Human rights and drug policy

By James Petty | 30 Nov 12

By James Petty.

The question of human rights in relation to coercive treatment for substance use is, unsurprisingly, complicated. The concept of “addiction” exists within a complex web of legal categories, medical science, social values and cultural practices, all of which work to colour the way we view these issues. In 2010 the Victorian parliament passed a bill that allowed for the detention and involuntary treatment of substance users (including those that use alcohol), the Severe Substance Dependence Treatment Act 2010. This Act is Health legislation, not criminal justice legislation so its purpose is therapeutic, not punitive¾it’s designed to help, not punish. The Act is ostensibly aimed at intervening upon and improving the lives of non-offending individuals so severely dependent upon a “substance of addiction” that their lives are at risk. The rationale is that the “addicted” individual’s capacity for self-governance and determination is so compromised that extreme measures are necessary to “save them from themselves”.

This legislation – designed for individuals without co-occurring criminal behaviour associated with their substance use – constitutes a forceful intervention into the lives of an already vulnerable and marginalised group

When deployed this legislation will look like this: an application (likely submitted by a member of the subject’s family or significant other) is made to a magistrate requesting a treatment order, a senior clinician then reviews this and, if approved, the treatment order is issued.   The subject of the order will likely be approached and detained by police or paramedics (or both) and transported to a secure medical facility (at the time the Act came into effect, no facilities meeting the legislation’s requirements existed in Victoria), where they will be held for up to fourteen days (a further seven available upon request).

The treatment administered will consist of restraint and sedation, if necessary, and the denial of any “substance of dependence”. The “patient” may consent to additional forms of treatment (for example, the administration of methadone for heroin users) but has the right to refuse these. Upon completion, assuming an extension has not been granted, the individual will be released and issued with a “treatment plan” and a referral to a treatment service provider. However the legislation fails to guarantee any aftercare or follow up beyond this, despite the fact that the most dangerous period in a chronic user’s life is directly after a period of abstinence.

This legislation¾designed for individuals without co-occurring criminal behaviour associated with their substance use¾constitutes a forceful intervention into the lives of an already vulnerable and marginalised group. The Act received little public attention or political debate when passed and implemented. However, several human rights groups, legal centres and advocacy groups expressed concerns regarding the Act and what it allowed. At face value, the Act can be viewed as breaching several human rights outlined in the Victorian Charter of Human Rights and Responsibilities (VCHRR).

The most glaring of these are the right to be free from torture and cruel or humiliating treatment and the right to not be subjected to medical treatment or experiments without full, free and informed consent (Section 10), the right to not be held against your will (Section 21), the right to privacy (Section 13) and the right to humane treatment when arrested or detained (Section 22). Further, there are several sections of the United Nations’ (UN) International Covenant on Civil and Political Right (ICCPR) that are arguably breached by this legislation; for example, the right of self-determination.

Western contemporary drug policy is a disaster that just keeps on happening and this is the case regardless of whether it is deployed from a health or criminal justice framework

Depending on your reading of the ideals reflected in these conventions, the Act could be read as breaching these federally and internationally recognised standards. The existence of this legislation despite the Victorian and Federal governments’ observation of the VCHRR and ICCPR, respectively, brings into question their qualifiability. Does an individual retain their right to self-determination if the state does not approve of how they determine themselves? What if the expression of your self-determination and free will is to use a substance of addiction regularly? More critically, what conditions rescind one’s status as “human” and therefore one’s access to the rights attendant to humans – are alcoholism and substance use so corrupting that they annul one’s humanity? This is arguably what the legislation suggests.

The counter argument is, of course, that people have a right to not be chronically drinking or drugging themselves to death – the “right to life” (Section 9) could easily be read in this way and chronic substance use could easily be framed as constituting humiliation, degradation and cruelty. By intervening forcibly the state arguably empowers the individual by raising their capacity to enjoy their rights and freedom to which they are entitled (Sections 8 & 9). What’s more, a central tenet of formal citizenship is state protection; it is only a matter of perspective as to whether this extends to the state protecting you from yourself or not.

There are three criteria required to be met for the enactment of this legislation: that an individual demonstrates tolerance to a substance, experiences withdrawal symptoms when use is ceased and that the individual is “incapable of making decisions about his or her substance use and personal health” (s. 1; ss 1.3c).  These criteria, while seemingly sound, are deceptively vague. Technically, your average Joe Smoker scores high on each – smokers generally “use” daily, feel the effects when unable to smoke and, most of all, know that smoking is very bad for them. Of course, it is highly unlikely that this legislation will be enacted in order to force someone to give up cigarettes. This is despite the fact that the harms tobacco and alcohol, both communal and individual, far outweigh the harms associated with illicit drugs – they are more addictive, worse for your body, are a greater burden the healthcare system and are more likely to impact negatively on those around you – yet their use is sanctioned, and in the case of alcohol, actively encouraged in society. In light of this it is worth considering what the true purpose of this legislation is. Is it a therapeutic method of remedy or an unnecessary extension of the state’s already considerable regulatory powers veiled in the guise of healthcare?

Arguably, the root causes of such behaviour are a more critical site of intervention than the symptoms occurring down the line

This question highlights several problems regarding how we view those that use drugs – either as criminals or patients. Are substance users deserving of help or punishment? If we can pick one answer conclusively over the other, why are other measures available? In general, people are likely to view a heroin user as a criminal because of the powerful stigma associated with that particular drug, but what about chronic alcohol users or even, as cigarette use is increasingly marginalised, smokers?

Users of illicit substances are much more likely to be subjected to this legislation even though they constitute a smaller population with fewer associated harms. In spite of this, locking up a smoker in a medical facility to force them to quit is likely to be viewed as an overly draconian exertion of state power. However, for other “drugs” such an approach seems reasonable, even progressive – reflecting the now common knowledge that criminalisation of illicit substance use exacerbates the harms associated with it. While the implications of this legislation are relevant for human rights discourses, arguably it is more important to examine the stigmatisation suffered by certain kinds of substance users.

This legislation has been further criticised for adding more heft to the state’s reactive mechanisms while neglecting important preventative measures like welfare, counselling and support. Research shows that harmful substance use does not occur in a vacuum; instead it is often just the most obvious expression of a range of personal problems including chronic health issues, mental illness, difficulties with employment and housing, past trauma, abusive relationships and so on. The capacity for this legislation to address these background issues is severely limited, and may even exacerbate them – the legislation allows individuals to be restrained and/or sedated for the purposes of transportation and compliance. Such an onerous and distressing ordeal seems unlikely to inspire change and “self-improvement” within an already marginalised and vulnerable individual. Arguably, the root causes of such behaviour are a more critical site of intervention than the symptoms occurring down the line. If an individual has gotten to this point, surely this indicates that the state has already failed in its mandate of protection; locking someone up in a medical facility for two weeks against his or her will hardly seems an adequate remedy to this.

Given the complexities of this issue, the question for human rights becomes one of distinguishing between the lesser of two evils and, at a broader level, whether a human rights framework has the capacity to reconcile itself with this difficult conundrum. Is forceful intervention warranted when, ideally, the situation shouldn’t have gotten to this point in the first place? Can the (temporary) subjugation of an individual’s human rights actually increase them in the long term? Does the idealism of a human rights framework have the capacity, authority or foresight to make a call on these questions?

Western contemporary drug policy is a disaster that just keeps on happening and this is the case regardless of whether it is deployed from a health or criminal justice framework. Addressing these issues this far down the line is like a field surgeon patching up soldiers so they can head back out onto the battlefield. What is needed, far more than additional legislation or shifts in institutional frameworks, is forceful political and social reform – to change our understandings of “drugs”, “addiction”, the problems and dangers (or lack thereof) that they pose to society and how we should respond to them. The ambit of this legislation is so narrow and short-sighted it is laughable – even if such an approach is successful (and there is no conclusive evidence suggesting that such methods are) this legislation in no way guarantees that the issues that initially contributed to an individual’s dependence would no longer be as serious or intractable as they were before.  A genuinely human rights-oriented approach to these issues requires a long-term view that attempts reform at the heart of the problem, rather than one that simply deals with symptoms further down the line.

James Petty recently completed an Honours thesis at the University of Melbourne focused on Victorian drug policy, and specifically the Severe Substance Dependence Treatment Act 2010 (Vic).