Right to medical care
Every detainee is entitled to medical care. In any case, this means that an institution doctor, a dentist, a psychologist or a psychiatrist must be regularly available.
Disputes may arise over whether appropriate care is provided. Any disagreements with the medical service usually relate to diagnosis, medication or method of treatment. A detainee who doubts whether he is receiving the right care does not have to put up with it.
Second opinion
First of all, every detainee has the right to seek a second opinion from a doctor of his/her choice, who has agreed to do so. This doctor may give his opinion, but may not treat the detainee himself. In practice, a second opinion comes about after the institution doctor has consulted with the chosen doctor. If new insights emerge in these discussions, the institution doctor will - normally - reconsider and revise his decisions. The costs for a second opinion are, however, borne by the detainee.
If a second opinion is not an option (financially), or if the institution doctor - despite disagreement with the doctor of choice - refuses to revise his opinion, the medical complaint procedure is open. Note that if the complaint concerns medical acts or omissions, a different procedure is open than for complaints about decisions made by the director. This is because, in the case of medical complaints, a distinction must be made between organisational complaints and medically substantive complaints.
Medical complaint procedure
The moment a detainee intends to file a medical complaint, a request for pre-mediation should be submitted to Head of Care of the PI. This request should be submitted within 14 days of the medical action in question. If the Head of Care fails to mediate, the complaint should be forwarded. Complaints of an organisational nature are forwarded to the Supervisory Committee at the relevant PI. This is because these complaints relate to a direct task of the director. The decision of the Supervisory Committee can be appealed to the RSJ within seven days.
Medically substantive complaints are forwarded to the Medical Adviser, who will then also try to mediate between the detainee and the institution doctor. The Medical Adviser will write a written opinion to the detainee and the institutional doctor. The director will also receive a copy of the opinion. If necessary, the advice of the Medical Adviser can be appealed to the RSJ. This appeal must be submitted within seven after receipt of the Medical Adviser's advice. Only complaints that have gone through the steps described above will be considered by the RSJ. Moreover, the appeal lodged with the RSJ can only relate to the medical conduct in respect of which the Medical Advisor has attempted mediation. For the case to be dealt with substantively, there must therefore have been no change in the content of the mediation request. Otherwise, it is no longer about the same medical acts.
Equivalence principle
Based on the principle of equivalence, medical care for detainees should be as equivalent as possible to that in free society. This criterion of equivalence must at least be met in order to speak of proper medical care, to which every detainee is entitled. With regard to the procedures to be followed in case of medical complaints in detention, the question could therefore be raised whether the principle of equivalence is met.
Beware of medical complaints
In any case, it should be clear that a detainee should be more attentive to medical complaints than someone outside the institution. For them, these procedures and deadlines do not apply. If the proper procedures and deadlines have not been observed by or on behalf of the detainee, the RSJ cannot (ultimately) give an opinion on the medical complaint either.
Even in law, the adage 'prevention is better than cure' often applies. So don't let it come down to a legal discussion about whether the medical complaint can still be dealt with substantively. But keep to the deadlines or consult your lawyer in time. After all, your health is at stake.
Ms M.F.M. Ortner