• It is against the law for a prisoner to be tested for HIV against their wishes or knowledge. A prisoner does not have to take an HIV test even if the prison authorities demand this. Informed consent must always be given for an HIV test. (See HIV testing and informed consent)
• It is against the law to force a person to make a confession or admission, for example about THEIR HIV status, so that this can be used against them
• The courts cannot use evidence that was forced out of a prisoner in a way that goes against the person’s rights
• Prisoners have the right to receive healthcare, including preventative measures, equivalent to the care available in South African communities. This means prisoners with HIV and TB should have access to the same kinds of treatment and care that are available to non-prisoners. (See Case Study Dudley Lee v The Minister of Correctional Services)
• Prisoners have the right to confidentiality about their HIV status (See Confidentiality)
• Prisoners have the right to TB and STI screenings and treatment
• Policies and practices should be put in place to create a safer environment and diminish the risk of transmission of TB, HIV and sexually transmitted infections (STIs) to inmates
• It is against the law to segregate (separate) a prisoner with HIV or AIDS or TB from other prisoners. Segregation is only allowed if ordered by the medical practitioner on medical grounds (e.g. communicable diseases such as TB). The periods for segregation should not exceed 37 days.

CASE STUDY – DUDLEY LEE v THE MINISTER OF CORRECTIONAL SERVICES

This is a landmark case that highlights the state’s responsibility for ensuring that the constitutional rights of detainees are maintained and safeguarded. Lee sued the state because he contracted TB in Pollsmoor’s overcrowded, poorly ventilated cells. His case succeeded in the Cape High Court but was overturned by the Supreme Court of Appeal. Lee appealed to the Constitutional Court where he eventually won in December 2012. The majority of the Court found that the Department of Correctional Services (DCS) negligently caused Dudley Lee to become infected with tuberculosis (TB) while it detained Lee in Pollsmoor prison from 1999 to 2004. The Court therefore held that the DCS should be liable to Lee.