As a member of the NGO Working Group, Human Rights Watch appreciates the opportunity to submit comments on the proposed Residential Detention Standards in advance of their release. We understand that the time frame for revision is short, and therefore offer specific, brief recommendations to ensure that guidance on medical care for detainees with HIV and AIDS conforms with national and international law. We also hope that these recommendations will be useful in your development of the performance-based standards for adult detainees.
We urge you to amend the residential detention standards to ensure that they include specific language ensuring:
• Voluntary counseling and testing;
• Treatment according to nationally accepted clinical treatment guidelines such as those promulgated by the US Centers for Disease Control or US Department of Health and Human Services;
• Continuity of care both within the facility and upon transfer to other facilities;
• Protection of confidentiality of HIV status and AIDS diagnosis in order to prevent discrimination against this vulnerable population.
Introduction
Human Rights Watch, an independent non-governmental organization founded in 1978, is the largest human rights organization in the United States. We regularly report on US criminal justice issues including prison conditions, prison medical care, as well as immigration law and policy and conditions of confinement for immigration detainees. We have published several reports specifically addressing the rights of non-resident children held in US custody, and recently issued a report examining the issue of medical care and services for adult immigration detainees with HIV and AIDS.1
Although this letter addresses in detail only paragraph 18 of the Medical Care Standard entitled “HIV/AIDS,” this should not be considered to be an endorsement of any of the other draft standards. To the contrary, Human Rights Watch finds that the standards fail to conform with international human rights law, US constitutional law and applicable legal precedent such as the Settlement Agreement in the case of Flores v. Reno (CV-85-4544-RJX-Px-C.D. Cal. Jan.17 1997). The ICE residential standards are based largely upon national standards for incarceration of adult offenders. This framework is entirely inappropriate for families held in civil detention. Of primary concern is the failure of the standards to reflect principles fundamental to the rights of the child, including that children are detained only as a measure of last resort and for the shortest period of time; that alternatives to institutional care be available; that children are separated from unrelated adults; that children have access to legal counsel and most importantly, that the best interests of the child are a primary consideration.2 The failure of the standards to provide for legal counsel for children independent of their parents, the provisions permitting strip and pat-down searches of young children in some circumstances without adequate guidance to authorities in making these determinations, and the failure to address the issue of contact between children and unrelated adults, are just some of the provisions of concern to Human Rights Watch.
Moreover, the current practice of “family detention” and the departure of ICE from the more reasonable policy of releasing immigrants to the community pending administrative procedures constitute an unreasonable interference with the rights to family life and privacy guaranteed by the International Covenant on Civil and Political Rights.3 Human Rights Watch urges ICE to employ alternative, less restrictive means to accomplish its goal of ensuring that immigrants appear for administrative hearings.
The HIV/AIDS Provision
National and international standards require that individuals in state custody be ensured access to at least the same standard of medical care available in the general community, including:
• Voluntary counseling and testing;
• Treatment according to nationally accepted clinical treatment guidelines such as those promulgated by the US Centers for Disease Control or US Department of Health and Human Services;
• Continuity of care both within the facility and upon transfer to other facilities;
• Specific protection of confidentiality of HIV status and AIDS diagnosis in order to prevent discrimination against this vulnerable population.
The US Centers for Disease Control and the US Department of Health and Human Services’ clinical guidelines for the testing, care, and treatment for people with HIV and AIDS are recognized as authoritative and expressly referenced by the federal Bureau of Prisons, which holds immigration detainees, the National Commission for Correctional Health Care (NCCHC), and the American Public Health Association (APHA) Standards for Health Care in Correctional Institutions.4 This draft ICE residential standard, however, establishes no program for voluntary testing, counseling or education and makes no reference to current clinical guidelines such as those set by the Centers for Disease Control or the US Department of Health and Human Services. Although the medical care standard contains general provisions related to the protection of confidentiality of medical records, national and international standards for HIV/AIDS services in correctional settings require that additional measures be taken to ensure confidentiality related to HIV. For example, the NCCHC Position Statement for Administrative Management for HIV in Corrections states as follows:
Recognizing that being labeled as HIV-positive may put an inmate in a correctional institution at undue risk for compromised personal safety, it is particularly important that the rules of physician/patient confidentiality regarding HIV test results and diagnosis of AIDS be followed.text5
The draft standards cite the American Correctional Association standards and the NCCHC standards as” references.” However, the draft residential standard contains none of the four essential elements for HIV services established by these and other national and international standards: voluntary counseling and testing, clinical treatment guidelines, continuity of care, and protection of confidentiality in order to prevent discrimination. In sum, this “standard” bears no resemblance to any accepted national or international standard, guideline or practice for HIV services, in or out of a correctional setting.
Human Rights Watch is also concerned that the language regarding isolation of HIV-positive detainees is overly broad. Although the provision states that a determination to isolate an HIV-positive resident shall be made only upon clinical evaluation of a medical need, this language is insufficient from a human rights perspective as it fails to reflect the very strong presumption against isolation in current medical and legal standards for HIV treatment. Isolation is a practice that carries a high risk of creating stigma and discrimination while also discouraging voluntary testing and it is very rarely a medical necessity even when a patient has advanced AIDS. As stated by the WHO Guidelines on HIV infection and AIDS in prison:
Since segregation, isolation and restriction on occupational activities, sports and recreation are not considered useful or relevant in the case of HIV-infected people in the community, the same attitude should be adopted towards HIV-infected prisoners…Isolation for limited periods may be required on medical grounds for HIV-infected prisoners suffering from pulmonary tuberculosis in an infectious stage. Protective isolation may also be required for prisoners with immunodepression related to AIDS, but should be carried out only with a prisoner’s informed consent. Decisions on the need to isolate or segregate prisoners (including those infected with HIV) should only be taken on medical grounds and only by health personnel, and should not be influenced by prison administration.6
Legal Standards
In the United States, courts have consistently held that administrative detainees must be held in non-punitive conditions.7 Detainees are entitled to “reasonable” medical care which courts have found to be a “demonstrably higher” standard than the Eighth Amendment prohibition on cruel and unusual punishment.8 The definition of “reasonable” medical care has not been articulated by the judiciary, but national correctional health standards have adopted as policy the “equivalence standard,” requiring that prisoners receive medical care equivalent to that provided in the general community.9
Key international instruments establish that all persons have a right to health. The International Covenant on Economic, Social and Cultural Rights (ICESCR), which the US has signed, confers an explicit right to "the highest attainable standard of health."10 The US is a party to the International Covenant on Civil and Political Rights (ICCPR) which incorporates several rights directly and indirectly linked to the right to health, including the right to life, the right to be free from cruel, degrading or inhumane treatment, the right to be free from discrimination, and the right to privacy. These rights are not forfeited upon incarceration. On the contrary, Article 10 of the ICCPR specifically requires that all persons deprived of their liberty be treated with humanity and respect for their inherent dignity.11 International guidelines for the treatment of prisoners require that incarcerated persons prisoners receive medical care at least equivalent to that provided in the general community.12 Standards established by the World Health Organization, UNAIDS and other international health organizations likewise require that HIV/AIDS prevention, care and treatment services be at least equivalent to that afforded in the community.13
These standards, based on human rights obligations in both domestic and international law, are applicable to all immigrants detained in the United States, for whom Department of Homeland Security and its enforcement agency, Immigration Customs and Enforcement are ultimately responsible. These obligations may not be delegated or evaded by contracting with third party detention facilities.14
The current HIV/AIDS provisions of the ICE/DRO residential standards are inadequate to ensure that proper and appropriate medical treatment is provided to immigrants. It is difficult to imagine the justification for a medical treatment standard that falls so far below generally accepted national and international guidelines for treatment of a serious, potentially fatal, illness. It is particularly disturbing when a clearly deficient standard is intended to apply to children and families. Human Rights Watch urges ICE to revise the HIV/AIDS standard without delay in order to protect immigration detainees’ fundamental right to health care under international and US law.
Recommendations
Human Rights Watch recommends that the HIV/AIDS provisions in the residential standards be revised to incorporate the standards for HIV and AIDS care established by the National Commission on Correctional Health Care or the American Public Health Association Standard for Health Care in Correctional Institutions. (Copies of these standards are attached to this letter for easy reference.) The HIV/AIDS provision should also include an anti-discrimination policy to protect this vulnerable population from harassment from staff or other detainees. Finally, the provision pertaining to isolation of HIV-positive detainees should be strengthened to reflect the prevailing presumption against segregation.
If you have any questions or concerns, or wish to discuss these recommendations further, please do not hesitate to contact me at the address below.
Very truly yours,
Megan McLemore, J.D., L.L.M.
HIV/AIDS and Human Rights Program
Human Rights Watch
350 5th Avenue, 34th Floor
New York, NY 10118
212-216-1259
mclemom@hrw.org
[1]See, Human Rights Watch, Detained and Deprived: Children in the Custody of the US Immigration and Naturalization Service, vol. 10, no. 4(G), December 1998, https://www.hrw.org/reports98/ins2/; Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States (New York: September 1998) www.hrw.org/reports98/us-immig/lns989.htm; Human Rights Watch, Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States (New York: December 2007) www.hrw.org/reports/2007/us1207/.
[2]
See, Convention on the Rights of the Child, arts., 3(1), 37, G.A. Res. 44/25, U.N.Doc. A/RES/44/25 (adopted November 20, 1989; entered into force September 2, 1990); UN Rules for the Protection of Juveniles Deprived of their Liberty, G.A. Res. 45/113, U.N. Doc. A/45/49 (1990), arts. 24, 38; In re Gault, 387 US 1 (1967); Flores v Reno Settlement Agreement, (CV-85-4544-Rjs-Px-C.D.Cal. Jan. 17, 1997). Although the US is not a party to the Convention on the Rights of the Child, as a signatory it is obligated to refrain from acts which would defeat the treaty’s object and purpose. Vienna Convention on the Law of Treaties, Article 18 (a), 1155 UNTS 331 (concluded May 23, 1969; entered into force January 27, 1980).
[3]
International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200 A (XXI), 21 UN GAOR Supp. (no. 16) at 52, UN Doc A/6316, 999 UNTS 171, entered into force March 23, 1976, ratified by the US on June 8, 1992, arts. 17, 23.
[4]
Federal Bureau of Prisons Clinical Practice Guidelines: Management of HIV www.nicic.org/library/021582 (accessed January 3, 2008); National Commission on Correctional Health Care, Position Statement, “Administrative Management of HIV in Corrections,” October 5, 2005, www.ncchc.org/resources/statements/admin_hiv2005.html (accessed January 3, 2008). See also, NCCHC Standards for Health Services in Jails, 2003 (p. 187); American Public Health Association, Standards for Health Care in Correctional Institutions (2003), p.67.
[5]
NCCHC Position Statement, supra.
[6]
World Health Organization Guidelines on HIV infection and AIDS in prisons (WHO Guidelines) (1999), paras. 27,28.
[7]
Wong Wing v. United States, 163 US 228, 237 (1896); Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004); Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028 (EDNY, 1993).
[8]
Haitian Centers, supra, at 1043.
[9]
NCCHC Position Statement, supra, p. 1; American Public Health Association (APHA), Standards for Health Care in Correctional Institutions, (2003) p. 2.
[10]
International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted December 16, 1966 (G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N. T.S. 3, entered into force January 3, 1976 (Article 12).
[11]
ICCPR arts. 6,7 10(1).
[12]
United Nations Standard Minimum Rules for the Treatment of Prisoners, May 13, 1977, Economic and Social Council Res., 2076 (LXII); Basic Principles for the Treatment of Prisoners, UN General Assembly Resolution 45/111 (1990); Body of Principles for the Protection of All Persons Under any form of Detention or Imprisonment, UN General Assembly Resolution 43/173/(1988).
[13]
WHO Guidelines,supra; UNAIDS International Guidelines on HIV/AIDS and Human Rights (2006); UNODC (With WHO/UNAIDS), HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings: A Framework for Effective National Response (2006).
[14]
See, Roman v. Ashcroft, 340 F3d 314, 320 (6th Cir. 2003).
