Drug use and human rights

This is an English summary of the Norwegian report “Rus og menneskerettigheter”.

The full report is available in Norwegian here.

People who use illegal drugs enjoy the same human rights as the rest of the population. In practice, however, this group often experience that their human rights are challenged. In 2020, there were 324 drug overdose deaths in Norway, the highest number in 20 years. In 2021 the number was 241. People with serious mental and drug-related disorders have a 15-year shorter life expectancy than the general population.

The purpose of the report is to raise awareness of the state’s human rights obligations in the field of illegal drugs, and how these human rights obligations are implemented in Norway. Although there are a lot of well-functioning measures in place, the report illustrates that several human rights challenges remain.

The report concerns all users of illegal drugs, from recreational users to those suffering from serious addiction. Drug use has large societal costs and can be harmful to both the users themselves and to society. Both international and national drug policies have historically been characterized by control measures, with punishment as the primary response to drug use. In recent years, several countries have been through a shift from a criminal approach to a more health-oriented approach to drug use.

The report addresses human rights issues within three areas:

1. The use of punishment in response to drug use
2. Health and care services for people using drugs
3. Legal protection against discrimination for people using drugs

Human rights obligations that are examined in the report include the right to privacy, the right to health, children’s rights, the state’s obligation to protect victims of violence and the right to non-discrimination. Several of the challenges addressed in the report are significant and require action from the authorities.

Decriminalization of use and possession of drugs for personal use

In 2022, the Norwegian Supreme Court ruled that people suffering from drug addiction are no longer subject to fines if caught using illegal drugs or possessing drugs for personal use. Instead, the reaction will be a waiver of sentencing or a waiver of prosecution.

The report analyses human rights aspects related to the criminalization of use and possession of small quantities of illegal drugs for personal use. Relevant human rights obligations include the Convention on the Rights of the Child (CRC), The European Convention on Human Rights (ECHR) and the UN Covenant on Economic, Social and Cultural Rights (ICESCR). Further, obligations under the three International Drug Control Conventions are examined. The report concludes that there is currently not a human rights obligation to decriminalize use and possession of small quantities of drugs for personal use. However, neither is there an obligation under international law nor human rights law to criminalize such actions. The State’s approach in this sphere therefore depends on political, and not legal, considerations. Simultaneously, several international human rights bodies recommend decriminalization, in order to inter alia improve implementation of the right to health and children’s rights. Such recommendations are not binding under international law. Nevertheless, they reflect professional assessments from international law bodies on how to better safeguard human rights. Decriminalization is unlikely to conflict with obligations under international law, provided the existence of alternative measures to protect against harmful and problematic drug use, especially among children.

The use of coercive measures by the police in minor drug cases

The report also considers the use of coercive measures by the police to investigate minor drug offences, including house searches, mobile phone searches and the collection of bodily fluids. In the spring of 2022, an investigation by the Director of Public Prosecutions revealed many instances of coercive measures in minor drug cases that were not in accordance with criminal procedural requirements. The use of coercive measures contrary to the law can be problematic in terms of the right to privacy under Article 8 of the ECHR. Those who have been exposed to potential unlawful use of such measures must therefore have a practical way of testing the legality of the intervention. Following the Supreme Court’s rulings in 2022 that people suffering from drug addiction will no longer be sentenced for personal use or possession of drugs, the Director of Public Prosecutions has published new guidelines on the use of coercive measures in such cases. The report reviews certain areas of concern in the future implementation of these guidelines, including how to distinguish drug addiction from recreational use, well as protection against self-incrimination.

Measures to protect people using drugs from violence

The state has several human rights obligations to prevent, avert and protect people from violence and abuse. Vulnerable persons have an enhanced right to protection, and people using drugs are overrepresented as victims of violence and abuse. In Norway, current measures to protect people using drugs against violence are not compliant with a number of human rights obligations, including the Istanbul Convention. In many areas in the country, there is inadequate access to shelters for people using drugs, and there are many indications that other help measures are insufficient.

Control measures in opioid substitution therapy

Opioid substitution therapy (OST) can be a life-saving treatment for those suffering from opioid addiction. One study indicates that OST saves around 100 Norwegian lives annually, and the treatment can significantly improve quality of life. To receive OST treatment, the patient often has to consent to control measures, including urine samples taken under supervision and regular physical attendance for the distribution of medicines.

These control measures can limit the individual’s personal autonomy. It is currently unclear whether such measures constitute an interference with the right to privacy under Article 8 of the ECHR. If assumed that such control measures do constitute an interference, they must be in accordance with Article 8.2. ECHR, including that they must pursue a legitimate aim, and be proportionate to the legitimate aim pursued. There is a lack of conclusive empirical data on the effect of OST control measures, compared to other less intrusive measures. Additionally, there has been large regional differences in the practice of such control measures. Many people who have been in OST for an extended period and who are well rehabilitated, have also often been subject to strict control measures.

The new national guidelines on OST treatment from 2022 has a greater focus on the need for individual assessments in determining the control measures for each patient. This better reflects human rights standards, including the principle of proportionality. It remains to be seen how the new guidelines will be implemented in practice. Should the large regional differences and varying degrees of individual assessments continue, the right to privacy may be challenged. It is crucial that health care professionals administering OST comply with the new guidelines, and that control measured are based on individual assessments.

Health and care services for adults with simultaneous drug problems and mental disorders

The right to the highest attainable standard of health in ICESCR Article 12 includes a right to access qualitatively good health services, on an equal basis with others. People with serious mental and drug-related disorders have a 15-year shorter life expectancy than the general population. Somatic disease is the most important cause of lost life years. Several studies indicate that people with simultaneous drug problems and mental disorders receive less, and poorer somatic health care compared to the rest of the population. An audit from 2017–2018 indicates that services for people with simultaneous drug problems and mental disorders are often characterized by inadequate management, lack of coordination and poor quality, both in municipalities and in the specialist health services. In addition, many adults with simultaneous drug problems and mental disorders lack a satisfactory housing situation. There is little up-to-date and systematic knowledge concerning the role of the support system in the prevention and handling of drug-induced deaths. There are many indications that many people who die from overdoses are not reached through existing measures, and that the support system is often fragmented and insufficiently coordinated. Overall, this challenges the right to the highest attainable standard of health.

Health and care services for children using drugs

Article 33 of the CRC requires States to protect children from the illicit use of narcotic drugs and psychotropic substances. This includes a duty to prevent the use of illegal drugs among children, and to provide adequate treatment and harm reduction services to children who are harmed by drug use. The convention requires that such measures must be efficient, in other words that they are suitable to achieve their purpose. The measures must also be in accordance with other human rights obligations under the convention and be proportionate to the legitimate aim pursued.

NIM has evaluated three separate issues related to health and care services offered to children who use drugs. The report shows that prevention and treatment services offered to children using drugs should be strengthened:

1. Drug tests and drug contracts

Young people may be subject to drug tests as a measure to control their use of drugs, either as part of an alternative penalty reaction, or as part of a voluntary drug contract. There is not sufficient empirical evidence to substantiate that these measures have the desired effect. Therefore, it is uncertain whether they are suitable measures according to Article 33 of the CRC. Regulations to ensure that consent to voluntary drug contracts is obtained without pressure and with sufficient information about the possible consequences of a positive drug test, are also lacking.

2. Health and care services for children with simultaneous drug problems and mental disorders

The right to health according to Article 24 of the CRC, as well as the State’s obligations under Article 33, presupposes that children have access to qualitatively good health services. A report from the Office of the Auditor General from 2021 show that children with simultaneous drug problems and mental disorders are often not offered sufficient health care services and is often offered treatment intended for adults. There is a lack of sufficient competence and resources, both in the municipalities and in the specialized health services. This challenges the rights under Articles 24 and 33 of the CRC.

3. Health and care services for children in child welfare institutions who use drugs

Children who reside in child welfare institutions and use drugs have a right to qualitatively good health and care services. In 2021, a total of 1 476 children and young people were placed in child welfare institutions in Norway. Of these, just short of 400 children were placed in an institution due to behavioral problems according to the Child Welfare Act §§ 4-24 and 4-26, of which more than 140 were placed due to serious or persistent drug use. Several reports show that the health and care services offered to children who live in child welfare institutions and who use drugs are frequently inadequate. Firstly, there is a risk that potential drug problems are not always identified when children are placed in child welfare institutions. The right choice of institution is crucial to ensure that the offered care is sufficiently adapted to the child’s needs. Incorrect placement can have serious consequences for the children concerned. There also appears to be a lack of expertise in drug problems at many such institutions, and children with drug problems do not always get the help they need in the institution. This includes access to health services. Overall, this challenges children’s rights according to the ECHR and Articles 24 and 33 of the CRC.

Improved legal protection against discrimination

People who use illegal drugs are a stigmatized and sometimes marginalized group. There is little research on stigmatization, differential treatment and discrimination against people using drugs in Norway. Nevertheless, there are many indications that people using drugs are discriminated against in numerous areas of society. People suffering from drug addiction have some protection against discrimination in national legislation, but there is reason to question whether the current protection is effective enough and whether it extends to all those who should have a legal protection against discrimination.

Societal changes in the field of drugs

Norwegian society’s perceptions of people using drugs are changing. So are the views on how to respond to and treat drug addiction. In recent years, there has been positive developments in several areas. Examples include the use of coercive measures by the police in investigating minor drug offences, increased access to harm reduction measures, and improved conditions for people receiving opioid substitution therapy (OST). In this report, NIM attempts to give an updated overview. However, the societal changes in the response to illegal drug use indicates that further changes are likely to follow the launch of this report.