Ethical justice: needle and syringe programs in Australian prisons

IT IS accepted that prisoners will be deprived of some rights secondary to their incarceration for the purpose of community safety and, in Australia, for the purpose of punishment. The primary right that prisoners relinquish to the correctional system is the right of free movement. However, this restriction of liberty does not automatically grant an infringement of other rights. Indeed, while a restriction of liberty may have an impact on a person’s ability to independently seek medical care, prisoners fundamentally retain their human rights relating to health.

There is one health service, however, that is not yet available to Australian prisoners: needle and syringe programs.

This article explores the ethical framework that surrounds the provision of harm-minimisation strategies for illicit drug use in correctional facilities, and specifically the role of prison-based needle and syringe programs (NSPs) in reducing the transmission of blood-borne viruses (BBVs) within the prisoner population. Currently, NSPs are accessible within the wider Australian community but are not available in the correctional context. Prisoners are therefore unable to access NSPs based solely on their correctional status.

This article will argue that it is unethical to deny any individual access to accepted public health measures based on their correctional status, and moreover, that the restriction of prisoner access to NSPs is directly at odds with the principle of equivalence in health care – a nationally and internationally supported principle underpinning the provision of prisoner health in Australia. This issue will be discussed from a consequentialist view of medical ethics, whereby it can be demonstrated that NSPs provide the greatest good to both individuals and to the wider Australian society.

To introduce this issue, it is important to recall that the transmission of BBVs between individuals by direct exposure to infected blood or by exposure to contaminated blood products carries risks for development of acute and chronic health sequelae and represents a potential major burden of disease. The impact of BBVs on the Australian community has been acknowledged federally with the development of national strategies in response to human immunodeficiency virus (HIV), hepatitis B and hepatitis C, outlining priority action areas across prevention, testing, management and surveillance (here, here and here).

In Australia, the transmission of BBVs disproportionately affects marginalised and other disadvantaged patient populations, including current prisoners and former inmates. For example, the prevalence of hepatitis C is approximately one per 100 persons in the Australian community, but some studies estimate that up to one in three male prisoners and two in three female prisoners are living with the virus (here and here). Additionally, the extent to which former inmates may be lost to follow-up is unclear in the current literature.

Recognising the role of injecting drug-use behaviours in transmission of BBVs, Australian governments fund a suite of approaches to reduce illicit drug use through demand reduction, supply reduction, and harm reduction or minimisation strategies. However, not all of these strategies are currently available to the prisoner population. Consideration must be given to public health initiatives that both address transmission of BBVs and that are suitable for implementation throughout the correctional system, including the role for NSPs in prisoner health care.

Needle and syringe programs

NSPs are a form of harm reduction that involves the provision of sterile needles and syringes for illicit drug use and sharps bins for safe disposal of contaminated drug paraphernalia, directly reducing the potential for transmission of BBVs. Between 1991 and 2000, the Australian Government invested approximately $130 million towards NSPs nationally, and medically supervised safe injecting rooms have since been established in Sydney and Melbourne in 2001 and 2018 respectively (here, here and here).

While significant financial investment has been made by taxpayers to combat the transmission of BBVs, NSPs are not currently available in Australian prisons. This is not a uniquely Australian phenomenon, with some estimates suggesting that NSPs are available in only 60 out of more than 10 000 prisons worldwide. Despite international reluctance, the United Nations Office on Drugs and Crime and the World Health Organization continue to support the use of NSPs in the correctional context (here and here).

Objections to NSPs in correctional settings

Opponents to the implementation of NSPs in prisons frequently cite the delivery of education programs, vaccination programs, and use of opiate substitution such as methadone or buprenorphine as suitable alternatives to harm minimisation strategies. However, while these measures are important and necessary components of a multifaceted approach to preventive health care, they alone are not sufficient. Indeed, using a broad suite of strategies is supported within Australia’s National Drug Strategy framework.

It is also important to note that drug withdrawal may be involuntarily forced upon prisoners as part of their incarceration, resulting in management with opiate substitution under circumstances inherently different to those in the general community. These considerations are outside the scope of the arguments of this article, but it is necessary to establish that opiate substitution in prisons is not free from ethical concerns; in the same way that NSPs garner necessary ethical considerations.

Considerations as a matter of ethical justice

Justice, one of four prima facie ethical principles, is a highly relevant consideration in the correctional context and can be subdivided into areas of legal justice, rights-based justice and distributive justice. Legal justice relates to the provision of morally acceptable laws in the context of a society, while rights-based justice considers respect for an individual’s human rights. Distributive justice pertains to the fair allocation of limited or finite resources, such as the provision of health care more broadly.

Legal justice

Under human rights law, prisoners are entitled to access health care irrespective of their correctional status. When considering the provision of NSPs in correctional facilities, it is therefore important to recognise that provision of any program that increases the access of marginalised or disadvantaged patients to health care is aligned with the principle of legal justice. This is particularly relevant to prisoner populations who, through incarceration, may be prohibited from seeking public health strategies otherwise freely available within the Australian community.

Rights-based justice

The principle of equivalence in health care is a form of rights-based justice, requiring correctional facilities to provide prisoners with health care equivalent to that accessible within the wider community. Many international declarations support this principle, such as the United Nations Basic Principles for the Treatment of Prisoners 1990 and the United Nations Standard Minimum Rules for the Treatment of Prisoners 1977. This principle is also largely accepted within Australia and has been supported by Australian Medical Association position statements including Healthcare of Prisoners and Detainees 1998 and Medical Ethics in Custodial Settings 2013.

Distributive justice

From a distributive justice perspective, investments in NSPs in the wider Australian community are estimated to have produced savings to the health care system between $2.4 and $7.7 billion. Previous estimates from the National Centre in HIV Epidemiology and Clinical Research approximate that treatment of hepatitis C costs $850 per patient each year during the early stages of the illness, with additional costs of up to $120 000 per patient requiring liver transplant. Costs related to the use of antiviral therapy for hepatitis C in Australia are estimated to be at least $46 million per annum (here and here).

When considering the allocation of limited and finite medical resources, these savings represent an opportunity for reinvestment into other and potentially underfunded areas of health. Restricting access to NSPs in prisons is therefore a missed opportunity, given the over-representation of BBV transmission in prisoner populations as previously discussed. To that end, utilisation of NSPs in the correctional context should be considered as part of an approach towards achieving justice for all society.

Conclusions

This article calls for implementation of harm minimisation strategies in Australian prisons, including trial of NSPs in the correctional context with rigorous scientific review. It does so with the following considerations:

• prison is an opportunity to provide health care to a population of people who may be disengaged from health services for a variety of reasons. The potential benefits of increasing access to health care for these patients is theoretically quite high;
• to deny individuals access to public health measures based solely on their correctional status is at odds with the principle of equivalence in prisoner health care; and
• the potential savings produced through harm minimisation represents an opportunity for the reinvestment into other health initiatives that may be under resourced or inadequately funded.

Finally, while practical or logistical challenges may limit the feasibility or foreseeability of implementation of the arguments presented, it is important to remember that they remain merely challenges. When supported by consultation, adequate funding and necessary systems change, it is not only possible to achieve better outcomes for our patients but also, from an ethical standpoint, entirely necessary.

Dr Skye Kinder is a passionate advocate for rural and other marginalised patients. She was the 2017 Victorian Junior Doctor of the Year, the 2019 Victorian Young Australian of the Year, and is on the Australian Financial Review’s 100 Women of Influence list. She is a Board Member of the Rural Doctors Association of Victoria and the Postgraduate Medical Council of Victoria.

The statements or opinions expressed in this article reflect the views of the authors and do not represent the official policy of the AMA, the MJA or InSight+ unless so stated.