Protecting prisoners’ autonomy with advance directives: ethical dilemmas and policy issues
- 706 Downloads
Over the last decade, several European countries and the Council of Europe itself have strongly supported the use of advance directives as a means of protecting patients’ autonomy, and adopted specific norms to regulate this matter. However, it remains unclear under which conditions those regulations should apply to people who are placed in correctional settings. The issue is becoming more significant due to the increasing numbers of inmates of old age or at risk of suffering from mental disorders, all of whom might benefit from using advance directives. At the same time, the closed nature of prisons and the disparate power relationships that characterise them mean that great caution must be exercised to prevent care being withdrawn or withheld from inmates who actually want to receive it. This paper explores the issue of prisoners’ advance directives in the European context, starting with the position enshrined in international and European law that prisoners retain all their human rights, except the right to liberty, and are therefore entitled to self-determination regarding health care decisions.
KeywordsAdvance directives Prison Self-determination Ageing Mental incapacity
- Aday, R., and J. Krabill. 2012. Older and geriatric offenders: Critical issues for the 21st Century. In Special needs offenders in correctional institutions, ed. L. Gideon, 203–232. Los Angeles: Sage Publications.Google Scholar
- Andorno, R. 2013. Principles of international biolaw. Seeking common ground at the intersection of bioethics and human rights. Brussels: Bruylant.Google Scholar
- Blaauw, E., and H. van Marle. 2007. Mental health in prisons. In Health in prisons: A WHO guide to the essentials in prison health, ed. L. Møller, H. Stöver, R. Jürgens, A. Gatherer, and H. Nikogosian, 133–145. Copenhagen: WHO Regional Office for Europe.Google Scholar
- Council of Europe. 1950. Convention for the Protection of Human Rights and Fundamental Freedoms. Rome, 4 November 1950. http://www.echr.coe.int/Documents/Convention_ENG.pdf. Accessed 15 Feb 2014.
- Council of Europe. 1998. Recommendation (98)7of 8 April 1998 concerning the ethical and organizational aspects of health care in prison. http://legislationline.org/documents/action/popup/id/8069. Accessed 15 Feb 2014.
- Council of Europe. Committee of Ministers. 2009. Recommendation (2009)11 of 9 December 2009 on continuing powers of attorney and advance directives for incapacity. https://wcd.coe.int/ViewDoc.jsp?id=1563397&Site=CM. Accessed 15 Feb 2014.
- Council of Europe. Parliamentary Assembly. 2012. Resolution 1859 (2012) of 25 January 2012 concerning “Protecting human rights and dignity by taking into account previously expressed wishes of patients”. http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta12/ERES1859.htm. Accessed 15 Feb 2014.
- Coyle, A. 2007. Standards in prison health: the prisoner as a patient. In Health in prisons: A WHO guide to the essentials in prison health, ed. L. Møller, H. Stöver, R. Jürgens, A. Gatherer, and H. Nikogosian, 7–14. Copenhagen: WHO Regional Office for Europe.Google Scholar
- Dworkin, R. 1994. Life’s Dominion. An Argument About Abortion, Euthanasia, and Individual Freedom. New York: Vintage.Google Scholar
- England and Wales Court of Appeal. Civil Division. 1992. Re T. (Adult: Refusal of Treatment). All Engl Law Rep 30(4): 649–670.Google Scholar
- Elger, B. 2008a. Medical ethics in correctional healthcare: An international comparison of guidelines. Journal of Clinical Ethics 19(3): 234–248. discussion 254–259.Google Scholar
- European Court of Human Rights. 2004. Gelfmann v. France, no 25875/03, judgment of 13 December 2004.Google Scholar
- European Court of Human Rights. Press Unit. 2012. Factsheet: Prisoners Health Rights. http://www.echr.coe.int/ECHR/en/Header/Press/Information+sheets/Factsheets/. Accessed 15 Feb 2014.
- German Ethics Council. 2012. Dementia and self-determination. Opinion (orig. title: Demenz und Selbstbestimmung. Stellungnahme). 24 April 2012. http://www.ethikrat.org/publications/opinions/dementia-and-self-determination. Accessed 15 Feb 2014.
- Negri, S. (ed.). 2011. Life, death and dignity. Regulating advance directives in national and international law. Leiden: Brill Academic Publishers.Google Scholar
- Stewart, C. 2007. Advance directives: Disputes and dilemmas. In Disputes and dilemmas in health law, ed. I. Freckelton, and K. Petersen, 38–53. Sidney: Federation Press.Google Scholar
- UK Department for Constitutional Affairs. 2007. MCA Code of Practice. http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf. Accessed 15 Feb 2014.
- UN Human Rights Committee. 1992. CCPR General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), 10 April 1992. http://www.unhcr.org/refworld/docid/453883fb11.html. Accessed 15 Feb 2014.
- UN General Assembly. 1990. Basic Principles for the Treatment of Prisoners. Resolution 45/111 of 14 December 1990. http://www.un.org/documents/ga/res/45/a45r111.htm. Accessed 15 Feb 2014.
- WHO-ICRC (World Health Organization and International Committee of the Red Cross). 2006. Mental health and prisons. Information sheet. Geneva. http://www.who.int/mental_health/policy/mh_in_prison.pdf. Accessed 15 Feb 2014.