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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.

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Presentation on theme: "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."— Presentation transcript:

1 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

2 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

3 Gaps & Limitations 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 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

4 The Harm Reduction Approach 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)

5 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

6 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

7 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

8 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

9 Findings 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 de- addiction 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

10 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

11 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

12 Findings 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

13 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

14 Protecting rights of drug users In India, street users are ’soft targets’ for Police. Eg in Mumbai enforcement action against users has witnessed an increasing trend: Year No. of users arrested 2005 172 2006 1002 2007 (Jan-Mar) 921 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: –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

15 Penalty & Prison – who benefits? Among street users, arrest & imprisonment is a pattern: 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

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