International Guidelines on Human Rights and Drug Policy

1.2 Drug dependence treatment

The right to health as applied to drug policy includes access to evidence-based drug dependence treatment on a voluntary basis.

In accordance with their right to health obligations, States should:

i. Ensure the availability and accessibility of drug treatment services that are acceptable, delivered in a scientifically sound and medically appropriate manner, and of good quality (that is, with a strong evidence base and independent oversight). This means that such services should also be adequately funded; appropriate for particular vulnerable or marginalised groups; compliant with fundamental rights (such as to privacy, bodily integrity, due process, and freedom from arbitrary detention), and respectful of human dignity.

ii. Ensure that voluntary, informed consent is a precondition for any medical treatment or preventive or diagnostic intervention and that drug use or dependence alone are not grounds to deprive someone of the right to withhold consent.

iii. Ensure that non-compliance with programme rules, such as failed drug tests, do not lead to automatic involuntary discharge or temporary expulsion as a disciplinary measure.

iv. Safeguard the confidentiality of all identifying information regarding an individual’s involvement in drug-related health care to ensure that it is used solely for the purpose of advancing the health of that person.

Where compulsory drug detention centres exist, States:

v. Should take immediate measures to close such centres, release people detained in such centres, and replace such facilities with voluntary, evidence-based care and support in the community.

vi. Shall in all circumstances guard against the arbitrary detention of people who use drugs.


States have a legal obligation to provide drug dependence treatment to progressively realise the right to health148 and to ensure that people who use drugs may equally benefit from scientific progress and its applications.149 The right to health requires that States provide drug dependence treatment on a voluntary basis and that such treatment be available, accessible on a non-discriminatory basis, acceptable, and of good quality, including in prisons and other places where people are deprived of their liberty.150 It also requires that States allocate adequate funding for the provision of drug dependence treatment.151

Ensuring access to drug treatment services is also critical for protecting the right to life. The Human Rights Committee has explained that the right to life ‘should not be interpreted narrowly’ and that governments ‘should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity’, including ‘the prevalence of life-threatening diseases, such as AIDS’.152

UN human rights treaty bodies and experts have repeatedly called on States to adopt and implement culturally appropriate and gender-sensitive harm reduction services, which include drug dependence treatment, including opioid agonist therapy,153 to ensure access to these services in prison,154 as well as to women155 and children.156

The UN General Assembly Special Session 2016 Outcome Document recognises the importance of ensuring voluntary, evidence-based drug treatment and services to people who need it,157 in accordance with standards developed by the UN Office on Drugs and Crime and the World Health Organization,158 specifically referencing people in prison,159 women,160 and children.161

The right to health is acknowledged to include the right to ‘control one’s health and body’, the ‘right to make decisions regarding one’s health and bodily integrity’, and the right to be ‘free from interference, such as … non-consensual medical treatment and experimentation’.162 The consequent ‘free and informed consent’ standard applies equally to drug dependence treatment and includes the right to refuse or withdraw from treatment without penalty.163 This right must also be guaranteed in the context of alternative criminal justice measures (such as drug courts) to ensure that entry into treatment is medically indicated and not coercive and that treatment options are tailored to the needs of the individual.164

In some jurisdictions, ‘drug treatment courts’ or ‘drug courts’ are presented as an alternative to incarceration and are meant to offer court-supervised treatment for drug dependence for people who would otherwise go to prison for a drug-related offence. The Special Rapporteurs on the right to health and on the independence of judges and lawyers have raised concerns that the delivery of essential health care through the justice system – whereby judges and others who are not trained medical personnel make health care decisions – raises several human rights concerns, including with respect to procedural due process, informed consent, patient confidentiality and autonomy, l, and privacy.165 In this context, they have recommended that States take cautions against the continued rollout of drug courts in countries where oversight and monitoring mechanisms are absent.166 The Working Group on Arbitrary Detention has criticised drug courts as ‘conceptually flawed, because judges are not qualified to evaluate, monitor or supervise drug treatment’.167 It considers that the measure of coercion involved in the ‘choice’ between imprisonment and drug treatment ‘is too great and is an unacceptable infringement on the right to choose one’s treatment freely, to refuse treatment or to discontinue it at any time’.168 The Working Group has recommended that States discontinue the use of drug courts and ensure that no courts use the threat of imprisonment to coercively influence accused or convicted individuals into drug treatment or otherwise order forced treatment, recommending instead that matters of drug treatment be within the exclusive competence of health professionals.169 Several members of the UN Working Group on Arbitrary Detention have similarly highlighted reservations about respect to the right to fair trial in proceedings before drug courts.170 The Office of the UN High Commissioner for Human Rights has also raised concern that human rights violations in the drug court system are exacerbated by racial and gender biases.171

International law is clear that drug use or drug dependence alone are not sufficient grounds for detention.172 Compulsory detention, even if it has a basis in law, may also constitute arbitrary detention where it is random, capricious, or disproportionate – that is, not reasonable or necessary in the circumstances of a given case.173 Compulsory detention to control or treat people who use drugs is unsupported by scientific evidence, is considered a form of arbitrary detention, and places individuals at risk of torture and other cruel, inhuman, or degrading treatment.174 Indeed, the Committee against Torture,175 the Committee on the Rights of the Child,176 the Special Rapporteur on torture,177 the Special Rapporteur on the right to health,178 the UN Working Group on Arbitrary Detention,179 the International Narcotics Control Board,180 and numerous other UN bodies181 have raised concerns about human rights violations at compulsory detention centres in many countries throughout the world, where ‘treatment’ may consist of military-style drills, forced labour, the administration of unknown or experimental medications, State-sanctioned beatings, caning or whipping, sexual abuse, or other intentional humiliation.182 These bodies call for the closure of such centres and the end of such practices, as well as the implementation of voluntary, evidence-based, and rights-based drug treatment services.183 This position has been endorsed by members of the Working Group on Discrimination against Women and Girls, as well as the Special Rapporteurs on extrajudicial, summary, or arbitrary executions; on adequate housing as a component of the right to an adequate standard of living; and on the independence of judges and lawyers.184

The Human Rights Committee has raised concern about arbitrary arrest and detention without due process185 as well as compulsory detoxification, forced labour, inadequate medical care, and onerous work conditions in drug detention centres.186 It has called for a comprehensive review of relevant laws, policies, and practices vis-à-vis drug-dependent individuals to ensure alignment with the International Covenant on Civil and Political Rights and for the introduction of effective mechanisms, with formal authority, to decide on complaints brought by people deprived of their liberty in compulsory drug detention centres.187 The Committee has also raised concern about legislation requiring compulsory labour from people with drug dependence subject to ‘involuntary isolation and medical and social rehabilitation’ and has called for a comprehensive review of such legislation and all practices involving forced labour to bring them in line with the International Covenant on Civil and Political Rights.188

The Committee against Torture has raised concern about the detention of people who use drugs in manual ‘labour treatment facilities’, where people are detained without access to a lawyer or appropriate medical care, has highlighted the situation of women detainees’ lack of access to medical care, including gynaecologists, and has urged that all forms of ‘treatment through labour’ be abolished.189 The Committee has also raised concern about involuntary administrative detention in ‘transit’ and ‘rehabilitation’ centres, where people suspected of ‘drug addiction’ face arbitrary detention for prolonged periods of time without due process.190 The Committee has called for the release of detainees, prioritising the use of community-based or alternative social services for people with drug dependence, for investigation and prosecution of allegations of illegal detention and ill-treatment, and for adequate redress for people who have been arbitrarily detained in these facilities and for their families.191

The UN General Assembly Special Session 2016 Outcome Document also calls on States to consider ‘practical measures to uphold the prohibition of arbitrary arrest and detention and of torture and other cruel, inhuman or degrading treatment or punishment’, encouraging instead ‘the voluntary participation of individuals with drug use disorders in treatment programmes, with informed consent’, such that ‘adequate quality of drug treatment and rehabilitation services … prevent any possible acts of cruel, inhuman or degrading treatment or punishment’.192

In some jurisdictions, governments have established registries identifying people who use drugs and require an individual’s entry into the registry prior to receiving treatment. This information may be available to other government entities, including law enforcement agencies.193 The Committee on Economic, Social and Cultural Rights has raised concern about police and prosecutors gaining access to the medical records of people who use drugs who are receiving treatment in medical centres and has recommended that measures be taken to ensure the confidentiality of such records.194 The Special Rapporteur on the right to health has raised concern that the use of drug registries deters people who use drugs from seeking treatment, out of fear that their confidential medical information may be disclosed.195 The Special Rapporteur on torture has raised the additional concern that the use of drug registries may lead to ill-treatment by health care providers.196 The Special Rapporteur on the right to health has also raised concern about oncologists’ routine practice of providing written reports to police about patients receiving opioid medication, in violation of the rights to privacy and confidentiality, and has recommended that excessive police interference with opioid prescription be ended.197

Indeed, consistent with international standards, appropriate measures to ensure confidentiality for those voluntarily undergoing drug dependence treatment include the enactment of laws and policies dictating that records of identity, diagnosis, prognosis, and treatment created or obtained in the course of treatment not be open to public inspection or disclosure, not be shared with third parties (such as employers, educational institutions, and service providers) without the informed consent of the individual concerned, and not be discoverable or admissible during legal proceedings.198

Relationship to the UN drug control conventions

The UN drug control conventions include a requirement to provide treatment, after-care, and rehabilitation, for people who are drug dependent, supporting this aspect of the right to health.199 Drug dependence treatment may be provided instead of conviction or punishment where drug dependence contributed to the commission of a minor offence.200 While compulsory drug treatment is not required by the drug conventions, they do permit States Parties to require that a person ‘shall’ undergo treatment in addition to conviction or punishment.201 This permissive norm creates a potential tension with the human rights requirement of voluntary, informed consent to treatment.202