicial Inspectorate for Correctional Services paints an agonising picture of the state of prison healthcare.

Inmates do not get regular access to nurses and doctors, clinics in prisons are cramped and there is limited privacy for consultations, correctional officials are not always available to escort inmates to healthcare facilities, medications are not always dispensed on time, some medications have expired, health check-ups and screenings upon admission are not always conducted and medical files are not always updated.

Healthcare professionals in prisons, especially psychologists and social workers, are working with a desperate population. In the single year covered in the report, JICS reported 86 hunger strikes, 66 attempted suicides and 27 suicides. According to DCS’s annual report “suicide is the leading cause of [unnatural] deaths in correctional facilities”.

JICS’s recent quarterly report lists 40 unnatural deaths. We don’t know the cause of most; seemingly healthy inmates died. This requires JICS’s close investigative scrutiny of the post-mortem and medico-legal documents, which are in the hands of DCS and sometimes mysteriously go missing.

Further, there were 113 deaths as a result of natural causes, including pneumonia, cancer, meningitis, septicaemia and asthma. Could some of these deaths have been avoided with early detection, close monitoring and regular access to medical assistance? JICS thinks so.

JICS is also alarmed by the 116 declared state patients in prison; these are individuals whom the courts have found are suffering from mental unwellness challenges. As they wait indefinite periods for a transfer to a psychiatric hospital, they are wrongly housed in correctional facilities. State patients should not be a DCS responsibility. JICS has raised its voice on this: correctional facilities are not conducive for state patients, and correctional officials and fellow inmates are not trained to properly accommodate them.

To end off

While inspecting prisons, I have met passionate nurses and committed doctors. Prisons are tough, dangerous and complicated places. I acknowledge that DCS has worked hard to progress in dealing with Covid, HIV and TB behind bars. But we have to do better.

We need institutional reform. Healthcare professionals working in prisons ought to be independent of DCS. This means shifting all healthcare professionals to the Department of Health and ensuring proper channels of authority and oversight within prisons. In addition, healthcare professionals need specific and ongoing training for the prison environment. We also need more healthcare professionals working in prisons – and they must be accessible, proactive and willing to speak out.

That takes us back to where we started. Our Department of Health must be well-resourced, well-capacitated and well-run – and healthcare professionals must be trained and supported and have job security. And this goes to the heart of whether we have a capable state, strong institutions and a culture of accountability.

Judge Cameron is Inspecting Judge of Correctional Services.

Views expressed are not necessarily those of GroundUp.

This article is republished from GroundUp under a Creative Commons Attribution-NoDerivatives 4.0 International License.

Source: GroundUp