By Anita Mackay
The ACT government has announced the introduction of a needle and syringe exchange program for the Alexander Maconochie Centre (AMC) as a method for reducing the spread of blood-borne viruses. This is a contentious proposal that faces a degree of opposition, including from prison officers and nurses. If it goes ahead, the ACT would become the first jurisdiction in Australia to have such a program in a prison. This post considers some of the arguments in favour of, and against, the proposal from a human rights perspective. It concludes that a needle and syringe exchange program, if implemented in a manner that is informed by overseas experience, would be consistent with the human rights of both prisoners and prison officers.
Justice Michael Kirby eloquently described the matters at stake in 1990 when he said:
The infection of any prison officer by the isolated act of a prisoner is most unpalatable. It is criminal conduct and morally outrageous. The infection of a person who is in the custody of society, because that person does not have access to ready means of self-protection and because society has preferred to turn the other way, is just as unpalatable. As a community we must take all proper steps to protect prison officers and prisoners alike. By protecting them we protect society.
Prisoners as a group tend to have poor health overall when compared to the general population. The Australian Institute of Health and Welfare has observed that “prisoners have significant health issues, with high rates of mental health problems, communicable diseases, alcohol misuse, smoking and illicit drug use”. Many of these problems are more acute amongst female prisoners.
One such communicable disease is Hepatitis C. Hepatitis Australia’s research on the prevalence of Hepatitis C in prisons around the country found that 23 – 47% of male prisoners and 50 – 70% of female prisoners have Hepatitis C (compared to the general Australian population prevalence of less than 1%). It is clear that being in prison increases the chances of contracting Hepatitis C. A NSW study, for example, found that one in three prisoners contracted the disease by injecting drugs while in prison. Hepatitis Australia has found that half of all prisoners continue to inject drugs while in prison. Other practices that pose a risk of contracting Hepatitis C in prison include body piercing and tattooing.
More detailed studies have been conducted amongst the AMC population. Katy Gallagher (ACT Chief Minister) reported to the ACT’s Budget Estimates Committee in May 2010 that 65% of prisoners in the AMC have Hepatitis C and by that stage there was already one case where there was evidence suggesting the prisoner contracted it in prison. A more recent report suggested there were 8 such cases in 2012. In a report that included the results of AMC prisoner interviews, it was revealed that a third of those interviewed had injected drugs, and a quarter had done so within the previous four weeks.
These findings raise broader public health risks, given that prisoners return to the community after their release.
A common response to this is that drugs are contraband in prison and that enforcing this policy would negate the need for safe injecting equipment. All jurisdictions in Australia adopt a three-pronged approach to drug-use in prisons that involves:
- supply reduction (eg. drug detection dogs and urinalysis);
- demand reduction (eg. detoxification programs); and
- harm reduction (eg. methadone treatment and Hepatitis B vaccination).
Despite this, no prison in Australia is ‘drug free’. The ability to make the AMC ‘drug free’ was considered in detail by Michael Moore, CEO of the Public Health Association of Australia, who was commissioned to prepare a report for the ACT government on managing the challenge of blood-borne viruses in prison. He concluded that:
draconian methods to stop drugs getting into prison would need to include extreme measures….Such a regime is simply unacceptable as it would undermine the morale of custodial and non-custodial staff as well as the majority of prisoners who either have never used drugs or are not using them in the corrections setting.
Detailed consideration has been given to ways to reduce the spread of blood-borne viruses in the AMC, and there has been a multitude of reports commissioned by the government. The ACT government’s August 2012 response endorses what is known as a “one-for-one” needle and syringe exchange program, where medical staff control the provision of needles. A committee is now considering how this might be implemented in the AMC.
Human rights arguments in favour of the program
The principal rights relevant to people deprived of their liberty are the right to be treated with humanity and with respect for the inherent dignity of the human person (section 19 of the HRA and paragraph 7(c) of the CMA). There is also a prohibition against torture and cruel, inhuman or degrading treatment or punishment (section 10 of the HRA and paragraph 9(d) of the CMA).
Even before the AMC opened, the ACT Human Rights Commission argued that the lack of a needle and syringe exchange program may infringe the right to be treated humanely. The Commission observed in a 2007 report that:
to deny protection against disease transmission in such a high-prevalence and closed population in prison may be viewed as inhumane.
In addition to these overarching human rights, a relevant human rights principle is the principle of equivalence. This is found in section 53 of the CMA which states that “the director-general must ensure that detainees have a standard of health care equivalent to that available to other people in the ACT”. This is supported by the World Health Organisation guidelines on HIV/AIDs in prisons, which state that:
Preventative measures for HIV/AIDs in prison should be complementary to and compatible with those in the community.
The ACT has a community-based needle and syringe program and 60 of the 80 prisoners interviewed in for the Burnet report stated that they had used this program. The principle of equivalence therefore requires the adoption of a needle and syringe exchange program in the AMC.
Relevant also is Article 10(3) of the International Covenant on Civil and Political Rights (ICCPR) which provides that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Despite the fact that the HRA has not specifically incorporated Article 10(3), a goal of the AMC is to rehabilitate prisoners (see paragraphs 7(d) and 9(f) of the CMA). This was a clearly stated intention from early discussions about the ACT building a prison.
As part of rehabilitation, prisoners with drug addiction problems need access to treatment programs, and the needle and syringe exchange program would not replace such programs. However, another aspect of ensuring prisoners are rehabilitated and able to reintegrate back into the community after they are released is providing programs or services that improve their health, or at least do not make it any worse, while they are in prison. This is also reflected in paragraphs 53(1)(c) and (d) of the CMA, which states that “conditions in detention promote the health and wellbeing of detainees” and “as far as practicable, detainees are not exposed to risks of infection”.
A Victorian prisoner is reportedly taking legal action against the government for failing to protect him from exposure to Hepatitis C in prison. Victoria’s Charter of Human Rights and Responsibilities Act 2006 contains similar provisions to the HRA, so the outcome of this litigation will be of relevance to the ACT.
Human rights arguments against the program
As noted in the introduction, prison officers have expressed opposition to a needle and syringe exchange program in the AMC. There are two main reasons for this opposition, which were reported by a review of the AMC after one year of operation:
Custodial staff spoken to were overwhelmingly and vehemently opposed to the idea [of a needle and syringe exchange program]. The main reasons for the opposition were twofold – firstly the ethical contrast between the incarceration of people for drug related offences with zero-tolerance of narcotics, and the facilitation of an illegal activity. Secondly, the belief that detainees would use the injecting equipment as a weapon. The latter view being reinforced by the death of a Correctional Officer from AIDS after being stabbed by a blood filled syringe in NSW.
The first concern, which is about being complicit in illegal drug use, does not directly raise any human rights concerns. The question of a needle and syringe exchange program must be considered separately from the question of availability of drugs in prison because both target different problems. The AMC’s management can continue to focus on reduction of illegal drug use in the prison whilst simultaneously operating a needle and syringe exchange program that allows safe injection of drugs that are already accessible to prisoners. The program itself in no way facilitates drugs getting into prison. It seeks rather to minimise some of the harm that results from drug use.
The second concern does raise a number of human rights issues. The officers are, not unreasonably, concerned about their right to life (section 9 of the HRA). This may be violated if they are stabbed with a dirty needle that causes them to contract a potentially fatal blood-borne virus. They also have a right to safety and security of the person under section 18 of the HRA. This right, too would be violated if they were to be attacked with a needle, whether it is infected with a blood-borne disease or not.
These fears are understandable. There is however, evidence to suggest that, understandable as these fears are, they may not be well-founded. There have been no incidents of officers being stabbed with needles in any of the countries that operate exchange programs, and Switzerland has been operating programs since 1992. Of the 50 prisons in 12 countries which have existing needle and syringe exchange programs it has been observed that:
Numerous studies have shown that such programs do not compromise security or inmate/correctional staff safety and they effectively reduce spread of infection and needle sharing.
The death of the NSW correctional officer does raise very serious concerns. This however, occurred in the absence of a needle and syringe exchange program. Arguably, a needle and syringe exchange program would reduce the risk of contamination in the event that a needle is used as a weapon. In countries that operate needle and syringe exchange programs, the risk of needles being used as weapons has been managed by not allowing prisoners who are known to be violent to be part of the program, and by requiring program participants to sign a contract agreeing to abide by terms and conditions.
Other human rights arguments
The above discussion has focussed upon the human rights of individuals – prisoners and prison officers in turn. Human rights legislation also imposes obligations on public authorities. The HRA imposes two requirements on ‘public authorities’, which includes the AMC (see section 40). First, public authorities must act consistently with the human rights outlined above (eg. right to life, right to be treated with humanity) – that is, it is unlawful for them to act inconsistently. Second, public authorities must consider these rights when making decisions (section 40B of the HRA). These duties apply to all staff in the AMC. If a prisoner in the AMC considers that either of these duties have been breached, they can bring an action in the Supreme Court (section 40C).
In conclusion, the evidence from overseas suggests that needle and syringe exchange programs significantly reduce the spread of blood-borne viruses. This means they are consistent with the human rights of prisoners. Prima facie, and especially in view of the obligation placed on public authorities, the AMC may be obliged to implement a needle and syringe program, or another that achieves the same ends. This does not mean that the human rights of prison officers can be overlooked. The challenge will be to ensure that any needle exchange program implemented in the AMC takes proper account of the experience of other prison systems. Safeguards, identified from other countries’ experiences, will be required to ensure that no prison officer is injured. In this way the human rights of all people in the AMC can be protected.