Medical Care in Prison in Austria: Rights, Treatment and Complaint

The basis is section 66 StVG: the institution must preserve the physical and mental health of prisoners, monitor their state of health and attend to hygiene. This health care is not a voluntary service but a statutory task of the institution.

Where an illness arises, section 68 StVG applies. If a prisoner reports sick or there are signs of an illness, the prison doctor (Anstaltsarzt) must be notified. The doctor must examine the person, ensure the necessary medical and special treatment, assess fitness for work and state of health, and decide on appropriate accommodation. The entitlement is to treatment in line with the state of medical science, not to the choice of a particular doctor.

Important is the limit of compulsory treatment. A medical treatment, in principle, requires the consent of the person affected. A compulsory examination, compulsory treatment or compulsory feeding is admissible only under the narrow conditions of section 69 StVG, namely where it is without danger to life and reasonable and, outside emergencies, carried out with the required authorisation. The right to self-determination thus remains, in principle, preserved even in prison.

The first step is the sick report. It triggers the duty to notify the prison doctor, who examines the prisoner. From the examination follows the further treatment: in the prison clinic, by specialists called in or, where necessary, outside the institution.

Where care in house is not sufficient, the transfer under section 71 StVG comes into consideration. Where a sick or injured person cannot be treated adequately in the current institution, they are to be transferred to the nearest suitable institution. Where adequate treatment is not possible there either, or where a transfer would endanger life, the person is to be admitted under guard to a public hospital (Krankenanstalt); the hospital is obliged to admit. For accommodation in a psychiatric ward the rules of the Hospitalisation Act (Unterbringungsgesetz) apply with adaptations.

A special role is played by continuity of treatment. Anyone who was in treatment before imprisonment should put the prior findings and the medication plan on the file early through the prison clinic. That ensures a medically indicated therapy is not interrupted without a professional reason, and creates a sound basis should the continuation be disputed.

Where necessary care fails to happen, a distinction must be drawn between two routes. Where it concerns a decision or order affecting the rights of the prisoner, for example the refusal of access to an indicated treatment, the complaint (Beschwerde) under section 120 StVG is the means of choice. It must be brought within two weeks of learning of it. Where no remedy is granted, the enforcement court (Vollzugsgericht) decides on complaints against decisions of the prison governor (section 121, section 16 StVG); a further complaint to the Higher Regional Court Vienna (Oberlandesgericht Wien) is admissible only where a question of law of fundamental importance arises (section 16a StVG).

Alongside this stands the invocation of the supervisory right of the prison authorities under section 122 StVG. This supervisory complaint is possible without formality and is directed to the superior body; on it, however, no formal decision need be issued. It is suited to drawing attention to shortcomings in care, but does not replace the time-bound complaint against a concrete rights-infringing decision.

In urgent cases speed counts. Where waiting threatens health disadvantages, this should be asserted expressly and, as far as possible, underpinned medically. A carefully documented and concretely reasoned submission has noticeably better prospects than a blanket complaint, because it provides the deciding body with a verifiable basis.