When Douglas Fraser’s back pain became acute in April 2011, he asked to see a doctor at the Bath Institution, a medium-security federal prison in southern Ontario where he’d been incarcerated for four years. But it was two months before the 58-year-old got his wish, and another four months of searing pain and weight loss, as well as constant demands from family and friends that prison officials escalate his health services, before Fraser was finally taken to Kingston General Hospital for assessment. He was soon diagnosed with pancreatic cancer. In the remaining three months of his life, Fraser contended the delay in providing him access to external care, constituted a death warrant.
Fraser’s mother, Muriel, a softspoken native of Tillsonburg, Ontario, is convinced the Correctional Service of Canada (CSC) issued just such a decree. “My son was clearly denied his right to health care equal to what non-prisoners expect.”
Dr. Ivan Stewart, the palliative care physician who treated Fraser in the final months of his life, doesn’t go quite that far. But Stewart does believe CSC failed to provide equitable health care by providing Fraser inadequate palliative care in the Kingston Penitentiary, which is “a totally inadequate facility for a patient to be sent to die in.”
Technically, the federal Corrections and Conditional Release Act and various international conventions (www.cmaj.ca/lookup/doi/10.1503/cmaj.109-4407), entitle prisoners to physical and mental health care at a level equivalent in quality to that available outside of prisons. In fact, the act also entitles prisoners to dental care, which is more than is guaranteed the average Canadian, notes Howard Sapers, the Correctional Investigator of Canada.
But if the skyrocketing number of complaints from prisoners about the quality of health care they receive is any indication, the right to health care “is being eroded,” Sapers notes. “Access to health care is under duress” and it’s only getting worse as prison populations increase and prison health budgets get squeezed. In response, CSC indicated that it is moving to respond to increasing health care demands. To that end, CSC is “implementing a multi-faceted recruitment campaign,” says spokeswoman Sara Parkes.
Some argue that the legislative obligations to provide health care extend to preventive medicine, such as harm reduction programs. For example, the Canadian HIV/AIDS Legal Network, based in Toronto, Ontario, has filed a legal challenge under the Canadian Charter of Rights and Freedoms contending that the failure to provide needle exchanges is a breach of a prisoner’s right to security of the person and to nondiscriminatory treatment, says Sandra Chu, a lawyer with the network. In refusing to allow needle exchanges, the federal government contravenes its obligation to provide the highest attainable standard of health for a population group in which HIV prevalence is 15 times higher than in the general population, she argues.
Given the legal obligations, what redress exists if a prisoner believes his health rights are being violated? It appears to vary by region.
In British Columbia, the government has funded (through legal aid) a private company to provide legal services to federal and provincial prisoners in the province. About 90% of complaints are related to health, says Jennifer Metcalfe, a lawyer with the Abbotsford-based Prisoners’ Legal Services. The bulk of such complaints relate to medications, she says, noting that prison medical staff often deny, drug requests due to concerns around security and abuse. Segregation is a common complaint coming from inmates with mental health problems, she adds.
Correctional Investigator of Canada Howard Sapers says that prisoner complaints about health care providers that are forwarded to provincial medical colleges can actually make an inmate’s predicament worse. That’s because physicians who are under investigation by a college are required to withdraw from treating the complainant.
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Obtaining action on the complaints is difficult, Metcalfe adds. Complaints about medical decisions are referred to the BC College of Physicians and Surgeons but it hasn’t recommended a change in six years, making a remedy through the college an essentially moot point, she notes.
Sapers says that prisoner complaints that are forwarded to provincial medical colleges can actually make an inmate’s predicament worse. That’s because physicians who are under investigation by a college are required to withdraw from treating the complainant, he says. “In many prisons in Canada there is only one specialist available. So prisoners who complain about their care to the college often further jeopardize getting any care at all.”
Provincial medical colleges need to revamp their procedures for handling medical complaints from inmates and establish complaint review panels that include prisoner’s legal advocates, argues Michael Jackson, professor of law at the University of British Columbia.
As for complaints about medical care that is provided by nonphysicians, the procedure appears somewhat convoluted, Metcalfe says. A prisoner can grieve a decision taken by CSC staff, such as a nurse, through the CSC’s offender complaints and grievance process. But it’s a multistage process, involving two procedures within the prison and then two stages at the regional and national level, that takes at least a year and is encumbered by hurdles that make a prisoner’s chances of achieving a medical remedy slim, she argues. “Prisoners with mental health or literacy problems are often even more likely to be exhausted by the process.”
The problems are only magnified by the increase in volume of complaints, argues Dave Mullan, emeritus professor of law at Queen’s University in Kingston, Ontario.
CSC’s four-stage grievance process is overly complex, Mullan says, adding that he urged CSC in a 2010 report to streamline the complaints process.
Moreover, Mullan says that for often illiterate and relatively uneducated prisons, many with mental health problems, it can seem unclear whether they should be pursuing redress through the correctional investigator, through the courts or even the Canadian Human Rights Tribunal.
The complexity, for prisoners with health care complaints, is “difficult to fathom,” Mullan adds.
Yet even an improved process won’t resolve the problem if the system doesn’t provide financial support for prisoners in the form of coverage of legal-aid costs, Jackson says. “Typically legal aid is not available to Canadian prisoners with respect to their health care rights. Access to health care services poses a particular legal problem, and it is getting worse due to budget cuts, the increasing number of inmates, and the increasing number of inmates with mental health problems.”
Editor’s note: Sixth of a multipart series on health in the hoosegow.
Part I: Health and hard time (www.cmaj.ca/lookup/doi/10.1503/cmaj.109-4389).
Part II: Imprisoning the mentally ill (www.cmaj.ca/lookup/doi/10.1503/cmaj.109-4390).
Part III: Agony behind bars (www.cmaj.ca/lookup/doi/10.1503/cmaj.109-4391).
Part IV: Black eyes and barriers (www.cmaj.ca/lookup/doi/10.1503/cmaj.109-4392).
Part V: Providing principled health care in prison (www.cmaj.ca/lookup/doi/10.1503/cmaj.109-4406).