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Statement by Mr Dainius Pūras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health at the 38th session of the Human Rights Council

Agenda Item 3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Geneva, 18 June 2018

Mr President,
Distinguished Delegates,
Ladies and Gentlemen,

It is my pleasure to be here today to present my thematic report on the right to health in the context of deprivation of liberty and confinement (A/HRC/38/36). Worldwide discussions around the public health drivers of detention led me to focus on this topic, and throughout the drafting process the systemic and widespread public health challenges related to detention were progressively revealed. The final version of this report that I now present to you is the result of consultations with a range of stakeholder from low, middle, and high-income countries.

On this occasion, I also present the reports on two country visits to Indonesia and Armenia, carried out from 22 March to 3 April, and from 25 September to 5 October, respectively.

Ladies and Gentlemen,

Over the past two centuries we have increasingly witnessed the use of restrictions and deprivation of liberty as a default tool of social control in the name of public safety, “morals” and public health. Confinement for minor offences has increased and punitive responses are applied disproportionately to address complex and unique social challenges, including violence and radical extremism among young people. Similarly, the warehousing of refugees and migrants seeking safety and protection remains a critical and under-attended challenge.

While certain instances of imprisonment may always be justified, it is unacceptable that in the twenty-first century confinement continues to the norm for minor or non-violent criminal offences and for addressing public-health issues. Some laws criminalize certain behaviours, professions, or other status such as disability, as a sex worker, sexual orientation, gender identity and expression, illicit drug use, HIV status, and non-adherence to tuberculosis and infectious diseases. Other laws criminalize services needed only by women, such as interruption or termination of pregnancy, or selectively enforce petty offenses against those living in marginalized situations. Prohibitionist drug laws and policies produce violent illicit drug markets and have fuelled predominant responses of law and order, leading to mass incarceration.

Violations of the right to health are both cause and consequence of deprivation of liberty. The likelihood of being detained is linked to the social determinants of health: Poverty, social exclusion, militarized school systems, gender, ethnicity and disability are all associated with the loss of liberty. Incarceration and detention not only are barriers in the realization of the right to health but can also lead to a paradoxical increase in the incidence of infectious diseases, such as tuberculosis.

Deprivation of liberty adversely impacts on the right to mental health and on our well-being. The experience of incarceration itself is an emotionally fraught experience which risks exposure to inhumane and degrading conditions, violence and abuse, separation from family and community, loss of autonomy and control over daily living. Current places of confinement are simply not conducive for psycho-social healing or for effective therapeutic relationships, let alone treatment. They are not a place for people identified as having serious mental health issues. Yet, the common profile of a person incarcerated is an individual struggling with serious mental health difficulties.

Regrettably, the solution to this issue is an identical and a failed approach of forced confinement in mental health facilities with no meaningful right-to-health safeguards. I reiterate my call for a paradigm shift in the area of mental health and further call for the provision of reasonable accommodation inside of prisons for persons with all forms of disability, in a way that protect their rights and preserves their dignity.

Mr President,

Uncountable millions of children not only continue to be incarcerated, many are detained awaiting trial for behaviours associated with poverty and discrimination. Penal institutions are also used to administratively detain children for political “offences”, national security, and immigration control. I would like to stress that all forms of detention severely compromise children’s enjoyment of the rights to health, to healthy development and to maximum survival and development. The act of detaining children is a form of violence.

The story of how women end up in prison is intimately connected to failures to respect, protect and fulfil their right to health. Women’s incarceration is linked to experiences of violence, sexual, physical and emotional abuse. In some countries, pregnant women who use drugs, including legally prescribed drugs, face civil or criminal detention, and in others, women are imprisoned for “moral crimes”, such as adultery or extramarital relationships or to protect them from “honour crimes”. Legal restrictions to accessing sexual and reproductive health goods, services and information also lead to women’s imprisonment. Gender-responsive approaches to incarceration are not sufficient to addressing the global rise of women deprived of their liberty and the subsequent right to health impact this produces. In addition, women incarcerated are often placed into structures that are not fit for purpose and that reproduce harmful gender stereotypes. 

Likewise, confinement has long constituted a public-health strategy to stem the spread of infectious diseases and viruses, including leprosy, HIV and tuberculosis. Guided by worst-case scenarios, various legal frameworks legitimize forced confinement on broad and subjective grounds. Confining people with tuberculosis not only puts them at risk by placing them in settings often characterized by inadequate access to treatment and support but also fuels the spread of the disease within these settings. Confinement inappropriately places the burden of tuberculosis treatment and care on the person, effectively isolating and criminalizing those who are sick instead of providing the healthcare needed to complete treatment.

In sum, the long arm of incarceration is intricately tied to the right to health. We must seriously continue discussions around the abolition of detention for children and start working on the full elimination of institutional care of children under age five. We must continue the very difficult, but important conversation towards ending the confinement of persons with disabilities. We must carefully reflect on how to reverse the rise of women’s incarceration for non-violent offences, and seek community-based solutions for the public health struggle to end tuberculosis. We must challenge ourselves to think beyond a one size fits all approach to managing social, behavioural, and other public health challenges. The right to health, accompanied by courageous and necessary political will, can be a powerful tool to support a progressive transformation in this connection.

Ladies and Gentlemen,

Let me now turn to country visits. Since I last reported to this Council, I have conducted three country visits to Indonesia, Armenia and Kyrgyzstan. I would like to express my appreciation to the Governments of these countries for extending me an invitation and for their cooperation before, during and after the visits. I present two of these reports to you today.

Indonesia has made considerable progress in terms of the right to health, has been at the forefront towards the Sustainable Development Goals and the 2030 Agenda, and is now leading the way towards universal health coverage. Indonesia counts with political will and leadership to understand the intrinsic link between sustainable and inclusive development and the need to invest in the right to health in an equitable manner.

Many of the challenges encountered during my visit are linked to the prevalence of inequalities and discrimination against certain populations and groups, particularly women, persons living with HIV/AIDS and persons who use drugs. I will focus on a few key issues that you will find further developed in my report.

Inequalities in Indonesia have disproportionally affected the right to health of groups in situations of poverty and persons living on small, remote islands and in the eastern provinces. For example, while I was encouraged to learn about national improvements in under-5 mortality rates, I was troubled by the high rates of maternal mortality which are even more severe in the provinces of Papua, Sulawesi, Maluku and Nusa Tengarra.

The situation is aggravated by an extremely restrictive normative framework which criminalizes the interruption of pregnancies and the provision of related information. Women and girls who undergo an abortion face imprisonment. Moreover, many adolescents, particularly girls and those identifying as lesbian, gay, bisexual and transgender, are deterred from obtaining sexual and reproductive healthcare for fear of being judged, stigmatized or criminalized. I was additionally concerned at the widespread prevalence of physical, sexual, emotional and economic violence against women. I urge the Government to end the criminalization of abortion and to provide sexual and reproductive health information, services and goods, including through comprehensive, age-sensitive and inclusive sexual education.

Regarding the area of mental health, I commend the “Free shackling campaign” that has led to clear policies, guidelines and efforts to address the degrading and violent treatment of shackling (pasung). However, much more needs to be done. I was extremely concerned about the living conditions in most mental health centres and social care institutions with overcrowding, involuntary treatment and the use of forced seclusion as a form of punishment or discipline. I would like to recall that involuntary treatment and other psychiatric interventions in healthcare facilities may constitute torture and ill-treatment.

Indonesia has made a strong commitment to fight the spread of HIV/AIDS, but regrettably the existing normative framework impose significant barriers for an effective response. Homosexuality and sex work are criminalized and most by-laws and local regulations further criminalize non-disclosure, exposure and transmission of HIV-AIDS, imposing mandatory testing. This situation is incompatible with international standards; is discriminatory on the basis of health status, and infringes upon the rights to privacy, autonomy and to refuse treatment. The situation in Papua is of particular concern. In despite of some efforts in the right direction, Papuans are currently twice more likely to have HIV/AIDS than the rest of the population. Related challenges to effectively fight these high rates are intimately connected to the adverse historical, socioeconomic and cultural factors. This further demands special efforts from the Government in order to build trust among service providers and users and to develop and enhance culturally sensitive services.

Finally, regarding drug use, I would like to recall that the criminalization of drug related offences is not an effective way of curbing drug abuse or drug trafficking: It drives individuals away from the needed health services and seriously undermine public health efforts. I was troubled by the existing punitive approach in this area and urge the Government of Indonesia to abolish the death penalty for drug-use offences, to promote a non-punitive approach to drug-use outside the criminal justice and to expand services for persons who use drugs.

Mr President,

I would like to turn now to my country visit to Armenia. Since independence, Armenia has made considerable progress with regard to the realization of the right to health, including in terms of child and maternal health, the fight against HIV/AIDS and other diseases and gender-based policies to address inequalities in reproductive health. With good opportunities, additional efforts are needed to address structural and systemic challenges, both in law and in practice. I have been following recent events that led to a change of Government in Armenia. I trust that the new Government will address existing challenges, including those related to realization of the right to health, and hope that the recommendations provided in my report will be taken into account.

As a post-Soviet State, Armenia inherited a centralized healthcare system that guaranteed free medical care and access to a range of services, but with an excessive emphasis on hospital care and important geographical imbalances in terms of access and quality. Recently, the system has undergone important reforms, including a rationalization process and the decentralization of services and transfer of health competencies to provincial and local authorities. However, despite such reforms, the health sector faces serious challenges related to financing, access to quality primary care in rural areas and the workforce. I urge relevant authorities to guarantee adequate, equitable and sustainable financing by substantially increasing national budget allocations for health and by continue to improve the availability and accessibility of health services in all regions.

During my visit, I could observed that the mental health system still contains elements of outdated models and practices, including easy and frequent hospitalization of people with mental health conditions, overmedication, and long-term confinement based on labels such as “chronic patients”. I wish to warn against the risk that funding for mental health reform is invested in the renovation and expansion of segregated institutions. Instead, I urge the Government of Armenia to reduce the overreliance on specialized and hospital care through rational investments in health infrastructure throughout the regions, with a focus on primary care, community-based services, and the enhanced role and competences of general practitioners and their teams.

Armenia is strongly committed to fighting HIV/AIDS, it has joined all the international initiatives in this field and has provided access to testing and treatment for persons living with the disease. In 2016, Armenia became one of the only four countries in the world to have eradicated mother-to-child transmission of HIV. However, national legislation criminalizes HIV exposure and transmission, in contravention of international obligations, driving those at risk away from the services they need. The prevalence of HIV/AIDS in Armenia is concentrated among certain populations, particularly migrants and people who inject drugs, including prisoners. These groups are exposed to heightened risks and face barriers to exercising their right to health, both in law and in practice, and face stigma and discrimination when accessing testing and treatment services.

Armenia has one of the highest incidence rates of tuberculosis in the European region and is one of the 27 countries in the world with the highest level of multidrug-resistant tuberculosis cases. Treatment has traditionally not been patient-friendly and has relied excessively on hospitalization owing to a reverse incentive system, which discouraged ambulatory care. Although there have been important efforts to address this, including through the introduction of a performance-based financing model in primary care, essential community-based tuberculosis care and treatment centres have yet to be fully developed. I call on relevant authorities to bring diagnostic services closer to patients at the primary care level and develop new rapid diagnostic techniques.

Ladies and Gentlemen,

I have presented these thematic and country visit reports, and recommendations contained therein, in a spirit of a constructive dialogue and engagement with you. Me, and my colleagues mandate-holders of this Council, stand ready to continue providing assistance and technical advice in any follow up to these recommendations. 

I look forward to the dialogue today and thank you all for your attention and support.