Die staat se verpligtinge ten opsigte van mediese behandeling van gevangenes

Abstract

The preamble to the Constitution of the Republic of South Africa 108 of 1996 envisions the adoption of the Constitution as the supreme law of South Africa in order to "improve the quality of life of all citizens". In order to realise this ideal a positive action is necessary and opportunities must exist for its realisation. The Constitution draws a distinction between prisoners and persons outside prison in respect of medical care. Prisoners have, in terms of section 35(2)(e), a fundamental right to accommodation, nutrition and medical care while no such guarantee is given to persons outside prison. HIV is the abbreviated form of the Human Immune-Deficiency virus. The country's epidemic is one of the worst worldwide. Substantive answers to questions about the fundamental relationship between the state and its citizens in prison cannot in current South African law be derived directly from the Constitution. They have to be sought in the course of the analysis of the specific powers and duties of the state and of the impact that these have on the rights of the imprisoned citizen. To this end constitutional principles in their current state of evolution can serve, at best, as guides. However, it is clear that there are at least some general principles, even of current South African constitutional law, which can be applied to questions of the rights of prisoners. The standard of medical treatment for prisoners in general cannot be determined according to the means of the poorest prisoner on the basis that he or she could afford no better treatment outside the prison. Because prisoners are being kept in conditions where they are more vulnerable to opportunistic infections than HN patients outside, the adequate medical treatment with which the state must provide them must be treatment which is better able to improve their immune systems than that which the state provides to HIV patients outside prison. There is a positive duty on the state and the prison authorities to ensure that adequate medical care is provided to all prisoners.