Despite having the bene t of emerging from a similar legal system , laws in the United States and England that deal with health-related rights of prisoners have diverged. The establishment of the US Constitution and the prohibition on cruel and unusual punishment has directed US approaches toward that test of whether a health care de cit or practice can be seen as a cruel or unusual punishment, an approach that has, however, come to be recently re ected in England since appeals to the European Court of Human Rights are, based on Article 3 of the European Convention on Human Rights, couched in similar language (“no-one shall be subject to torture or to inhuman or degrading treatment or punishment”). The wide differences in the content and amount of case law relating to health care in jails and prisons, however, would appear to be also based on contextual factors in the two jurisdictions. While it appears that prisoners are more litigious in the United States, this could be due to different approaches to legal funding (in the United States a successful litigant might expect to be awarded their fees, and lawyers may operate on the contingency of success). Further, the respective approaches to health care in the two jurisdictions are radically different, with the National Health Service (NHS) in the UK providing health care access for all, while the US system relies largely on purchased private or public health insurance, usually through one’s employment, with differing safety-net entitlements on a state-by-state basis. While there is a view that health care is a right in the UK, in the United States it still tends to be seen as a service for payment rather than a right. The recent integration of the UK prison medical service into the NHS has emphasized the lack of conceptual difference between health care for those incarcerated and in the free world. In contrast, the United States is the “only wealthy, industrialized nation that does not ensure that all citizens have coverage” (National Institute of Medicine, 2004). Such differences in philosophical and funding approaches may also underlie the different volume and approach to prison health law in the two jurisdictions. Finally, there are different “ lters” in the two countries which may partly account for the different volumes of cases. First, in the UK, the jurisdictions have of cers – the Inspector-General of Prisons and the Health Ombudsman – whose position has been established

speci cally to deal with inadequate standards abuses in the prison system generally (in the case of the Inspector-General) and in health care speci cally (in the case of the Health Ombudsman). There is also the post of Prison and Probation Ombudsman in the Prison Service in England and Wales, with speci c staff positions for health matters. Thus, egregious or negligent practices are likely to be ltered out and dealt with before reaching the courts. Holders of the of ces of Inspector-General of Prisons, Health Ombudsman and Prison and Probation Ombudsman have been extremely active (indeed, proactive) in defense of prisoners’ rights. Second, there is also the cause of action of misfeasance in public of ce, alleging the of ce-holder has misused or abused their power, open to prisoners (which is not relevant here).