Medical care

The right to good medical care

The quality of medical care in detention must be at least comparable to that outside the institution. This principle follows from the commentary on the European Prison Rules. Other international standards also protect medical care for people in detention.

The director has a duty of care: they must arrange the necessary care. A GP, dentist and psychiatrist are usually attached to the institution. The institution’s doctor treats patients, but also advises on and monitors certain decisions made by the director. These different roles can create tension, for example when the same doctor is involved in a coercive measure.

The Medical Treatment Contracts Act (Wet op de Geneeskundige Behandelingsovereenkomst, WGBO) also governs patients’ rights, including self-determination and access to medical records. These rights come with obligations, such as cooperating with treatment as far as reasonably possible and discussing complaints.

Prisons

Care and access to a doctor

Article 42 of the Custodial Institutions Act (Penitentiaire beginselenwet, Pbw) gives detainees the right to medical care, including dental, psychiatric and psychological care. The institution’s doctor must be regularly available: Article 42(3)(a) Pbw.

When you arrive, you complete an intake form, including information about any medication you take. The institution’s doctor then sees you, and medical information is recorded in your file. To attend a consultation, you submit a request slip. A nurse usually assesses in advance who needs to be seen in person by the doctor.

The doctor examines patients, carries out minor procedures, prescribes care and makes referrals to a specialist or hospital where necessary. Under Article 42(4) Pbw, the director must arrange:

• the medication, diets and treatments that the doctor considers necessary;
• transfer to the hospital or institution where treatment takes place.

The doctor’s role in restrictive and coercive measures

The doctor also assesses whether you can work, exercise or take part in other activities. If you are placed in isolation for more than 24 hours, the director must inform the doctor and the supervisory committee (commissie van toezicht), under Article 24(6) Pbw. The doctor can then assess whether there are medical reasons to continue or end the isolation.

Before camera monitoring during isolation, advice must be sought from a behavioural specialist or the doctor: Article 24a(2) Pbw. The doctor must be informed when mechanical restraints are used to restrict the body. Each extension may last no more than 24 hours and requires consultation with the doctor (Article 33 Pbw). The doctor also has a role in placement in a punishment cell and camera monitoring there.

Article 32 Pbw allows a compulsory medical procedure if the doctor considers it absolutely necessary to avert a danger to your health or safety, or that of others. The director makes the decision; the doctor, or a nurse acting on the doctor’s instructions, carries out the procedure.

Examples from case law

• Prescribed nutrition: failure to provide necessary Nutridrink breached the duty of care. The detainee received € 25 in compensation (14 February 2022, KC 2022/008). Inadequately adapted food after a dental procedure also led to a complaint being upheld (30 January 2012, KC 2012/063).
• Reporting sick: a house rule that automatically required two days of confinement conflicted with Article 23(1)(c) Pbw. Once the detainee had reported that he was well again, he should have been able to rejoin the daily programme. Compensation was € 7,50 (4 April 2012, KC 2012/102).
• Appointment with a psychologist: a complaint about a cancelled appointment was dismissed because it was not sufficiently clear when the appointment was scheduled or why it had not gone ahead (4 May 2021, KC 2021/023).
• Shared cell during coronavirus: the complaint was rejected because sufficient measures had been taken to limit additional health risks (4 August 2020, KC 2020/018).

Young offender institutions

Care for young people

Article 47 of the Young Offender Institutions Act (Beginselenwet justitiële jeugdinrichtingen, Bjj) protects the right to medical care. The doctor must be regularly available. The director must arrange prescribed medication, treatments and diets, and transfer to a hospital or other treatment institution where necessary (Article 47(3) and (4) Bjj).

The institution’s doctor acts as a GP and also assesses participation in sport and other activities. If isolation lasts more than 24 hours, the director must inform the doctor (Article 25(6) Bjj). The doctor is also involved in the use of mechanical restraints, placement in a punishment cell for more than 24 hours and camera monitoring. Before camera monitoring during isolation, advice must be sought from a behavioural specialist or the doctor.

A compulsory medical procedure may take place under Article 37 Bjj if the doctor considers it absolutely necessary to avert a danger to the young person or others. Article 36 Bjj concerns internal bodily examinations.

Timely pain relief

A young person who broke his arm while being restrained received painkillers too late. This part of his complaint was upheld. On appeal, the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming, RSJ) awarded him € 50 in compensation (KC 2016/019; RSJ 28 June 2016, 16/0915/JA).

Forensic psychiatric institutions (tbs-inrichtingen)

Physical care and psychiatric treatment

Article 41 of the Hospital Orders Act (Beginselenwet verpleging ter beschikking gestelden, Bvt) gives a right to physical, also known as somatic, and dental care. Psychiatric treatment under a hospital order (tbs) is not covered by this provision: it is subject to the duty to provide treatment under Article 17 Bvt.

The institution’s doctor and dentist must be regularly available. The director must arrange necessary medication, diets, treatments and transfer to a treatment institution (Article 41(3) and (4) Bvt).

The doctor is involved in isolation, mechanical restraints and camera monitoring: Articles 34, 27 and 34a Bvt. A compulsory medical procedure falls under Article 26 Bvt and requires the doctor to consider it absolutely necessary to avert a danger to health or safety.

Article 28 Bvt concerns an intervention aimed at reducing dangerous behaviour whose effects cannot be reversed. This requires an explanation of its nature and consequences, the patient’s consent and advice from an external doctor.

Complaints in tbs care

Patients under a hospital order (tbs) cannot use the medical complaints procedure through the Medical Adviser (Medisch Adviseur). Article 55 Bvt does provide for mediation by the supervisory committee (commissie van toezicht) concerning the organisation of care and the director’s actions. Certain decisions by the director can be challenged through a formal complaint (beklag) under Articles 56 and 57 Bvt, for example decisions on isolation or a compulsory medical procedure.

Article 56(4) Bvt distinguishes between a breach of the right to care and the way the duty of care is carried out. You can complain about prescribed medication not being provided, or being provided too late, but not about the way it is handed out. The doctor’s own medical actions are not assessed through this formal complaints procedure (beklag).

An opinion from another clinic does not automatically bind the institution’s own doctor. In a complaint about a medical mattress, the clinic’s doctor had to assess the medical need independently. A recommendation from a hospital specialist would carry different weight (24 May 2012, 11/4448/TA and 12/0048/TA).

Choosing your own doctor

Article 42(2) Pbw, Article 47(2) Bjj and Article 41(2) Bvt give you the right to consult a doctor of your choice, at your own expense. The director must make this possible. This right is linked to the right to privacy under Article 8 of the European Convention on Human Rights (EVRM).

This is a right to advice, not to have an external doctor take over your treatment. The doctor you consult may discuss your care with the institution’s doctor. The freedom to choose a doctor also covers a specialist or dentist (Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 25 May 2004, 04/0156/GM).

A clinical psychologist is not a doctor. Article 42(2) Pbw therefore does not give you the right to a psychologist of your choice (Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 18 July 2002, 02/0186/GA). In tbs care, the freedom to choose a doctor likewise does not apply to psychiatric treatment (Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 9 February 2007, 06/1828/TA).

Preferences and emergencies

According to the position of the Royal Dutch Medical Association (KNMG), for non-urgent care you can give advance notice of a preference for a male or female doctor. Do this when making the appointment. Preferences based on skin colour, origin or beliefs, for example, are not covered. The institution does not have to change schedules or other arrangements to accommodate your preference.

In an emergency, the available doctor provides help. The KNMG position allows you to refuse that doctor; the doctor must then explain the health risks and record the refusal in writing. If your life is in danger, the need for treatment must be clearly emphasised. The separate legal rules set out above apply to compulsory medical procedures.

A doctor may refuse a patient for compelling reasons, such as an excessive workload. If you refuse the doctor offered for non-urgent care, the institution may treat this as a missed appointment and charge you after giving a warning.

Complaining about medical care

Prisons and young offender institutions: two routes

The right procedure depends on your complaint:

• Clinical matters: for example, a diagnosis, choice of medication, treatment or refusal of a referral. Articles 71b to 71f Pbw or Articles 76b to 76f Bjj apply. Nurses and other healthcare professionals involved are also covered.
• Organisation or a decision by the director: for example, failure to provide prescribed medication. You can take this to the supervisory committee (commissie van toezicht), under Article 60 Pbw or Article 65 Bjj.

For the medical procedure, you request mediation by the Medical Adviser (Medisch Adviseur) in writing. First, the Head of Healthcare (Hoofd Zorg) tries to reach a solution through a discussion. If this does not succeed, the medical aspects go to the Medical Adviser (Medisch Adviseur) and the organisational aspects to the supervisory committee (commissie van toezicht), together with an explanation of the mediation.

The Medical Adviser (Medisch Adviseur) mediates and provides written advice. After this advice, or after a decision on a formal complaint (beklag), you can appeal to the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ). A single event may involve both routes: the director’s decision to use compulsion and the way the medical procedure is carried out are assessed separately.

Medical disciplinary proceedings

You can also submit a written complaint to a Regional Healthcare Disciplinary Tribunal (Regionaal Tuchtcollege voor de Gezondheidszorg). Article 47 of the Individual Healthcare Professions Act (Wet BIG) applies to doctors, dentists, nurses and healthcare psychologists, among others, but not to the director in their capacity as director.

A complaint can be submitted up to ten years after the act or omission. A preliminary investigation and an attempt to reach a joint solution may be followed by a hearing. The decision follows within two months after the investigation closes. Article 48 of the Individual Healthcare Professions Act (Wet BIG) governs the possible measures. An appeal to the Central Healthcare Disciplinary Tribunal (Centraal Tuchtcollege) must be lodged within six weeks after the decision is sent.

A minor cannot submit this disciplinary complaint themselves; parents can do so on their child’s behalf or on their own initiative. People close to the patient and bereaved relatives can also complain.

National Ombudsman

The National Ombudsman (Nationale Ombudsman) can investigate the organisation of medical care, but does not assess the doctor’s medical actions. Under Article 9:24 of the General Administrative Law Act (Awb), a request can be submitted up to one year after the conduct in question.

The Ombudsman will not start an investigation while a formal complaint (beklag) or appeal is pending. Once the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) has assessed the substance of the matter, an investigation is generally no longer possible. If you have not used an available procedure, you must explain why. The Ombudsman’s recommendations are not binding. Minors may submit a request themselves; parents or guardians may also do so.

What does this mean for you?

When you arrive, tell staff what medication you take and ask the medical service to assess any health problems. Keep track of what has been prescribed and what you actually receive. If problems arise, record what happened, when and who was involved. When making a complaint, make clear whether you disagree with a medical decision or whether prescribed care is not being provided: this determines which complaints procedure is appropriate.

This page draws on the expertise of Mr. S.P.C. (Stan) Broekmans, a specialist in detention law at Hameleers Antonides Advocaten. Do you have a question about your own situation? Please get in touch; an initial assessment is free.

Other topics

• Arrestant detainees
• Belongings
• Camera surveillance
• Compensation
• Complaints procedure (beklagprocedure)
• Compulsory treatment