Transcript Legal and Policy concerns related to IDU Harm

Legal Framework in the region:
Findings from a legal & policy review
of IDU harm reduction in SAARC
Anand Grover & Tripti Tandon
Lawyers Collective HIV/AIDS Unit, India
‘Inter-country Consultation on Preventing HIV among
IDUs: From Evidence to Action’
10 –13 April, 2007
Kolkata, India
About the Review
• Commissioned by UNODC for “Prevention of Transmission of HIV
among Drug Users in SAARC Countries” TD/RAS/2003/H13
• Objectives:
(i) Review existing laws & policies on drugs & HIV against risks &
responses
(ii) Suggest way forward; with rights at the core
• Methodology:
– Desk research (International drug conventions, National penal & drug statutes,
policies & program reviews on drugs & HIV)
– Site visits (Bangladesh, India, Maldives, Nepal, Pakistan & Sri Lanka)
– Interaction with experts (Officials in drug & HIV depts, Police & Law Officers,
NGOs working with IDUs & key pop, UN reps)
– Peer review (Country chapters & draft findings at a Regional Tripartite Review, Mar’06)
• Time Frame:
– Research & Writing 2004-05
– Peer Review 2005-06
– Finalised 2006
Gaps & Limitations
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Limited access to legal documents i.e statutes/
rules/regulations; no access to judicial decisions
---- Difficult to ascertain trends in application &
interpretation of laws, including use of treatment
provisions
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Limited interaction with legal persons; no interaction
with lawyers in the field of drugs & HIV
---- (i)Inability to comment authoritatively on legal
system
(ii)Indicates minimal involvement of legal
fraternity in this sector, LC being exception
The Harm Reduction Approach
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Basis of the report
Harm Reduction limits negative consequences of certain
behaviours w/o necessarily eliminating them
Offers unconditional services w/o judgment
Avert immediate harm & pave way out of drug dependence in the
long run
HIV epidemic brought strategy to the forefront
Applied to other vulnerable groups like MSM, Sex Workers
Proven efficacy
Components:NSEP, Drug Substitution & Maintenance, IEC, VCTC,
Condoms, STI treatment, HIV/AIDS related treatment, Basic medical
treatment, Treatment for drug dependence & Outreach Peer Support
Founded on individual’s right to health & the integrationist public
health approach
Recognized in international law (ICESCR) & enforceable nationally
(Constitutions)
Scope of Enquiry:
Harm Reduction & the Law
Interventions
- Needle/Syringe exchange
- Oral Substitution
- Information on safer sex
& drug use
- Condoms
- Peer outreach & support
- Treatment for drug
dependence
Law
Penal provisions
• Abetment
• Criminal Conspiracy
• Common Intention
• Attempt
Drug law provisions
• Possession
• Distribution & Supply
• Use/consumption
• Allowing premises to be used
for offence
Findings
Transition in substance & mode of use – linked to law
enforcement ??
• 1990s saw a switch from heroin chasing to
pharmaceutical injecting across cities in Bangladesh, India,
Nepal & Pakistan
• Transition coincided with legal developments;
Eg: In India, supply reduction under the NDPS Act created ‘heroin droughts’, hiking
street price. Faced with agonizing withdrawal, heroin users sought treatment that
included administration of injectable pharmaceuticals. Continued shortage/availability
of poor quality heroin led to injecting; a cost effective way of getting ‘high’. Mixing of
IDUs with non-injecting users ‘popularised’ injecting
• Studies attribute phenomenon of injecting pharmaceuticals to
non-availability of heroin; however links b/w narcotic law
enforcement & drug consumption patterns not clearly
understood
• Yet, trends indicate that punitive controls do not result in
cessation of drug use; on the contrary, have led to riskier
patterns of use
Findings
Law, policy & practice – evolution & impact
Across the region:
• Narcotic laws mirror international drug conventions;
penalize inter alia possession, use/consumption & supply
• Despite criminalization of consumption, drug use &
dependence seen in every country; IDU & associated HIV
reported in four countries
• Narcotic laws contain traditional model of treatment, I.e.
detoxification emphasizing abstinence
• In contrast, programs on IDU & HIV have evolved in
response to community needs & risks; bringing drug
dependent persons in contact with treatment, health &
recovery
• HIV policies & to a limited extent, drug policies have come
to positively articulate these practices; endorse harm
reduction as a public health strategy
• Drug substitution or maintenance may be contemplated in the
rubric of treatment of the conventions but not so NSEP or
NSP
Findings
I. Needle Syringe Exchange Program (NSEP)
• Possession of injection paraphernalia not illegal,
except in Sri Lanka
• Provision of needle/syringe illegal; construed as
‘abetment’ of drug consumption, punishable in all
jurisdictions
• Programs exist where drug users congregate,
which, in turn, are sites for furtive drug activity. Eg: In
Lahore, the mobile NSEP is parked at a ‘hot spot’ for peddling,
exposing intervention to enforcement action
• Services using Drop In Centres hit by provisions that
make “use of premises for illegal purposes”
punishable
Findings
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II. Oral Substitution Treatment (OST)
Historically, the region saw the practice of supplying opium to registered
addicts (in absence of treatment for dependence; akin to present day
maintenance therapy)
Presently, all countries prohibit possession, consumption & supply of
drugs except when:
– Medically indicated (eg: In Bangladesh, certain drugs can be purchased
& consumed for medical use)
– Administered for detoxification (eg: Psychotropic drugs used for deaddiction at govt run/recognised centres in India)
– Necessary to prevent debility or death of user (eg: In Pakistan, law
based on Shariat tolerates intoxicants to save life)
– Consumed by a category of persons (eg: Pharmacists in India may
dispense drugs to a Foreigner carrying prescription)
Subject to varying degrees of control & supervision.
Egs:
(i) Physicians cannot prescribe narcotics w/o written approval from DNC in
Bangladesh
(ii) Only government or licensed institutions can supply to patients in
Nepal
Medical prescription is essential; w/o which possession & use is
punishable
Findings
II. Oral Substitution Treatment (OST) cont…
• Methadone & Buprenorphine (most commonly used agents)
differentially classified
Eg: Methadone is a medical drug in Maldives while Buprenorphine is illegal, but
classification under Bangladeshi law is quite the opposite
• Treatment options limited; guided not by clinical outcomes but
legal controls
Eg: OST in India reliant on locally manufactured licit Buprenorphine. Methadone not
approved & therefore not available. Import of ‘prohibited’ drugs subject to complex
licensing & approval. Sublingual Buprenorphine import awaiting clearance in
Bangladesh & Pakistan.
• Provision for substitution open to scrutiny as ‘medical &/or drug
treatment’ construed narrowly
• Regulatory mechanisms including licensing, prescription &
supervision not in place; policy makers expressed fear of
divergence
• Seen as IDU-HIV prevention measure but not as treatment for
opiod dependence
Eg: Sri Lanka cites low IDU-HIV prevalence for non-provision of OST; overlooking
high burden of drug dependence
Findings
III. Treatment for drug dependence
• Provided in all country laws except Sri Lanka where offered in
prison;outside of law
• Inconsistent approach evident in some countries;
Eg: Hadd order in Pakistan ordains punishment for users,
while CNSA mandates registration & treatment
• Available to ‘addicts’ & not first time users
• Routed through penal system e.g: In India, treatment is
offered in lieu of prosecution/conviction & not at the first
instance
• Conditions attached are unrealistic; failure to comply
results in enhanced penalties. E.g: In Maldives, addicts
do not enroll in rehabilitation, as unsuccessful treatment
results in sentencing
Findings
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IV. Condoms
Drug users engaging in unprotected sex with regular
& paid partners
Though accepted as a prevention strategy, provision
& use conditioned by social/ legal factors
Supply in prisons not permitted on a/c of anti-sodomy
laws
V. Information on drug/injection safety
Identified by outreach teams as necessary to
influence drug practices & avoid overdose
Materials describing ‘how to inject safely’ construed
as aiding/instigating drug use; Eg: Maldives specifically
prohibits publications, drawings, posters etc. that generate
interest in drugs
Potential ways forward….
To harmonise harm reduction with law, National
Governments may:
• Include harm reduction measures within the rubric of
medical treatment
Eg: Govts can exercise rule making powers to notify OST as
medical treatment &/or treatment for drug dependence
• Expand scope of Good faith exception
Eg: Legislature can extend statutory immunity to service
providers i.e physicians, outreach workers/NGO staff acting
bona fide & in good faith
• Safeguard interventions by Non-obstante clause
Eg: Legislature can enact overriding clause that protects
officially endorsed programs that prevent individual harm &
promote public health from criminal & civil liability
• Conduit treatment outside the criminal justice
system
Eg: Legislature can relax rules for diversion; institute provisions
that allow users to seek treatment at the first instance rather
than during or post trial
Protecting rights of drug users
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In India, street users are ’soft targets’ for Police. Eg in Mumbai enforcement
action against users has witnessed an increasing trend:
Year
2005
2006
2007(Jan-Mar)
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In prison, drug users experience precarious health conditions.10 drug
users reportedly died in Maharashtra jails b/w Jan & Mar this year alone.
Deaths attributable to:
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No. of users arrested
172
1002
921
inappropriate management of withdrawal
lack of treatment for drug dependence
Inadequate care & follow up
HIV related illness
Since 2005, LC has been providing legal aid to drug users in Arthur Road
Jail in association with Sankalp (Rehabilitation) Trust. Till date, 136 clients
accessed legal services.
Like in disability law, it is not necessary to reform the drug user/addict but
make the environment enabling and reform the law
Penalty & Prison – who benefits?
Among street users, arrest & imprisonment is a pattern:
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Arbitrarily picked up even when not using or in possession of drugs
Placed in lock-up; investigation influenced with to ‘prove’ consumption
Charged u/s 27 NDPS Act for unlawful consumption punishable with
imprisonment extending to 6months or 1yr
Not released despite bail for terms, sometimes, longer than the
sentence if convitcted; inability to produce surety/personal bond or pay bail
amount
During trial, most plead guilty:
– No legal representation
– Trial period longer than period of sentence
– Have been in jail for period more than sentence
Incarcerated; Magistrates do not invoke Sec 39 to divert convicted addicts
to detoxification & treatment
Back on streets w/o social or medical assistance, only to be re-arrested
Vulnerability  arrest  plead guilty since no legal aid  imprisonment 
increased vulnerability  release  arrest again  plead guilty again
REVOLVING DOOR with ‘no benefit’ to user or community