Facemasks in Prison During a Pandemic – How to Balance Safety, Security and Rights?

Sophie van der Valk, Trinity College Dublin 

Mary Rogan, Trinity College Dublin

 

One of the global responses to Covid-19 has been the call for the wearing of face masks. In Ireland, this has resulted in a requirement for public indoor spaces and public transport with a fine of €80 for non-compliance. It is additionally recommended in busy outdoor spaces and during visits with vulnerable people.  The use of facemasks in the context of prisons raises complex questions. Prisons have been considered high risk environments for the spread of infectious diseases such as Covid-19. To date there have been 51 cases among the prison population in Ireland.  While these numbers are relatively low, prison populations in other countries have been severely affected by Covid-19 outbreaks, most notably the US where 1 in 5 prisoners or at least 275,000 prisoners have tested positive for Covid-19. This is a rate four times highly than in the general population and highlights the specific risks in an overcrowded environment of the rapid spread of Covid-19. The risks of severe disease are also high in prisons, with people in prison disproportionately likely to experience underlying and high-risk conditions.  As such, people in prison may wish to wear masks in an effort to protect their health. On the other hand, prison authorities and prison staff may consider the wearing of masks a security risk, as they may prevent the identification of prisoners. In this blog, we consider some of the issues arising out of the wearing of facemasks in prisons by examining the approach in the Netherlands, comparing it with Ireland and assessing the role of  international human rights law. 

At the start of the pandemic in March 2020, prisoners in the Netherlands were banned from wearing face masks while in prison. This is in contrast to the position for those in the community, where masks are required inside any public space and on public transport, with non-compliance subject to a fine of €95.

 

According to the Dutch prison service, the wearing of face masks impacts on prison officers’ ability to recognise prisoners and the reading of facial expressions. This point has also been debated by other prison services such as Scotland and England and Wales, where the introduction of face masks in prisons for prison staff followed by prisoners took place at a later date than in the wider community. Relationships play a key role in prison environments and officers rely on being able to talk to prisoners and gauge their mood, a key part of ‘dynamic security’ which relies on relationships to maintain order rather than force. The prison service also expressed concern about the need to identify prisoners who may be involved in incidents on CCTV footage. In Heerhugwaard prison, a group of prisoners challenged this position and appealed to the courts for the ban to be lifted. This ban has since been reversed by the former Minister for Legal Protection, Sander Dekker, due to an increase in Covid-19 cases among the prisoner population and prisoners can now wear facemasks where a distance of 1.5 metres cannot be maintained. The Netherlands has had 25 cases of Covid-19 in prisons. In Ireland, prisoners are required to wear facemasks when they leave their cells and when in contact with prison staff. The initial position of the prison authorities in the Netherlands is hard to square with international human rights law on healthcare in prisons and has been criticised by former prison Governor, Madeleine van Toorenburg, for placing the ability to read expressions above the health of prisoners.

The Irish approach would appear to be a more balanced and proportionate way to manage the competing considerations in prisons. Facemasks have become a form of healthcare in the current situation, at least of a preventive nature. International human rights principles on prison rights outline that prisoners are entitled to healthcare equivalent to that available in the community. Article 24(1) of the UN Mandela Rules state that ‘[t]he provision of healthcare is a state responsibility. Prisoners should enjoy the same standards of care that are available in the community, and should have access to necessary healthcare services free of charge without discrimination on the grounds of their legal status’. The European Prison Rules, revised in 2020, state: ‘Prison authorities shall safeguard the health of all prisoners in their care’ and ‘[p]risoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation’. The WHO states that: ‘[t]he provision of health care for people in prisons and other places of detention is a state responsibility’ and additionally note that ‘experience shows that prisons, jails and similar settings where people are gathered in proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons.’ The European Committee for the Prevention of Torture has also indicated that ‘[a] prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community.’ Domestically, this has been interpreted to mean that those in prison are entitled to the care which someone outside of prison in receipt of a medical card would receive, Rule 33 Prison Rules 2007. 

It is also clear from these standards that decisions of healthcare staff about people in prison should not be overridden on operational grounds. Framing facemasks as forms of preventive healthcare, and knowing what we do know about their importance in confined spaces they must be so considered, preventing the wearing of facemasks would be in breach of these principles. Prisoners are unable to take the steps the rest of us can to secure their own health, and have no control over whom they share space with. As such, denying them access to facemasks cannot be considered justified even on security grounds. 

 

Sophie van der Valk is a PhD candidate on the PRILA project at TCD School of Law examining Prisoners’ Perceptions of Accountability in Prisons.

Mary Rogan is an Associate Professor in Law at the School of Law, Trinity College Dublin and PI on the European Research Council-funded PRILA project examining prison oversight. 

 

Suggested citation: Sophie van der Valk and Mary Rogan, Author, ‘Facemasks in Prison – safety versus recognition?’ (18 March 2021) https://tcdlaw.blogspot.com/2021/03/facemasks-in-prison-during-pandemic-how.html