INTERIGHTS Bulletin

INTERIGHTS Bulletin
Volume 16 Number 4 2011
159
migrants who are fearful of being
reported to the immigration
authorities if they seek to access
treatment.
Another serious, but unfortunately all
too routine, violation of patients’ rights
is described by lawyers Solomon Sacco,
Allan Maleche and Omwanza Ombati:
the forcible isolation of TB patients in
Kenyan jails. Their case report
highlights the tension that often exists
between individual rights and wider
public health concerns. However,
whilst recognising the serious
challenge posed by drug-resistant TB,
particularly in Africa with high levels
of HIV infection and low levels of state
spending on health, the authors argue
that the approach adopted by the
Kenyan government is
disproportionate and out of step with
global best practice. Although isolation
may be required to prevent the spread
of the disease and there is a need to
monitor and ensure that patients take
the appropriate medicines, this should
be done within a healthcare setting and
not through the use of prisons. In such
circumstances extra vigilance is
required with human rights dictating,
and not being subservient to, public
health policy.
In their article on harm reduction
Damon Barrett and Patrick Gallahue
from Harm Reduction International
begin by explaining that, whilst the
concept may be unfamiliar to many
working in the human rights field, it
has a solid basis in many fundamental
rights principles such as dignity,
universality,
transparency,
accountability and participation. By
definition, harm reduction focuses on
reducing the harms associated with
drugs and their use, requiring the
active participation of patients based
on genuine consultation and the
provision of objective information.
However, as Barrett and Gallahue
point out, harm reduction only works
if it is not supplanted by the use of
draconian and punitive measures.
Clearly, the issue is particularly stark in
custodial settings, where
disproportionately high levels of drug
use and HIV combined with lack of
access to appropriate harm reduction
based treatment result in users being
placed at risk of, at the very least, cruel,
inhuman or degrading treatment or
punishment. In some jurisdictions the
problem is exacerbated by the use of
forcible treatment centres run not by
trained medical staff but by security
and military personnel. Abuses,
including severe beatings, sexual
violence, forced labour and other
forms of torture have been widely
documented. Another completely
unacceptable judicially-sanctioned
measure is the use of corporal
punishment for drug use, purchase or
possession, representing everything,
as Barret and Gallahue point out, that
harm reduction opposes.
The powerlessness and multiple forms
of discrimination experienced by
women and girls in society often
translates into them bearing a
disproportionate burden when it
comes to suffering abuses in
healthcare settings. This is powerfully
brought out in Elisa Slattery’s article in
the context of sexual and reproductive
health services.
However, at the same time Slattery,
who works for the Center for
Reproductive Rights, highlights that
the increasing body of case law on
reproductive rights such as forced
sterilisation and abortion is not only
playing a significant role in advancing
gender health rights; it is also having a
wider impact on litigation of health
issues more generally, both in terms of
the procedural issues – complex
medical fact patterns, time-sensitivity –
and fundamental principles such as
progressive realisation of the right to
health and preventing discrimination
and torture or cruel, inhuman and
degrading treatment.
The article goes on to examine several
recent landmark cases from regional
and international human rights bodies
on maternal mortality and abortion
which, as well as addressing violations
of reproductive rights, have
contributed more broadly to
strengthening the human rights and
accountability framework around
violations in healthcare settings.
Denial of pain treatment affects
millions of people worldwide and yet it
could be one of the most easily
rectified problems. As Diederik
Lohman and Joseph Amon from
Human Rights Watch point out, the
severe pain suffered by millions of
people, including 5.5 million terminal
cancer patients, could be prevented
through the provision of relatively
cheap, safe and highly effective drugs
such as morphine. Yet these types of
medication are virtually unavailable in
more than 150 countries due to overly
restrictive drug regulations and/or lack
of knowledge amongst medical staff
about prescribing them.
Lohman and Amon argue that not only
does such a systemic failure breach a
state’s right-to-health obligations but
also constitutes a violation of the
prohibition of torture, cruel, inhuman
or degrading treatment. Denial of pain
treatment clearly fulfils the minimum
requirements for suffering – both
physical and mental – but there is a
comprehensive failure of states to fulfil
positive obligations including to
adequately respond to complaints and
to ensure the availability and
accessibility of pain treatment for all
those who need it. At a minimum this
involves the drawing up and
implementation of appropriate
national action plans and policies
together with the training of medical
personnel.
Yet, beyond the recommendations of
international and regional monitoring
bodies on this issue, it is the case study
of a Ukrainian patient which brings
home powerfully the reality of the
issue for millions of victims. Oleg
Malinovsky and the millions of other
patients worldwide who are failed by
their health systems deserve better: a
right not just to appropriate health care
but to be treated with humanity and
dignity.
Iain Byrne is ESCR Policy Coordinator
at Amnesty International