Millions of patients suffer daily because morphine is unavailable. This often leaves them in excruciating pain resulting in undignified and inhuman situations (Human Rights Watch, 2011). Under human rights law, states have an obligation to protect individuals against this suffering by ensuring adequate treatment is available.
Everyone has the right to health as included in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). States should ensure access to the essential medicines included in the World Health Organization’s List of Essential Medicines (WHO, 2011). Because oral morphine is included in this list, it should ideally be available to everyone at any time according to the AAAQ standard of health care (CESCR, 2000).
Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, Juan Méndez, has stressed in his latest report that the denial of access to adequate pain control may result in a breach of the freedom from cruel, inhuman and degrading treatment (CIDT) as included in Article 16 of the Convention Against Torture (UNGA, 2013).
The obligation to ensure access to essential medicines is considered a core obligation under the ICESCR (CESCR, 2000). The freedom from CIDT is an absolute right (UN, 1984). In principle, this means that there are no circumstances which can justify a states’ failure to ensure access to pain treatment is available.
Although poor access to medicines is a serious concern to public health on its own, access to controlled medicines such as morphine is even more problematic. As well as human rights law, states also have to comply with obligations deriving from the international drug control framework.
The international drug control framework is based on three treaties and on a notion of balance that translates to a twofold state obligation: (i) states should ensure access to narcotics for medical purposes; however, at the same time, (ii) states should combat diversion and the non-medical use of narcotics. As the international drug control treaties are in principle not self-executing, states need to craft domestic laws to comply with the treaties (International Narcotics Control Board, 2013).
However, as a means to map the global market of illicit drugs and to ensure licit substances do not end up in illicit channels, two control procedures are included in Article 19 and 20 of the Single Convention on Narcotic Drugs (the main treaty out of the three international drug control treaties). These procedures are often referred to as the ‘annual estimate system’ and ‘quarterly statistical return procedure’ (International Narcotics Control Board, 1961/72).
The first implies that states, on the basis of adequate statistics, need to submit an overview of their estimated need for narcotic drugs for medical purposes. The second implies that states need to record every time a substance is administered to a patient, or used for medical purposes.
National competent authorities, as states should establish by virtue of these international drug control treaties, are responsible for communicating these estimates and statistics to the International Narcotics Control Board (INCB). The INCB is the treaty-based drug control watchdog, responsible for monitoring compliance with, and implementation of, the international drug control treaties. Although compliance to these control procedures affects the availability of controlled medicines in high income countries to a limited extent, it seriously impacts low-and-middle-income countries (LMICs).
Compliance demands states to run through an advanced regulatory scheme which necessitates a certain level of bureaucracy, government administration, functioning health care systems, and distribution networks. It is often difficult for LMICs to comply with a system that requires a certain level of government organisation. These control procedures are increasingly referred to as the heart of the problem of poor access to controlled medicines, even by the INCB itself (INCB, 2012).
Where there is a rule however, there is an exception. A state’s ability to comply with the international drug control treaties in a way that also complies with their human rights obligations is not a black and white issue. In fact, some LMICs are highlighted as examples of best practice for their progressive policy reform to allow better access to palliative care (HRW, 2011). Uganda for example has a centralised model of palliative care allowing specially trained nurses to prescribe morphine in home-based settings.
In order to understand the effect of the control procedures on states’ ability to allow access to essential medicines as a human rights issue, it is crucial to understand the examples of best practice.
As such, I have just returned from working with the African Palliative Care Association in Kampala, Uganda for ten days to meet with different stakeholders on leading positions in Uganda’s administrative loop that regulates the medical use of morphine. This preliminary research trip has been paramount to my further research in different ways. Not only did I find that my hypotheses as outlined above seem valid, but also that the international human rights approach I take to these local issues seems appreciated on the ground.
Although it is too early to present any findings of this trip, it is the right time to stress that the way international law, both in a human rights framing and the international drug control context, frame the position and inherent constraints of LMICs in relation to adequate treaty compliance, should be subjected to further study. This is essential in order to understand how a normative human rights-based approach to drug control is best designed to ensure it is adjustable and implementable in local settings.
It is essential we get this right now, as it is in these settings that access to morphine for pain control is so badly needed and yet is too often neglected.
Marie Elske presently works as a Ph.D. Candidate at the Netherlands Institute of Human Rights (SIM) and the Ethics Institute of Utrecht University. She is also a research associate to the London-based International Centre on Human Rights and Drug Policy. Her doctoral research focuses on a human rights-based approach of drug control and on access to essential medicines under the international drug control treaties in particular. She has just returned from a study trip to Uganda looking at its efforts to ensure palliative care is available on the ground and morphine’s regulatory loop in particular.
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