By Zethy Suhaidah / Sharan Raj / Dr Khor Swee Kheng

Fyodor Dostoyevsky, the famous Russian author, once said that "the degree of civilization in a society is revealed by entering its prisons".

As Malaysia has always claimed that we are a civilized society, we must therefore do more for the people in our prisons.

In this article, we share several facts and statistics about how Malaysia's prison infrastructure coped with COVID-19, explore the inadequate landscape of healthcare in prisons, and propose three specific ways to improve healthcare for individuals in custody.

Prisons are overcrowded, but there are ways to decongest them

The facts about over-crowded prisons are sobering, even before the COVID-19 pandemic hit.

According to the Human Rights Commission of Malaysia (SUHAKAM), Malaysian prisons are extremely overcrowded with total inmates exceeded 40% from its intended capacity.¹

There is also an injustice to the overcrowdedness, with 25% of those in prison being pre-trial detainees (in other words, they are not convicted of a crime but yet are still in prison).²

A 2019 study shows that prisoners suffer from tuberculosis and hepatitis B more than the general population.³

COVID-19 accelerated these trends of poor health. On 4th April 2021, the Sarawak State Disaster Management Committee confirmed that the spike in COVID-19 positive cases in Sarawak was due to a 40% increase of prison and detention cluster in that state.⁴

On a per capita basis throughout Malaysia, prisoners are 5.5 times more likely to acquire COVID-19.⁵

This should not surprise us, as years of overcrowding led to poor sanitation and living conditions in prison.

Inmates are kept in close proximity with each other, rendering physical distancing near impossible. Thus, conditions were perfect for COVID-19.

An important solution to reduce the risk of COVID-19 among prisoners is to decongest prisons, and one important decongesting solution is to decriminalize drug offenses.

In 2018, more than 55% of Malaysia's 65,222 inmates were drug offenders.

The Drug Dependents (Treatment and Rehabilitation) Act 1983 sends anyone in possession of drugs straight to prison, almost regardless of circumstances.

This punitive aspect to drug abuse is not in keeping with most countries (like Czechia, Germany, Portugal or Sweden) which seek to rehabilitate drug users rather than punish them. 

In June 2019, the Pakatan Harapan government proposed to decriminalize drug usage to allow drug addicts to be treated as medical patients rather than criminals. This is a welcome move, making Malaysia consistent with drug use policies and laws around the world.

The proposal has been on halt since the PN government took over in early 2020.

Decriminalizing drug offenses will reduce the unnecessary imprisonment of drug offenders, improve living conditions in prisons and treat drug offenders more humanely, and reduce their interactions with "true criminals" like those who committed theft, robbery or assault.

This move will also dramatically reduce prison overcrowding, which is an important step to improve the safety of prisoners during the COVID-19 pandemic.

Healthcare in prisons is inadequate

We must also understand the custodial health landscape in order to reduce COVID-19 in Malaysian prisons.

The Prison Department is guided by the Prison Act 1995. Under Section 14 in the Prison Act, every prison should have a medical officer and a dental officer. However, given the overcrowded nature of prisons, according to the 2018 Prison Department Statistics, the ratio of doctor to prisoner is 1:1000. By comparison, the population to doctor ratio is 1:454.

The small number of doctors cannot provide adequate healthcare for the large number of prisoners, and that could lead to poor quality healthcare.

Complicating the issue is a potential conflict of interest for medical personnel working in prisons.

Traditionally, a doctor's main (or sole) responsibility is to treat their patients. However, a SUHAKAM report in 2017 stated that the medical officers in prisons have a dual responsibility, with their primary obligation being towards the Prison Department (their employers) instead of the prisoners (their patients). This could lead to potential ethical conflicts.

Additionally, prison health professionals received little to no formal training in prison health care and medical ethics.

Custodial or prison medicine is a unique specialty with specific training provided for these doctors in developed countries like in Europe.

The best interests of the patient might be undermined in prison situations that are highly-securitized.

Therefore, the Prison Department has the responsibility to train prison doctors on medical ethics and human rights to ensure fair healthcare and to de-securitize their healthcare services wherever possible.

There are practical solutions to improve prison health

We propose three specific and practical solutions to improve the health of inmates in Malaysian prisons, especially in light of COVID-19.

1. The efforts of the All Party Parliamentary Group Malaysia for the Reform of All Places of Detention (APPGM), a bipartisan collaboration of MPs and civil society groups, should be accelerated.

They have previously urged the government to consider a policy reform on drugs possession for justice, efficiency and health reasons.⁶

The federal government spends about RM540 million per annum to maintain prisons including prison staff remuneration.

Treating drug abusers as a medical condition will reduce prison overcrowding translating to better health and lower operational costs.

2. Existing low-risk and non-felony detainees including those awaiting trial should be released.

In October 2020, the Director-General of Prisons executed a pilot project to reduce certain low-risk detainees to reduce prison congestion.

We propose that the details of this pilot project be released to the population to reassure them, and that this project be scaled up if it is successful.

Separately in July 2020, the Prison Department announced a target to rehabilitate and release around two thirds of inmates before 2030.⁷

However, the statistics of the progress should be regularly released so the public can judge its success.

The release of this group of low-risk inmates would decongest prisons and allow better living conditions.

3. The healthcare services in Malaysian prisons needs to be improved. There should be an adequate ratio of doctors, dentists, pharmacists and nurses on a per capita basis, at least equal to that of the Malaysian population.

The Ministries of Health and Education can combine to send adequate numbers of health professionals to undergo additional professional masters, diplomas or certificates in custodial medicine or prison health, so that health professionals will be better equipped for a highly-unique population.

4. We propose greater transparency of statistics for prison health, including disease burden and financial statistics.

At the moment, there are no publicly available statistics on the healthcare spending for each prisoner in Malaysia. Therefore, we are unable to analyze its adequacy, appropriateness or relevance of spending categories.

At the very least, healthcare spending for each prisoner in Malaysia should be on par with the average for the general population.

COVID-19 has exposed the underlying issues in prisons, a topic which was previously taboo. By reducing prison overcrowding and by providing adequate healthcare services to prisoners, we can protect them, reduce COVID-19 infections, increase the chances of drug offenders beating their addictions, while preserving the dignity of our civilized society.

Prisoners in Malaysia are like the rest of us, fully endowed with human rights which the government and society must respect and protect.

We must protect them, and there are ethical, pragmatic and politically acceptable ways to do so.

References:

¹ Malay Mail: Suhakam: Prisons overcrowded by 40pc maximum capacity, creating perfect storm for Covid-19 outbreaks

² PrisonStudies.org: Malaysia

³ Amer Hayat Khan and others, "Incidence and Risk Factors Associated with Tuberculosis Treatment Outcomes Among Prisoners: A Multicentre Study in Malaysia" Infectious Diseases in Clinical Practices, Volume 27, Number 3 (May 2019)

⁴ Bernama: Tembok cluster in Sri Aman highest contributor of infections in S'wak

⁵ Business Insider: Prisoners are 5 times more likely to get COVID-19 than the overall population

⁶ IDPC: Malaysia: Citing prison overcrowding, group urges reform to rehabilitate minor drug users

⁷ Malay Mail: Prisons Dept D-G: Malaysia's parole system effective in reducing recidivism

(Zethy Suhaidah is trained in law and specialises in health law; Sharan Raj is a human rights activist and environmental activist; Dr Khor Swee Kheng is a physician specializing in health policies and global health.)