Equivalency of care principle

There are numerous international instruments that aim to address the rights of prisoners and their access to health services, which are particularly relevant for those identified as injecting drug users who are at risk of contracting infectious diseases. For example, Article 35 of the Charter of Fundamental Rights of the

European Union states:

Everyone has the right to access preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices.

In addition, Recommendation 10 of the Council of Europe Recommendation No R98 (7) states:

Health policy in custody should be integrated into, and compatible with, national health policy. A prison health care service should be able to … implement programmes of hygiene and preventive medicine in conditions comparable to those enjoyed by the general public.

The measures which should be applied under this principle include preventative measures, comprehensive treatment options for diseases such as HIV and hepatitis and harm reduction measures such as providing sterile needles and substitution treatment (Lines et al.2006).

Studies have shown that strategies to prevent the spread of HIV in European prisons and manage the healthcare needs of all prisoners are still not being met, particularly when compared to services available in the community (MacDonald 2004). This is despite WHO providing guidelines in 1993 to establish principles and ensure that:

All prisoners have a right to receive health care…equivalent to that available in the community (WHO 1993).

The CPT states that without ensuring that prisoners have full access to health services equivalent to those in the community, situations can arise that could be defined as ‘inhuman and degrading treatment’ (CPT 2003). In addition to prison systems in the EU and their duty of care to provide healthcare services equivalent to those in the community, it must be emphasised that prisoners are a particularly vulnerable group who may already be presenting a wide range of health problems on reception to prison (WHO 2001). The same can be said for those in police detention, and due to factors such as unemployment, homelessness or engaging in problematic drug and alcohol use, time spent in detention may be the first time such groups access any sort of healthcare. This is particularly important in those countries where detention by the police can be relatively long term, that is, beyond the 24–48 hour standard found in many EU countries.

1.10 Barriers to implementation

The priorities of police officers, prison staff and other criminal justice professionals in maintaining security and community safety should not override the health concerns and treatment needs of detainees, which must be provided in all settings (Walmsley 2003). However, despite this there are frequent problems associated with treating people with problematic drug and alcohol use in secure settings, due to security concerns but also environmental and financial restraints, such as overcrowding, lack of staff and facilities. Overcrowding in prisons has a knock-on effect on other settings such as police and court detention facilities as they can be used by the prison service to accommodate prisoners, but they do not have the necessary healthcare facilities or staff available, and cannot offer other services such as work, education and training, opportunities for religious worship or consultancy with health care staff (Walmsley 2003; MacDonald 2005).

The reliance on law enforcement and supply reduction strategies to address problematic drug and alcohol use also impedes the implementation of harm reduction measures, which have been introduced to address public health issues (Friedman et al. 2006). This is particularly apparent in prison systems throughout the EU whose priorities are focused on security and abstinence- based treatment for drug users, therefore there is a lack of acknowledgement that drug use, especially injecting drug use and other high-risk behaviours actually occur (MacDonald 2005).

Studies have demonstrated that among injecting drug users with HIV, law enforcement practices have a low deterrent effect, and generally criminal justice interventions, which do not allow for users to relapse, often result in users being referred back to the court for further sentencing (Wodak 2006). In addition, lack of awareness of the needs of users among criminal justice staff has identified the need for better training, much of which can be provided through the expertise of NGOs. However, without the necessary resources,

training and the implementation of harm reduction initiatives can be short lived (McDonald 2005). Such training can help to overcome the negative attitudes of criminal justice staff, and others, in promoting the health benefits of such measures and allaying fears among staff that measures such as needle exchanges do not pose a threat to them (Lisbon Agenda for Prisons 2006). The stigma associated with problematic drug and alcohol use affects users’ compliance in both prisons and the community, as they may feel that accessing services such as needle-exchange programmes exposes them as users (Wodak 2006). To overcome this, there needs to be a guarantee of confidentiality for users in the community and in prisons, and also reassurance that accessing such measures will not result in being arrested by the police (Arachne 1996).

The literature report has indicated that there is a lack of research or common policies that govern the response by police forces to people with problematic drug or alcohol use in Europe at the point of arrest and during detention. In addition the guidelines provided by the CPT and such documents as provided by the BMA in the UK are inconsistently implemented, which has led in some cases to abuse of detainees’ human rights, lack of health care provision and a missed opportunity to refer those detainees who wish to be, to community drug and alcohol services.

Chapter 2: Methodology

To provide an in-depth analysis of the policy and practices involved at the point of police detention and the response to people with problematic drug or alcohol use in the sample countries, an ethnographic approach was used. This involved semi-structured, in-depth interviews with key criminal justice professionals, healthcare staff, government and NGO representatives and people with problematic drug or alcohol use who have experienced police detention.

The partners in the research played a key part in collecting data from their countries to inform the literature review and country reports. Data from a range of sources was used, including national policies that address problematic drug and alcohol use and official statistics demonstrating trends in use and associated problems, such as crime and public health problems.

2.1 Comparative research

The literature on comparative research into criminal justice is mainly focused on the United Sates and Western Europe. There is a lack of comparative studies that address Central and Eastern Europe. The need for research into criminal justice policy in Europe is particularly important in light of the expanding membership of the EU, especially for emerging democracies in the Central and Eastern European regions, as:

New democracies often face the challenge of transforming a police force that traditionally operated against the people into one that actually serves them (Pakes 2004).

Another key reason for comparative study is that criminal justice systems, for example in Europe, are likely to face similar challenges especially in the field of problematic drug use. As Pakes (2004, 49) argues.

Comparative research helps us gain a deeper understanding of the various types of relationship that exists between the police, the state and the people. It illustrates that policing may constitute both a promise and a threat, depending on the nature of these relations – to be protected from crime and disorder or more generally ‘looked after’ by benign servants of the people, or, on the other hand to be singled out for persecution, to be harassed or oppressed.

Research that adopts a comparative approach towards subjects involved in the area of criminal justice across national boundaries is difficult to find, due in some part to the problems inherent in such an approach. However, an ethnographic approach lends itself to such research and has been used in a

variety of European studies on problematic drug use in prisons that involve a number of different countries (MacDonald 2005; Decorte 2006).

There are various potential problems in undertaking comparative research that need to be considered and strategies developed to overcome these. One key problem is the use of interpreters, necessary in multi-country studies across Europe. When using interpreters, one is reliant on their skills and understanding of the key issues, whilst also ensuring they remain independent from the participants involved. Linguistic difficulties can present a major inhibitor of comparative research, unless the researcher is fluent in the language and cultural concepts of the countries being compared, as there is a danger of misinterpreting data. Without good linguistic skills it is possible to miss the subtleties of ‘intonation, nuances of speech, or most problematic of all, that which is left unsaid’ (Zedner 1995, 12).

The differences in the recording of data regarding drug and alcohol use in each country and the criminal justice response can also hinder the comparative approach; requiring that such information is confirmed from a range of sources. Comparative research also raises problems regarding the different terms and definition used in different criminal justice systems and the need to establish correct understandings.

The comparative researcher also needs to be wary of organisations and agencies that appear similar across countries, as they share the same name, but which can operate very differently and have different working relationships. A good example of this is the concept of probation. Official descriptions of such organisations can also be problematic as they may not fully reflect the actual purpose and practices that exist. In addition, the lack of understanding about different societies, for example, ex-Soviet states may mean that a researcher from Western Europe may ask inappropriate questions. Equally, ‘insider’ researchers may also fail to grasp what are perhaps key features about that society as seen from the outside, whereas an ‘outsider’ may bring a different perspective to comparative research because of their geographical and cultural distance. This also allows the researcher to ask ‘naive’ questions that challenge presuppositions. Similarly:

as a ‘nobody’ one may be allowed access to information or be made party to disclosures which prudence might withhold from a fellow national’ (Zedner 1995, 18).

The differences in the organisation of the police, health services and the existence of community drug services also meant that not all questions were relevant to all the sample countries, for example, in Italy the role of the prosecutors during police detention is much more pronounced than in other countries.

Despite these difficulties, it is important to undertake comparative research to learn as much as possible about the current practice of the police and their response to problematic drug and alcohol users in Europe. This presents a

means by which such research can both fill the gap in knowledge in this area and provide examples of best practice and improve current policy.

2.2

Definition of terms

It is important to establish that, although in each country different definitions of the same terms and concepts exist, there are also terms that apply across countries, which need to be clearly defined.

2.2.1 Police detention

In the sample countries, police detention is the term used to refer to the period after arrest when suspects are taken to a police station for questioning about their offence, and where, generally speaking, they are held for a maximum of between 24–48 hours.

In some countries the police also run detention centres, which are similar to remand prisons in the UK, where suspects are held pending further investigation of their case. The various types of detention are explained further in Chapter 3 in each of the profiles of the sample countries.

2.2.2

Problematic drug and alcohol use

Problematic drug and alcohol use refers to use that has a detrimental impact on users’ health, financial status, social support networks, employment and can lead to them becoming engaged in criminal activity.

For the purposes of this report, the focus is on those users who come into contact with the police, and who may suffer health problems such as HIV/hepatitis if they are or have been injecting drug users, and during detention, may suffer withdrawal symptoms from a range of substances.