Food allergy in an Austrian prison: when a special diet is medically required, which evidence matters and how a refusal can be challenged.
Mag. Christopher Angerer, Rechtsanwalt
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A food allergy may require a medically justified deviation from the standard prison diet. Section 38(2) of the Austrian Prison Act (StVG) requires the institution to take account of deviations ordered by the institution doctor because of an individual prisoner’s health condition.
The practical assessment depends on the diagnosis, the specific medical order and the meals actually provided. This article explains which documents support a special diet, how a failure to implement it is assessed and which complaint route may apply.
Classify the concrete event. The medical finding, the order and the meal actually served should be documented separately.
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An allergy, a medical order and the delivery of meals are separate points of evidence.
Record the diagnosed allergy, the triggering foods and the required avoidance. An assessment by the institution doctor or usable medical records are particularly important when they explain why the general diet must be changed. Section 38(2) StVG connects the special diet to the individual person’s health condition.
Compare the medical order with the meals served. Record the date, meal, ingredient in question and the institution’s response. Section 38(2) StVG requires account to be taken of a deviation ordered because of the person’s health. The exact replacement meal depends on the medical order and the institution’s organisation.
Secure the meal details, the medical order and the health reaction. In an acute situation, medical care comes first. The question whether the medical treatment itself was appropriate follows the specific route under section 122 StVG. The implementation of an existing diet order and conduct by prison staff may also be assessed under section 120 StVG.
Under section 120 StVG, prisoners may challenge a decision, order or conduct by prison staff affecting their rights. A decision is generally subject to a fourteen-day period after it is announced or served; in other cases, the period generally runs from knowledge of the grounds. If the complaint concerns a decision or order by the prison governor and the governor does not remedy it, the enforcement court decides under section 121 StVG. The type of medical treatment is dealt with separately under section 122 StVG.
Section 38(1) StVG requires sufficient provision of a simple institutional diet. The food must comply with nutritional science and be served at the usual times for meals. For a food allergy, section 38(2) is the key rule.
That provision requires account to be taken of deviations from the general diet ordered by the institution doctor because of an individual prisoner’s health condition. It therefore requires an individual medical basis. A preference, a general dietary wish or unexplained discomfort does not establish the same basis.
The diagnosis and its practical consequences should fit together. Useful material may include medical records, the known triggers, previous allergic reactions, a list of ingredients to avoid and a short account of the symptoms. The relevant question is which information the responsible medical service needs for an order.
The documents should show whether an ingredient must be avoided completely, whether traces matter and what substitute diet is medically appropriate. A general request for “allergy-free food” leaves these points open. Precise information makes it easier to compare the order with the meal actually served.
After a medical order, the actual meal plan is the next point to check. Keep the order and record which meal was served. For packaged ingredients or changing menus, also record the product and ingredients where they are accessible.
The kitchen’s organisation may explain how a replacement meal is provided. It does not replace the individual medical assessment. If an ordered deviation is repeatedly ignored, record each date and meal, report the deviation and request a written clarification.
Section 120 StVG permits a complaint against a decision, order or conduct by prison staff affecting the prisoner’s rights. The event and the reasons must be stated. For a decision, the fourteen-day period generally runs from its announcement or service. In other cases, the period generally starts when the grounds become known.
The type of medical treatment is treated differently. Section 120(1) StVG refers to section 122 for that matter. The assessment must therefore distinguish an objection to the medical opinion itself from a failure to provide a diet that was already ordered. If the complaint concerns an order or decision by the prison governor and no remedy is provided, the enforcement court decides under section 121 StVG.
Each stage answers a different question about the special diet.
| Stage | Question | Useful material |
|---|---|---|
| Health condition Section 38(2) StVG | Which allergy and triggers matter? | Medical records, reactions and ingredient list |
| Medical order Section 38(2) StVG | Which deviation from the general diet is needed? | Specific order for the required diet |
| Meal delivered Order and institution practice | Was the ordered diet served? | Date, meal, ingredients and reaction |
| Legal remedy Sections 120, 121, 122 StVG | Is implementation or medical treatment challenged? | Decision, service and complaint reasons |
A medical deviation must be connected to the person’s health condition. The responsible medical service and the institution’s specific rules must be considered in the individual case.
Important: A food allergy requires the question of a special diet to be assessed. Implementation depends on the medical order and the actual meal plan. A preference does not have the same status as a medically ordered deviation.
Section 38(2) StVG requires account to be taken of deviations from the general diet ordered by the institution doctor because of an individual prisoner’s health condition. The medical assessment and the specific order are therefore central.
Useful documents include medical records, the triggers and reactions, a precise list of ingredients to avoid and the medical order for the required diet. The material should explain the individual medical need.
For a decision, section 120 StVG generally provides a fourteen-day period from announcement or service. In other cases, the period generally starts when the grounds become known. Whether section 120 or the specific route under section 122 applies depends on what is being challenged.
The special diet concerns food provision and implementation under section 38 StVG. The type of medical treatment is assigned to the specific procedure under section 122 by section 120(1) StVG. The two questions should be kept separate.
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