This collection of papers presents an overview of HIV/AIDS in Prisons in Australia. The authors worked together under the umbrella of the National AIDS in Prisons Information Clearing House (funded by the Commonwealth Department of Health, Housing and Community Services) to gather relevant information on this important health issue. Issues in HIV/AIDS in the Australian Prison System provides a most useful guide and source of information for corrections administrators and all those concerned with limiting the spread of infection of HIV/AIDS.
- Ms Judi Fortuin
Coordinator, National AIDS in Prisons Information Clearing House
- Mr Peter Byrnes
Manager, Occupational Health and Safety, Department of Corrective Services, New South Wales
- Professor Duncan Chappell
Director, Australian Institute of Criminology
- Dr Matt Gaughwin
Visiting Fellow, National Centre for Epidemiology and Population Health, Australian National University
- Mr Alan Grimsley
Manager, Professional Education, Centre for Education and Information on Drugs and Alcohol, New South Wales
- Mr Stephen Kerr
Manager, Forensic Health Service, Health Department, Victoria
- Ms Jennifer Norberry
Criminologist, Australian Institute of Criminology
The Human Immunodeficiency Virus (HIV) continues to be one of the most urgent issues for Corrections Administrators.
In March 1989, the Department of Community Services and Health in Canberra commissioned a report 'AIDS in Australian Prisons - Issues and Policy Options'. This report was the first attempt to present an overview of the situation in the Australian prison system. The Commonwealth continued its collaboration with Corrections and funding was made available for numerous National Programs designed exclusively for prisons.
In 1990, the National AIDS in Prisons Information Clearing House (NAIPIC) was funded by the Commonwealth Department of Health, Housing and Community Services to:
- establish a cohesive National HIV/AIDS in prisons network in order to create clear lines of communication and avenues of information gathering and dissemination;
- update, maintain and publish Clearing House resource documents;
- develop background papers and analyses on various issues relating to prisons
- Education and Training
- Policy Trends
- Management of HIV Antibody Positive Offenders
- Occupational Health and Safety
- Law and HIV/AIDS
- Overview of Research Efforts;
- collaborate with the National Centre in HIV Epidemiology and Clinical Research to develop strategies for improving the collection of epidemiological information on HIV infection in Prisons;
- promote the use of separately funded Commonwealth projects -
- an occupational health and safety video ' Just Another Day'
- a National Train the Trainer Prison Peer Education Program;
- provide inservice training on the use of the NAIPIC database;
- develop proposals for cost sharing between states and territories in order to maintain the information system and continue to provide assistance to state and territory Corrective Service Departments.
The publication of the six issues papers in one volume is a culmination of the efforts of all states and territories who worked together to present this review of the treatment of HIV/AIDS in Prisons in Australia.
We are pleased to acknowledge the assistance received from the Commonwealth AIDS Workforce Information, Standards and Exchange (CAWISE) Program Grant, and the Commonwealth Department of Health, Housing and Community Services, particularly Jenny Williams.
We acknowledge the important roles played by the HIV/AIDS managers, coordinators from the states and territories and all other staff both custodial, non-custodial and from the prison medical service.
We thank senior administrators for their total support and endorsement.
Members of the steering committee nominated by the Commonwealth, viz. Grahame Collier, Shirley Taylor, Sue Wynne-Hughes, Duncan Chappell, Jennifer Norberry, John Kaldor, Allan Grimsley, were of invaluable assistance.
The contributing authors deserve a special thanks.
We thank the staff from the New South Wales Department of Corrective Services, for their supervision and management, and acknowledge the support and encouragement of the now retired Director General, Mr Angus Graham.
The staff from the libraries in each Corrections Department in every state and territory deserve much credit, in particular the NAIPIC librarians, Cyla Flatow and Jan Shay.
We also thank David Edwards who typed sections of this document and gave up much free time to do so.
Policy trends in prisons
Duncan Chappell and Jennifer Norberry
First published 1989 entitled AIDS and Prisons as No. 21 in the Trends and Issues Series, Australian Institute of Criminology, Canberra.
The possible transmission of HIV/AIDS throughout the community is a serious issue. Concern is reflected in some recent government initiatives: for example,
Amendments to the Crimes Act 1900 (NSW) made in 1990 created an offence where a person intentionally causes or attempts to cause another person to contract a grievous bodily disease. This amendment was made in response to a series of robberies and assaults in which syringes allegedly containing HIV infected blood were used. Also in New South Wales, the Prisons (Syringe Prohibition) Amendment Act was passed in 1991. Although prisons legislation has always contained penalties for contraband, this special legislation provides increased penalties for the introduction or supply of syringes in prison. The penalty is two years imprisonment and the onus is on the defendant to prove that the introduction or supply was lawful.
HIV/AIDS has also impacted on prison administration. Victoria's accommodation for HIV antibody positive (ab+) prisoners is under review. The option of negotiating a 'corridor arrangement' - whereby there are one or two selected prisons with graduated security levels to accommodate HIV antibody positive prisoners, is favoured on the basis of equity and main-streaming (Harmsworth 1991). South Australia is developing policy on 'exit-testing' with a view to implementation by the end of 1991.
It is important that public debate is well informed about HIV/AIDS and its prevention. This paper summarises the policies relating to HIV/AIDS in place in Australia's prison systems, canvasses some important issues relating to its prevention in the prison environment, and stresses the need for effective educational programs.
Epidemiology of HIV/AIDS
It is impossible to state accurately the number of people with HIV infection on the globe. The National Centre in HIV Epidemiology and Clinical Research (NCHECR) estimates that some 12 million people worldwide are infected with HIV. As at 1 January 1992 446,681 cases of AIDS had been reported to the World Health Organization from 164 countries. This figure does not represent the total number of AIDS cases worldwide because not all cases of AIDS are reported to WHO. WHO estimates the total number of AIDS cases to be three times this figure.
AIDS was first diagnosed in Australia in 1982 with one case reported. To 31 December 1991 the cumulative total of AIDS cases was 3,096. The growth in reported AIDS cases from 1982 to 1991 is shown in Table 1. In contrast, Table 2 reflects total number of new diagnoses of HIV infection. There are no clear indications of the number of Australians who are infected with HIV. However, NCHECR estimates the number to be in the range of 15,000-25,000 individuals.
At the present time in Australia, AIDS is a condition which primarily affects men who report having sex with men. Importantly for the prison system, there is a risk of HIV infection from unsafe anal sex. The virus can also be acquired through unsafe injecting drug use. The proportion of HIV infection and AIDS cases attributable to injecting drug use in Australia is low: in 1991, 3.4 per cent for AIDS and almost 4 per cent for HIV infection. It must be emphasised, however, that this situation could change, based on overseas experience.
HIV/AIDS in overseas prison systems
As at October 1990, there was a cumulative total of almost 7,000 reported AIDS cases among inmates in the 70 United States correctional institutions which provided information to the US National Institute of Justice (Hammett 1991).
In the United Kingdom the HIV seroprevalence rate in gaols is between 0.7 per cent and 1.0 per cent (McMillan 1988). European surveys for HIV infection in prison were reported at the Fourth International AIDS Conference in Stockholm. 'For eight prison studies reported at the conference, the median infectivity rate is 15 per cent' (Norton 1988, p. 621). Additionally, 'the overall infectivity rate in drug users is very high. For four prison studies reported at the conference, the median infectivity rate among drug users is 44 per cent' (Norton 1988, p. 621). Differences in HIV seropositivity rates in overseas countries may be accountable for in part by different survey methodologies. Results of an international study on HIV/AIDS in prisons should be available by the end of 1992 (Harding forthcoming).
HIV/AIDS in Australian prisons
Prior to January 1991 there was no national collection of information relating to the prevalence or incidence of AIDS and HIV. Since then, national data collection has commenced using a protocol developed and implemented by the NCHECR in collaboration with the National AIDS in Prisons Information Clearing House. Not all prisoners entering Australian gaols are tested for HIV. However, with this caveat in mind, the NCHECR data collection in 1991 revealed that 71 prisoners in Australian gaols were HIV seropositive.
HIV/AIDS and the prison environment
It is generally recognised that the prison environment is a potential reservoir for the spread of HIV/AIDS. In particular, the threat exists of its spread into the heterosexual population by way of prisoners who are injecting drug users and/or sexually active or sexually assaulted whilst in prison. This is especially so because of the high turnover of prisoners in the Australian prison system. Only about 1 in 10 Australian prisoners remain incarcerated for more than 12 months, with the average time served in an Australian prison being 5.3 months (Walker 1989).
In some prisons the closed, generally overcrowded, understaffed and stressful environment of the prison is conducive to a number of high-risk activities that are associated with transmission of the HIV virus:
|Males (per cent)||100||97.8||90.4||96.9||96.0||97.1||97.6||97.6||97.3|
|State/territory (per cent)|
|Exposure Category (per cent)|
|Male homosexual/bisexual contact||66.7||71.7||80.8||87.2||86.9||88.8||87.2||86.1||83.4|
|Male homosexual/bisexual contact and ID use||33.3||2.2||0.8||4.8||2.1||3.0||2.6||1.6||3.1|
|ID use (female and heterosexual male)||0.0||0.0||0.0||0.9||0.5||2.1||2.2||1.8||3.4|
|Receipt of blood transfusion, blood components,or tissue||0.0||21.7||13.6||5.3||5.3||1.3||1.7||1.8||1.7|
|Mother with/at risk for HIV infection||0.0||0.0||0.8||0.0||0.0||0.2||0.2||0.5||0.3|
|AIDS-Defining Cond'n (per cent)|
|Pneumocystis carinii pneumonia (PCP)||66.7||39.1||40.8||37.4||41.9||40.1||35.3||28.4||30.8|
|Kaposi's sarcoma (KS) - skin||0.0||19.6||20.8||15.4||16.8||15.2||14.1||10.2||11.1|
|PCP and other (not KS)||0.0||2.2||3.2||4.4||6.9||5.5||3.6||6.4||3.6|
|Source: National Centre in HIV Epidemiology and Clinical Research.|
|State/Territory||1 Jan.90-31 Dec.90||1 Jan.91-31 Dec.91||Cumulative to 31 Dec.91|
Source: National Centre in HIV Epidemiology and Clinical Research.
Intravenous drug use
Many inmates in Australian gaols are imprisoned for drug-related offences and may already be injecting drug-users. Indermaur and Upton (1988) surveyed all receptees at seven Western Australian prisons between June and September 1987. They rated 24.4 per cent of males and 25.6 per cent of females as heavy or regular drug users (including cannabis). Another study conducted by Miner and Gorta (1987) in 1985 concluded that 79 per cent of New South Wales women prisoners had been drug users prior to incarceration. Undoubtedly, too, drugs are available in prison, although the extent of drug use is uncertain.
In 1989 Douglas et al. reported on a study conducted in Yatala Labour Prison in South Australia, in which prisoners and prison officers were asked to estimate the proportions of prisoners who engaged in injecting drug use and anal sex. They found that prison officers and prisoners estimated that between 25 per cent and 44 per cent of prisoners were at least occasional injecting drug users (p. 722). During interviews with prisoners, they also reported that some 16 per cent of prisoners voluntarily admitted injecting drugs while in prison.
A study conducted by Cicchini (1986) of self-reported substance abuse among inmates of Karnet Prison Farm in Western Australia, found that 40 per cent claimed to have used illicit drugs or alcohol while in prison. High rates of injecting drug use in prison based on anecdotal evidence are suggested by other experts. Speaking at the Third National AIDS Conference in 1988, Professor John Dwyer estimated that in Long Bay Gaol in New South Wales, about 60 per cent of inmates use injecting drugs once or twice a week. Others have suggested that the supply of drugs in some Australian prisons is such that heroin is exported from gaols (Senator Peter Baume reported in the Sydney Morning Herald of 8 April 1989 about Pentridge Prison). The availability of drugs, and the general boredom in Australia's overcrowded prisons, also means that some inmates may acquire a drug habit while incarcerated.
Sharing of unclean needles and syringes is the major risk factor in the spread of HIV among injecting drug users in correctional institutions. Not surprisingly, large numbers of prisoners share a small number of needles and syringes. According to the Working Panel on Intravenous Drug Use and HIV/AIDS (1989, p. 7) 'in one New South Wales prison up to 40 women had shared one 'fit' and in a Victorian prison 70 men had shared one 'fit'. In a study by Conolly and Potter (1990), 94 per cent of inmates who said they used in gaol said that they had shared needles in gaol; only 30 per cent had cleaned them adequately.
It is difficult to establish how much sexual activity both consensual and non-consensual, takes place in prison. In addition to sexual activity engaged in by inmates who are normally homosexual or bisexual, institutional sex, practised by heterosexual prisoners, occurs. Homosexual rape also takes place. All of these practices may involve unprotected anal sex, which is associated with a high risk of HIV transmission.
In South Australia, Douglas et al. (1989) reported that prison officers and prisoners estimated that between 14 per cent and 34 per cent of prisoners engaged in 'occasional anal intercourse' (p. 722).
Research conducted in New South Wales between November 1988 and March 1989 gives some idea of the extent of sexual activity in gaol (Potter & Conolly 1990). In this study interviews were conducted with a random sample of 158 prisoners ( 142 males and 16 females) seven per cent of the men in their study reported having had voluntary adult homosexual experiences in gaol. Potter and Conolly concluded tentatively that approximately half of all sexual occurrences between men in gaol would involve coercive sex.
Other risk factors
It is a commonplace that prisons are violent, dangerous places with riots, assaults, self-inflicted injuries, murder occurring, and where homosexual rape occurs. For example, a prison inmate is three times more likely to be murdered than a member of the general public (Hatty & Walker 1986). In New South Wales, Scagliotti (1988) found that there were 125 reported assaults by prisoners on other prisoners between January and June 1988, and 47 assaults by prisoners on prison officers. It must be emphasised that there is probably a large 'dark figure' of unreported assaults, both physical and sexual. Riots, assaults, self-mutilation, suicide, and murder all involve the possibility of unprotected contact with human blood, although it should be noted that the risk of infection through open wound and mucous membrane exposure is extremely low (Hammett & Bond 1987).
Finally, the possibility of transmis-sion from tattooing also exists. Tattooing is institutionalised but illegal in Australian prisons, so the likelihood of unsterile equipment being used is high. In 1988 Doll reported two United States cases of HIV infection in ex-prisoners who had been tattooed in gaol with unsterilised needles which had been used to tattoo other inmates. In one case, sex with prostitute was an admitted risk factor, but in the other the patient denied homosexual activity, IV drug use, blood transfusions, and sex with prostitutes.
Preventing HIV/AIDS and the prison environment
It is generally accepted that mass screening of the community, and even routine testing for HIV of people who engage in high risk behaviour, is not warranted. Thus the National HIV/AIDS Strategy (1989, p. 41) stated that 'compulsory testing of the Australian population is not proposed because the risk of infection within the entire community is relatively low'. The need to protect HIV infected individuals against discrimination has also been a concern of AIDS groups, civil libertarians and others. The National Strategy Policy Information Paper (1989) suggested the introduction of anti-discrimination legislation to prevent discrimination against HIV infected persons in the areas of employment, education, training, accommodation or the provision of goods and services'. The Policy Information Paper (1989) also called for all governments to ensure that privacy laws were in place and foreshadowed a review of the Commonwealth Privacy Act 1988 in the context of the protection given to HIV infection information.
Consideration of testing, discrimination, and confidentiality have resulted in quite different conclusions in respect of the prison environment. The reasons have to do with the prison environment and the nature of HIV/AIDS itself.
- As a result of their law-breaking behaviour, prisoners have already forfeited some civil rights. Further, prisons are regarded by many as places of punishment. The level of sympathy for prisoners and their 'rights' is, therefore, low. Consequently, prisoners have little power as political lobbyists.
- Prisons are violent and unpredictable places, where high-risk activities endanger prisoners and all staff within the prison and, by extension, the families of both.
- The prison environment can be controlled in a way that the general populace cannot.
- AIDS is a condition with a high mortality rate, and associations with behaviour which is often socially unacceptable and illegal. For these reasons, considerable pressure exists to take any measures deemed necessary to prevent its spread to other inmates, prison staff, and the wider community.
- The measures sometimes suggested to control its spread in prisons, such as the distribution of condoms, needles and syringes, are regarded by some as dangerous in themselves and as encouraging morally reprehensible or illegal behaviour.
- It can be argued that the supply of needles and syringes to drug users does nothing to break the cycle of addiction, crime, and imprisonment. In other words, such measures destroy the rehabilitative potential of prison, and contribute to high recidivism rates.
- Most prisons are state institutions. It is suggested by some that as society's law-maker, the state cannot condone and encourage practices in its own institutions which are illegal in the general community.
Considerations such as these have lead to the proposing or introduction of measures to deal with HIV/AIDS which may not be medically justifiable and which are managerially questionable, within prisons.
Although mass screening of prisoners may have the attraction of a stern response to a serious problem, it is not a solution in itself. Compulsory anonymous testing gives an indication of the extent of the HIV/AIDS problem in the prison system, but does not accord the person tested information as to his or her antibody status. For those prisoners who test HIV antibody positive and who are unaware of their condition, anonymous testing does not enable medical treatment to be sought and provides little incentive for lifestyle change. For those who support the segregation of HIV antibody positive prisoners, anonymous testing provides no information on which to base accommodation decisions.
Mandatory identified testing also has its problems. The first is the cost of testing, re-testing, and confirming positive results. There is the cost of testing all prisoners on reception, periodically or prior to release. Although the ELISA test is generally reliable, a positive result should be confirmed by a Western Blot test - a further expense. In addition, HIV infection has an incubation period from three weeks to four months. Thus a test on reception will not identify all infected individuals. If periodic re-testing does not occur then accommodation decisions will be meaningless. Additionally, those prisoners who have tested HIV seronegative may well gain a false sense of security, bringing with it participation in unsafe behaviours.
The correctional system has a responsibility to prisoners who undergo identified testing, either voluntary or mandatory. Its responsibility for the health and welfare of inmates suggests that appropriate medical treatment should be provided for those inmates who test HIV ab+. Drugs which may be useful in retarding the progression of HIV infection and which treat specific manifestations of HIV infection are now available. In addition, because of the enormous implications of an HIV antibody positive result - social, psychological - and the possibility that a negative result will lead to unsafe behaviours, pre and post-test counselling should be provided by appropriately trained workers. A measure of the devastating reactions which occur in those infected by HIV is shown in a study by Marzuk, Tierney, and Tardiff et al. which found that AIDS sufferers in New York had a suicide rate 66 times higher than that of the general population (cited in Norton 1988).
Despite the existence of various policies regarding counselling before and/or after testing for HIV, practice does not always reflect policy.
In addition, there is the question of the use made of test results. Accommodation is dealt with in the next section. Confidentiality of results also needs proper consideration. If results are known within the prison system, threats and abuse from other prisoners and staff may ensue. Furthermore, if information filters beyond the prison system, discrimination in housing, and employment may occur when a prisoner is released.
If results are to be circulated, then the question must be answered-to whom? It is variously suggested that prison medical officers, medical administrators, prison administrators, and prison officers have a right or a need to know. Some would add that the state also has a responsibility to inform others outside the prison system who come into contact with HIV-infected prisoners, including their sexual partners. A range of policies is in place in Australian jurisdictions. At one end of the spectrum is Victoria where only the medical superintendent is informed if a prisoner is HIV ab+. In the Northern Territory, on the other hand, all staff are advised (Egger & Heilpern 1991).
The provision of information about a prisoner's HIV status to agencies and individuals outside the prison system also varies from jurisdiction to jurisdiction. In Victoria, no outside agencies are advised. In other states, for example, New South Wales, Tasmania and Western Australia, cases of HIV are notified to the health authority (Egger & Heilpern 1991). In South Australia, certain third parties are advised of a prisoner's HIV status (with the prisoner's consent) if home detention, day leave or a private visit is proposed (Bloor 1991).
Finally, the implications of testing prior to release should be considered in the light of the decision in New South Wales to introduce such testing in 1990. Such a policy will give an indication of seroconversion in the prison system, although it must be remembered that due to the incubation period for HIV some prisoners who have been infected with HIV will not test HIV antibody positive prior to release. Many of the general comments about testing also apply to testing prior to release and are particularly important in this context. For example, if identified testing is to take place (surely important for the individual and his or her sexual partners in the community) whose responsibility will it be to ensure that adequate post-test counselling occurs? Does the state have a responsibility to inform a prisoner's known sexual partners of an HIV antibody positive result and what safeguards will or should be in place to ensure that the information is kept confidential and does not impinge on an ex-prisoner's attempts to find work and housing?
Policies on testing vary across the prison systems in Australia (see Table 3 for screening and management in Australian Prisons). Testing of prisoners on reception is compulsory in South Australia, the Northern Territory, Queensland and Tasmania and New South Wales. In Victoria, testing is voluntary, although officials report that the refusal rate is low - about 1 per cent. In Western Australia, all prisoners are compulsorily screened on reception by medical staff for HIV risk. Testing is voluntary with the exception of those prisoners who are assessed as having participated in high risk behaviour for HIV/AIDS.
Prisoners are not the only people at risk of HIV infection in the correctional system. Australian prison staff are not tested compulsorily for HIV so no figures exist to date. However, of the four cases of HIV known to have been contracted by prison officers in Australia, three are believed to have been contracted outside the workplace (Egger & Heilpern 1991). The first case of occupational exposure was reported in New South Wales in August 1990. In this case it was alleged that an infected inmate with a history of mental instability and erratic behaviour became angry, withdrew a syringe full of his own blood and injected it into an officer's buttocks, infecting the officer with HIV. This incident caused much concern among correctional officers and administrators, especially in the area of occupational health and safety.
There are many accommodation options available for dealing with HIV/AIDS in prison. They include total segregation and total integration, case-by-case decisions based on factors such as propensity to violent behaviour and progression of the disease, partial segregation involving participation in some or all prison activities, and single cell accommodation for all prisoners.
Integration of prisoners is practised in Austria, Denmark, France, Italy, Spain, and Switzerland; violent HIV antibody positives are segregated in Norwegian prisons (Harding 1987). In the United States more than three-quarters of the state and federal corrections systems either employ presumptive main-streaming or make accommodation decisions after assessing individual prisoners (Hammet 1991) In the United Kingdom, known antibody positive prisoners are segregated under Viral Infectivity Restrictions (Dolan 1991).
A range of policies exists in Australia. In South Australia the policy is to integrate HIV antibody positive prisoners, unless the Prisoner Assessment Committee decides otherwise. A decision to segregate might be made, for example, if a prisoner had a history of assaulting other prisoners or staff, or of sexually assaulting other prisoners (Bloor 1991). In Tasmania, while the preferred policy is integration, in practice HIV prisoners are accommodated within the prison hospital. In Queensland, HIV infected inmates are housed with injecting drug users. In Victoria, they are placed in a special wing of Pentridge Prison in which volunteers with a history of substance abuse are also accommodated. In Western Australia, HIV antibody positive prisoners are housed in separate medical facilities, and in the Northern Territory in a separate infectious diseases unit. In New South Wales, where the policy was, initially one of segregation, integration is now the operating policy.
Those supporting segregation argue that HIV antibody positive prisoners are liable to be attacked by other prisoners and are a danger both to other inmates and prison officers. Apart from the danger of attacks on HIV antibody positive prisoners, it has been said that ' ...inmates who want to regain a sense of power and control may use their diagnosis to manipulate or threaten others' (AIDS Inmates 1988, p. 100).
Despite the fears of inmates and prison officers, medical opinion appears to be that segregation is not medically indicated, may well lead to a false sense of security, and is in conflict with educational strategies emphasising that HIV infection cannot be spread by casual contact. Further, according to some experts, it targets the wrong group '...Screening and segregating the population according to serological status does not specifically target the prisoners who engage in sexual acts or injecting drug use ...the challenge is to discover aggressive wrongdoers and to control their behaviour ...' (Gostin et al. 1987, p. 43).
|State||Testing program||Management of Ab+ prisoners|
|ACT||Voluntary.||Single cell accommodation.|
|NSW||Compulsory testing introduced November 1990 upon entry and exit||INTEGRATED|
|NT||Compulsory testing of all admissions. Retest: after 3 months.||SEGREGATED|
|QLD||Compulsory mass screening and testing of all admissions. Retest: 3 months, annually, and prior to release.||SEGREGATED|
|SA||ompulsory testing of all admissions, serving > 7 days. Retest: after 3 months.||INTEGRATED unless for specific medical or security reasons.|
|TAS.||Compulsory testing of all admissions. Retest: after 3 months.||INTEGRATED in prison hospital depending on medical and security assessment.|
|VIC.||Voluntary testing. Retest: on request.||SEGREGATED with voluntary drug/alcohol user prisoners.|
|WA||Compulsory mass screening for HIV risk factors. Compulsory testing for prisoners considered to be high-risk for HIV. Retest: Prisoners assessed as having participated in high-risk behaviour for HIV after 3 months, only if ab-.||SEGREGATED|
|Source: Adapted from Egger & Heilpern 1991.|
Apart from questions about the cost and effectiveness of segregation, the question of prisoners' rights and the implications of isolation of HIV antibody positive prisoners have been ignored in much of the debate to date.
In the United States it has been suggested that segregation violates constitutional rights to freedom from cruel and unusual punishment. Other considerations are that segregation often precludes prisoners from engaging in prison activities such as prison workshops and work release; that it results in the unstructured mixing of prisoner categories-with maximum and minimum security prisoners confined in the same unit; and that it is psychologically damaging for HIV antibody positive prisoners, who are usually mobile, often asymptomatic, and are thus fully able to participate in prison activities. For those whose condition has pro-gressed to Group III or Group IV infection, their ability to delay the progress of their disease will depend in part on their psychological fortitude and the social support systems around them. Prisoners are already disadvantaged in regard to the latter: those in segregation, doubly so. Said an inmate from the AIDS Unit (now closed) at Long Bay Prison in Sydney, 'The boredom was unbelievable. It makes you even more depressed, being locked up in a place where people are dying.' (Sun-Herald, 20 November 1988). Policies also need to be developed for those prisoners who are seriously ill. For example, consideration should be given to admitting them to hospital or releasing those who are terminally ill and who would not be a danger to the community.
Segregation must also be examined as a managerial decision, with practical implications. For example, both prisoners and prison officers have protested about HIV infected prisoners being housed in the general prison population. In November 1988, prison officers in Maitland and Cessnock gaols in New South Wales went on strike over the admission of an HIV antibody positive prisoner (The Newcastle Herald, 15 November 1988). The fire at Jika Jika Section of Pentridge Prison in which five prisoners died was believed to be part of a protest at two HIV infected prisoners coming to the Section (Melbourne Herald-Sun, 22 November 1988). The experience in South Australia provides some hope, however. In that jurisdiction, where a policy of integration is in place, assaults on HIV antibody positive prisoners are minimal.
The Working Panel on Intravenous Drug Use and HIV/AIDS (1989, p. 8) recommended that 'a prisoner with HIV infection [should] not have either their medical or prison regime worsened by the fact of their infection'. Not all HIV antibody positive prisoners are a danger to others. If single-cell accommodation is not economically feasible, then it is suggested that decisions on accommodation be made on a case-by-case basis depending on considerations such as the prisoner's medical condition, security rating and the threat that the prisoner constitutes to other inmates and prison officers, irrespective of his or her HIV status. It may also be relevant to consider the wishes of an HIV infected prisoner before making a decision on his or her accommodation.
Condoms do not totally protect against the AIDS virus, but when used correctly, significantly reduce the risk of HIV transmission.
Condoms are not presently available in Australian prisons. A major impediment to date has been the attitude of prison officers who fear that condoms will be used as weapons or to conceal contraband in body cavities. While homosexual acts between consenting adult males in private have been decriminalised in all jurisdictions except Tasmania, such sex between prisoners remains illegal in some jurisdictions under prison regulations. In addition, it is sometimes argued that consenting homosexual sex between prisoners remains an offence because prisons are public rather than private places (Heilpern & Egger 1989). In favour of condom availability it can be argued that the state has a responsibility to protect prisoners' lives, and that as institutional sex cannot be prevented, inmates should be able to practise it safely. Condoms are made available in five United States correctional facilities (Hammet 1991), and few problems appear to have been reported.
Needles and syringes
Even more controversial than the distribution of condoms is the distribution or exchange of needles and syringes in prisons. No needle exchange program is in operation in any prison in the world, although the Council of Europe has stated that it may become necessary.
In Australia, official needle and syringe exchanges exist outside prison, despite the fact that the use and possession of prohibited substances is an offence. Arguments against needle exchange or distribution in prison are as follows. Needles can be used as weapons. There have been reports of HIV found in blood taken from needles and syringes. The risk of HIV infection, therefore, exists. However, it should be emphasised that the rate of HIV infection as the result of needlestick injury is low-less than 1 per cent in the case of a single needlestick exposure (Hammett & Bond 1987). Some also argue against a needle exchange program in prisons because use of prohibited drugs is illegal and prisoners would be thereby encouraged to persist in the same behaviour which may have lead to their arrest and conviction.
A number of options exist, either singly or in combination, which could be pursued to combat the problem of HIV transmission through the sharing of unclean needles and syringes. They are the continued prohibition of drug-taking equipment, the distribution of needles and syringes, exchange programs for needles and syringes, and expansion of methadone and drug rehabilitation programs. The potential negative consequences as well as the beneficial effects of these options must be considered. For example, there is opposition to the introduction of methadone maintenance programs. One of the grounds for such opposition is that methadone trafficking in prisons may result.
Other options are to ensure that prisoners know how to clean needles and syringes, and to provide bleach for cleaning drug-taking equipment. However, not all prison systems permit information to be provided to prisoners which explicitly describes needle and syringe cleaning techniques. In addition, bleach is not made available for the cleaning of drug injecting equipment in most Australian prison systems. Exceptions are New South Wales where Milton tablets are available through the Prison Medical Service and Victoria, where general purpose bleach is available. Drug use in prison remains a problem, and it is therefore in the interests of both prisoners and prison officers that needles and syringes are clean.
The need for ongoing and effective HIV/AIDS education is demonstrated by the following incident reported in the Australian media. 'Prison officers were told that the AIDS prisoner was required to wash her own clothing, utensils and not to be given assistance by prison officers unless a medical officer was present.' (The Courier Mail, 28 September 1988). Even more recently, the Western Australian Select Committee appointed to Inquire into the National HIV/AIDS Strategy White Paper reported that 'The interactions ...[between prisoners with HIV and] prison officers is [sic] very limited and based on a premise that those officers are at risk through social contact; such is the fear of officers that any books which are used by these prisoners are destroyed and nor circulated. Procedures related to the serving of food, laundering of clothing are similarly based on this fear ...' (1990, p. 57).
All Australian prison systems have HIV/AIDS education programs, although they vary in structure and regularity. In New South Wales the peer education program for prisoners has been well and truly accepted in all institutions across the State. A training program for peer educators is also well entrenched. It is accepted by officers that HIV/AIDS training programs offered at the NSW Corrective Services Academy is a prerequisite for promotion. In Tasmania, receptees and new prison officers are required to attend HIV/AIDS education courses with regular follow up sessions. In South Australia, HIV/AIDS education is part of prison officer training programs, and is provided to new inmates. In Queensland, a new coordinator was appointed in 1991 to implement education for officers and prisoners across the State. In the Northern Territory, voluntary education programs for prison officers and inmates were provided in 1987. In Western Australian prison officers are given compulsory HIV/AIDS education as part of their probationary training and prison medical and nursing staff receive annual in-service training on HIV/AIDS. Voluntary education programs are provided for Western Australian prisoners. At the National Train the Trainer Program (funded by the Commonwealth Department of Health, Housing and Community Services) held in Sydney in 1991 which was attended by two representatives from all states and territories, the numerous problems relating to service delivery were highlighted. It was stressed that the educational programs they delivered were hampered by numerous restrictions placed upon them by their respective departments. While prison authorities have attempted to provide information, education and training to prisoners and prison officers it is unfortunate that the more difficult issues surrounding harm minimisation and drug use and sex in prisons have not been tackled.
The problems of implementing HIV/AIDS education in prisons should not be trivialised. There are deep-seated anxieties about HIV/AIDS amongst prison officers and inmates, and firmly entrenched misconceptions to be overcome. Hostility exists between prison staff and prison inmates, and between prisoners and other prisoners suspected of having HIV infection. Although essential, effective education is an enormous difficulty, given the high turnover of prisoners in Australian gaols. There are problems of bringing persuasive and relevant information to a group who, as a whole, have little formal education, and may comprise a great variety of ethnic groups. There is low overall priority given to education in the prison system. In addition, developments, implementation, evaluations, and staffing of educational programs is costly. Last, is the fact that both prison staff and prison inmates can become complacent about the AIDS question, so that education programs need to be creative and innovative if their message is to be effective.
A simpler task is to identify the requirements of effective HIV/AIDS education in the nation's prisons. They are:
- a proactive rather than a reactive approach;
- a commitment to HIV/AIDS education from responsible government ministers, senior policy makers, prison administrators and the union movement;
- the provision of compulsory HIV/AIDS education on reception into prison, and for new prison officers with regular follow-up and prerelease sessions;
- the active involvement of prisoners and staff in learning, producing, and evaluating educational measures to ensure that HIV/AIDS education is relevant to their needs and concerns;
- the use of discussion sessions and video presentations, as well as written material, for maximum educational effect;
- the use of well-trained and committed HIV/AIDS educators;
- cooperation between jurisdictions and sharing of ideas and re-sources: and ongoing evaluation of the programs which are in place.
It is suggested that some of the current policies which have been implemented to contain the spread of HIV infection in prisons need to be reassessed. Compulsory testing and segregation are cases in point. How effective are they in minimising HIV transmission? Have their implications been properly examined? In the case of compulsory testing will all prisoners be advised of their HIV status; how often will prisoners be tested; what are the financial implications of testing; are there adequate pre- and post-test counselling facilities; who will be privy to the results of testing; what safeguards will prisoners have that information about test status will not become available outside the prison system; how will the information obtained be used? In the case of segregation of HIV antibody positive prisoners, is segregation medically and administratively justified? What are the likely physical and psychological effects of segregation on HIV antibody positive prisoners?
It is also suggested that recognition should be given to the fact that institutional sex, sexual assault and injecting drug use do occur in Australian gaols. Single cell accom-modation may reduce the incidence of sex, both consensual and non-consensual, in prison. Drug education may help reduce the use of drugs in gaol. Nonetheless it is unlikely that such measures will prevent the occurrence of drug-taking or sex in the nation's correctional institutions. For these reasons consideration should be given to the distribution of condoms and to the provision of bleach so that prisoners can clean their drug-taking equipment. No matter what policies are implemented in our prisons it is vital that HIV/AIDS education for prisoners and prison staff be supported and that evaluative studies be undertaken of any HIV/AIDS policies that are in place so that their effectiveness and their ramifications can be assessed.
This paper has attempted to raise some of the many issues associated with the prevention and management of HIV/AIDS in Australian prisons. Those issues raise hard questions which have to be critically addressed so that comprehensive and effective policies can be introduced. The implications extend far beyond Australia's prisons, raising wider issues such as the need for the decriminalisation of homosexuality and illicit drugs. They call for the commitment of resources, both human and financial. Based on what is known at present, the number of HIV antibody positive prisoners in Australian gaols is probably small. However, this should not be used as an excuse to delay difficult decisions. The window of opportunity currently available will not remain open indefinitely.
- 'AIDS inmates a management dilemma' 1988, Corrections Today, pp. 98-100, vol. 103, no. 127, June.
- Bloor, A. 1991, 'Managing HIV antibody positive prisoners in South Australia: Some successes and failures' in Norberry, et al. (eds).
- Cicchini, M. 1986, Substance Abuse in Prison: A Prisoner Opinion Survey, June, WA Prisons Department, Perth.
- Conolly, L. & Potter, F. 1990, 'AIDS education in NSW Prisons, Australian and New Zealand Journal of Criminology, vol. 23, pp. 158-64.
- Dolan, K. 1991, 'HIV in British prisons' in Norberry et al. (eds).
- Doll, D.C. 1988, 'Tattooing in Prison and HIV Infection', The Lancet, Jan 2-9, vol. 1 (8575-6), pp. 66-7.
- Douglas, R.M., Gaughwin, M., Ali, R., Davies, L., Mylvaganam, A. & Liew, C. 1989, 'Risk of transmission of the human immunodeficiency virus in the prison setting', Medical Journal of Australia, vol. 150, 19 June, p. 722.
- Egger, S. & Heilpern, H. 1991, 'HIV/AIDS and Australian prisons' in Norberry et al. (eds).
- Gostin, L.O., Curran, W.J. & Clark, M.E. 1987, 'The case against compulsory case finding in controlling AIDS - testing, screening and reporting' American Journal of Law and Medicine, vol. 12, no. 1, pp. 7-53.
- Hammett, T.M. 1991, 'HIV/AIDS in US prisons and gaols: epidemiology, policy and programs' in Norberry et al. (eds).
- Hammett, T.M. & Bond, W. 1987, 'Risk of infection with the AIDS virus through exposures to blood', NIJ AIDS Bulletin, October.
- Harding, T.W. 1987, 'AIDS in Prison', The Lancet, 28 November, vol. 2 (8570), pp. 1260-3.
- - (forthcoming), Study on HIV/AIDS in Prisons, Medical Institute for Legal Studies, Geneva.
- Harmsworth, P. 1991, Key Points, June.
- Hatty, S.E. & Walker, J.R. 1986, National Study of Deaths in Australian Prisons, Australian Institute of Criminology, Canberra.
- Heilpern, H. & Egger, S. 1989, AIDS in Australian Prisons - Issues and Policy Options, Department of Community Services and Health, Canberra.
- Indermaur, D. & Upton, K. 1988, 'Alcohol and Drug Use Pattern of Prisoners in Perth', Australian & New Zealand Journal of Criminology, vol. 21, pp. 144-67.
- McMillan, A. 1988, 'HIV in Prisons', British Medical Journal, 8 October, vol. 297 (6653), pp. 873-4.
- Miner, M. & Gorta, A. 1987, 'Heroin Use in the Lives of Women Prisoners in Australia', Australian and New Zealand Journal of Criminology, vol. 20, March, pp. 3-15.
- National HIV/AIDS Strategy, A Policy Information Paper 1989, Australian Government Publishing Service, Canberra.
- Norberry, J., Gaughwin, M. & Gerull, S.A. (eds), 1991, HIV/AIDS and Prisons, Conference Proceedings No. 4, Australian Institute of Criminology, Canberra.
- Norton, R. 1988, 'AIDS education in United States prisons: what needs to be done', Report of the Third National Conference on AIDS, AGPS, Canberra, p. 621.
- Potter, F. & Conolly, L. 1990, AIDS: The Sexual and IV Drug Use Behaviour of Prisoners, Research and Statistics Division, NSW Department of Corrective Services, Sydney.
- Scagliotti, L. 1988, 'AIDS education and the prison system' in Report of the Third National Conference on AIDS, AGPS, Canberra.
- WA Legislative Assembly, Select Committee Appointed to Inquire into the National HIV/AIDS Strategy White Paper 1990, Report No. 1, Government Printer, Perth.
- Walker, J. 1989, Prison sentences in Australia - Estimates of the characteristics of offenders sentenced to prison in 1987-1988, Trends and Issues in Crime and Criminal Justice, No. 20, Australian Institute of Criminology, Canberra.
- WHO 1989, Update: AIDS Cases Reported to the Surveillance, Forecasting and Impact Assessment Unit, Global Program on AIDS, WHO, Geneva.
- Working Panel on Intravenous Drug Use and HIV/AIDS 1989, Consultation Paper No. 4, Department of Health and Community Services, Canberra.
Management of HIV antibody positive offenders
The Human Immunodeficiency Virus (HIV)/Acquired Immunodeficiency Syndrome (AIDS) has become a major policy and management issue for correctional administrators in Australia and correctional institutions have become a focus of concern about this disease for the public at large. This has been due to perceptions that prisons and jails hold high concentrations of individuals at risk of developing AIDS as a result of prior injecting drug use and that correctional inmates frequently engage in behaviours likely to spread the disease - particularly needle sharing and unprotected anal sex.
This is one of a series of papers commissioned by the National AIDS in Prisons Information Clearing House (NAIPIC), and is intended to give up to date information on key issues on HIV/AIDS in Australian prisons. The focus of this paper is to take a discussion of the relevant issues that face prison systems in their efforts to minimise HIV infection and provide proper care to those who are HIV positive, or living with AIDS. The paper in the main is not prescriptive, recognising that the issues that effect the correctional response will vary from state to state. A number of questions are posed throughout the paper to guide readers in reflecting on the adequacy of their own systems.
Since the identification of this virus, most correctional systems have adopted policies regarding HIV/AIDS. Certain principles, such as the importance of inmate and staff HIV/AIDS education, are indisputable. However many key policy issues, particularly HIV antibody testing, confidentiality of HIV status, housing of antibody positive inmates and precautionary measures continue to spark controversy, both within and outside correctional systems.
This paper provides some background as to the pressures that exist in formulating policy in regard to HIV issues in Australian prisons, and also provides an overview of management and prevention of HIV/AIDS currently in force in Australian prisons. In this paper there is little comparison of Australian prisons' HIV/AIDS policies with overseas experiences; however, it should be acknowledged that whilst Australian prisons have exhibited some shortcomings in their efforts to adapt to this new challenge, they compare favourably with many other correctional systems in countries of similar socioeconomic background. In particular education of inmates and staff has progressed in advance of any widespread prevalence of the infection. It is hoped that Australian prison systems will continue to debate and refine their preventative efforts, and it is hoped this series of papers contributes to a realistic understanding of the issues faced, and the strategies available.
Background: the restraints of prisons as organisations open to reform
Number in custody
There are in excess of 14,000 prisoners in custody in Australia at present (Walker 1991); of these only a handful are known to be HIV antibody positive, currently 50 or approximately 0.38 per cent. In Australia, as criminal law is in the main a state matter, it is the State governments and not the Commonwealth government who administer the prisons.
Many of the larger Australian prisons are in nineteenth century buildings and operate with outmoded facilities and pressures on resources. Ensuring proper custody and care of prisoners is never an easy matter, and correctional administrators face a host of critical issues other than HIV infection.
Medical services are provided in the larger states by a specialist prison medical service. In some instances this service is part of the Corrections department (Queensland, Western Australia), and in the other states it is a specialist Health Department funded service. These health related services have a major role in preventing HIV infection and the medical management of HIV antibody positive prisoners.
Many commentators on HIV/AIDS in Australian prisons provide a view of the issue from the luxury of not having to institute the reforms they recommend. Such views do not have to deal with the fundamental forces that shape prison policy. While it is expedient to ignore, belittle, or argue that these forces must be resisted, it does little to explain why and how prison policy in the controversial HIV/AIDS area is formed.
Some of the forces that shape prison policy and practice in the HIV/AIDS are:
- Prisons policy (not always the same thing as actual prison practice) is quite often politically motivated. Such policies as sentencing and the treatment of prisoners are an important signal by a government to the public as to their attitudes and beliefs. Prison policies are often seen by government as a way to demonstrate its 'strength', 'compassion', 'industry', 'discipline', 'justice' and other desirable attributes. Prisons provide a venue for politicians to readily communicate key aspects of their ideological stance. In comparison with other areas of social policy such as child welfare and psychiatric care, prisons policy is more affected by political change. Consequently prisons enjoy a policy process that is far more volatile than comparable areas of public health and welfare.
- Prisons policies and practice cannot be understood without substantial reference to the prisons' industrial relations climate. Industrial relations dominate every aspect of prison life. Prison Officers Associations in Australia are invariably strong, militant and active. They maintain a very vigilant stance in regard to officer occupational health and safety, and they are rarely persuaded to compromise this vigilance for the sake of prisoner rights or welfare.
- A third feature is the difficulty of communication within prisons. The combination of shift work, the isolation of most officers from each other due to the restriction on movements, and the lack of opportunity for staff development all inhibit communication and therefore change. Initial training, while often intensive, is relatively short and is not usually followed up with regular refresher training or in-service training. This is understandable given the basic duties of the majority of officers, but ignores the fact that some aspects of prison officers role are quite complicated, and require considerable educational input. This statement is rarely more demonstrable than in regard to the HIV/AIDS issue. Educative efforts in this area are undertaken against a backdrop of organisational difficulties and a workplace that is not conducive to staff education.
- In addition to these features, some academic commentators in Australia assume a federal view of prisons, glossing over the fact that the States and not the Commonwealth are responsible for criminal justice matters. Each prison system will have its own local policies reflecting independent political, industrial and community values. The states are resistant to either commonwealth driven initiatives or initiatives deriving from the larger eastern states. In the first instance the states are dismissive of Canberra's opinions of prisons, because the Federal Government has no experience in this area of administration. In the second instance, the larger states are seen to have different prison populations and therefore their initiatives are viewed with some reservation. This is apparent in the HIV/AIDS area where a predominance of academic views tend to reflect experience based on the NSW prison experience. This inevitably leads to a conclusion that HIV/AIDS is a higher priority problem than it is for the smaller states, many of whom have very, very low numbers of prisoners who are HIV positive, much less who have AIDS.
The other factor to be considered in understanding prison policies is that prison systems in each State are relatively small and isolated from each other. Policy development, research and education are therefore problematic because Australian prison systems lack the economy of scale to invest in such 'non productive' services.
Commonwealth-state attempts to 'pool' knowledge and resources such as the 'National AIDS in Prisons Information Clearing House (NAIPIC)' are admirable attempts at overcoming the problems inherent in small state based prison systems - but they struggle to overcome political differences, the fierce independence shown by most states and the tyranny of distance between the major capitals.
It is these background factors that must be kept in mind when understanding the current Australian prison policy and practices. Some of these factors are generated by the nature of prisons and are to be found anywhere in the world, others are a product of the Australian political system. With these factors in mind, we can now understand why the policies that are suggested by academic and international bodies are not always achievable or indeed desirable in the Australian context.
HIV prevalence in Australian prisons
It is not within the scope of this paper to discuss in detail the data pertaining to the incidence and prevalence of HIV in Australian prisons. However, the NCHECR data collection in 1991 revealed that 71 prisoners entering Australian gaols were HIV seropositive. This was 0.25 per cent of the total number of tests undertaken.
This data cannot be used to show prevalence, because not all states at this time had universal testing.
Even with full compulsory testing the prevalence cannot be 100 per cent accurate without regular (3 monthly) re-testing. However, there is sufficient testing now being undertaken to provide us with a close approximation of the prevalence.
It would be reasonable to state that prison rates of HIV infection remain lower than had previously been predicted.
The earlier predictions were based quite appropriately on evidence of:
- a high percentage of the prison population being injecting drug users (IDUs);
- the prevalence of IDUs in prisons which is likely to involve the sharing of syringes;
- the rate of homosexuality in prisons is likely to be at least that found in the community at large;
- the number of prisoners previously involved in the sex industry, which has been assumed to be a high risk group.
The lower than expected figures for the prison population reflect the lower than previously expected rate of infection in the general community, particularly in the IDU groups and sex-workers.
These figures, however, leave no room for complacency. There is ample evidence that high risk behaviours do occur in prisons and therefore if sufficient numbers of HIV positive persons are admitted to prisons there is every likelihood that the infection will be spread within prisons.
Two Australian studies (Egger & Heilpern 1991; Gaughwin 1991), one in NSW and the other in South Australia, conducted in 1989 both show a rate of injecting drug usage whilst in prison of over 30 per cent, and a rate of anal intercourse of 2 per cent in New South Wales and 12 per cent in South Australia. While these studies provide only a guide and more research needs to be done, they provide quite consistent results with a larger number of overseas studies, and illustrate the potential for prisons to promote increased infection.
We ought to be better informed about high risk behaviours with our prison system, but because injecting drug usage and homosexuality are covert, and in the first case illegal activities, this makes data collection difficult and unreliable. In addition most prison systems are hesitant about surveys of injecting drug usage and homosexuality as they fear adverse public reaction. However, any experienced prison official will readily admit privately if not publicly that high risk behaviour does frequently occur, although often they will state it is not quite as frequent as the mass media would sometimes have us believe.
Education and Training: the Highest Priority
The Education and Training Paper in this series deals specifically with educational and training strategies and techniques in Australian prisons. This paper will not describe the methodologies of education, but it will discuss the importance given to education in the various states. Education and Training programs represent the keystone of efforts to prevent transmission of HIV infection in prisons ...The study conducted by Heilpern and Egger (1989, p. 69) found that 'all States and Territories have accepted the importance of education ...'
Each state reports that Education and Training are crucial factors in minimising the spread of infection and in encouraging staff and inmates to behave in an appropriate way towards those who are HIV positive.
- What importance does your prison system place on education and training about AIDS/HIV infection in prisons?
- What are the aims of this education and training?
Education and training are given a high priority in each state because those responsible for prisons realise (indeed often have experienced) that without informed debate they are facing great difficulties in arranging proper care and custody of HIV positive prisoners. Most prison administrators have experienced attitudes from ill-informed staff and prisoners that unless challenged by proper information allow no room for anything other than complete segregation - even to the point of segregating all prisoners who are yet to be tested. The recency of AIDS as a health issue, plus the social stigma that is attached to this illness, has provoked some extreme reactions within Australian prisons systems. However, prisons should not be singled out as being the only areas to provoke such extreme and ill-informed reactions, the medical profession itself has produced some remarkably hysterical reactions to this particular virus.
Organisational difficulties in organising education and training
Given the closed nature of prisons systems the 'reasonableness' of current policies (not in all commentators' opinions but certainly the author's) is a testament to the extent of AIDS education undertaken in the Australian prison system already. Hopefully with further education and as the community becomes more familiar with the illness, we will see a progression towards treatment more in harmony with standards for the population at large. The practical realities of achieving education and training are, unfortunately, difficult.
Prisons are not static communities: a system with a certain number of beds will usually have 3 to 4 times that number of admissions during a year - the average actual time spent in prison by a prisoner being less than six months. This leads to dilemmas on where to direct one's efforts most effectively: whether to acknowledge an obligation to provide some education (or more likely information) to all prisoners, or whether to concentrate on more in-depth education to those who will be in the prison system for longer.
In answering this question we must acknowledge the practical difficulties of trying to access prisoners in their first months of imprisonment. The remand and reception areas of a prison are the most active areas of the prison system. Prisoners pass through these areas at a very rapid rate. They have numerous other pressures on them at this time, including legal matters, maintenance of family contacts and adjustment to incarceration. A less ideal venue for education is hardly imaginable. Added to this is the prisoner's likely mental pre-occupation with their predicament. For instance, the first months of incarceration are by far the most likely time for suicide.
A concentration on sentenced and classified prisoners presents further dilemmas. Usually by this time prisoners have been moved to various institutions around the state. The majority will be classified to country prisons. The availability to each institution of trained HIV/AIDS educators is limited. Educational hardware and prison staff resources to supervise education can also be a problem.
Education and training of prison staff similarly presents major difficulties. The deployment of officers partially for security reasons and partially due to industrial agreements makes it very difficult to conduct in-service training. Unlike many other occupational settings, staff cannot readily access on-site education. This leaves the alternative of removing identified staff from the daily roster - but almost invariably means that such officers must be replaced by staff on overtime. This adds dramatically to the cost of training, as in addition to the cost of the educator, Corrections departments face a bill of $100-$200 per person per day in overtime. Thus universal prison officer education, even for 1 day per year in a medium size prison system in Australia will cost well in excess of $100,000. These are the realities that face prison administrators in an era of decreasing budgets, spiralling overtime and an increasing list of other priorities for staff involvement.
Question 2: Estimate expenditure on HIV/AIDS education:
- by specialist educations (salary and other costs);
- 'Hidden cost' i.e. cost associated with prison officer education, e.g. overtime, travel
Despite the obvious logistical problems and the true cost of training, as illustrated in the above discussion, Education and training remains the fundamental strategy to:
- prevent the spread of the HIV virus by encouraging hygienic practices and discouraging high risk behaviours;
- encouraging informed debate amongst staff and prisoners in order to appropriately deal with the virus and those who are HIV infected.
Management of HIV/AIDS in Australian prisons
Testing: for and against
As can be seen from Table 3 on page 35 of this volume, universal testing for prisoners has been introduced in most states. What are the ethical, medical and administrative reasons for and against testing?
ethical considerations compulsory testing has three major drawbacks on ethical grounds:
- It is an infringement of the individual prisoner's rights that is not consistent with practices in the outside community.
- Testing is used as a means of identifying and segregating prisoners who are HIV ab positive, and thus creating an isolated and stigmatised existence whilst in prison.
- Confidentiality cannot be adequately guaranteed in prison (by both prisoners and staff.)
Voluntary testing may be associated with the second and third objections.
Medical considerations Dr C. Liew, Director Prison Medical Services, South Australia, states that
Early diagnosis is now clinically beneficial to the infected person. In addition to the availability of AZT to people with AIDS, there is the prospect of delaying the onset of AIDS in asymptomatic HIV-infected individuals with AZT treatment (Volberding et al. 1990; Fischel et al. 1990). Furthermore, there have been advances in the prevention of opportunistic infections for those with significantly depressed immunity, for example, the use of aerosol pentamidine to prevent pneumocystic pneumonia (Armstrong & Bernard 1988). Thus, unlike the early years of the epidemic, there are now clear medical reasons for recommending early diagnosis as medical intervention at a number of levels is possible (Liew 1991).
In addition, it can be argued that knowledge of one's HIV antibody status and follow-up counselling in regard to safe behaviours will minimise further transmission by the antibody positive person. Most prisoners, like other members of our community, can be expected not to endanger others wilfully or recklessly if they know they are HIV antibody positive.
Testing, whether universal or not, also provides valuable information to medical officers, educators and administrators in prisons as to the level and changes in transmission. While Egger and Heilpern (1991) remain critical of the deficiencies in data collection, the data which is available to prison medical staff, and so on does provide important information on the progress of HIV transmission and some basis for projections into the future.
Notwithstanding the above reasons for testing, a number of medical practitioners have warned of the complacency that can occur when it is assumed that testing will identify all known infected persons. Medical practitioners and educators stress that safe practices and proper hygiene must be exercised by all persons at all times, irrespective of testing regimes.
Administrative considerations Prison authorities are charged with a duty of care to staff and prisoners to ensure their health and safety is protected.
It can be seen why Australian prison systems have moved towards increased testing either on a compulsory or voluntary basis. There are social, medical and administrative reasons for doing so. The ethical issues remain and should not be ignored, however as the Hon. Michael Yabsley, the then Minister for Corrections New South Wales, argued when introducing compulsory testing, testing does not by itself justify segregation or breaches of confidentiality. He argued that New South Wales approach of a 'compulsory testing/integration strategy represents what the Government believes to be the best possible strategy to deal with a problem that has no comprehensive solution' (Yabsley 1991).
Prison authorities are charged with a duty of care to staff and prisoners to ensure their health and safety is protected. For a full description of legal and industrial issues associated with HIV/AIDS in prison see pages 83-99 of this volume.
Testing and the various precautions that may be undertaken (including various forms of segregation) to minimise transmission are arguably part of a chief administrator's responsibility in exercising reasonable care.
The current level of testing for each state/territory is shown in Table 4 on page 35 of this volume.
- What percentage of your prisoners are tested?
- Do you carry out re-testing?
- When did this testing [referring to 3(a)] commence?
- What is the quality of your pre/post test counselling?
- What is your policy on contact tracing?
Segregation or integration
with or without compulsory or even voluntary testing, dr liew points out that many hiv infected individuals were 'already identifying themselves during the court process, in the hope of getting non-custodial or less severe custodial sentences. their status was thus known prior to entry into prisons'.
The treatment of prisoners who are diagnosed HIV positive but who are asymptomatic has been one of the controversial issues for Australian prison systems. The medical care of such persons does not require that they be segregated. It is only once HIV related illness commence and more specialised medical treatment is required that special placements maybe required for the prisoners medical care.
There is a wide variety of approaches to prisoners placements taken in the various Australian states.
- Are HIV positive asymptomatic prisoners placed in special units in your state? Details on what this means.
- When they become symptomatic what occurs in regard to their placement?
- Would you support integration if this was industrially feasible?
There are arguments for and against segregation, but in practice it has been the prison management's ability to effectively deal with the occupational health and safety concerns of officers that has determined policy in this area. Most prison management systems would aspire to minimising segregation, simply meaning single cell accommodation, however some administrations have been thwarted by industrial action in achieving these policies
The arguments for segregation usually made are:
- Segregation allows for proper counselling to allow prisoners to adjust to their antibody status and education on the need for safe practices.
- Prisoners are protected from violence/persecution from other prisoners.
- It assists in minimising infection of other prisoners by minimising contact.
- Provision of specialist treatment, programs, lifestyles.
The arguments against segregation are:
- It is discriminatory and contravenes human rights obligations. 'Legislation currently in force in NSW, Western Australia, Victoria and South Australia makes it unlawful to discriminate on the grounds of physical impairment in the provision of a service' (Godwin 1991).
- Segregation unduly restricts the rights of prisoners to have access to a range of placements and facilities and therefore imposes an unfair punishment in comparison to other prisoners.
- Segregation increases the isolation of these prisoners and promotes bitterness and the likelihood of increased anti-social behaviour.
- Segregation promotes a false sense of security amongst staff and other prisoners that all other prisoners are HIV negative and therefore may contribute to unwarranted confidence in dealing with infection control and unsafe sexual and drug practices.
- Segregation breaches confidentiality by providing easy identification of HIV positive prisoners, which is also in contradiction of some state acts in regard to confidentiality.
- 'Segregation undermines education programs which emphasise that transmission does not occur through casual contacts' (Egger & Heilpern 1991, p. 71).
In addition Egger and Heilpern argue that South Australia the state with the longest experience of integration has not experienced violence committed on prisoners because of their HIV positive status.
Whilst some weight can be given to the arguments for segregation it clearly discriminates and causes additional hardships to persons who are already subject to the likelihood of having a terminal illness. In objective terms it does little to minimise further infection, indeed it may be counterproductive, it is not required on medical grounds and it does promote discriminatory practices of the basest type.
It is assumed by the Australian public that they will have a right to confidential medical treatment and that information on their health status will only be made available with their consent.
Maintaining confidentiality in the environment of a prison, however has some major difficulties. Virtually any treatment out of the ordinary be it medical, counselling, educational or classificatory may in effect lead to a breach of medical confidence.
Any policy of segregation will betray the prisoner's confidentiality. It remains a very vexed question for most prison administrators faced with the requirements of confidentiality - which are increasingly being protected by legislation and their obligations as to the placement of prisoners under agreed industrial policy.
Godwin's conclusion on this matter is worthy of consideration:
Significant developments have occurred in recent years in relation to legal rights to confidentiality and privacy. The sensitivity of HIV/AIDS related information is such that it is a likely candidate for legal protection. Prison authorities should be aware that breach of confidence is now a recognised action by which people may claim compensation or other remedies (Godwin 1991, p. 177).
In practice it may well be that prison administrators can resolve issues around segregation and confidentiality by pointing out that by law they cannot discriminate nor breach the confidence of HIV antibody positive prisoners.
Against this are the arguments that confidentiality should not endanger the lives of officers and others. As John Doyle, Prison Officers Union representative on the NSW AIDS project writes 'Many (officers) feel that knowing the identity of HIV/AIDS inmates would add to their safety in blood spill situations' and furthermore 'The Prison Officer Vocational Branch is also of the opinion that in the event of an officer being assaulted, it is likely that blood or bodily fluids have been exchanged, that the officer concerned should know the HIV/AIDS status of the inmate' (Doyle 1991, p. 164).
The issue of confidentiality will remain a difficult area for prisoners and staff alike. Mr Peter Harmsworth, Director-General of the Office of Corrections in Victoria, provides us with an example of how his department has worked with the Health Department to arrive at a reasonable compromise on this issue.
'It is difficult to maintain the community standard with respect to confidentiality and HIV infection within prisons. However, it is essential that the principle not be ignored. In Victoria, all HIV tests and the results are coded and the coded results are sent direct to the Medical Superintendent by Fairfield Hospital. The policy of moving prisoners to the Pentridge Hospital and then to K Division means that total confidentiality cannot be achieved. However all steps are taken to ensure that information relating to HIV positive status is restricted, and, as much as possible HIV positive prisoners are accorded the rights of confidentiality stipulated under legislation' (Harmsworth 1991, p. 130).
In the final analysis prisons are 'closed' environments where community standards are often difficult to maintain in their ideal form. Perhaps the prison officers' demands for knowledge of prisoners HIV status is best understood when we reflect on surgeons recent demands for information of HIV status prior to performing operations. Whilst this debate continues in the community it is difficult to dismiss staff fears as irrational, and therefore compromise positions are inevitable.
The most effective form of prevention is of course the adoption by all parties in prisons of proper hygiene control and safe sexual and drug usage practices. The first step in ensuring this is education and training of all parties, so that they are informed of the risks and the best possible preventative methods.
Minimising transmission in prisons via injecting drug usage
As has already been discussed injecting drug usage does occur in Australian prisons, although it is no doubt more prevalent in the larger eastern states who have in their capital cities a more established drug injecting subculture.
- How much of a problem is injecting drug use in your prison system?
- What evidence do you have of this, e.g. contraband?
The available options to minimise infection via injecting drug use include the following.
Minimising the entry of drugs and syringes into the prisons system All states expend considerable effort in curtailing the drug trade within prisons; for example, searches (including searches of visitors and staff), investigations, restrictions or access to both personal and professional visits, and more lately use of drug testing to identify and discipline drug users.
It is beyond the scope of this paper to discuss in detail the efforts of Australian prison systems to stem the supply of drugs into prisons; however, it should be noted that one of the dilemmas of controlling the supply of drugs to prisons is that in order to restrict supply, a system must restrict access to the 'outside' world. The restrictions on potential sources of supply will inevitably effect the maintenance of contact by prisoners with family and friends, like so many prison issues it requires either a delicate balancing act for the prison system, or alternatively a firm decision on what is the higher priority.
Dr Liew comments 'It is a correctional issue with significant health implications. Improved correctional surveillance techniques, together with random urinalysis and testing on suspicion, linked to sufficiently severe sanctions as deterrents, must be considered' (Liew 1991, p. 147).
Nevertheless until each prison system can state with confidence that injecting drug use has been minimised from its environment it is prudent that other strategies are put in place.
Drug treatment and rehabilitation for injecting drug users Drug treatment and rehabilitation services are available to some extent in all prison systems in Australia. These services include detoxification, counselling, intensive 'inpatient' treatment, education, information and methadone programs.
Unfortunately the provision of drug rehabilitation programs either in the community or in prisons does not automatically produce a reduction in drug usage. There is little agreement on the best methodologies for treatment and the appropriate training and skills of rehabilitative staff remains unclear.
Most commentators urge prison systems to increase their efforts in the drug rehabilitation field but without being very specific as to what in particular is required. It is not within the scope of this paper to discuss drug rehabilitation in prisons in greater detail. It goes without saying that drug rehabilitation is a very necessary part of the prison system but it is unrealistic to see this as more than one component in our efforts to minimise HIV infection/transmission.
The exception to this picture, according to its advocates, is methadone. Methadone in prisons is not justified on rehabilitation grounds but rather on the basis that it replaces the usage of injecting narcotics and therefore minimises injecting drug use. Methadone has been widely used in NSW prisons and to a lesser extent in the Victorian, Queensland, South Australian and Western Australian prison systems. Its detractors query the extent to which methadone minimises injecting drug use and point to the logistical and control problems associated with its widespread prescription in prisons. It is a strategy that requires further examination by prisons systems, and further research by its proponents.
Needle exchange programs No Australian prison system advocates needle exchange programs. The introduction of needles and syringes into prisons is strenuously opposed by prison officer organisations on the basis that needles and syringes constitute a dangerous weapon that can be used against staff. The usage by a prisoner to infect a prison officer in NSW in 1990, served to further remove this alternative from current consideration.
Advocates of needle exchange programs argue that 'provided it was strictly a needle exchange program, no additional needles need be placed into circulation. The Council of Europe have recommended that this option may be necessary as a last resort' (Egger & Heilpern 1991). Needle exchange programs, although well established in some states, will not be seriously considered in any prison system in the foreseeable future, unless the prevalence of HIV increased dramatically, and even then there is no guarantee that such an option would be utilised.
Bleach as a means of sterilising needles 'Unless governments, and prison administrators can absolutely guarantee a totally drug-free environment, it is their plain duty to face up to the risks of the spread of HIV infection by the use of unsterile injecting equipment in prisons. If it is too much to adopt a similar exchange system (unused for used needles) at the least, bleach should be provided in discreet ways for use by prisoners' (Kirby 1991, p. 18).
In November 1990 only NSW and Victoria reported availability of bleach. Victoria has reported success in the introduction of bleach as a general infection control agent available to both staff and prisoners, and without specifically referring to it as a needle cleaning procedure. These infection control procedures 'provide staff with a detailed set of guidelines to be followed should any contamination occur. The fundamental premise of these procedures is that staff treat all blood spills as potentially dangerous. Under the infection control procedures, bleach is now available to all prisoners in all prisons' (Harmsworth 1991, p. 129).
- Is bleach available to prisoners in your prison system? If so in what form, e.g. bulk/sachets.
- Do you allow the distribution of information on needle and syringe cleaning?
There is some evidence that suggests injecting drug users will utilise needle cleaning agents (see Wodak 1991). It is recommended that those prison systems where injecting drug use is known to occur make bleach freely available. This can be achieved without specifically identifying bleach as being for needle cleansing only, thus avoiding any unnecessary political or industrial relations problems.
Minimising HIV infection via sexual contact in prisons
Wodak in a recent study of male drug injectors interviewed in Sydney who had previously been in prison (N=209) reported that '13 per cent reported to having sex with other men whilst in prisons. Five per cent reported having been anally raped while in prison. Forty per cent of the sexually active men (that is 40 per cent of 13 per cent) reported that they had anal intercourse while in prison' (Wodak 1991).
The minimisation of unprotected anal sex in prisons is clearly an important factor in preventing HIV infection. There are two major options for achieving this.
- Single cell accommodation
- Most prison systems cannot currently provide single cell accommodation.
- Single cell accommodation reduces the opportunity for rape or coerced sexual contact. It has been reported that Tasmania, Queensland and South Australia have predominantly single cell accommodation whilst Victoria and NSW have fewer than 50 per cent of male prisoners so accommodated (Egger & Heilpern 1991).
- Modern prison design emphasises single cell accommodation usually including showering facilities, however the achievement of single cell accommodation will rely on the gradual replacement or renovation of older prisons.
- Safe Sex Education
- Homosexuality has been decriminalised in all states and territories except Tasmania. In all states condoms are seen as either potentially dangerous, posing an additional health hazard or politically unacceptable.
- No state prisons system in Australia issues condoms, although some states have actively considered their introduction.
- The majority of academic commentators on AIDS in prisons support the introduction of condoms; nevertheless, their introduction has been resisted both politically and industrially. Yabsley commentating on the NSW government's rejection of condoms points out that condoms may increase the likelihood of sexual assaults, may facilitate smuggling of contraband and may be used as weapons (Yabsley 1991, p. 120).
Justice Michael Kirby, in reviewing these arguments, concludes 'Whilst it is true that there is some risk that they may be used for secreting drugs or other objects, it is necessary in HIV prevention to balance risks' (Kirby 1991, p. 18).
A number of European and North American prisons systems make condoms available and it may be useful in the near future for Australian governments to study their impact on the prison system and HIV prevention.
Minimising occupational transmission (see pp. 65-82 of this volume for a full discussion of this issue). Needless to say, prison staff need to be properly trained in infection control and properly equipped to prevent infection.
Are prison officers in your system provided with infection control materials, e.g. gloves, face masks for mouth to mouth resuscitation, bleach, etc.?
A number of systems (Victoria, NSW) now provide, as part of officer issue, infection control pouches to facilitate cleaning blood spills, disinfecting wounds, sterile resuscitation masks and other preventative measures.
This paper has attempted to deal with the management of HIV/AIDS as comprehensively as possible. The treatment of prisoners living with AIDS has not been given the special attention warranted in this paper and hopefully this area will be explored before numbers increase.
The paper summarises the debate concerning the multitude of issues arising out of HIV/AIDS in the closed environment of the prison. A number of questions are posed to help prison officials and others reflect on the adequacy of their procedures.
The final comment ought to be reserved for an expression of admiration for the many people across Australia who have achieved such much in the management of HIV/AIDS in prisons in situations that are often extremely difficult.
- Doyle, J. 1991, 'Management issues - a prison officer's union perspective' in Norberry et al. (eds).
- Egger, S. & Heilpern, H. 1991, 'HIV/AIDS and Australian prisons', in Norberry et al. (eds).
- Godwin, J. 1991, 'Rights, duties, HIV/AIDS and corrections' in Norberry et al.(eds).
- Harmsworth, P. 1991, 'HIV/AIDS in the Victorian prison system', in Norberry et al. (eds).
- Kirby, M. 1991, 'WHO Global Commission, AIDS recommendation and prisons in Australia' in Norberry et al. (eds).
- Liew, C. 1991, 'The integrated management of Human Immunodeficiency Virus (HIV) infection in South Australian prisons: the medical perspective' in Norberry et al. (eds).
- Norberry, J, Gaughwin, M. & Gerull, S.A. (eds) 1991, HIV/AIDS and Prisons, Conference Proceedings No. 4, Australian Institute of Criminology, Canberra.
- Walker, J. 1991 (monthly), Australian Prison Trends, Australian Institute of Criminology, Canberra.
- Wodak, A. 1991, 'Behind bars: HIV risk-taking behaviour of Sydney male drug injectors while in prison', in Norberry et al. (eds).
- Yabsley, M. 1991, 'Compulsory testing and integration' in Norberry et al. (eds).
Occupational health and safety in prisons
Among the aims of the National HIV/AIDS in Prisons Information Clearinghouse, is the development of background papers and analyses on various issues relating to HIV in prisons, such as:
- occupational health and safety;
- education and training;
- management of prisoners who have HIV antibodies;
- industrial issues;
- expansion of research efforts;
- policy trends.
One area of employment that has received increased attention over recent years is occupational health and safety (OH&S). This is largely due to the unacceptably high incidences of industrial injuries and diseases and recognition of the inadequacies of traditional safety legislation.
Much has already been done by way of new legislation and the promotion of the concept of a safe environment by way of effective risk management.
I intend to present this paper in three sections. The first will deal with specific OH&S responsibilities. The second will detail the procedures and management policies which need to be in place for prison administrators to take control and manage this problem. The third section will list specific recommendations.
legislative framework of OH&S
Prisons have not always been bound by traditional legislation. However, there was always a Common Law responsibility which has now been augmented by specific OH&S legislation which binds the Crown.
Common law responsibilities
Before discussing the scope of OH&S law and how we may place these obligations into perspective for dealing with HIV/AIDS in prison, it is appropriate to detail our common law responsibilities.
Under common law, every employer has the duty to provide the following:
- competent staff;
- a sufficient number of workers to do the work safely;
- a reasonably safe place to work;
- appropriate plant and equipment; and
- a reasonably safe system of work.
Scope of OH&S law
All of the new occupational health and safety legislation (NSW) and work care (Vic.) focuses on:
The primary goal of the legislation is the prevention of work-related illness and/or injury. In the event of failure of prevention measures, then the ill or injured worker is entitled to rehabilitation, that is return to pre-injury status (whenever possible). At the same time, the worker is eligible for monetary compensation. This takes the form of salary and compensation for the loss of function caused by the illness or injury.
The purpose of the OH&S legislation
The purpose of the legislation is to ensure the health, safety and welfare of all persons at work.
These Acts protect the health, safety and welfare at work of:
- all persons - including self-employed, visitors and prisoners in the workplace;
- all workplaces (including prisons); and
- all employees - including public servants ('binds the Crown').
Clearly, the scope and purpose of the legislation provides for the protection of staff and inmates within the prison system.
In terms of HIV/AIDS, the onus placed on prison administrators to comply with the intent and scope of the legislation is daunting. The responsibilities and duties of management are clearly defined for employees. The status of prisoners, especially in terms of rehabilitation and compensation, is not as clear.
The commitment to OH&S in regard to HIV/AIDS management can be directly attributable to the establishment of education/training programs and the introduction of procedures, management policies and preventative measures at the workplace. Education/training programs are dealt with in another paper in this series. It is the intention of this paper to examine management responsibility and to document the procedures and management policies that have been developed within the prison system in New South Wales. The guidelines contained in this paper are aimed at providing a framework for the development of a uniform and consistent approach in the management of OH&S/HIV issues in prisons.
Prevention HIV/AIDS prevention programs should be directed towards the following areas:
- Development of management strategies and policies: Ensure that there is a full understanding of the management procedures that have been developed to control HIV/AIDS within prison. It is important that all educational/training material has a common theme and is uniformly presented.
- Establish a safe environment: Steps need to be taken to create an environment which is free of hazards and provides first aid, psychological and welfare services to staff and inmates. Working conditions (living conditions) need to be examined and maintained at an acceptable level. Issues such as overcrowding should be addressed with vigour.
- Behaviour of individuals: Management must aim to develop an organisational climate that raises the awareness of staff and inmates and promotes safe behaviour.
- Education and Training: OH&S policy is effective when complimented by sound educational and training programs. Employees should have access to information and educational programs regarding infection control on communicable diseases in the workplace. Where necessary employees and inmates should be given instruction in practical skills and equipment to maintain proper infection control standards.
- WorkCover legislation
Example: Amendments introduced in New South Wales in 1989 to the WorkCover legislation were designed to help reduce the increasing social and economic costs of workplace injury and disease, by making it compulsory for all employers to:
- establish a rehabilitation program in the workplace;
- appoint a rehabilitation coordinator;
- increase occupational health and safety standards within the workplace; and
- provide employment protection to injured workers up to 52 weeks.
The very nature of HIV/AIDS complicates the rehabilitation process. An individual may retain good health and the capacity for active employment for a number of years. However, within the prison environment, the presence of HIVab+ staff and inmates creates a myriad of management problems. Nevertheless, the legislative requirement for workplace-based rehabilitation is valid and desirable for prison staff.
Within the same context, the rehabilitation process for inmates must be similar. HIVab+ prisoners must retain the right to suitable work/recreational programs and be integrated within the normal prison system.
Workers compensation is a statutory obligation based upon a contractual relationship between employer and employee, that is the employment contract.
The aim of this legislation is that an employee's income and employment benefits should be maintained for the period that they are unable to perform their usual work, so that they do not suffer undue financial loss.
Compensation payable to staff who have become infected with HIV (due to a work related incident) will cover all medical salary and leave costs (that is income and employment benefits). In this regard, the worker is limited to the benefits set down in the Workers Compensation Act. However, for the employee to seek redress for 'pain and suffering', he/she will need to consider Common Law action. This is one area that Governments may need to look at more closely. There is an urgent need to investigate the legislative provisions for compensation to cover such matters as economic loss, pain and suffering, breakdown of relationships, stress and trauma, and so on for staff who have become HIVab+ due to a work related incident.
Workers compensation is not available to prisoners as there is no formal contract of employment. Those who wish to seek redress for injuries/illness, where it is alleged that prison administration has been negligent, must do so via Common Law action. In New South Wales, serving prisoners must seek leave from the Supreme Court to initiate Common Law action. In order to prove negligence, it must be demonstrated that the prison authorities failed to take reasonable action to ensure the safety of the individual.
Communicable Diseases in Prison
A communicable disease is a disease which may be transmitted directly or indirectly from one individual to another. A disease due to an infectious agent or toxic product produced by it. An infectious disease is capable of being transmitted with or without contact (Taber's Cyclopedic Medical Dictionary).
HIV has been identified in all body fluids and secretions: the highest concentration in blood, semen and vaginal fluids; and in lesser quantities in excrement, tears and saliva. Within the prison environment the primary method of transmission is via sharing hypodermic needles and by unsafe sex practices.
Communicable diseases In order to reduce the risk of infection, the following principles must be adhered to:
- All blood and blood contaminated objects must be regarded as infected and infectious and treated accordingly.
- All contact with blood and body fluids MUST be reported to the appropriate senior manager. (A uniform system of reporting and communicating information must be developed with due regard to confidentiality.)
- Ingestion of blood or blood products or splashing in the eyes MUST be reported as above.
- Dressings and disposable blood soaked objects are disposed of as infectious.
- Blood soaked clothing is to be treated as infectious.
Hepatitis B vaccination policy for staff-occupational health and safety All employees who come into direct contact with prisoners are encouraged to apply to their Superintendent/Officer-in-Charge for a course of Hepatitis B vaccinations.
Areas of concern include:
- Handling of items of clothing/bedding and areas that have been exposed to blood, semen, faeces, urine, pus or vomit.
- Injuries inflicted on staff members, e.g. biting, body blows, needle sticks, splashing with blood, body fluids.
- Accidents and injuries (e.g. in workshops).
- Response to crises requiring mouth-to-mouth resuscitation.
- Handling violent prisoners.
- Reception of prisoners - handling prisoners' property.
- Transport of prisoners - escort and removals.
- Kitchen areas.
- All searching, including cell/general/body.
- Cleaning of body fluids.
OH&S equipment available to staff Infection control equipment should be provided in wings and work locations. This should be secured, and all staff should have access to them.
IMPORTANT: These areas should be clearly marked so that all staff are aware of their location and content.
- a mop and bucket;
- bleach solution;
- mirrors (for searching);
- sharps containers;
- contaminated waste bags;
- disposable protection suits, kits, etc.;
- disposable gloves;
- face masks and/or protective glasses (to protect eyes and mouth);
- saline solution (to flush the eyes);
- masks (for resuscitation).
Other equipment freely available to all staff:
- antiseptic handwash;
- airstrip (waterproof) dressings;
- bleach sachets (powder bleach);
- AIDS pouches (NSW), Infection Control Pouches (Victoria).
Infection control procedures
IMPORTANT: Staff must always follow infection control procedures
- Before commencing duty, wash hands with antiseptic handwash for example, Hibicol. This solution is alcohol based and will sting any cuts which may not be visible to the naked eye.
- Cover all exposed wounds with Airstrip waterproof dressings.
- Never put your hands where you cannot see (use a mirror).
- Wear disposable gloves if you are likely to come into contact or where there is a potential for contact with blood or body fluids.
- Wear eye and mouth protection in the likely event of blood splashes.
- Intact skin which has been splashed with blood or body fluids should be bathed or showered as soon as possible.
- Use sharps containers for the safe removal and disposal of syringes, knives, razor blades, tattoo guns, etc.
- Use bleach and wear disposable gloves to clean up a bloodspill.
IMPORTANT NOTE: Bleach should not be used at a crime scene until all investigations have been completed.
- Use contaminated waste bags for the safe removal and disposal of any articles soiled by blood or body fluids.
- Use an airway mask with one-way valve while giving mouth-to-mouth resuscitation e.g. laerdal mask.
- Avail yourself of the Hepatitis vaccination and have a follow-up blood test so as to be aware of your Hepatitis B antibody status.
- Wash your hands regularly.
General procedures-institutional staff
In New South Wales in addition to compliance with the general procedures, custodial officers and other institutional staff on duty in institutions will be supplied with AIDS pouches (see Appendix A) and are required to comply with these procedures which are specific to the prison environment:
- It is the responsibility of the Department to provide the necessary financial resources to permit the full implementation of these policies/procedures.
- It is the responsibility of management to provide TRAINING to all staff.
- It is the responsibility of the Superintendent to initially provide each officer with gloves, pouch, disinfectant and swabs. It is also the duty of the Superintendent to ensure that the institution has sufficient infection control supplies, that is AIDS pouches and the contents of first aid cabinets.
- The Superintendent must prominently display these procedures and ensure that they are known and understood.
- It is the responsibility of the Deputy Superintendent, supported by executive staff, to ensure that officers do not commence duty without their AIDS pouches and to monitor the contents thereof.
- It is the duty of each officer to ensure that he/she carries and maintains the items in the AIDS pouch at all times and ensures that open wounds are covered with occlusive dressings while on duty.
Procedures to be followed in the event of needle stick injuries or exposure to blood or body fluids
- Administer First Aid, encourage bleeding and clean the wound with bleach or hot soapy water. Cover the wound with a sterile dressing.
- Seek medical attention as soon as possible after the incident. It is necessary for each jurisdiction to ensure that a policy addressing the viability of prophylactic e.g. Zidovudine (AZT).
- Trauma support should be made available to staff as a matter of course.
- In the event of a blood splash to the eyes or mouth, irrigate liberally with water and repeat process. (A mouth wash may be used to rinse the mouth and saline solution to flush the eyes.)
- Submit written reports on all needle sticks or exposures to blood or body fluids to Management. In New South Wales the Superintendent will inform the Regional Commander as soon as practicable. Copies of reports are to be forwarded to the Regional Commander, the Manager, Prisons AIDS Project and the Manager, Occupational Health and Safety, Personnel Services Division.
NOTE: Local reporting procedures should be followed.
Procedures to be followed in the event of exposure to saliva
- Immediate response following exposure to saliva from such sources as spitting incidents or during mouth to mouth resuscitation.
- Irrigate affected area liberally with water repeatedly.
- A mouth wash may be used (Chlorhexdine or Hydrogen Peroxide) have been recommended.
- Eye wash may be used to irrigate eye. This may be especially important if clean running water is not available.
- In cases of real concern where an officer is considered to be at risk or where exposure to a known hepatitis B carrier is confirmed:
- The Medical Officer in attendance may prescribe the hepatitis B immunoglobulin injection.
NOTE: This injection is only effective within the first seven (7) days but preferably within three (3) days and may be administered to an Officer if immunity is not known.
Handling of prisoners' property-reception and transport
Officers concerned with the handling of prisoners' property must follow infection control procedures.
- wear the gloves supplied;
- dispose of gloves as contaminated garbage on completion of the task;
- wash hands immediately after disposing of the gloves.
Body searching/cell searching/general searching
Officers involved in searching must follow infection control guidelines:
- wear the gloves supplied;
- Take extreme care when searching - use pens, mirrors, rulers, etc. where you cannot see;
- On completion of the task, dispose of gloves as contaminated garbage.
- Wash hands using hot soapy water immediately after removing and disposing of gloves.
Officers are advised to take care to avoid bare-handed contact with blood or body fluids and cuts or sticks from sharp objects. Officers should not run their hands through bedding, under or over surfaces that cannot be clearly seen. A ruler or similar item should be used to search blind spots. Officers are to take care to avoid needle sticks concealed in clothing when searching.
Splashing of body fluids
Where splashing of body fluids is likely to occur, protective glasses are to be used, where practicable. This is not necessary when the staff member is already wearing spectacles.
Retaining sharp contaminated objects
On occasions where sharp objects such as needles, tattoo guns, knives, weapons, etc. may have to be retained as evidence for court proceedings and these objects may be contaminated by blood or body fluids, the object is to be placed in a puncture proof transparent container. If no container available is big enough, a coffee jar or other container that is either see through or able to be labelled should be used.
A high standard of personal hygiene is to be maintained in food handling areas. Kitchens are to be maintained in a clean and hygienic state.
Trauma support service
The presence of the HIV virus can be a cause of a variety of trauma inducing situations. A trauma support service is to be contacted if any of the following incidents occur:
- needle stick injuries
- blood and/or body fluid spills
- mouth-to-mouth resuscitation of prisoners
In New South Wales the Superintendent/Officer of the Watch must contact the consultants, Fischer McHale and Associates, as soon as possible after the incident. It is expected that the maximum time between the incident and contact with the consultants will be 30 minutes. The consultants are to be given a brief description of the incident and the number of officers involved.
Handing or cleaning areas contaminated by body fluids or excreta Officers must avoid bare-handed contact with contaminated articles.
- Wear gloves
- Pour disinfectant or bleach onto the waste products, leave for 30 minutes, then clean with disposable paper towelling/Chux (use gloves).
- On furniture or items where bleach cannot be used, use methylated spirits as above. This will kill HIV (the AIDS virus) but not Hepatitis B virus, so the spill must then be carefully cleaned with soapy water. Powdered bleach may be used on carpets.
- Dispose of the garbage, paper towelling/Chux and gloves as contaminated waste.
- Wash your hands immediately after discarding gloves and garbage.
Response to crises requiring mouth-to-mouth resuscitation Where practicable, a 'Laerdal mask' is to be used. These are available in first-aid cabinets. However, in the absence of this artificial airway, use the face shield provided in the AIDS pouch. This also provides protection from the inhalation of vomitus or gastric flatus expelled during resuscitation.
Disposal of AIDS and hepatitis B contaminated garbage
- Contaminated garbage
Any disposable item (including gloves) contaminated in any way with blood or body secretions must be treated as infectious. Items are to be placed in a plastic waste bag, sealed in a clearly labelled yellow plastic infectious waste bag and incinerated or disposed of in the usual method for contaminated waste.
N.B. Yellow plastic infectious waste bags should be located in wings, workshops and office areas. These bags should not be used for any other purpose.
- Disposal of Waste
For waste disposal purposes, all disposable items and contaminated items, excluding 'sharps', must be handled as infectious. These items are to be placed in a plastic waste bag, and then sealed in a clearly labelled yellow plastic infectious waste bag. Sharps must be sealed in a hard plastic container, then disposed of appropriately.
Liquid waste should be disposed of, wherever possible, into the sewerage via a toilet rather than hand-basin, kitchen sink or laundry tub.
Laundering of clothing splashed by blood or body fluids Wash blood soaked clothing separately and include disinfectant in the wash.
(NOTE: A normal hot water wash with laundry detergent will destroy the HIV and hepatitis B viruses. Milton or any other household bleach will be effective in destroying the HIV and hepatitis B viruses.)
Items for the laundry should be clearly marked as contaminated so that laundry staff can take precautions.
Management policy-HIVab+ staff
All state and territory departments should be responsible and committed to the management of HIVab+ staff.
The Department of Corrective Services recognises that the rights and privacy of the individual are paramount.
This management policy can only be put into action once an officer comes forward to identify his/her condition and seek assistance.
- Upon confirmation that an officer is HIVab+, the Department guarantees employment as long as the officer's health and circumstances permit.
- The Department is committed to providing all necessary counselling and employee assistance programs.
- HIVab+ staff will be allowed all necessary time off work to meet medical needs.
- The Department will work in conjunction with outside agencies to ensure the best assistance is available to staff.
In New South Wales the following procedures are available to HIVab+ staff members should they choose to seek assistance from the Department:
- The officer will be referred to the Staff Counsellor who will coordinate case management.
- The officer will be referred to the Medical Examination Centre, Department of Health, for assessment.
- The Department, following consultation with the officer, may offer other employment opportunities within the Department, that is in cases where institutional stress or personal circumstances are deemed to be detrimental to the health of the officer.
- The officer's case will be reviewed as required by the Medical Examination Centre.
- Once the Medical Examination Centre advises the Department that an officer is unfit to continue, medical retirement will be processed as expeditiously as possible.
- Australian Capital Territory
Mr Ernie Mason, Belconnen Remand Centre, PO Box 3096, Belconnen ACT 2617
phone (06) 251 4933 ; fax (06) 251 1615
- New South Wales
Mr Peter Byrnes, Occupational Health and Safety Manager, Roden Cutler House, 24 Campbell Street, Sydney NSW 2000
phone (02) 289 1791 ; fax (02) 289 1399
- South Australia
Occupational Health and Safety Manager, Mr Chris Headland, 77 Waymouth Street, Adelaide SA 5000
phone (08) 226 9160 ; fax (08) 410 0066
- Victorian Office of Corrections
Occupational Health and Safety Manager, Mr Alfred Tuet, Level 2, 20-22 Albert Road, Sth Melbourne VIC. 3205
phone (03) 698 6664 ; fax (03) 698 6617
- Western Australia
Occupational Health and Safety Officer, 441 Murray Street, Perth WA 6000
phone (09) 426 7500 ; fax (09) 426 7651
- Northern Territory
Occupational Health and Safety Officer, GPO Box 3196, Darwin NT 0801
phone (089) 89 5116 ; fax (089) 89 5050
Occupational Health and Safety Officer, Mr Roger Sly, PO Box 24, Lindisfarne TAS. 7015
phone (002) 43 8022 ; fax (002) 43 8997
Occupational Health and Safety Officer, GPO Box 1054, Brisbane QLD 4001
phone (07) 227 4111 ; fax (07) 227 6668
- Prison administrators are responsible for providing the necessary financial and manpower resources to ensure that OH&S policies, procedures and prevention programs are fully implemented.
- The policies and procedures outlined within this document must form part of everyday working life. Each person must accept responsibility for their own safety and the safety of others. The implementation of the infection control and general procedures identified in this document are to be mandatory throughout the Department.
- The OH&S precautions in prison should be of the highest quality.
- Prison administrators must acknowledge and support the continued education and training of both staff and inmates in regard to HIV/AIDS and other communicable diseases within the prison system.
- Continued emphasis must be placed on prevention programs by the development of specific management policies and strategies; by taking the necessary steps to establish a safe environment within prisons; and by influencing the behaviour of individuals by improving working/living conditions and by the promotion of risk management and personal safety.
- Quality pre and post-test counselling should be provided to those who have had work related exposure to all communicable diseases
- Procedures for the timely provision of available treatments for work related exposure to HIV/AIDS and all other communicable diseases should urgently be developed.
- The rights of HIV antibody positive staff should be acknowledged and every assistance provided in terms of psychological/welfare services and management support.
- The employment of HIV antibody positive staff must be guaranteed as long as the individual's health and circumstances permit.
- The compensation rights of staff and inmates need to be investigated and clarified in terms of HIV/AIDS infection. Urgent provision must be made for prison staff who become infected whilst carrying out their duties and adequate compensation incorporated into workers compensation legislation.
- Prison staff infected by HIV in the course of their duties, should receive compensation with minimum bureaucratic and legal impediments.
- HIV antibody positive prisoners should be integrated within the normal prison system and should retain the right to work and recreation programs.
- Planning Occupational Health and Safety 1988, 2nd edn, CCH Australia, North Ryde, NSW.
- Workplace Health and Safety Manual, (Consulting editor Anne Wyatt), CCH Australia for CCH International, North Ryde, NSW.
Special thanks are due to the following for their invaluable contribution to this paper:
- Department of Corrective Services
- Shirley Dawe, Manager OH&S
- John Doyle, POVB Representative
- Greg Delprado, POVB Representative
- Judi Fortuin, AIDS Unit and Coordination, National AIDS in Prisons Information Clearing House
- David Edwards, AIDS Unit and Coordination, National AIDS in Prisons Information Clearing House
- Eileen Adamson, Corrective Services Academy
- Louisa Scagliotti, Manager, Prison AIDS Projects
- Ken Keller, Superintendent, Operations
- Prison Medical Service:
- Dr Franc McLeod, Director
- Dr Pooba Govender, Deputy Director
- Sydney Hospital, Occupational Health and Safety Service
- Professor J.M. Dwyer, Prince of Wales Hospital
- All officers will be provided with a specially designed pouch containing the items listed below:
- adhesive pads;
- waterproof dressings;
- durable, disposable gloves;
- container of disinfectant (bleach);
- container of mouthwash;
- resusci face shield.
- AIDS pouches must be worn at all times while on duty.
- Bleach solution will have a 12 month shelf life for sealed units (or must be changed every two days for self-prepared or unsealed units.)
Prisons and the law
First published 1991 as No. 32 in the Trends & Issues in Crime and Criminal Justice series, Australian Institute of Criminology, Canberra.
This paper examines some of the legal aspects of HIV/AIDS in the prison setting. The presence of HIV/AIDS in prisons raises questions about appropriate administrative and medical responses to prisoners with HIV infection or AIDS, about the liability of prison authorities for HIV/AIDS transmission, and about the occupational health and safety of prison employees.
For convenience, this paper is divided into four main sections, although overlap exists. The first, as a prelude to the issue of HIV/AIDS in prisons, examines prisoners' rights. The second considers prison conditions including medical treatment, testing and accommodation. The third looks at HIV transmission, legal duties and liabilities in the prison context. The fourth discusses occupational health and safety issues.
It is only in relatively recent times that an interest in prisoners' rights has developed. After World War II, the need for enforceable, international codes dealing with human rights was recognised (Treverton-Jones 1989). As a result, instruments such as the Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights (ICCPR) were drafted. The ICCPR, for example, gives some recognition to the need to treat prisoners with humanity and respect for their dignity, and identifies the essential aim of imprisonment as rehabilitation and reformation.
In the United States, interest specifically in prisoners' rights accompanied civil rights activism in the 1960s. In the 1970s after riots at Attica Prison, there was an explosion of prisoner litigation. Until this time, in the United States, a prisoner was regarded as a 'slave of the state' (Ruffin v. Commonwealth (1871) 62 Va 790). Similar views were held in Australia.
Not only were prisons viewed as places of punishment, where prisoners lost their civil rights, but the courts were disinclined to involve themselves in matters which encroached on prison administration. There were, and are, a number of reasons for such an approach (Hawkins 1986). The function of the courts has been seen as adjudication and disposition rather than supervision of the treatment of sentenced offenders. Judicial intervention in prisons has been regarded as interference with the executive arm of government. The courts have taken the view that lack of practical experience would make it inappropriate for them to adjudicate on the decisions of prison administrators. Furthermore, the courts have been concerned that prisoner access to judicial review could undermine prison discipline and security. Finally, the courts have speculated that granting enforceable rights would open up the floodgates of unmeritorious litigation.
Judicial attitudes to prisoner grievances have been matched by public indifference or hostility to prisoner causes. Hawkins (1986) commented that the public viewed prisons as places where rights are appropriately curtailed and that in committing their offences, prisoners could be regarded as having voluntarily surrendered their rights. There is probably, also, an inclination to regard prisoners' complaints as necessarily lacking credibility, and a tendency to accept the statements of prison authorities as inherently credible.
United States cases involving HIV/AIDS
There has been an enormous amount of prisoner litigation in the United States. An increasing amount concerns HIV/AIDS. However, while US courts are now more willing to accept the threshold issue of jurisdiction in prisoner' rights cases, they continue to be reluctant to overturn the decisions of prison administrators.
The United States AIDS Litigation Project (Gostin 1990) recently published the results of its examination of 469 legal cases relating to HIV/AIDS at federal, state and local level. Sixty-four (or 13.6 per cent), the second largest single category, concerned HIV/AIDS and prisons issues, and were brought by prisoners, their representatives, or by prison officers. The cases centre on questions of accommodation, HIV testing, the adequacy of medical treatment, failure to provide social, recreational, and rehabilitative programs, and the adequacy of nutritional services.
The complexity of the issues and divergence of viewpoints involved in the cases are demonstrated by the outcomes sought by litigants. On the one hand, prisoners have argued for compulsory screening and the segregation of HIV seropositive inmates. Legal action is commonly precipitated by fears about casual contact with HIV infected prisoners and concerns about assaults. To date, these prisoner suits have been rejected by the judiciary on the grounds that evidence neither demonstrated a real risk of transmission, nor a diminution of risk were segregation and mandatory testing to be introduced (Gostin 1990).
On the other hand, HIV seropositive inmates have taken legal action against segregation by prison authorities, alleging denial of equal protection, due process, and the infliction of cruel and unusual punishment. They have been largely unsuccessful, although in the recent case of Gates v. Deukmejian a settlement was negotiated for a pilot project allowing a number of HIV seropositive prisoners to live in a separate unit but participate in prison activities (Hammett & Moini 1990).
In general, the response of United States courts has been to uphold housing practices which are in place, on the basis that such policies are based on legitimate health, safety, and security grounds (Takas & Hammett 1989).
The right to treatment has also been litigated in the United States, with suits pending in a number of jurisdictions alleging misdiagnosis, refusal to supply AZT (the drug, azidovudine, which can inhibit HIV damage to the immune system), and failure to provide treatment for alcohol and drug dependency.
Confidentiality and notification have also been litigated. Plaintiffs have challenged access to information about HIV status. In one New York case, segregation was struck down by a court because it consequentially violated inmates' rights to privacy (Takas & Hammett 1989).
Prisoners' rights in Australia
The constitutional safeguards relied upon by prisoners in the United States which derive from the Bill of Rights are not available in Australia. Conditions in prisons are governed by prison Acts and Regulations. For the most part this legislation concentrates on administrative, security and disciplinary matters. Its language is not usually couched in terms of rights or entitlements for prisoners. The Corrections Act (1986) (Vic.) is unusual in listing a number of prisoner 'rights' (s.47(1)). Australian and English courts have consistently held that such legislation does not confer justiciable rights on prisoners (Flynn v. The King (1949) 79 CLR 1).
Nor does international law provide much assistance to Australian prisoners. The ICCPR contains some general safeguards - for example, against inhumane treatment. However, not only are such rights qualified in the Covenant itself but the Covenant's application in Australia is limited. International and domestic guidelines specifically addressing prison conditions such as the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Standard Guidelines for Corrections in Australia have no legal force.
Complaints by prisoners are sometimes lodged with the Commonwealth Human Rights and Equal Opportunity Commission or with State government anti-discrimination boards or ombudsmen. However, these authorities have limited powers and the Commission is not empowered to investigate prisoner complaints unless they originate from federal prisoners. Further, these bodies may be hesitant to become involved in difficult questions of prison administration or government policy. Thus, the New South Wales Ombudsman remarked recently on 'intractable problems that are not open to resolution, given the current overcrowding in the State's largely antiquated prison facilities' (Ombudsman of New South Wales 1989).
Having looked generally at prisoners' rights it is worthwhile touching briefly on some of the specific provisions in prison legislation which impact on prisoners with HIV/AIDS.
Most prison legislation in Australia provides that prisoners are to be given a medical examination, including medical tests, as soon as practicable after reception (for example, s.29 Corrections Act 1986 (Vic.), s.50 Corrective Services Act 1988 (Qld), s.39 Prisons Act 1981 (WA)). However, corrections legislation is silent about whether prisoners can request diagnostic tests, and whether they must be informed of the results of medical tests.
Most corrections legislation provides for access to medical treatment by prisoners. The provisions are variously worded. In Victoria, s.47(1)(f) of the Corrections Act provides that prisoners have the 'right to have access to reasonable medical care and treatment necessary for the preservation of health'. In Queensland, s.13(1) of the Corrective Services Act states that the Commission is 'to provide such medical services as are necessary for the welfare of prisoners'.
Explicit provision may be found in prisons legislation concerning diet and dietary supplementation. Once again, there is considerable variation in the wording of legislative provisions, both in connection with basic diet and the supply of special diets to prisoners. In NSW, the Prisons General Regulations provide that all prisoners should be supplied with a diet in accordance with dietary intakes recommended by the National Health and Medical Research Council (r. 44(1)). There is additional provision that diets must be varied and planned to ensure optimum nutritional health (r. 44(2)); and for the provision of diets for prisoners with special dietary needs (r.44(3)). In Section 15 of the Prison Act 1977 (Tas.) provides that prisoners shall be supplied with food of a sufficient quality and quantity to maintain health, and in Victoria, prisoners have a 'right' to special dietary food where the prison governor is satisfied that it is needed for medical reasons on religious grounds or because the prisoner is a vegetarian.
Medical examinations or testing
Most prisons legislation provides specifically that prisoners must submit to medical tests or examinations. In some jurisdictions, medical tests may be carried out with such force as is reasonably necessary. While in other jurisdictions, medical officers may not be empowered to use force to carry out tests there may be a general power permitting prison officers to use reasonable force to compel a prisoner to obey an order, as well as exemptions from liability for injury or damage so caused. There may also be specific powers and exemptions from liability in respect of the taking of samples of blood or bodily substances (for example s.75 Prisons (Correctional Services) Act 1985 (NT)). In addition, prisons legislation generally enumerates offences for failure to obey a lawful order given by a prison officer.
In New South Wales, s.50(1)(j4) of the Prisons Act 1952 contains specific reference to the making of regulations 'requiring prisoners to undergo examinations and tests and provide specimens for the purpose of testing for evidence of exposure to or infection by Human Immunodeficiency Virus'. In addition, s. 50(1)(j1) provides that regulations may be made 'requiring prisoners to undergo breath tests, to supply specimens of urine and to undergo other tests and provide specimens in connection with the good order discipline and health of prisoners'.
A further question is whether prisoners should have an entitlement to request medical tests. Some anecdotal evidence exists of prisoners having their requests for testing denied.
In some states, corrections legislation contains confidentiality and penalty provisions in respect of medical and other information. These provisions are usually qualified. For example, disclosure may be permitted to the extent that it is necessary to perform official powers and duties. In New South Wales, regulations made in 1990 pursuant to the Prisons Act, specify the categories of person to whom information regarding HIV status may be disclosed. However, other persons may be advised if the Executive Director or Director considers it necessary for the welfare of the prisoner or the good management of the prison (r. 14A(3)).
Access to work, recreational programs and exercise
Prison legislation may provide that prisoners can be directed to work, but gives them no right to do so. For example, the NSW Prisons Act provides that 'subject to the direction of the Director-General, the governor of a prison may order any convicted prisoner in any such prison to be set to some work considered suitable for his physical capacity' (s.20(1))'. Little provision is made for recreation, education or exercise programs. Exceptions to this general rule include the Victorian Corrections Act which provides prisoners with the 'right to take part in educational programmes in the prison' (s.47(1)(o)). The Victorian Act also endows prisoners with the right 'if not ordinarily engaged in outdoor work ... to be in the open air for at least an hour each day, if the weather permits'.
Housing policies for HIV seropositive prisoners vary between jurisdictions. While accommodation decisions have been challenged in US courts, English and Australian courts have, traditionally, been reluctant to intervene in accommodation decisions made by prison authorities.
Prisoners' rights and prison conditions - conclusions
The traditional view is that enforceable rights in respect of prison conditions do not exist. Further, there are common law and statutory impediments to legal action against prison authorities (provisions in NSW, Queensland and Western Australian legislation will be referred to below).
However, duties to provide for the welfare of prisoners are found both at common law and under statute. In his Second Reading Speech to Parliament on the Prisons (Medical Tests) Amendment Bill 1990 the NSW Minister for Corrective Services expressly referred to statutory and common law duties to protect the health and lives of prisoners. He continued, 'The Crown Solicitor is of the opinion that this duty extends to the detection of HIV infection, prevention of its spread and provision of appropriate medical treatment to those prisoners who have contracted AIDS' (NSW Legislative Assembly Hansard, p. 2997). Significantly, he added 'This duty ... must be seen in the context of current medical knowledge and the availability of necessary resources' (NSW Legislative Assembly Hansard, p. 2997).
While prisoners generally lack enforceable rights, the concept of a duty of care is potentially valuable in policy development (Godwin 1991). What, for example, should be the policy response to duties to safeguard the welfare and protect the health of prisoners in the context of HIV/AIDS? It is suggested that a proper and effective response would include the provision of medical treatment to prisoners with HIV or AIDS at the same standard as that available to members of the public, the provision of continuing and relevant education about HIV transmission, provision of pre- and post-test counselling, the provision of HIV testing on request, provision of access to appropriate sterilising substances and information about their use, and access to drug treatment programs. Appropriate policy responses could also include the provision of condoms together with condom disposal systems. Many of these measures were recommended recently in a communique released by the first national conference on HIV/AIDS in prisons held in Australia (Douglas 1991).
Existing policies can be examined in the context of this duty of care. Compulsory testing is one example. Used alone it does little to fulfil duties to protect the lives and health of prisoners (Godwin 1991). Adequate fulfilment of these duties might include the implementation of the measures detailed above. Without these measures, it is arguable that decision makers are using concepts such as duties to prisoners to enable them to legitimise and embrace politically 'easy' options.
HIV/AIDS in prisons is also significant because of the potential it creates for the use of draconian measures. Thus, the Western Australian Report of the Select Committee Appointed to Inquire into the National HIV/AIDS Strategy White Paper (1990) revealed that all male HIV positive prisoners in that State were housed in a maximum security prison irrespective of their classification. Once in that prison, the Committee said:
[they] are segregated in an area attached to the prison hospital where they are often interned 20 out of 24 hours. They are rarely able to take part in education programs . . . When attending courts, outpatient appointments or when hospitalised, they are treated as maximum security prisoners ... [they] cannot work and earn extra money which would be another prisoner's prerogative (p. 57).
HIV/AIDS in the prison context exposes deficiencies in the treatment of all prisoners and, as we have seen, in the remedies available to them. Concern should not be confined to HIV positive prisoners. Consideration needs to be given to the need for enforceable rights for all prisoners.
Transmission of HIV/AIDS-Duties and Liabilities
In the United States a number of inmate suits have alleged contraction of the HIV virus as the result of sexual assault by another prisoner. While litigation involving prison authorities is not common in English or Australian courts, a number of cases have been decided which have possible relevance to questions of duties and liabilities in Australian prisons.
Duties owed to prison officers are discussed in a separate section. Common law duties to prisoners and others with whom they may come into contact are discussed below.
Duty of care to prisoners
In both Australia and England the courts have recognised that prison authorities owe a duty of care to persons under their control. The rationale for this approach was put succinctly by the High Court of Australia in Howard v. Jarvis  98 CLR 177, a case in which a prisoner died in a police lockup. Referring to the defendant policeman the court said, 'he was depriving ... [the prisoner] of his liberty, and he was assuming control for the time being of his person, and it necessarily followed, in our opinion that he came under a duty to exercise reasonable care for the safety of his person during the detention.' Although this case concerned a police lockup, it is equally applicable to prisons.
What of the case in which a prisoner is attacked by another prisoner? While, generally, no duty exists to control the actions of others, the courts have been prepared to make exceptions in the case of special relationships such as those existing in schools, prisons and mental institutions. In a number of cases it has been held that prison authorities have a duty to protect prisoners from attack by fellow inmates.
L v. Commonwealth (1976) 10 ALR 269 was such a case. Here the Northern Territory Supreme Court awarded A$10,000 in damages to a remand prisoner assaulted by two convicted prisoners with whom he had been placed in a cell overnight. While the case was partly decided on the basis that prison authorities should have accommodated sentenced and unsentenced prisoners separately as far as possible, the court also remarked that the common law duty of care owed by prison authorities to prisoners held in their custody included taking proper care of prisoners while in their cells, and not putting the plaintiff in a cell with prisoners whom they knew or ought to have known were prone to violence.
Duty of care to visitors in prisons
The duties of care which apply to prisoners may also be applicable to visitors to correctional institutions. The duty of care to prison visitors does not appear to have been considered by Australian or English courts. It is arguable, however, that visitors such as visiting magistrates, officials, relatives and friends of prisoners, may be owed a duty of care by prison authorities.
Duty of care to persons outside the prison system
The liability of correctional authorities for the actions of prisoners who escape from custody has rarely been adjudicated by English or Australian courts. In Home Office v. Dorset Yacht Co  AC 1004, the House of Lords held that the Home Office could be held liable for damage caused to the appellant's yacht when seven Borstal trainees escaped from an island on which they were housed.
However, in the Australian case of Thorne & Rowe v. State of Western Australia  WAR 147, the Supreme Court of Western Australia found no breach of duty had occurred where an escaped prisoner assaulted his wife and a person who came to her assistance. Despite the fact that the prisoner had a record of previous escapes and had communicated his intention, to a gaoler and warders, to 'get out and fix' his wife, the court concluded that neither the warders nor the gaolers had breached any duty of care to the plaintiff because, despite being aware of the threat, 'it [could not] be inferred from the fact of the threat having been made that [the prisoner] had the propensity and intention [to carry it out].'
Duty to warn
The law is hesitant about imposing duties of affirmative action and the content of a duty to warn is far from settled (Neave 1987). In the context of HIV/AIDS some would argue a duty to warn exists and extends to parole officers, and a prisoner's known sexual partners. In South Australia, for instance, certain third parties are advised if a known HIV seropositive prisoner is to be released on leave or home detention. Such dispositions, as well as access to private visits, are unavailable to a prisoner who objects to the notification (Bloor 1991).
Liability for HIV transmission through physical or sexual assault
The courts do regard prison authorities as having a common law duty of care to prisoners and others, and have sometimes upheld damages claims for breach of duty. However, enforcement by prisoners of such common law duties is curtailed by limited access to legal aid, and probably by their own reluctance to become involved in legal disputes with their custodians (Godwin 1991). In the case of prisoners with HIV/AIDS it may be additionally unattractive because of the stresses associated with involvement in legal proceedings (Godwin 1991).
Further, for both prisoners and other potential litigants, legal action against prison authorities is limited by statute in jurisdictions such as Western Australia, New South Wales and Queensland.
Section 111 of the Prisons Act 1981 (WA) and s.46 of the Prisons Act 1952 (NSW) provide that no action or claim for damages lies against any person for things done or purported to be done under the Act unless it is proved that the act was done 'maliciously and without reasonable or probable cause'. Sub-section 62(1) of the Corrective Services (Administration) Act 1988 (Qld) provides that acts or omissions done pursuant to the Act or the Corrective Services Act, or acts done for the purposes of those Acts bona fide and without negligence, do not attract liability.
While the scope of these provisions is far from settled, their presence acts as a barrier to would-be litigants.
Liability and consensual activities
Another matter for consideration in the context of correctional authorities' liabilities is alleged transmission incidents involving consensual activity such as anal sex, needle-sharing or even tattooing. There are no known cases in Australia or the United States where inmates have commenced legal action on this basis. While the complete defence of voluntary assumption of risk is generally in retreat (Fleming 1987), it is suggested that the courts would look favourably on it where a prisoner commenced legal action in these circumstances.
Transmission of HIV/AIDS, duties and liabilities - conclusions
It will be difficult to establish that prison authorities are liable at common law for injury or death caused by prisoners. While prison authorities' liability for HIV transmission has not yet been tested in an Australian court, it is probably safe to speculate that establishing liability will be even more problematic. It would be necessary to prove, for example, that the alleged incident led to the transmission of HIV infection, and that the transmission itself was a foreseeable risk. Where supervening statutory provisions are in place, additional and substantial hurdles exist.
However, should the matter rest there? First, it is argued that where negligence on the part of prison authorities has led to the transmission of HIV by a prisoner to someone to whom a duty of care is owed, then liability should follow. Provisions such as s.46 of the Prisons Act 1952 (NSW) should be repealed.
Second, it is suggested that policies such as compulsory segregation and testing may not protect prison authorities against actions for damages. The decided cases indicate that a history of, or propensity for, violent behaviour may be of particular concern to the courts. Accommodation decisions should be made on this basis - separating violent or sexually predatory inmates from other prisoners. Additionally, although it may be difficult to establish liability where it is alleged that HIV transmission has occurred as the result of an assault, it has been suggested that proof may be marginally easier for the plaintiff prisoner in those jurisdictions where compulsory testing regimes are in place.
Finally, mention should be made of the duty to warn, especially as it relates to prisoners on parole or home detention for example. As mentioned earlier, the existence and content of a duty to warn is far from settled. In addition, it must be balanced against considerations of confidentiality.
Legal considerations aside, procedures by which certain persons are advised of an offender's or a prisoner's HIV status should be examined in terms of their efficacy. The nature of the contact between prisoners and parole officers, for example, is not the sort that ordinarily results in HIV transmission. In the case of the sexual partners of prisoners, one must ask why prisoners should be treated any differently to ordinary members of the community. In addition, not only may it be impossible to identify all the sexual partners of a prisoner, but as Neave (1987) has suggested, the more important issue may be counselling and behaviour modification rather than the protection of known third parties. Finally, if notification of third parties is to occur then appropriate policies must be designed, implemented and evaluated.
A further question relates to duties which may be owed to third parties when advising them that a prisoner is HIV positive. If a prison authority has a duty to warn, does it also have a duty to provide counselling rather than mere information? And, are there any circumstances in which a warning, negligently given, and resulting in nervous shock could result in liability?
Occupational Health and Safety Issues
Prison employees may be exposed to HIV infection as a result of assaults. Although such occupational transmissions are unlikely, in one case in NSW it has been alleged that a prison officer was assaulted by a prisoner and subsequently tested HIV positive. (Criminal charges were laid against the prisoner alleged to have committed the assault by stabbing the prison officer with a syringe containing HIV-infected blood. The prisoner died before the case could come before the Supreme Court of NSW (Sydney Morning Herald, 27 April 1991, p. 9).)
In addition, prisons, like hospitals, are one of the few workplaces where employees may, through accident, come into contact with HIV-infected body fluids in the course of their employment.
Statutes, industrial awards and the common law all impose a duty to take reasonable care for the health and safety of employees (Tillett 1989).
There is a duty at common law on employers to take reasonable care to avoid exposing their employees to unnecessary risks of injury. The duty does not require employers to establish and maintain absolutely safe systems of work and, as in tort law generally, voluntary assumption of risk or contributory negligence may be raised in defence (Intergovernmental Committee on AIDS Legal Working Party 1991).
In Ralph v. Strutton  Qd. R 348 the widow of a prison officer who had been killed by a prisoner wielding an iron bar brought an action alleging that prison authorities were negligent in failing to provide a safe system of work. Although the court held that the prison authorities knew or ought to have known of the violent propensities of the assailant, it found that the warder was an experienced officer who knew or ought to have known of the prisoner's past record, and that his own security lapse resulted in the assailant obtaining possession of the iron bar used in the assault.
In a number of Australian jurisdictions, the ability of employees to take common law actions against their employers has been limited or removed by workers' compensation legislation. Under such legislation, an employer may be liable where incapacity or death occurs in the workplace. While most often used in the case of incapacity or death resulting from an accident, workers' compensation legislation may also be relevant where prison staff are assaulted and contract HIV infection as a result. Where an employee is carrying out employment duties or activities incidental to his or her employment and is assaulted, then any resulting incapacity or death will generally be regarded as occurring in the course of employment (CCH 1988).
However, as pointed out by the Intergovernmental Committee on AIDS Legal Working Party in its report, Employment Law and HIV/AIDS, 'under both the common law and statutory workers' compensation schemes, a worker's access to compensation for non-economic loss where they are occupationally infected with HIV but not symptomatic, is restricted or non-existent' (p. 18). As the Working Party points out, in the case of a worker infected with HIV this is particularly important given the discrimination, pain and suffering that may be experienced by that person and for this reason adequate provision for compensation by governments in respect of non-economic loss by workers such as prison officers who are occupationally infected, should be addressed as a matter of urgency.
Yet another matter related to prison employees is occupational health and safety. Occupational health and safety legislation provides, amongst other things, that employers must take effective and appropriate measures to maintain occupational health and safety. The provision of timely and quality counselling for prison officers exposed to the possibility of HIV infection should be provided as an occupational health measure.
While there are few recorded cases of HIV being transmitted in the workplace, prison authorities should ensure that first aid cupboards are available and properly stocked, appropriate clothing is available for use by prison staff and that staff are properly trained in first aid and emergency procedures. Kits containing items such as bleach and dressings should be issued to prison officers to reduce the risks they face when conducting cell searches or dealing with body fluid spills (Doyle 1991).
The drafting and implementation of uniform and universal infection control guidelines for prisons, together with the regular monitoring of their implementation, should be a matter of priority. (Godwin 1991).
Finally, prison officers and staff should have access to a drug such as AZT or the treatment of choice when occupationally exposed to the possibility of HIV infection (Douglas 1991). HIV testing should also be available on request. The latter is particularly important in those jurisdictions where common law action for damages for work-related injuries still exists. Without knowledge of their HIV status, given the long latency period for HIV and statute of limitation periods, these workers may be precluded from pursuing legal remedies (Intergovernmental Committee on AIDS Legal Working Party 1991).
What can be concluded about the law, HIV/AIDS and prisons in Australia? The attention which must be given to the needs of prison officers and staff has just been discussed. In respect of prisoners a number of matters should be mentioned.
First, prisoners may be able to sue for damages as the result of HIV transmission and succeed. However, they face substantial impediments. Second, the law is far from settled in relation to many of the issues raised by HIV/AIDS in prisons - these include liability to prison visitors and the existence and content of a duty to warn.
Third, while the law traditionally offers little assistance to prisoners seeking to challenge prison conditions, legal concepts do offer some guidance in the development of appropriate policies. The concept of duties owed by prison authorities can inform policy making (Godwin 1991). These duties should be regarded as a logical extension of the custody and control exercised over prisoners.
Fourth, legal concepts can be inappropriately or uncritically used in the development and justification of policies relating to prisons. Thus, the use of compulsory HIV testing seems not to fulfil any duty to protect lives or health, unless it is combined with other measures such as access to proper medical treatment, counselling and education (Godwin 1991). The idea of a duty to warn third parties should be carefully considered.
Fifth, policy is not the only matter which must be addressed. While legislation may be a clumsy, and at times inappropriate mechanism in the prison context, and while the special environment of the prison necessarily involves direction and control which would not be applied to ordinary citizens, there is scope for law reform and for judicial intervention. Legal impediments to damages claims and other actions by prisoners and others should be removed. This would include the repeal of statutory liability exemption provisions. Consideration should be given to strengthening corrections legislation especially as it relates to medical treatment, diet, confidentiality, accommodation and access to educational and work programs. And, the need for and content of enforceable rights for all prisoners should be examined.
It is not suggested that changes in the law, such as those proposed will be easily accomplished or even that they will result in frequent successes for litigants against prison authorities. Experience in the United States, where there are fewer obstacles to such litigation, attests to this. However, legislative change and greater judicial intervention can have beneficial flow-on effects. It may affect policies and prison conditions and bring about 'changes in prison bureaucracies and personnel, public and political opinion, and the self-esteem of prisoners and prison officials' (Jacobs 1980).
- Bloor, A. 1991, 'Managing HIV seropositive prisoners in South Australia-some successes and failures' in Norberry et al.
- CCH 1988, Guidebook to Workers Compensation in Australia, 6th edn, CCH, North Ryde.
- Conference of Correctional Administrators 1989, Standard Guidelines for Corrections in Australia, Melbourne.
- Douglas, R.M. 1991, 'AIDS in Australian prisons. What are the challenges?', in Norberry et al.
- Doyle, J. 1991, 'Management issues - a prison officer's perspective' in Norberry et al.
- Egger, S. & Heilpern, H. 1991, 'HIV infection in Australian prisons' in Norberry et al.
- Fleming, J.G. 1987, The Law of Torts, 7th edn, Law Book Co., Sydney.
- Godwin, J. 1991, 'Rights, duties, HIV/AIDS and corrections', in Norberry et al.
- Gostin, L.O. 1990, 'The AIDS litigation project. A national review of court and Human Rights Commission decisions, Part 1: The Social Impact of AIDS', JAMA, vol. 263, no. 14, pp. 1961-70.
- Hammett, T.M. & Moini, S. 1990, 'HIV/AIDS in U.S. prisons and gaols: epidemiology, policy, and programs', in Norberry et al.
- Hawkins, G. 1986, A Study of Human Rights and Commonwealth Prisoners, AGPS, Canberra.
- Intergovernmental Committee on AIDS Legal Working Party 1991, Discussion Paper. Employment Law and HIV/AIDS, Dept. Health, Housing and Community Services, Canberra.
- Jacobs, J.B. 1980, 'The Prisoners' Rights Movement and its impacts, 1960-80' in Crime and Justice. An Annual Review of Research, eds Norval Morris & Michael Tonry, vol. 2, University of Chicago Press, Chicago.
- Maguire, M., Vagg, J. & Morgan, R. 1985, Accountability and Prisons. Opening up a Closed World, Tavistock Publications, London & New York.
- Neave, M. 1987, 'AIDS-confidentiality and the duty to warn', University of Tasmania Law Review, pp. 1-31.
- New South Wales. Legislative Assembly 1990, Hansard, 10 May 1990, p. 2996.
- Norberry, J., Gaughwin, M. & Gerull, S.A. (eds) 1991, HIV/AIDS and Prisons, Conference Proceedings No. 4, Australian Institute of Criminology, Canberra.
- Ombudsman of New South Wales 1989, Annual Report, Year Ended 30th June 1989, New South Wales.
- Schurr, B. 1990, 'Prisoners' Rights: Treatment, Testing, Accommodation, Privacy of Documents' in Norberry et al.
- Takas, M. & Hammett, T. M. 1989, 'Legal issues affecting offenders and staff', AIDS Bulletin, National Institute of Justice.
- Tillett, G. 1989, AIDS and the Workplace: A Practical Approach, CCH Australia Limited, North Ryde.
- Treverton-Jones, G.D. 1989, Imprisonment: the Legal Status and Rights of Prisoners, Sweet & Maxwell, London.
- Western Australia. Legislative Assembly 1990, Report of the Select Committee Appointed to Inquire into the National HIV/AIDS Strategy White Paper, Report No. 1, Government Printer, Perth.
- Zdenkowski, G. 1980, 'Judicial intervention in prisons', Monash University Law Review, no. 6, pp. 294-330.
Research findings and their implications for prevention
Soon after the Acquired Immune Deficiency Syndrome (AIDS) was first described, prisons were recognised as places where individuals with the syndrome could be found (Wormser et al. 1983). The seven cases reported by Wormser all had a history of intravenous drug use (IDU) and all denied ever engaging in homosexual activity.
With the advent of an aetiologic epidemiology of the syndrome and in particular, serological testing for antibodies to the Human Immunodeficiency Virus (HIV), it soon became apparent that prisoners in many prison systems throughout the world were infected (Hammett 1987, Harding 1987, Heilpern & Egger 1989, Norberry & Chappell 1989).
It was also recognised early that prisons were places where, compared to the general population, disproportionately large numbers of individuals had a history of engaging in risk behaviours associated with AIDS and HIV infection. Infected prisoners were more likely to have injected drugs than engage in homosexual activity. In the USA, these patterns were consistent with the observation that the geographic distribution of AIDS cases among prisoners followed closely that among cases in the general community where intravenous drug use was the primary risk (Vlahov & Polk 1988).
This knowledge raised concerns that prisons might be places where transmission of HIV could occur more frequently than elsewhere but the limited evidence to date suggests that transmission within some prisons occurs infrequently (Horsburgh et al. 1990).
Whether HIV transmission occurs is a function of the interaction between risk behaviours and the prevalence of infection. To date, studies of HIV transmission in prison have occurred in settings where the prevalence of infection has generally been low and the prevalence of risk behaviours unknown.
But it is now well-known that the prevalence of HIV infection among intravenous drug users (IDUs), can increase very quickly (Des Jarlais & Friedman 1989) so it would be premature to discount the possibility that prisons could be places where HIV infection occurs frequently. At least one author has implied a role for prisons in the rapid rise in seroprevalence of HIV among IDUs in Thailand (Dolan et al. 1990a).
While there should be concern about transmission in prisons, the wider issues of the occurrence of risk behaviours among prisoners, former prisoners and those at risk of incarceration, risk to their partners, children and prison staff should be considered also. Prisons have a definite role to play in limiting the spread of HIV both inside and outside prisons.
Knowledge and surveillance of the extent and nature of risk behaviours among prisoners should assist this process. While there has been frequent anecdotal comment in the media, in particular, that risk behaviours are rampant in prisons there have been few systematic studies of risk behaviours of prisoners particularly studies in which prisoners have been interviewed during their imprisonment. There is a modest literature of studies which have investigated risk behaviours among prisoners at entry to prison or after they have left prison.
Better knowledge of risk behaviours is essential to an understanding of the epidemiology of HIV in prisons. It will help to direct and focus more sharply health and education services and could be used as a tool to monitor the risk of transmission and evaluate the effectiveness of HIV prevention programs.
Sources of information
Sources of information which can be used to build a picture of risk behaviours among prisoners are shown in Figure 1. These sources can be used to derive quantitative estimates of the prevalence of risk behaviours. But they do not necessarily provide information on important contextual aspects of risk behaviours which may, in some circumstances, have a greater influence on the likelihood of transmission than measures of aggregate risk. In the course of this study descriptions of the nature of some of these contexts have been noted and are presented here as anecdotal summaries.
DIRECT AND INDIRECT QUESTIONING of:
- at entry to prison
- while in prison
- at discharge from prison
- after discharge
- PRISONS STAFF
- urinalysis for drugs
- blood tests (HIV, hepatitis serology)
- medical examination (sexually transmitted diseases, injection sites)
- incident reports (rape, drug overdose or intoxication)
- records of offence categories (e.g. property crime, drug possession or dealing)
- finds of drugs or drug implements
Characteristics of prison populations
The inhabitants of prisons are not representative samples of communities in general. People get to be in prison because their behaviour has transgressed accepted standards. These standards are by and large clear (if not widely agreed upon) but can vary from community to community. In most communities the use of illicit drugs, buying or selling them or engaging in other criminal activity in order to get money to purchase them can result in imprisonment. It is no surprise that intravenous drug users may be disproportionately represented in prisons. Thus, for example, a recent study of intravenous drug users seeking methadone in NSW estimated that about 50 per cent of men and 25 per cent of women had been in prison at some time (Bell et al. 1990). While the proportion of Australians who have ever been in prison is not known precisely it is most likely that it is nowhere near 50 per cent. The situation for homosexuality is less clear, particularly since in most communities it is not in itself illegal or necessarily associated with illegal activities. The other important characteristic of prison populations is their large turnover which in a year can be up to five times as great as the population in prison at any one time. This rapid and large turnover also affects the characteristics of prison populations such that those in prison at any one time are more likely to be those who have been imprisoned for serious crimes (Walker 1989). Durations of sentences vary for particular crimes across Australia and this also may affect the characteristics of prison populations and, as a result, the likelihood of risk behaviours occurring.
The implications of such pattens for HIV risk behaviours and transmission are that prisons may tend to cause the association of large numbers of intravenous drug users and that those who may never have engaged in potentially risky practices may find themselves in an environment where those around them have.
Table 1 summarises results of some recent surveys of prisoners about the prevalence of risk behaviours at any time in their lives.
Fourteen studies conducted in prisons since 1980 reported lifetime or prior to incarceration prevalences of IV drug use which ranged from 20 per cent to 53 per cent. The mean of the estimates was 36 per cent (95 per cent Confidence Interval 30-42 per cent). Seven studies which did not specifically describe IV drug use but rather, heroin use reported prevalences of 20 per cent to 42 per cent with a mean estimate of 29 per cent (95 per cent CI 20-35 per cent). The mean estimate of prevalence of homosexuality was appreciably lower. The value from nine studies was 9 per cent (95 per cent CI 2-16 per cent) but the range was large and showed a skewed distribution (3-28 per cent). The data from these studies (which are largely from male prison populations) support the contention that male prisoners are more likely to have engaged in IV drug use than in homosexual activity.
These estimates should be regarded as approximate only since the samples of prisoners varied widely in regard to offence categories, participation rates, type of study and other characteristics. For example, the mean prevalence of IV drug use or heroin use was greater for studies which were cross-sectional in design (41 per cent) compared to studies which sampled entrants to prisons (28 per cent). This difference was statistically significant (t=3.00 P<O.Ol). Such observations may mean that studies which sample entrants to prisons could underestimate the prevalence of risk behaviours of prisoners within prisons.
|Author (see References)||Year of Study||N||Study Type||Country/State||IV Use %||Heroin Use %||Homosexuality %|
|Nacci & Kane 1983||1982||330||CS||USA||28|
|Chaiken 1982||1982||2200||USA/3 States||28|
|Hull et al. 1985||1982||455/659||CS||USA/New Mexico||41||4|
|Decker et al. 1984||1983||759/6503||CS||USA/Tennessee||47||22|
|Anda et al. 1985||1983||619/876||EN||USA/Wisconsin||27||4|
|Dobinson & Ward 1986||986||225||CS||Aust/NSW||42|
|Indermauer & Upton 1988||1986||926||EN||Aust/WA||20|
|Johnson & Egan 1986||1986||402||EN||Aust/WA||21|
|Glass et al. 1988||1986||818||EN||USA/Iowa||28||5|
|Conolly & Potter 1990||1989||158||CS||Aust/NSW||46||10 **|
|Barry et al. 1990||1985||406/470||CS||USA/Massachusetts||33||3|
|Andrus et al. 1989||1987/88||977||EN||USA/Oregon||53||3|
|Vlahov et al. 1990||1987/88||1932||EN||USA/Maryland||34|
|Vlahov et al. 1989||1985-87||1488||EN||USA/Maryland||37|
|Gaughwin et al. 1991||1988/89||373||CS||Aust/SA||37|
|Hoxie et al. 1990||1988||989||EN||USA/Wisconsin||25|
|Patel et al. 1990||1988||802||EN||USA/Michigan||20||4|
|*CS = Cross Sectional EN = Entrants **pers comm|
Few studies specifically address risk behaviours of female prisoners. Patel et al. (1990) found that 35 per cent of a sample of female prisoners in Michigan reported injecting themselves ever, compared to 23 per cent of male prisoners. In South Australia, 13 of 19 (68 per cent) women prisoners interviewed in 1988 volunteered that they had injected themselves at some time (not shown in Table 1) compared to 37 per cent of male prisoners. The United States National Institute of Justice (1990) described slightly greater prevalences of self-reported injection and positive drug screen by urinalysis among female arrestees compared to male arrestees in the USA. Miner and Gorta (1986) found that 65 per cent of a sample of ninety female prisoners in NSW had used heroin.
Studies of the Australian population of lifetime prevalence of injecting drugs or male homosexual experience have reported estimates of 2-5 per cent for intravenous drug use and 6-11 per cent for male homosexual experience (Ross 1988, Commonwealth Department of Community Services and Health 1988). Clearly, prisons aggregate intravenous drug users but not necessarily homosexual men.
Evidence for risk behaviours occurring in prisons
A straightforward way of finding out whether people engage in risk behaviours is to ask them. This approach while desirable, involves practical and ethical problems in prisons because the behaviours are illegal and many prisoners may not wish to incriminate themselves. But assurances of anonymity and asking indirect questions are two ways of overcoming such problems. It seems reasonable to argue that if the results of prevalence estimates which have been obtained by different methodologies are similar and consistent then it is likely that they are reasonably robust. Some investigators either because of the nature of their studies or their particular situation have not been affected by current constraints and because of this it has become possible to compare results which have been derived from data collected in different ways.
Since 1980 a few researchers - either because of a primary interest in the behaviours or as a secondary interest associated with the investigation of communicable diseases - have asked prisoners whether they or their peers have injected themselves while in prison and whether they have engaged in homosexual behaviour. The results of these studies are shown in Table 2. It is readily apparent that there are far fewer studies which have investigated the prevalence of risk behaviours within prisons compared to studies which have asked about lifetime risk behaviours. The considerable ethical and practical difficulties of working in prisons are probably the main reasons for this situation.
Despite these difficulties, different methodologies and few studies, there is striking consistency among the studies that about one-third of prisoners inject themselves while in prison and that estimates of the prevalence of homosexual activity are lower than those for intravenous drug use. The results are also similar to estimates obtained from one maximum security prison in Adelaide where both prisoners and officers were asked to estimate prevalence of risk (Douglas et al. 1989). In Federal prisons in the USA the prevalence of drug use detected by random urine drug screening in prison (4-7 per cent) is substantially lower than the prevalence estimate from drug testing at time of arrest (Quinlan 1987 reported by Heilpern & Egger 1989 cf National Institute of Justice 1990). This difference is consistent with behavioural data which suggest decreased prevalence and frequency of drug use in prison compared to outside prison.
|Author(see References)||Year of Study||Population/Study Type||IV Use (%)||Homosexuality|
|Decker et al. 1984||1983||random sample, 759 of 6503, Tennessee, USA direct questioning||28||18% unspecified|
|Nacci & Kane 1983||1982(?)||random sample, 330 from USA Federal prisons, (64% response) direct questioning||12% current prison|
30% in any prison unspecified
|Conolly & Potter 1990||1989||random sample, 158 in 6 of 26 NSW prisons Aust., direct questioning||32|| 9% unspecified|
2% anal intercourse*
|Gaughwin et al. 1991||1988/89||voluntary sample 373 of 791 5th Aust prisoner's estimates||37||12% anal intercourse|
When studies of risk behaviours of intravenous drug users while incarcerated are compared (see Table 3) this consistency in the data remains. It is also strikingly apparent that in all studies a large proportion of intravenous drug users shared needles while in prison. Dolan et al. (1990b) commented that in the UK, needle sharing increases in prison among those who inject but it should be borne in mind that the total number of sharing events may decrease since the frequency of injection appears to be on average substantially lower than among regular intravenous drug injectors outside prison (Tables 4 & 5). A more precise answer to that question would help a better epidemiologic understanding of the risk of HIV transmission in prisons.
While these somewhat crude values give us an idea of the likely extent of the problem in prisons they do not shed much light on the more detailed aspects of behaviours which may well be crucial to transmission. For example, only the Australian and UK studies have collected data on how needles were cleaned in prison. The evidence is that the majority of injectors fail to do so adequately. Risk behaviours should be assessed from their contextual aspects also. Whether injection occurs in groups, whether bleach is available and whether a prison officer is likely to approach may all profoundly alter the nature and severity of the risk associated with injection.
Little is known about what happens to risk taking behaviours on discharge from prison and whether they are relatively safe or unsafe. There is some evidence that prisoners after discharge are more likely to suffer adverse health outcomes, particularly death from drug overdose (Harding-Pink & Frye 1988). Again, the challenge is to ensure that the transition from prison to the outside community is a safe one. In our studies of IDUs in South Australia the data suggest that on release from prison most returned to their pre-incarceration injection behaviour but that perhaps there is a reduction in the prevalence of needle sharing (see Table 5). Some caution is required in interpreting behaviour after prison since most IDUs were recruited from drug treatment facilities. Dolan et al. (1990a) found that almost half of a sample of 139 IDUs who had been in prison shared syringes once outside prison and that 39 per cent had two or more sexual partners outside prison.
Prison sexuality requires special comment. While prevalence of male homosexual practices is estimated to be relatively low, the context of sexuality may have large implications for subsequent sexual behaviour and/or drug use. A young, powerless prisoner may be intimidated into engaging in quasi-consensual sexual activity which he may cope with by using drugs in prison. There are insufficient data, qualitative or quantitative, to be confident about the extent and effects of such activities but the fact that individual prisoners and officers mention these special circumstances should alert prison authorities to be aware of the possibility of sexual abuse. Conolly and Potter's (1990) observations that 8 per cent of drug injectors in a random sample of 158 NSW prisoners commenced injecting in prison and that of 14 men who had a homosexual experience as an adult 11 commenced in prison (pers. comm. ) are telling in this regard. Some of these aspects of sexuality have been reviewed by Heilpern and Egger (1989). It is clear that more well-designed studies in this area are needed.
|Author (see References)||Year of Study||Country||N||Approx Age||Sex||Months in Prison||% Injected||Shared Needles (% of injectors)||Cleaned Adequately (% of sharers)||% Homosexual Activity|
|Carvell & Hart 1990||1989||UK||50||31||84%M||21||66||79||10|
|Hart et al. 1989||1986/7||UK||32||29||M&F||34||73|
|Wolk et al. 1990||1987||Aust||54||28||M||50||100||13|
|Dolan et al. 1990a||1988||UK||139||28||69%M||65%<1mth||23||75||25||8|
|Gaughwin et al. 1991||1989/90||Aust||50||27||M||14||52||73||16||2|
|Gaughwin et al. unpublished||1989/90||Aust||9||28||F||8||67||100||33|
|Dolan et al.1990b||1989||UK||59||30||76%M||11||39||75||25||5|
|Dolan et al. 1990b||1989||UK||54||29||73%M||7||15||13||8|
|Donoghoe et al. 1989||1989||UK||286||>50%M||30||65||4|
|Connolly & Potter 1990*||1989||Aust||50||?M&F||94||30|
|*Imprisonment, interviewed in prison|
|Author (see References)||Daily||Weekly||Monthly||Occasionally||Mean (inj/wk)|
|Decker et al. 1984|
|Gaughwin et al. 1991|
|1. Prisoners' estimates (n=200)||9%||30%|||------61%-------||
|2. IDUs (n=56)||14%||28%||20%||38%||1 (approx)|
|Dolan et al. 1990a (UK, n=26)||0.7|
|6 Mths Before||In Prison||6 Mths After|
|Injected||39/50 (78%) **||26/50 (52%) *||34/46 (74%)|
|Frequency (daily or weekly)||34/39 (87%) **||3/26 (12%) **||28/34 (82%)|
|Shared Needles||28/39 (72%) ns||19/26 (73%) ns||18/33 (55%)|
|Cleaned Adequately||6/28 (21%) ns||3/19 (16%) ns||4/18 (22%)|
|Z test for proportions *P<0.05, **p<0.01, ns not significant|
|Author (see References)||Injected||Shared Needles||Sex|
|Wolk et al. 1990||2/3 (66%)||2/2 (100%)||2/3 (66%)*|
|Gaughwin et al. 1991||6/7 (86%)||5/6 (83%)||1/7 (17%)|
|Dolan et al. 1990a||11/24 (46%)||10/11 (91%)|
|Totals||19/34 (56%)||17/19 (89%)||3/10 (30%)|
|HIV Infected||19/34 (56%)||17/19 (89%)|
|HIV Negative or Unknown||66/209 (32%)*||53/66 (80%)ns|
|* Chi square = 6.56, P = 0.01, ns not significant|
|Y yes, N no, YR yes but significantly restricted|
|Author (see References)||Year of Study||Study Type||Hep B Markers|
|Hull et al. 1985||1982||entrants||47%|
|Decker et al. 1984||1983||cross sectional||30%|
|Anda et al. 1985||1983||entrants||19%|
|Barry et al. 1990||1985||cross sectional||43%|
|Andrus et al. 1989||1987||entrants||36%|
Prisons are frequently places where physical violence occurs and the possibility of HIV transmission as a result should not be dismissed. Similarly, tattooing is a practice which occurs in prison and the needles which are used could transmit HIV (Doll 1988). Dolan et al. (1990b) found that the prevalence of sharing tattooing equipment was 4-9 per cent among a sample of IDUs who had been in prison.
Behaviour of HIV-infected prisoners in prison
There is some reason to expect that HIV-infected prisoners may differ from non-infected prisoners in their risk behaviours. The fact that they are infected indicates high-risk behaviour at some time. An important question is whether their behaviour within prison is risky. Again, because studies are few and have in general been done in low HIV prevalence populations, there are few data to compare. They are shown in Tables 6 and 7. It is apparent that most of the individuals interviewed injected themselves and shared needles while a smaller proportion engaged in homosexual behaviour. Dolan et al. (1990a) found that HIV-infected prisoners were more likely to inject and share needles in prison than non-infected prisoners and those who did not know their antibody status.
After aggregating the data from these studies the consistent finding is that HIV-infected prisoners are more likely to have injected themselves when they were in prison compared to non-infected IDUs or those who did not know their antibody status. But both HIV-infected and non-infected IDUs who injected in prison were about equally likely to share needles (see Table 7). One difficulty with these data is that some of those who reported themselves as HIV-infected did not know their antibody status during their imprisonment. And, other determinants of injection such as sentence length may confound the apparent association between HIV status and the likelihood of injection.
While there are too few data to generalise confidently to prisons as a whole, the data should sound two warnings. First, a great deal more information is needed about the risk behaviours of HlV-infected prisoners. Second, vigorous attempts should be made to assist HIV-infected individuals to reduce the risk they pose to others.
Evidence for prison environments facilitating risk behaviours
Intravenous drug use by itself is not necessarily a risk behaviour for HIV transmission. Sharing of implements for injection and/or failure to clean previously used needles adequately are almost certainly high-risk behaviours. What might distinguish prisons from other environments is the availability of education, and methods to make potentially risky behaviours safe. In early November 1991 a telephone survey of correctional jurisdictions in Australia by this research group indicated that clean needles with which to inject, bleach to clean needles and specifically targeted education about how to clean them (as in the Gaolwize comic) were not available in most Australian prisons (see Table 8). Data from a South Australian study of prisoners in a maximum security prison suggest that prisoners are concerned about HIV infection, feel they need to know more about HIV to protect themselves and, while they are of the opinion that most injectors have not reduced their injecting because of HIV, they are also of the opinion that clean needles would reduce the risk of HIV transmission (Gaughwin et al. 1990). In the current climate of uncertainty surrounding the implications of distributing sterile needles, an appropriate measure would be at least to make bleach more widely available. If prisoners were adequately instructed to use bleach before and after injecting this would not only reduce risk to themselves but also to those officers who accidentally prick themselves while searching for contraband. Condoms are in the same category as bleach. They present no hazard to staff or prisoners and should be widely distributed.
These, of course, are not the only ways of approaching or dealing with the actual and potential problems of risk behaviours in prisons. Other approaches such as education, counselling and drug treatment programs are just as important. But a certain amount of pragmatism is called for in the current climate of risk. One outstanding generalisation from the research which has investigated the relationship between intravenous drug use and HIV infection is that prevalence and presumably transmission of infection can change very rapidly. The reasons for such rapid change are by no means clear. This behoves us to be vigilant in our surveillance of both infection and behaviours which might transmit the virus and to be vigorous, innovative and pragmatic in our approaches to reducing the risk of transmission. We have a number of choices. We can deny the behaviours exist, we can proclaim their illegality or we can attempt to do something about them. Prisoners know about AIDS and are concerned for themselves (Gaughwin et al. 1990) but they need responsible assistance from those who control and manage them to lessen their risk of infection.
The possible future of HIV infection in prisons
The HIV epidemic in Australia continues with new infected individuals being detected. There is insufficient information on HIV seroprevalence and transmission among intravenous drug users in Australia to know precisely whether transmission is increasing, stable or decreasing. Seroprevalence of HIV in South Australian prisons was low (about 0.8 per cent) and stable during 1989 (Gaughwin et al. 1991) suggesting that there has not yet been the rapid increases in infection among IDUs that have been observed elsewhere in the world. But the total number of infected persons detected is increasing and, as treatments become better, we can expect those infected to live longer, some to be imprisoned and some to be infectious to others. Prison administrators can expect an increased burden of caring for and managing HlV-infected prisoners in the coming years. The somewhat peculiar characteristics of population dynamics in prisons mean that there is an opportunity to regulate to some degree the exposure of non-infected prisoners to HIV. But to do this effectively will require a commitment to adequate surveillance of infection and risk behaviours and provision to prisoners of optimal opportunities to reduce risk to themselves. The extent of the likely worst-case scenario might be gleaned from information which is available about the seroprevalence of hepatitis B infection among prison populations. Transmission of hepatitis B is thought to be more efficient than HIV and natural immunity occurs unlike HIV. Measurement of the prevalence of any markers of infection can be used as a surrogate indicator of the potential extent of HIV infection. The prevalence of hepatitis B serological markers in USA prison populations (there are no recent Australian studies) is shown in Table 9. It can be seen that up to almost half of some prison populations have been infected. If this occurred for HIV, the economic, administrative, social and health burdens would be profound. Far better for us to act now so that it never does. Risk behaviours are occurring in Australian prisons. If we are to avoid a catastrophe, definite action will need to be taken. We cannot just hope that the situation will get no worse than it is now.
It is important to sound a note or two of caution about the data which is available on which to evaluate risk in prisons. Ethical restrictions have severely limited the collection of detailed data from prisoners while they are in prison and in our own situation in South Australia the indirect methods we have used have not allowed us to estimate the biases that may be present in voluntary samples. Studies of former prisoners are clearly biased to males with histories of significantly dysfunctional drug use. A large proportion of respondents are relatively old and, in Australia, there are no published data which describe risk behaviours of Aboriginal prisoners.
The evidence from this review leaves little doubt that prisons are risky places. Circumstances of prison life may fortuitously decrease the risk of HIV transmission in prison but the situation is a fragile one with inherent instability. Such a situation requires vigilance. It would be gratifying to come back in three to four years time and observe that prisons in Australia have contributed significantly to stemming the transmission of HIV. This hope is neither naive nor idealistic. It is possible and the challenge is to make it happen.
The assistance of the Commonwealth AIDS Research Grants Committee, the Drug and Alcohol Services Council of the South Australian Health Commission, the University of Adelaide, the SA Prison Medical Service, the Department of Correctional Services and the prisoners of South Australia are gratefully acknowledged.
Since this paper was compiled, a number of important articles have been published which add to our knowledge of risk behaviours for HIV infection in prisons. In general, these papers echo the main findings and conclusions of the review paper but a number of important contrasts are evident.
Large studies in England (Turnbull, Dolan & Stimson 1991) and Scotland (Power et al. 1992) have supported the observation that the prevalence of injection while in prisons among those with a history of injecting drug use (IDU) is lower than the prevalence outside prison. But both these studies report prevalences of injection inside prison modestly lower than the mean prevalence reported in IDUs in our paper. Such differences should be expected as the number of studies increases principally because prison systems around the world are different, as are the judicial systems which determine whether an IDU will be imprisoned for a particular offence. The nature of samples in studies will assume increased importance and multiple regression techniques - which take account of many factors which may influence the likelihood of injection in prison - should be used.
Most studies do not allow calculation of the relative risk of engaging in risk behaviours in prison compared to outside prison principally because questions asked did not allow determination of the number of risk-taking events per IDU per unit time. Such estimates are important, and the value of developing suitable questionnaires for such research is clear.
An example of such a situation is seen in a study of IDUs at a Glasgow needle exchange (Kennedy, Nair, Elliott & Ditton 1991) which found that about 70 per cent of respondents had a history of imprisonment: of these about 50 per cent injected while in prison and slightly less than 50 per cent of those who injected shared needles while in prison. But information which would allow comparison of, for example, the number of times needles were shared in and out of prison per unit time was not reported.
While studies of former prisoners have predominated in recent literature, a few studies from within prisons have been published. One study from within the Saughton prison in Scotland (Dye & Isaacs 1991) which had a 32 per cent response rate reported a prevalence of injection among inmates outside prison of 35 per cent and an in-prison injection prevalence of 24 per cent. Among those who did inject while in prison, needle sharing prevalence was 76 per cent. Prevalence of injection and HIV status varied by type of prison, but response rates varied substantially by prison also.
A study of New Zealand prisons (Patten & Gray 1991) conducted within prisons found that 26 per cent of 190 inmates surveyed had injected themselves in prison while 17/190 had engaged in any sexual activity and 2/190 in anal intercourse.
Remarkably, Power et al. (1992), in a study of a stratified random sample of 559 prisoners from eight Scottish prisons, achieved a response rate to questioning about risk behaviours of 86 per cent. They found that only 28 per cent of inmates reported ever injecting themselves and about 8 per cent had injected while in prison. Of those with a history of injection, 97/154 had shared needles outside prison and 32/43 had shared needles inside prison. About 50 per cent of those who shared needles sterilised them routinely either inside or outside prison. The absolute estimates of injection prevalence are low compared with other studies conducted within prisons but consistent with studies of IDUs in that about 30 per cent of those prisoners who were IDUs injected while in prison. In another report of the same population they found only 1/559 inmates had engaged in sexual activity while in prison (Power et al. 1991).
Lower estimates of pre-imprisonment injection prevalence were obtained by Maden, Swinton and Gunn (1990; 1992) who reported a prevalence of 11 per cent among male prisoners and 23 per cent among women prisoners. Their study in male prisons was again remarkable in achieving a response rate of greater than 90 per cent. It involved a large random sample of 1751 and was conducted across all of England and Wales. These authors acknowledge the possibility of under-reporting of risk behaviours which must be considered seriously.
To reiterate the conclusions of this paper, prisons have responsibilities and power to make a substantial contribution to stemming HIV transmission. To accept such responsibility will require courage and the insight that they do not exist in a world which is apart from the communities in which they are located and that they need to address with their communities the welfare of prisoners both while they are in prison and while they are outside.
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Issues in HIV/AIDS in the Australian prison system / Judi Fortuin (ed.)
ISBN 0 642 18311 2
Canberra : Australian Institute of Criminology, 1992. pp. 101-120