By Kati Vainionpaa, LLB International and European Law Student,  k.j.vainionpaa@student.rug.nl

One of the central ideas of a civilized society is the internationally recognized state obligation to ensure equal access to healthcare for its citizens. ^[1] The principle of equality is elaborated on in the prohibition discrimination clause, article 14 ECHR, which imposes both positive and negative obligations to ensure equal treatment regardless of sex, race and skin colour. ^[2]   Despite efforts to bring healthcare close to individuals, one particular group of people has continuously failed to receive sufficient attention. While millions of people are battling substance abuse disorders, the current social atmosphere has yet to give rise to inclusive and adequate health care protection in the international legal environment. In the following article I will discuss the consequences lack of appropriate legislation has on the principle of equal access to healthcare, as well as the potential such legislation has to offer in the context of international human rights law.

Because the use of narcotics is strongly perceived to be connected to crime and other social problems, it proves challenging to reach people battling substance abuse. ^[3] Unlike other mental health matters, such as psychotic conditions which may enjoy protection under the UN Convention on the Rights of Persons with Disabilities, ^[4] this condition does not currently enjoy protection under international health law, which narrows individuals suffering from it outside the scope of effective protection. This has been shown to result in a higher threshold to access treatment and, while these patients are generally in a greater need of medical assistance, the current situation fosters distrust towards healthcare professionals and the entire system. ^[5] As states are under a positive obligation to ensure equal access to healthcare, the lack of legislation securing effective access cannot be justified – it is arguably a recognised jus cogens norm. ^[6]

States are expected to ensure the equality of opportunity by taking extra steps to meet the needs of people in a weaker position, in other words, allocate their resources towards individuals in greater need. ^[7] However, it is rather the consequences of using these resources the patients may fear to have on their careers and family lives. Not only is international health law missing basic policy guidelines on how professionals should interact with patients suffering from addiction, but it is also cumulatively turning a blind eye to the impact that bringing use-related offences to the prosecutor has on their freedoms. To avoid arbitrariness in decision making, health law must reciprocate the dynamic nature of criminal law.  

If those seeking help dread more far-reaching negative consequences, they are experiencing an equivalent to the chilling effect and lose their courage to find suitable resources. As a result, the state fails to execute the main purpose of the right to healthcare, which is the concrete improvement of quality of human lives. This is reflected in the criticism to the several conventions on drug abuse of the United Nations, which argue that the UN’s rules merely focus on punishing users and first stage producers instead of tackling the addiction epidemic and reducing its harms. ^[8] This strategy increases the danger of strikingly unequal treatment of patients and could potentially lead to further socioeconomic segregation, as it targets those already at a disadvantageous position.

The right to privacy has a key role in confidentiality of patient-physician relationships and thus in effective treatment of substance abuse disorders. The legislator needs to determine a range of justifications for the right of the authorities to disclose the personal information of a patient. If the rules regarding the right to privacy do not distinguish the special characteristics of substance abuse cases, there is a danger they will fail to be effective de facto. There are several treaty articles stating the right to privacy, but compliance with “the law” is seen as a possible limitation to the exercise of this right. ^{[9] [10]} Signatories to these treaties thus have a responsibility to develop their domestic law to correspond to the wider application of privacy. But who decides where the limit is drawn?

How far should the states be obliged to go to ensure equal access to health for each individual? Real life factors, such as financial struggles, already impair the effectiveness of this right in many parts of the world, but there are hindrances in states possessing resources to ensure equal access. In treating and concealing substance abuse, the state has to protect several other human rights norms, usually termed “public interest”. Along with the development of non-repressive legal instruments, the courts will have a crucial role in balancing the rights of addicted patients and the positive obligations held towards the safety of the people.

As the legal positivist approach holds, law is not always the expression of absolute truth and justice. It depends on the attitudes of the surrounding society and only socially acceptable rules can make it to codified legislation. This is why the stigma towards people suffering from substance abuse issues is the first barrier that needs to be broken in order to take a step towards specific provisions on protecting the rights of these individuals. The negative impact of media representation and even ordinary coffee table conversations prevent us from seeing this group of people as human beings, resulting in vague laws and their under-inclusive interpretаtion. To create laws that bring about fair laws, we must first strive to make them.

^[1] Universal Declaration of Human Rights, article 25(1). (NB: although this article specifies circumstances “beyond one’s control” there is no clear consensus as to what is regarded as personal control)

^[2] European Convention on Human Rights, article 14.

^[3] ‘Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs, and Health’ (2016) Office of the Surgeon General (US), US Department of Health and Human Services, chapter 6.

^[4] G Szmukler et al, ‘Mental health law and the UN Convention on the rights of persons with disabilities’  (2014) (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4024199/) Int J Law Psychiatry 37(3) 245–252.

^[5] O Shevchuk and others, ‘Implementation of drug addicts right to health protection’ (2018) Georgian Med News Mar; (276):166-172.

^[6] ICESCR, art 12.; M Nunez Valadez, ‘Drug use and the right to health: An analysis of international law and the Mexican case’ [2014] 6(2), 201-224.

^[7] OHCHR, Factsheet no 31, The Right to Health, 25.

^[8] D R Bewley-Taylor, ‘Emerging policy contradictions between the United Nations drug control system and the core values of the United Nations’ (2005) International Journal of Drug Policy 16 (2005) 423–431.

^[9] ECHR, art. 8.

^[10] GDPR, chapters 2 and 3.