Imprisonment takes away a person’s liberty, but it does not take away their humanity or their right to health. In South Africa, a sentenced prisoner, a remand detainee, and a sentenced offender all keep the constitutional right to access healthcare services, and the Department of Correctional Services is legally bound to provide that care.
The legal framework rests on section 35(2)(e) of the Constitution of the Republic of South Africa, 1996, which gives every detained person the right to conditions of detention consistent with human dignity, including the provision at state expense of adequate medical treatment. That right is reinforced by the Correctional Services Act 111 of 1998 and by international standards such as the United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the Nelson Mandela Rules.
This article explains what the right to medical care in custody actually means, how the equivalence-of-care principle works, when a prisoner may refuse treatment, and what remedies exist when care is denied or unreasonably delayed.
The Constitutional Right to Medical Treatment in Custody
Section 35(2)(e) of the Constitution of the Republic of South Africa, 1996 is the starting point. It provides that everyone who is detained, including every sentenced prisoner, has the right to conditions of detention that are consistent with human dignity, including the provision, at state expense, of adequate medical treatment. The State therefore cannot leave a sick prisoner to fend for himself or herself, and it cannot charge the prisoner for the care either.
This is reinforced by section 27(1) of the Constitution, which gives everyone the right to have access to healthcare services, including reproductive healthcare. The courts have recognised that incarceration does not extinguish section 27 rights. What changes is the mechanism. A prisoner cannot simply walk into a clinic, so the Department of Correctional Services must take reasonable steps to bring treatment to the prisoner.
Constitutional jurisprudence on socioeconomic rights, including the Soobramoney decision of the Constitutional Court, has stressed that the State’s obligations are not absolute but must be assessed against what is reasonable and within available resources. Even so, where a prisoner faces a serious or emergency medical need, the duty to provide adequate treatment is an immediate one and is not excused by resource constraints alone.
The Correctional Services Act 111 of 1998
The Correctional Services Act 111 of 1998 translates the constitutional right into operational duties for the Department. Section 8 of the Act, read together with the regulations, requires the Department to provide, or arrange for, adequate medical treatment for every prisoner. Each correctional centre must have access to a medical practitioner or a professional nurse, and serious cases must be referred to outside healthcare facilities where the centre cannot manage them.
The Act and its regulations cover a wide range of medical obligations, including the following:
- Medical examination on admission. Every prisoner must be examined by a medical practitioner or professional nurse shortly after admission, to identify existing conditions and treatment needs.
- Access to prescribed medication. A prisoner who arrives with chronic medication, such as antiretrovirals, insulin, or treatment for hypertension, must be allowed to continue that treatment without interruption.
- Emergency care. A prisoner who develops an emergency condition must be transferred to a hospital or other facility able to provide the necessary care.
- Specialist referrals. Where a centre’s clinic cannot meet a particular need, the Department must refer the prisoner to a public hospital or specialist.
- Mental healthcare. Prisoners with mental illness are entitled to psychiatric assessment and treatment, and the Care and Protection regulations reinforce this for those who are vulnerable.
Section 21 of the Act adds that every prisoner must be informed, on admission, of the procedures for making requests and complaints. A prisoner who is being denied care can therefore use the internal complaints system, the Judicial Inspectorate for Correctional Services, or the courts to enforce the right.
The Equivalence-of-Care Principle and the Nelson Mandela Rules
The internationally accepted standard for prison healthcare is the principle of equivalence. It means that the quality of healthcare provided in a correctional centre must be equivalent to that available to the general population in the community. A prison does not have to be a hospital, but the State cannot justify second-rate treatment simply because the patient is a prisoner.
The Nelson Mandela Rules, adopted by the United Nations General Assembly in 2015 and named after South Africa’s first democratically elected President, set out the modern version of this standard. Rule 24 expressly states that prisoners should enjoy the same standard of health care that is available in the community and that health care should be organised in close relation to the general public health administration. Rule 27 adds that clinical decisions must be made by health professionals and must not be overridden by non-medical staff.
South African courts and oversight bodies treat the Mandela Rules as influential interpretive guidance, even though they are not directly binding domestic law. They are routinely used to assess whether the conditions in a correctional centre meet the constitutional standard of human dignity.
The Right to Refuse Treatment and Informed Consent
Prisoners, like any other patients, have the right to informed consent. A doctor may not force treatment on a competent adult simply because the patient is in custody. The National Health Act 61 of 2003 protects the right of every user of health services to be informed of the risks, benefits, and alternatives before consenting to treatment, and that protection extends to prisoners.
Where a prisoner refuses treatment, the Department and its medical staff must record the refusal, ensure that the prisoner understands the consequences, and continue to offer care. Forced treatment of a competent adult is generally unlawful and may, depending on the circumstances, give rise to a claim for assault.
The position is different where a prisoner lacks capacity, for example because of severe mental illness. In those cases the Mental Health Care Act 17 of 2002 and the common-law doctrine of necessity allow for treatment in the patient’s best interests, usually with the involvement of a curator, family member, or the High Court as upper guardian.
Common Failures in Prison Healthcare
In practice, prisoners and their families report recurring problems that can amount to violations of the right to medical care:
- Delay in seeing a nurse or doctor. Requests for medical attention may sit with non-medical staff for days or weeks.
- Interruption of chronic medication. Antiretrovirals, TB treatment, and psychiatric medication are sometimes stopped on admission, which can cause serious harm.
- Failure to refer. Conditions that need specialist input, such as suspected cancer or uncontrolled diabetes, are not escalated to a hospital in time.
- Overcrowding and infection. Overcrowded centres accelerate the spread of tuberculosis and other communicable diseases, which the courts have recognised as a serious health risk.
- Inadequate mental healthcare. Prisoners with depression, anxiety, or trauma often receive little or no psychological support.
Each of these failures can, depending on the facts, amount to a breach of section 35(2)(e) of the Constitution and of the Correctional Services Act.
Remedies When Medical Care Is Denied
A prisoner whose right to medical care has been denied or unreasonably delayed has several avenues of recourse. The first is the internal complaints system run by the Department of Correctional Services, supported by Independent Correctional Centre Visitors who visit centres and receive complaints from prisoners.
Beyond the internal system, the Judicial Inspectorate for Correctional Services provides independent oversight. A complaint to the Inspecting Judge can trigger an investigation and pressure on the centre to provide the required care.
Where internal mechanisms fail, the prisoner, or someone acting on their behalf, may approach the High Court for relief. The Constitutional Court has confirmed that the right in section 35(2)(e) is directly enforceable. The court can order the Department to provide specific treatment, transfer the prisoner to a hospital, or in appropriate cases award damages for harm caused by the denial of care.
A practical remedy is also available through the Office of the Health Ombud, which investigates complaints against health services, and through the South African Human Rights Commission, which can investigate systemic failures in correctional centre healthcare.
Frequently Asked Questions
What right do prisoners have to medical care in South Africa?
Section 35(2)(e) of the Constitution gives every detained person the right to conditions of detention consistent with human dignity, including the provision at state expense of adequate medical treatment. The Correctional Services Act 111 of 1998 gives operational effect to this right by requiring the Department to provide or arrange adequate medical treatment for every prisoner.
What is the equivalence-of-care principle in prison healthcare?
The equivalence-of-care principle, set out in Rule 24 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), holds that prisoners should enjoy the same standard of healthcare that is available in the community. A correctional centre does not have to be a hospital, but it cannot offer second-rate care simply because the patient is incarcerated.
Can a prisoner refuse medical treatment in South Africa?
Yes. Prisoners, like any other patients, have the right to informed consent under the National Health Act 61 of 2003. A competent adult prisoner may refuse treatment, and forced treatment is generally unlawful. The Department must record the refusal, confirm that the prisoner understands the consequences, and continue to offer care.
What can a prisoner do if medical care is denied or delayed?
A prisoner can complain through the internal system run by the Department of Correctional Services and to Independent Correctional Centre Visitors. Beyond that, the Judicial Inspectorate for Correctional Services, the South African Human Rights Commission, and the Office of the Health Ombud can investigate. The High Court can order specific treatment, transfer, or damages.
Does the State have to pay for a prisoner’s medical treatment?
Yes. Section 35(2)(e) of the Constitution expressly provides for the provision of adequate medical treatment at state expense. The Department of Correctional Services must therefore cover the cost of treatment that a prisoner cannot reasonably obtain for themselves while in custody.
Get help with a criminal law matter. If you or a family member is being denied medical care in custody, the Criminal Law department at Otrebski Attorneys can advise on complaints, urgent court relief, and the enforcement of section 35(2)(e) rights. Otrebski Attorneys is a 100% women-led, Level 4 B-BBEE practice with a single office in Sandton, rated five stars across 12 reviews, and Director Nastasja Otrebski leads the team that handles criminal defence and prisoner-rights work.
Disclaimer. This article is general information about South African prison law and the right to medical care, not legal advice for a specific case. Outcomes turn on the facts of each matter and on current court practice. For advice about a particular detention or medical-care complaint, consult a qualified attorney or Legal Aid South Africa.