Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover (A/HRC/20/15/Add.2)

45. The Special Rapporteur has commented extensively, in previous reports, on the negative impacts of criminalization and stigmatization on the right to health of sex workers and people who use drugs (PWUD) (see, for example, A/HRC/14/20 and A/65/255). The HIV/AIDS epidemic in Viet Nam is aggravated by the de facto criminalization of drug use and sex work. In Viet Nam, sex work and drug use are classified as social evils and are amenable to administrative penalties.66 PWUD and FSWs can be referred to ―rehabilitation centres‖ and detained in order to receive compulsory treatment for 3 to 18 months, in the case of FSWs, and 1 to 4 years, in the case of PWUD. The law also applies to minors aged 12 to 18 years. Deprivations of liberty resulting from administrative sanction in Viet Nam are indistinguishable from criminal detention, and thus generate and perpetuate the stigmatization of PWUD and FSWs. With regard to minors, article 37 (b) of the Convention on the Rights of the Child explicitly provides that the arrest, detention or imprisonment of a child ―shall be used only as a measure of last resort and for the shortest appropriate period of time‖.

48. During the mission, the Special Rapporteur was informed that rehabilitation centres have been ineffective in dissuading drug use and sex work, which is their stated objective. The Special Rapporteur was also informed by a number of PWUD who had been detained in rehabilitation centres that they returned to using drugs upon their release. Furthermore, the majority of detainees currently in the centres have been detained at least once before.69

49. Compulsory detention in the centres raises serious concerns about the due process rights of detainees, because they have no right to formally challenge their determination as PWUD or FSWs prior to detention and after determination; in practice, it is effectively impossible to do so. Treatment in the centres is mandatory in the majority of cases. Thus detainees are denied the right to be free from non-consensual treatment and the right to informed consent, which are core components of the right to health. In its general comment No. 14, the Committee on Economic, Social and Cultural Rights holds that: ―The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation‖ (para. 8). According to the United Nations Office on Drugs and Crime, ―only in exceptional crisis situations of high risk to self or others can compulsory treatment be mandated for specific conditions and for short periods that are no longer than strictly clinically necessary‖. 70

50. The right to health requires the availability of good quality, evidence-based treatment. Treatment provided for PWUD and FSWs in rehabilitation centres is not evidence based. It is also ineffective, as demonstrated by high rates of relapse to drug use and the absence of evidence globally supporting the effectiveness of detention in preventing women from returning to sex work after release.71 The right to health further requires medical practitioners and other health professionals to meet adequate standards of education and skill. In 2008, the Ministry of Labour, Invalids and Social Affairs reported that 49 per cent of the staff at centres had only primary level education, 15 per cent had received training in health care, and most had only a basic knowledge of HIV or overdose prevention.72

51. Rehabilitation centres are also counterproductive to the Government’s HIV/AIDS efforts. Persons detained in most centres do not receive adequate HIV/AIDS and tuberculosis prevention, treatment and care services.73 Although HIV prevalence is approximately 50 per cent in the centres, most lack even basic HIV services74 and there are currently only 14 centres that provide antiretroviral therapy for people living with HIV.75

52. Furthermore, the threat of detention discourages at-risk and affected populations from seeking out HIV/AIDS prevention, treatment and care services. From discussions with health professionals, it became evident that many people living with HIV do not access health-care services until their health deteriorates to a terminal state. As a result, they die unacceptably premature deaths. In one regional hospital, visited by the Special Rapporteur, there were about five AIDS-related deaths per month. This provides strong evidence that the country’s response to HIV among PWUD is not working. It is unlikely that this number of AIDS-related deaths would occur in an environment free of stigmatization, including the threat of detention and non-consensual treatment.

53. The Special Rapporteur is concerned that the law in Viet Nam does not effectively distinguish between drug use and drug dependence. Drug dependence is a chronic, relapsing disorder76 that involves psychosocial and biological factors, including altered brain function. 77 By contrast, drug use is not a medical condition. Importantly, there is strong evidence supporting medical treatment for drug dependence, specifically opioid replacement therapy (ORT) for opioid dependence,78 while medical treatment is not indicated for drug use alone. Indeed, most PWUD do not develop a dependence disorder and therefore do not require medical treatment.

54. The Special Rapporteur notes with satisfaction that the Government of Viet Nam has implemented a number of pilot methadone maintenance therapy programmes. Following the visit, the Special Rapporteur learned that the Government has authorized the HIV/AIDS Prevention and Control Department of the Ministry of Health to approve a plan to scale up ORT programmes in the country. The Government also informed the Special Rapporteur after the visit that it was considering the issuance of a decree on ORT with a view to  providing a legal framework for the introduction of ORT nationwide. The Special Rapporteur welcomes both developments.

55. ORT programmes are cost-effective and have been demonstrated globally to be more effective in reducing drug use and facilitating the reintegration of people who are dependent on opioids back into the community (A/65/255, paras. 50-55). ORT also allows people to receive treatment while continuing their lives within the community, which has the additional benefit of de-stigmatizing people who are drug dependent. Moreover, given the existing evidence base confirming the safety and efficacy of ORT and the global acceptance and adoption of such therapy as an effective medical treatment for drug dependence, clinical testing of ORT in Viet Nam is unnecessary. In its current guidelines on the subject, WHO acknowledges the strength of the evidence in favour of ORT in reducing drug use, criminal activity, HIV risk behaviours and transmission, as well as overall mortality.79 The Guidelines recommend that the following procedures, among others, be adopted in all settings as minimal requirements for treatment of opioid dependence: widely accessible pharmacological treatment, to be administered by trained health care professionals; mandatory informed consent for all treatment; and psychosocial support for all opioid dependent patients.80

56. In the light of all of the above, it is the Special Rapporteur’s view that the existence and continuation of rehabilitation centres violate the right to health.

63. The Special Rapporteur urges the Government to consider the following recommendations in the area of HIV/AIDS: (…)

(b) Eliminate stigmatization and create an enabling environment, in which at-risk populations, including injecting drug users, female sex workers and men who have sex with men, are able to effectively access health care, by de-penalizing drug use and sex work;

64. The Special Rapporteur urges the Government to consider the following recommendations with respect to people who use drugs and rehabilitation centres:

(a) Close all “05” and “06” rehabilitation centres, with a view to replacing the current practice of compulsory detention and non-consensual treatment with alternative forms of treatment, care and support in compliance with international human rights standards;

(b) Distinguish, in all Government policies, between drug dependence as a medical disorder, for which medical treatment may be indicated, and drug use;

(c) Employ only evidence-based therapies in the treatment of drug dependence;

(d) Scale-up available opioid replacement therapies, including communitybased methadone maintenance pilot programmes;

(e) Support and encourage community-based peer groups of current and former people who use drugs and female sex workers that offer support through group meetings, small loans, overdose prevention and connections to health and harm-reduction services.