Needle and Syringe Program Legal Challenge
This is a proposal to form a working group to challenge the refusal of the Needle and Syringe Program (NSP) to be made available to prisoners in New South Wales. It builds upon the work of the Kirby Institute, showcased in their World Hepatitis Day Seminar on 28 July 2019 at the Scientia Auditorium of the University of New South Wales: (“Drug Use and Human Rights: The Missing Piece of the Hep C Elimination Puzzle”).
1 Success in Canada
2 Grounds for Legal Challenge in NSW
2.1.1 Duty of Care
2.1.2 Breach of Duty
22.214.171.124. Intervening Act
126.96.36.199 Contributory Negligence
188.8.131.52 Voluntary Assumption of Risk
2.2 Criminal Exemption
2.3 Safe Injecting Rooms
3 Equivalence Principle
3.1 National Frameworks
3.2 International Frameworks
4 ACT Proposal
5 Switzerland’s Approach
Health treatment for Australian citizens is publically funded and equally available to all, in line with international standards. These rights extend to people incarcerated, who are afforded equal entitlement to basic healthcare requirements.
The World Health Organization (WHO) states that those who inject drugs within the incarcerated population have a higher risk of spreading Hepatitis C virus (HCV). This is caused by the lack of targeted testing, unsafe facilities and treatment, which creates a higher rate of HCV transference. These challenges impede WHO’s goal of eliminating HCV as a public health threat. In response, WHO specifically endorses NSP as a method of eradicating HCV.
The issue of widespread drug use and the consequential health problems are also a growing issue in Australian prisons. This is shown by HCV infection rates being 20-30 times higher in prisons than amongst general population. Further, in 2001 the New South Wales Inmate Health Survey recorded that 43% of females and 24% of males reported drug use whilst being detained. In addition, 72% of females and 67% of males disclosing that they had reused a needle first used by someone else, highlighting alarming needle and syringe methods practiced by prison inmates.
To date, Corrective Services NSW has refused NSP due to staff resistance after Geoffrey Pearce, a prison guard who was stabbed with a HIV infected syringe in 1990, subsequently died in 1998 due to AIDS-related causes. However, it is submitted that as long as needles and syringes remain contraband, they will continue to be stored in a “clandestine manner” and therefore “increase the risk of needle-stick injury for prison staff.”
NSP’s have existed internationally from as early as 1992. Countries such as Switzerland, Germany and Spain have all successfully implemented programs, which have seen positive results in for the health and safety of prisoners. Blood borne viral illnesses were reduced in prisons that implemented NSPs while overall drug use either declined or remained stable.
1. Success in Canada
In 2018 Canada officially implemented the Prison Needle Exchange Program (PNEP). This was a direct consequence of the Simons v Canada (Minister of Public Safety and Correctional Service), which enshrined the legal rights inmates are afforded, particularly their constitutional right to health.
In Simons v Canada, the affidavits tendered as evidence were given by experts in the field. The expert evidence are not just pure opinion evidence but rather it is an account of what they saw happening in prisons. In light of this, Dr Farley and Dr Woolf had encountered this issue and were witnesses of the events of prison life. Within Dr Millson’s affidavits she coined a number of key arguments for PNEP including; needle exchange programs do not increase drug use but provide an important bridge to healthcare, needle exchange programs are cost effective, and that needle exchange programs do not increase drug use but provide an important bridge to healthcare.
It is argued that the implementation of NSP in Correctional Centres could therefore eradicate the spread of the infection across the prison.
Clean Switch: The Case for Prison Needle and Syringe Programs in Canada (http://www.aidslaw.ca/site/wp-content/uploads/2013/09/PNSPs-ENG.pdf) →
In applying the B.C. Provincial Court’s judgment in R. v. Reid, denying prisoners access to sterile needles and syringes, which are available to persons outside of prison, has a potentially grave impact on their health, with little or no impact on the use of drugs inside prisons. The disproportionate effect of this deprivation lends further support to the argument that the infringement of prisoners’ liberty interest, through restrictions on their access to health services, is unjustified.
Prison Needle Exchange Programs (PNEP) are to be trialled at one men's and one women's institution as the initial stage of a phased approach to strengthen ongoing efforts to prevent and manage infectious disease in federal penitentiaries and in the community. The PNEP will provide federal inmates access to clean needles in an effort to limit the transmission of infectious diseases among inmates. The best practices learned at these initial institutions will help to inform a national roll out.
In Simons v. Canada (Minister of Public Safety and Correctional Service), inmates allege their rights to life, liberty and security of the person, and to be free from discrimination were breached by the Correctional Service of Canada's choice not to provide clean needles to inmates, and by the classification of sterile injection equipment as prohibited contraband. The inmates assert this increases their risk of contracting HIV or the Hepatitis C virus. As a result of the PNEP being introduced in June 2018, the Court granted an adjournment of the hearing that was scheduled for fall 2018 to a date in or after September 2019. The adjournment will allow the Correctional Service of Canada to file additional evidence with the Court regarding the workings and efficacy of the PNEP.
Under the Corrections and Conditional Release Act, it is an offence to carry a syringe in a Canadian prison. Simons argues that since access to sterile needles is afforded to the general public, denying inmates this access amounts to a violation of the Constitutional right to equality before the law, enshrined in section 15(1):
‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’
The challenge is therefore that the Corrections and Conditional Release Act is inconsistent with the Constitution, and is therefore of no force or effect under section 52.
2. Grounds for Legal Challenge in NSW
2.1 Tort of Negligence
A common law duty of care in the prison context might be said to include the notion of 'protection from disease'. In the prison context, it is clear that the authorities could not only foresee the injury that could ensue, but in fact knew of the existence of HIV/AIDS and how it is spread in the community at large, particularly in jails. The community has known for over ten years that HIV may be contracted by unprotected intercourse and sharing unclean needles. The issue then relates not simply to the prison authorities' knowledge of the risk of transmission, but to their actual conduct, which seems premised on wilful blindness of these recognised dangers.
2.1.1 Duty of Care
Prison authorities must exercise reasonable care for the safety of prisoners held in their custody. It is clear that a prison authority is in a special relationship with an inmate under its care.
In New South Wales v Napier, Mason J noted that:
‘The control vested in a prison authority is the basis of a special relationship which extends to a duty to take reasonable care to prevent harm stemming from the unlawful activities of third parties’.
Prisons have a duty to take reasonable steps to ensure that prisoners are not harmed by fellow prisoners. Therefore, if transferring HIV/Hep C via the sharing of needles constitutes harming another, the prisons owe a duty to prevent this.
2.1.2 Breach of Duty
By failing to prevent the smuggling in of drugs and needles, and the subsequent sharing of used needles, prisons breach their duty of care by allowing for the creation of a situation of risk (the spread of blood borne disease), that is a reasonably foreseeable consequence of this failing.
To argue that this duty of care has been breached requires showing that a reasonable person managing the prisons would have acted differently, and thus the current management’s conduct fell below the required standard. This would inherently involve demonstrating that the supply and demand reduction approach for drugs is not reasonable. However, compelling data demonstrating the efficacy of the NSP may make a strong argument for why a reasonable person in the position of prison management, would have acted differently.
Causation must also be demonstrated as per s 5D of the Civil Liability Act 2002 (NSW). This entails showing a causal link between the prisons failure to stop the sharing of needles via their approach to drug mitigation, was the direct and factual cause of the Hepatitis C spread. Using the ‘but for’ test, as established in March v Stramare, it can be argued that the spreading of disease would not occur but for the prisons failing to prevent the smuggling in of needles. This amounts to a “necessary condition” of the harm under s 5D(1)(a) of the Civil Liability Act 2002 (NSW).
184.108.40.206 Novus Actus Interveniens/Intervening Act
The voluntary and criminal act of taking the drugs may constitute an intervening act and limit the extent to which the prison can be seen as at fault. However, the common law has held that criminal conduct may not be an intervening act if the subsequent conduct (the voluntary sharing of needles) was a reasonably foreseeable event in the situation of risk created by the defendant. If prisons do not provide needles and fail to prevent drugs from entering, it is arguable that an environment of risk is created. Thus, the voluntary decision by an inmate to inject with a used syringe may not be sufficient in breaking the chain of causation.
It is important to note that it is not necessary to foresee the precise or particular character of the harm that occurs or the events leading to it. In Haber v Walker, where a plaintiff’s husband committed suicide as a result of injuries sustained via negligence, the court ruled that the husband’s mental state deprived him of the capacity to make choices. It can be argued that drug addiction deprives one of their capacities to fully make free, voluntary choices and actions. Thus, injecting of drugs would not break the chain of causation.
If factual causation cannot be established, a court may still decide, in exceptional cases, that liability ought to be imposed based on other relevant considerations. Such was the case in McGhee v National Coal Board, where plaintiff contracted dermatitis working in a brick kiln. There were no showers were provided and no medical knowledge to prove whether or not showers would have prevent dermatitis – however, the defendant materially increased the risk of injury, and the court found in favour of the plaintiff. This reasoning is analogous to the current situation, in that prisons are materially contributing to the risk of spreading blood borne disease by not providing clean needles.
The contraction and spread of harmful diseases such as HIV and Hepatitis C.
220.127.116.11 Contributory negligence
The prisoner’s willingness to share needles may constitute a failure to take care of their own safety. However, a counter argument is that in their position they have a decreased capacity to care for themselves due to cycles of drug addiction and lack of knowledge of the risk dirty needles posed.
18.104.22.168 Voluntary assumption of risk
This defence could be put forth by prisoners who engage in drug taking due to the obvious nature of drugs as carrying certain risks. However the previous arguments can also be used in that they have a drug dependency and may not have knowledge or capacity to understand the specific risk of Hepatitis C or any other disease caused by sharing needles.
Without preventing the spread of used needles, or providing clean needles or safe injecting rooms, prisons may be liable for negligence regarding the spread of blood borne diseases in prisons as a result of sharing used needles.
2.2 Criminal Exemption
In 1995 the implementation of a NSP within the NSW prison system was discussed and it was found that programs are feasible so long as they operate under strict guidelines. However, as it stands, the introduction of a syringe into a NSW detention facility is a crime under Crimes (Administration of Sentences) Act 1999 s 253D. This provision is the most obvious legal challenge for the introduction of NSPs in NSW. There are two exceptions to the offence. Firstly, if the introduction of a syringe is consented to in writing by the officer in charge of the facility an offence has not occurred. Secondly, a registered medical practitioner can distribute a syringe on medical grounds. As a result of the exceptions to s 253D, the Swiss model for NSPs, where individual facilities approve such programs can also be implemented in NSW. All it requires is for the prison officer in charge to formally approve the relevant program. Furthermore, the ability for facilities to create their own NSP based on the context of the individual prison has been seen as a strength of programs internationally. This is because it allows prisons to ‘take into consideration the needs of diverse prisoner populations and staff working conditions’.
2.3 Safe Injecting Rooms
Medically supervised injecting centres (MSICs) have long been established as a successful method of harm minimisation amongst drug users. Despite misconceptions these centres only focus on emergency care and supervised drug consumption and do not permit drug dealing in the facilities. Australia currently only has one centre in Sydney with the Alcohol and Drug Foundation advocating for another facility in Victoria.
According to the International Network of Drug Consumption Rooms, as of 2015, ‘Sydney MSIC has supervised more than 930 000 injections and managed 5,925 overdoses without a single fatality’. The Sydney facility has also recorded zero fatalities since its opening in 2001 with no impact in crime and significantly less ambulance call-outs. Their findings demonstrate the potential benefit of having medical professionals supervise prisoners when they need to inject. However, it can be argued that there may be little use of these facilities due to prisoners being left in prison cells for majority of the day. Thus, most injections may still occur within their cells.
3. Equivalence Principle
The ‘equivalence of care’ principle stipulates that prisoners ought to be provided with an equivalent standard of care as that of the general population. This is derived from the United Nations resolution, “Basic principles for the treatment of prisoners”, of which article 9 states: “Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.”
NSW operates and administers a NSP under the Australian National Drug Strategy, as a harm minimisation method for the general population. The program has received overwhelming support, with an illuminative example being the 2013 NSW police guidelines for the Needle and Syringe Program. The guidelines state that:
“The NSP has been the cornerstone of Australia’s response to blood borne viruses such as HIV and hepatitis C amongst people who inject drugs…. Australia’s investment in the NSP is the main reason that the level of HIV infection amongst people who inject drugs has remained below 1%.”
Despite its demonstrated effectiveness, prisons in NSW have refused to extend NSPs to their populations and as a result, prisoners are not receiving the same standard of health care available to the general public. Therefore, prisoners are being discriminated against based on their legal situation.
3.1 National Frameworks
The Australian Medical Association’s statement on Medical Ethics in Custodial Settings provides that:
“Prisoners and detainees have the same right of access, equity, and quality of health care as the general population.”
3.2 International Frameworks
Article 10 of the International Covenant on Civil and Political Rights (ICCPR) states that
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
As a signatory to the ICCPR, Australia recognises that detainees’ right to humane treatment entitles them to not be subject to any form of hardship or constraint in addition to those that are an unavoidable incident of detention in a closed environment.
Furthermore, Rule 24(1) of the Nelson Mandela Rules provides that:
“The provision of health care for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.”
4. ACT Proposal
The Australian Capital Territory’s (ACT) proposal to introduce NSPs to their prisons argues that the lack of a needle and syringe program infringed on the right of prisoners to be treated with humanity. The proposed program aims to correctly rehabilitate prisoners following the ICCPR mandate that“[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”
5. Switzerland’s Approach
Internationally, the implementation of NSPs has often not been achieved via legal means. For example, in the Swiss context, an individual doctor at a prison unofficially implemented the first prison syringe exchange (PSE) program in 1992 by distributing new syringes to inmates. This was an act of civil disobedience prompted by a concern to protect public health, including the health of prisoners. This was then formally implemented as the nation’s first PSE, per the decision of the Prison Director rather than the approval through a legal avenue. Currently, 7 PSE programs operate in Switzerland.