CHAPTER 2 — Legal framework for implementation
4. Conclusions and recommendations
The establishment of DCRs leads to a number of legal questions. The research and the example of neighbouring countries have led to the following conclusions and recommendations.
4.1 The international perspective
Although there is no clear guidance on the concept of DCRs in the UN Drug Conventions, an analysis of the relevant texts leads to the conclusion that the Conventions do not form a legal obstacle for the implementation of DCRs. The explicit emphasis on the general health and welfare of people (including the rehabilitation and integration of PWUD) in the UN Drug Conventions is essential in understanding the significance of the exceptions (‘medical and scientific purposes’) to the main (prohibitionist) principle as enshrined in article 4 of the 1961 Convention and the later treaties. When tackling the question regarding the compatibility of DCRs with the UN Drug Conventions, it is therefore important to stress that the Conventions are health-oriented treaties. Given this, there is latitude within the conventions for the introduction of harm reduction measures that aim to improve the health of users and contribute to their welfare, rehabilitation and reintegration. As long as their implementation aims to reduce the adverse consequences of problematic drug use, this (extreme) form of harm reduction can be reconciled with the general principle of medical purposes as enshrined in the Drug Conventions.
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In 2002, the UN’s legal experts concluded that it seems clear that, in establishing DCRs, it is the intention of governments to provide healthier conditions for PWUD. When implementing DCRs, a Government could use the expediency principle in order not to prosecute the related possession of illegal drugs for personal use. The Government should however, in implementing and/or supporting DCRs, strive towards a loyal enforcement of the Conventions in good faith.
Recommendation 1: any debate on the implementation of DCRs should take account of the health-oriented nature of the UN Drug Conventions as well the international legal framework on harm reduction (such as the UN Resolutions UNGASS 1998 and UNGASS 2016 as well as the EU Action Plan on Drugs 2017-20).
A historic analysis of the INCB’s view towards DCRs shows a (recent) shift from a principal objection to a more pragmatic approach. Increasingly, the INCB’s primary concern is the way in which these facilities are implemented, stressing the need for an integrated approach.
Recommendation 2: in order for DCRs to be most compliant with the UN Drug Conventions, as supervised by the INCB, their implementation should be done—to the maximum extent— along an integrated model, offering treatment, health, social integration services primarily aimed at the welfare, rehabilitation, reintegration and referral of the users.
4.2 The national perspective
Belgian Drug Policy is already to a large extent based on the principles that form the underlying incentives of DCRs, such as the ultimum remedium principle and a multidisciplinary approach aimed at harm reduction as part of an integral assistance strategy based on a health improving perspective. The implementation of DCRs in Belgium would lead to a number of legal questions, particularly related to their ‘facilitating’ effect, the ‘illegal possession’ by users and ‘public safety and order’ concerns. It is therefore required that any implementation strategy deals with these legal issues in order to provide a maximum level of legal protection for the (management of the) DCR, its staff and the users. Three options for legally implementing DCRs in Belgium have been found, whereby the feasibility of each option is determined by the time span for its implementation and the amount of political support.
A first option would be to provide an explicit exception to the principle embedded in Article 3 paragraph 2 of the law of 24 February 1921, thus creating an explicit legal basis for DCR to operate.
This option would imply a long-term implementation and would therefore require a considerable amount of political support.
Recommendation 3: if a statutory protection/recognition would be opted for, the legislative implementation of France would provide a good example of the way in which primary legislation (allowing for the establishment of the DCR and providing protection to clients and staff in the law of 24 February 1921) can be combined with secondary legislation (stipulating the preconditions and criteria in order for a DCR to be legally protected in a Royal Decree). The ten minimum criteria as introduced in the German legislation could also be a useful inspiration in this respect.
If statutory protection by means of primary legislation would not be possible—or while awaiting the legislative process—a second option to establish DCRs could be to modify the reach of Article 3, § 2
of the law of 24 February 1921 by means of a royal decree, on the grounds that these facilities would
act as a specific harm reduction measure aimed at protecting the health of the users, justifying an exception to the application of the offence as mentioned in Article 3, paragraph 2 (a) and, as such, providing a significant degree of protection from prosecution under the basic law. This option would imply a mid-long-term implementation and would require a medium amount of political support.
As a third possible option, the implementation of DCRs could be considered—without prior legislative changes—in the form of a (temporary) scientific or medical experiment (pilot). This pilot would not
only be in accordance with the general aim of the UN Drug Conventions—to limit the use of drugs to scientific or medical purposes—but would also meet the recommendations of the UNGASS resolutions (of 1998 and 2016) and the recommendation of the WHO in its 2012 technical guide to set targets for universal access to HIV prevention, treatment and care for injecting drug users. Possibly, such an initiative could seek ministerial authorisation (e.g. by the Minister of Health). This option would imply a short-term implementation and would require a limited amount of political support.
In any of the foregoing options, it is deemed necessary to complement the implementation with an
amendment to the prosecutorial guidelines on drug-related offences (see COL 15/2015) in order for
the users to be freely able to possess a small amount of illicit drugs for personal use in the facility. There are basically two options in this respect. Firstly, a general instruction at the national (by guidelines of the Minister of Justice and/or the Body of Prosecutors-general) or local (by specific guidelines of the Prosecutor) level demanding local law enforcement authorities not to intervene in (i.e. to tolerate) those situations where it is established that the person concerned is merely in
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possession for personal use in (the perimeter of) the DCR (to be considered according to a set of criteria and/or indications). In the absence of such general instructions, local (and even oral) agreements between the DCR management and the local law enforcement authorities (especially the local police) could be concluded. Secondly, the extension of the ‘simplified police registration’ method, for those found in possession of a small amount of illegal substances (other than cannabis) for personal use in the perimeter of the DCR, thus, in principle, avoiding prosecution.
Recommendation 4: the prosecutorial policy and subsequent agreements on (non- or soft) police intervention should include a clear definition of and/or criteria on the ‘perimeter’ in which no or an alternative action would be taken (in and outside the facility), as well as specific preconditions such as the absence of indications regarding sale or other aggravating circumstances as well as public nuisance.
Recommendation 5: the foregoing options would require a full cooperation between DCRs and the local law enforcement authorities, e.g. by guaranteeing a clear procedure of registration of users.
Recommendation 6: any change in the prosecutorial guidelines would also have to take account of the need to provide (new) rules on the seizure of the (illicit) drugs for personal use in the DCR, as well as the relevant paraphernalia (additional to those already excluded from seizure according to COL 15/2015).
A cooperation protocol or accord between the relevant actors should be made for each location where a DCR would be established. This would include the management of the DCR, the administrative authorities (mayor), the law enforcement authorities (prosecutor and police) and the relevant treatment services (including medical institutions).
Even when legal initiatives would be taken to protect the DCR, its staff and the users from prosecution for drug-related offences, the risk for damage claims resulting from drug-related deaths or serious health damage is real. A number of measures could, however, be taken to minimise the risk and to
provide a sufficient level of protection against (civil) claims against DCRs, its staff, the users and the
local (administrative) government.
Recommendation 7: the DCR should provide clean injecting equipment and other relevant paraphernalia, a clean environment in which to inject, a clear code of conduct and some clinical supervision of the injecting/administration process. House rules and regulations, such as the
prohibition of the sharing of injection equipment and injecting in the neck, should be instituted and controlled through the supervision of the injecting/administration process. DCRs should be evaluated (independently) on a regular basis, guaranteeing a regular observation of their operation, the process of supervision and the enforcement of house rules. More in particular, the house rules should need to take due account of certain basic rules, such as a detailed and continuous informing of the users about all possible ways to prevent damage, as well as carefully defining and limiting the level and nature of help offered to injectors/users by staff (including the provision of paraphernalia). The rules would also need to carefully govern the safe disposal of needles, to prevent injury to staff or users, and the acts that should be taken if users leave behind suspected drugs. Moreover, clear procedures would need to be set out for responding to overdose incidents. Finally, a contract between the DCR and the users could be drafted in such a way as to stress the responsibility of the users and to minimise the risk of the DCR and its staff toward possible future claims.
Recommendation 8: an essential measure should be to strictly limit the nature of intervention by the (medical) staff when supervising the injection/administration by users. Any form of active assistance during the injecting/administration should be ruled out, in order to avoid (criminal and/or civil) liability, thereby taking into account the relevant provisions of the law of 10 May 2015 on health professions.
Recommendation 9: it should be considered to agree on specific rules between the local administrative bodies and the DCR, with the aim of minimising the risk for a damage claim against the local government.
Recommendation 10: specific training should be provided to the staff working in or with the DCR, raising awareness on the specific criteria regarding (medical) liability, in particular regarding accusations of criminal negligence.