Special Law for Persons Deprived of Liberty with Terminal Stage Diseases

This Law is special in nature and has as its object to exceptionally regulate the budgetary requirements and circumstances related to persons deprived of liberty who suffer from incurable diseases in terminal phase, as well as the legal procedures that must be observed prior to their release. To guarantee the human dignity of any person deprived of liberty who suffers from terminal phase disease, every servant of justice shall adopt appropriate measures to ensure that such person is released immediately and transferred to the care of their family, to a medical center, or to social assistance institutions, according to the circumstances, adopting, if necessary, security measures or any other provision that each case warrants, without prejudice to the continuation of the proceedings, if applicable.

For the purposes of this Law, the following terms shall be understood as: 1) Release: The fulfillment in freedom of preventive detention, internment measures, and the sentence of imprisonment, as applicable; and, 2) Servant of Justice: The male and female judges in criminal matters and execution judges, prosecutors, public defenders, forensic doctors of the Public Ministry, Directors and Directresses of penal establishments and internment centers. CHAPTER II PREVENTION ACTIONS

The institution in charge of the general administration of penal establishments or internment centers shall order the Directors and Directresses thereof to implement, at the national level, a file for each one of the persons deprived of liberty with their corresponding Penitentiary Medical Record, and must prepare and keep updated the medical and legal information thereof, to determine in advance the conditions of existence and health of the person deprived of liberty, with the proper specification of the diseases they suffer from, and whether such disease is in process or has evolved to terminal phase affecting their physical and psychological autonomy with respect to the disease. The Directors and Directresses of penal establishments and internment centers, prior to the reports of the Interdisciplinary Technical Councils or the respective medical and social work professionals, as applicable, shall issue an opinion regarding the possible risks involved in the release of the person deprived of liberty who suffers from terminal phase disease. In the same manner, they must proceed to the investigation and location of family members and legal representatives who can care for them, and if none are found, determine the Government or non-Government institutions, duly authorized, dedicated to providing assistance services to persons with terminal phase diseases. Regarding all of the foregoing, they must keep the Judicial Hearing that knows the case informed, and must at all times guarantee proper medical care to the person deprived of liberty until the moment their release is ordered by competent authority. CHAPTER III DETERMINATION OF FUNCTIONAL CAPACITY AND CLINICAL CRITERIA FOR RELEASE

For the legal purposes that proceed in law, to determine whether a person deprived of liberty or interned is suffering from incurable serious disease in terminal phase, the following KARNOFSKY ACTIVITY INDEX is adopted: FUNCTIONAL CLASS FUNCTIONAL CAPACITY OF THE PATIENT 100 Normal; without symptoms; without signs of disease. 90 Capable of performing normal activity; minor symptoms or signs of disease. 80 Normal activity requires effort; some symptoms and signs of disease. 70 Autonomous (able to care for oneself); incapable of performing normal activity or active work. 60 Requires assistance occasionally, but is capable of caring for most of their needs 50 Requires significant assistance and frequent medical care. 40 Incapacitated: needs special care and assistance. 30 Severely incapacitated: hospital admission is indicated, although death is not imminent. 20 Very serious: admission is necessary; active supportive treatment is necessary. 10 Dying: mortal processes that progress rapidly. 0 Death.

To apply the criteria of the KARNOFSKY Activity Index, the evaluation shall be based on clinical and laboratory examinations that correspond to each type of disease and that diagnose the presence or existence of conditions of the person, thus; 1) Human Immunodeficiency Virus (HIV) When there is presence of at least three (3) of the following symptoms and signs in the presence of a positive HIV ELISA test:

• a)

  Diarrhea equal to or greater than one (1) month in duration;

• b)

  Fever equal to or greater than one (1) month in duration;

• c)

  Presence of a disseminated opportunistic infectious disease marker of AIDS (Example: tuberculosis, cerebral toxoplasmosis, cerebral cryptococcosis, histoplasmosis and other bacteria, fungi, viruses and parasites);

• d)

  State of cachexia (physical wasting or extreme weight loss); and, e) Impairment of the patient's mental state (example: Behavioral disorders, confusion and mental disorientation, seizures, coma). 2) Tuberculosis. When all the following conditions are met:

  • a)

    Disseminated tuberculosis, documented clinically and radiologically with one or more special laboratory tests;

  • b)

    When the disease is associated with clinical manifestations that define AIDS; and, c) When the patient expresses laboratorially a tuberculosis refractory to conventional antibiotic treatment. 3) Renal Insufficiency. When one or both of the following conditions exist: a) Every patient whose medical condition has led them to permanently require a peritoneal dialysis and/or hemodialysis procedure; and, b) That patient who, although they do not yet have indications for dialysis, their renal insufficiency is associated with or dependent upon a chronic degenerative disease or diabetes mellitus or chronic arterial hypertension or other unspecified chronic disease or disease of unknown cause, that affects their general state manifested by anemia from moderate to severe, diminished urine production, general metabolic manifestations, weight loss. 4) Cardiopulmonary Diseases. Whatever their cause according to the following clinical classification: A. Congestive Heart Failure Whether valvular, myocardiopathy, ischemic or congenital, according to the following classes: i) Class III: Minimal physical activity beyond what is customary triggers respiratory difficulty and bodily fatigue; and, ii) Class IV: Even at rest there is respiratory difficulty and bodily fatigue and worsens with any physical effort. B. Ischemic Heart Disease When one or more of the following evolution states are present: i) When it is in Class III or IV of congestive heart failure; and, ii) When unstable angina exists (angina is defined as oppressive precordial chest pain triggered by physical or emotional effort), according to one or more of the following criteria:

    • •

      Intense angina of less than two (2) months onset

    • •

      Angina at rest or with minimal physical activity;

    • •

      When chronic angina increases in intensity and frequency; and,

    • •

      Angina that appears repeatedly shortly after an acute myocardial infarction. C) Malignant Arterial Hypertension When two (2) or more pathologies are present, of the following criteria: i) A diastolic pressure equal to or greater than 120mmHg that is difficult to control therapeutically; ii) Presence of congestive heart failure of Class III or IV; iii) Presence of unstable angina; iv) Presence of hypertensive encephalopathy: (severe and persistent headache, seizures, visual alterations, weaknesses-pareses- or paralysis- plegias- of body regions); and, v) Rapid and progressive deterioration of kidney functioning that places it in a situation of renal insufficiency. D) Pulmonary Emphysema and/or Chronic Bronchitis (COPD- Chronic Obstructive Pulmonary Disease) When one or more of the following findings existed: i) Chronic and severe respiratory difficulty that chronically conditions a state of lack of oxygenation (hypoxia) for which the patient expresses a bluish color in their skin (cyanosis) making them dependent on oxygen intermittently and/or chronically; ii) Repeated presence of respiratory infections (fever, greenish sputum, intensification of cough, chest pain) that worsen respiratory insufficiency making oxygen use necessary; and, iii) The presence of right congestive heart failure characterized by: jugular venous congestion (jugular engorgement), increase in liver size (hepatomegaly), free fluid in the abdomen (ascites), and fluid retention in the lower limbs and rest of the body (edema, anasarca). E) CANCER: Patient with any type of cancer (documented histopathologically) whether solid tumors, primary, metastatic or malignancies of the Hematological System (leukemias, lymphomas, etc.). F) Other Terminal Phase Diseases Degenerative Diseases of the Nervous System: Any other type of serious chronic disease with impairment of the functioning of one or more organs or systems, documented clinically and laboratorially, giving rise to a Karnofsky index of fifty (50) or less, based on the clinical criteria established by regulation, for the purposes of this item. Degenerative Diseases of the Nervous System such as: - Patients with affliction resulting from progressive, advanced and manifest senile dementia. - Patients with ALZHEIMER'S disease in advanced and manifest stage.

The resolution for release by reason of any terminal phase disease shall only be issued in favor of the person deprived of liberty whose state of health, documented clinically and laboratorially, is chronic and serious, as a consequence of their suffering from disease of an irreversible and irrecoverable nature, whose evolution is toward death and that, based on clinical findings supported by laboratory studies, is located at fifty (50) points or less on the Karnofsky physiological activity scale, and for this reason their social dangerousness has diminished.

Any Servant of Justice or whoever represents the National Commissioner for Human Rights, upon becoming aware that a person deprived of liberty suffers from terminal phase disease, shall request the release of such person, in accordance with the provisions of this Law. The same request may be submitted by the Private Defender or any natural or legal person, as applicable.

In the case of adults in proceedings or serving a sentence, the request for release shall be presented before the Execution Judge of the place in whose jurisdiction the person deprived of liberty is interned. In the case of minors, it shall be presented before the Judge who knows the case.

As soon as the competent Judge becomes aware of a case covered by this Law, they shall ex officio order the medical examination of the person deprived of liberty, sending the respective clinical file so that within the following twenty-four (24) hours it is processed by the National Directorate of Forensic Medicine, which within the following seventy-two (72) hours shall issue an opinion on whether the inmate meets the requirements of this Law. Likewise, simultaneously, they shall request from the Director or Directress of the Penal Center or Internment Center, as applicable, the opinion on the assessment of the risks that the dangerousness of the sick person deprived of liberty may cause to public safety, as well as the reference to the family members, legal representative, or public or private institution that can take charge of such person.

Prior to the preparation of the opinion referred to in the previous Article, the forensic doctors, with respect to the person deprived of liberty in whose benefit the request is made, must perform the following actions:

• 1)

  Verify and complete the corresponding clinical history;

• 2)

  Perform a complete physical examination, using examinations, analyses, radiographs and any other pertinent means and procedures;

• 3)

  Prepare a diagnosis that determines the inmate's general state of health; the current phase of the disease; the effects that the prison environment produces on the person deprived of liberty; the degree of personal autonomy, as well as the frequency of medical care required;

• 4)

  Provide a prognosis of the evolution and functional impact of the disease; and,

• 5)

  Recommend or not the release of the person deprived of liberty in favor of whom the benefit is requested, as well as the medical care required.

Upon receipt of the opinions and the reference report prescribed in the previous articles, the Judge, in a hearing with the presence of a representative of the Public Ministry and of Public or Private Defense, as applicable, shall issue a duly reasoned resolution in which they shall order or not the release at issue. In case of ordering the release, they shall appoint the person, family member, legal representative or determined institution that assumes responsibility for the inmate, remaining obligated to inform the Judge of the incidents that arise regarding the health status of the person deprived of liberty and their behavior with the frequency that has been established. Likewise, the Judge, as applicable, shall impose the security measures they deem appropriate to the nature of the circumstances in question, to prevent the commission of a crime by the person benefited by the release, all without prejudice to the continuation of the proceedings, if applicable. If the person benefited commits a crime after their release, the Judge may reconsider the measure by replacing it with another more appropriate and effective one, without prejudice to the initiation of the new proceeding.

A record shall be made of all that has been acted upon in the release procedure established in this Law, in the corresponding file, for the legal purposes that correspond in law. If the beneficiary is a defendant, the Execution Judge shall send to the Court or Tribunal that is hearing the case, a copy of the file and the actions taken as a result of the incidents that occurred after the resolution issued. The resolution that declares the release without basis does not cause final disposition.

The Judicial Branch, the Public Ministry, the National Commissioner for Human Rights, the Honduran Institute for Children and Family (IHNFA) and the Secretaries of State in the Departments of Health, Security and Governance and Justice, must establish effective coordination for the expeditious compliance with this Law. The foregoing without prejudice to the collaboration of any other public or private institution that addresses these cases.

The institutions referred to in this Law must send to the Secretary of State in the Department of Finance, the corresponding budgetary increases within the term of ninety (90) days, counted from the date this Law takes effect.

The provisions contained in this Law shall be applied preferentially to any other ordinary or regulatory Law that regulates that which is provided for herein.

All resolutions issued pursuant to this Law shall be subject to ordinary and extraordinary remedies, without suspending the proceedings.

For the purposes of this Law, all days and hours shall be deemed business days for those who must perform proceedings, reports, expert opinions, or any other action, and those who obstruct their execution shall incur the corresponding legal responsibility.

This Law shall enter into force twenty (20) days after its publication in the Official Gazette La Gaceta. Given in the city of Tegucigalpa, municipality of the Central District, in the Session Hall of the National Congress, on the thirteenth day of the month of March of two thousand seven. Published in the Official Gazette La Gaceta No. 31,293 of May 3, 2007.

ROBERTO MICHELETTI BAÍN PRESIDENT JOSÉ ALFREDO SAAVEDRA PAZ SECRETARY BLANCA EDITH RIVERA ALTERNATE SECRETARY To the Executive Branch. Therefore: Let it be executed. Tegucigalpa, M. D. C., March 30, 2007. JOSÉ MANUEL ZELAYA ROSALES PRESIDENT OF THE REPUBLIC The Secretary of State in the Offices of Governance and Justice. JORGE ARTURO REINA IDIAQUEZ