Case of Wenner v. Germany (Application no. 62303/13) on access to opioid substitution therapy in prison

55. The Court further reiterates that Article 3 of the Convention imposes on the State a positive obligation to ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, the person’s health and well-being are adequately secured by, among other things, the provision of the requisite medical assistance and treatment (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003-V; and Farbtuhs v. Latvia, no. 4672/02, § 51, 2 December 2004). In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. Medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see, inter alia, Blokhin, cited above, § 137).

56. The Court has clarified in this context that it was essential for a prisoner suffering from a serious illness to undergo an adequate assessment of his or her current state of health, by a specialist in the disease in question, in order to be provided with appropriate treatment (compare Keenan v. the United Kingdom, no. 27229/95, §§ 115-116, ECHR 2001-III, concerning a mentally ill prisoner; Khudobin v. Russia, no. 59696/00, §§ 95-96, ECHR 2006-XII (extracts), concerning a prisoner suffering from several chronic diseases including hepatitis C and HIV; and Testa v. Croatia, no. 20877/04, §§ 51-52, 12 July 2007, concerning a prisoner suffering from chronic hepatitis C).

57. The prison authorities must offer the prisoner the treatment corresponding to the disease(s) the prisoner was diagnosed with (see Poghosyan v. Georgia, no. 9870/07, § 59, 24 February 2009), as prescribed by the competent doctors (see Xiros v. Greece, no. 1033/07, § 75, 9 September 2010). In the event of diverging medical opinions on the treatment necessary to ensure adequately a prisoner’s health, it may be necessary for the prison authorities and the domestic courts, in order to comply with their positive obligation under Article 3, to obtain additional advice from a specialised medical expert (compare Xiros, cited above, §§ 87 and 89-90; and Budanov v. Russia, no. 66583/11, § 73, 9 January 2014). The authorities’ refusal to allow independent specialised medical assistance to be given to a prisoner suffering from a serious medical condition on his request is an element the Court has taken into account in its assessment of the State’s compliance with Article 3 (compare, for instance, Sarban v. Moldova, no. 3456/05, § 90, 4 October 2005).

61. The Court accepts that the States have a margin of appreciation in respect of the choice between different suitable types of medical treatment for a prisoner’s diseases. This holds true, in particular, where medical research does not lead to a clear result as to which of two or more possible therapies is more suitable for the patient concerned. The Court, having regard to the material before it, is aware of the fact that drug substitution therapy with methadone entails the replacement of an illicit drug with a synthetic opioid. While drug substitution treatment has become increasingly widespread in the Council of Europe Member States during the past years, the measures to be taken to treat drug addiction are still the subject of controversy. The States’ margin of appreciation in respect of the choice of medical treatment for a prisoner’s diseases applies, in principle, also to the choice between abstinence-oriented drug therapy and drug substitution therapy and to the setting-up of a general policy in this field, as long as the State ensures that the standards set by the Convention in the field of medical care in prison are complied with.

63. In this context, the Court notes that there are a number of strong elements indicating that drug substitution treatment could be regarded as the requisite medical treatment for the applicant in view of the following. First, it is uncontested between the parties that the applicant is a manifest and long-term opioid addict. At the relevant time of the domestic authorities’ decisions, he had been addicted to heroin for some forty years. All his attempts to overcome his addiction, including five in-house drug rehabilitation therapies, had failed. In the light of these circumstances, a domestic court itself had confirmed, in proceedings related to those here at issue, that it could no longer be expected with sufficient probability that the applicant could be cured of his drug addiction or prevented for a considerable time from relapsing into drug abuse (see paragraph 8 above). It is further uncontested that the applicant suffered from chronic pain linked to his long-term drug consumption and polyneuropathy.

65. The Court further observes that it is uncontested by the Government that drug substitution therapy is, in principle, available in prisons in Germany, as it is outside prison, and is actually provided in practice in prisons in several Länder other than Bavaria. The applicable provisions of domestic law (section 13 of the Narcotic Substances Act, read in conjunction with section 5 of the Prescription of Narcotic Substances Regulation and paragraph 8 of the Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts) specify, in particular, that in case of imprisonment, the continuity of the substitution treatment started outside prison by the institution in which the patient is placed, is to be secured (see paragraph 30 above).

66. The Court would note in that context that this approach is in line with the standards fixed by the Council of Europe in respect of health care services in prison. Both the CPT standards and the Committee of Ministers’ Recommendation Rec(2006)2 on the European Prison Rules (which do not specifically focus on drug therapy), as well as the Committee of Ministers’ Recommendation no. R (98) 7 concerning the ethical and organisational aspects of health care in prison, lay down the principle of equivalence of care. Under that principle, prisoners are entitled to medical treatment in conditions comparable to those enjoyed by patients in the outside community and should have access to the health services available in the country without discrimination on grounds of their legal situation (see paragraphs 32-34 above and for the Court’s own definition paragraph 55 above).

69. The Court would refer in this context to its case-law under which it is for the Government to provide convincing evidence showing that the applicant concerned received comprehensive and adequate medical care in detention (see paragraph 58 above). It notes that abstinence-oriented therapy constituted a radical change in the medical treatment the applicant had received for seventeen years prior to his detention and that the domestic courts, based on the opinion of the treating doctors in the drug detoxification centre, considered that this therapy had failed. The Court finds that, in these circumstances, the domestic authorities were under an obligation to examine with particular scrutiny if maintaining the abstinence-oriented therapy was to be considered as appropriate.

71. The Court further considers that its above findings are not called into question by the Government’s argument that drug substitution therapy would run counter to the aim of rehabilitating the applicant by making him overcome his drug addiction in prison and thus enabling him to lead a life free of illegal drugs outside prison. The Court considers that this objective is, in principle, a legitimate aim which may be taken into account in the assessment of the necessity of the medical treatment of a drug addict. However, the Court notes that in the applicant’s case, the authorities themselves had considered, prior to refusing the applicant drug substitution treatment in the proceedings at issue, that having regard to his history of drug addiction, this aim could not reasonably be expected to be attained. In particular, the Court of Appeal, when confirming the termination of the applicant’s treatment in a detoxification facility after consultation of the applicant’s treating doctors, considered that it could no longer be expected with sufficient probability that the applicant could be cured of his drug addiction (see paragraph 8 above).

72. The authorities’ assessment in this respect is equally confirmed by medical research showing that stable abstinence from opioids was a rare phenomenon and should, in the case of manifest opioid addicts, only be attempted if the patient was motivated to attain that aim (see paragraph 31 above), which was clearly not the applicant’s case at the relevant time. Therefore, the refusal of drug substitution treatment could not be based on that unattainable objective.

73. Furthermore, the Court takes note of the Government’s argument that providing the applicant with substitution treatment would have put his life and limb in jeopardy as he might have consumed additional illegal drugs in prison. In the Government’s submission, he therefore also had not met the requirements for drug substitution treatment under section 5 § 2 of the Prescription of Narcotic Substances Regulation. The Court considers that this argument is somewhat at odds with another argument the authorities forwarded in the context of their refusal to provide substitution treatment, namely that it was very difficult to obtain opioids in prison. In any event, the Court observes that this risk appeared to have been manageable even in the community over the previous seventeen years during which the applicant had received drug substitution treatment. In contrast, the risk caused to the life and limb of a drug addict who was released from prison without substitution treatment was acknowledged also by the prison authorities (see paragraph 25 above). The Court therefore finds that this element equally did not exempt the domestic authorities from analysing in detail the suitable treatment options for the applicant.

• Harm reduction
• Human rights

75. Furthermore, the Court would stress that, in order for a State to comply with its positive obligation to ensure that a prisoner’s health was adequately ensured, it is not only necessary to assess adequately a prisoner’s state of health which, in case of serious illnesses, requires consultation of a specialist doctor (see paragraph 56 above). The necessary medical treatment adequately addressing the prisoner’s state of health must also be determined with the help of the medical expert and provided to the detainee. The Court notes in this context that the importance of drawing on external medical experts providing specialised assistance to addicts in order to provide prisoners with appropriate treatment is equally stressed in the Committee of Ministers’ Recommendation no. R (98) 7 concerning the ethical and organisational aspects of health care in prison (see paragraph 34 above).

76. In the present case, the Court cannot but note that the domestic authorities had strong elements before them indicating that drug substitution therapy could be the adequate medical treatment for the applicant’s state of health. Moreover, as shown above (see paragraph 67), following the termination of the abstinence-oriented therapy for lack of success, they were faced with several opinions of medical doctors, including specialists in drug addiction treatment, diverging from that of the specialised internal doctors treating the applicant in prison and, before the abstinence-oriented therapy failed, in the detoxification facility, on the question of the necessary medical treatment to be provided to the applicant. The Court further cannot but note in that context that it is uncontested that no drug substitution treatment had ever been provided in practice to prisoners in Kaisheim Prison.

78. As regards the effects of the refusal of drug substitution treatment in prison on the applicant, the Court, having regard to the material before it, considers that drug withdrawal as such causes serious physical strain and extreme mental stress to a manifest and long-term opioid addict which may attain the threshold of Article 3. It notes that, while the applicant was found no longer to suffer from the physical withdrawal symptoms which occur at the beginning of forced abstinence, the – albeit limited – material before the Court, in particular external doctor H.’s assessment, suggests that the chronic pain from which the applicant was suffering throughout the relevant period could have been alleviated more effectively with drug substitution treatment than with the painkillers he received. It was also not contested that this pain in his feet, neck and spine was such that, at least during certain periods of time during the applicant’s detention at issue, some three and a half years, the applicant spent most of his time in bed. The Court further accepts that his suffering was exacerbated by the fact that he was aware of the existence of a treatment which had previously alleviated his pain effectively, but which he was refused.

The Court further considers it established that the refusal to provide the applicant continuously with drug substitution treatment despite his manifest opioid addiction caused him considerable and continuous mental suffering for a long time. The applicant also made it plausible that the deterioration of his already poor state of health, and in particular his chronic pain, combined with his craving for heroin, reduced his ability to participate in social life. In the light of these elements, the Court is satisfied that the physical and mental strain the applicant suffered as a result of his health condition as such could, in principle, exceed the unavoidable level of suffering inherent in detention and attain the threshold of Article 3. The domestic authorities therefore had to properly evaluate which was the adequate treatment for his disease in order to secure that he received adequate medical care but, as shown above, failed to prove that the applicant’s treatment with painkillers alone was sufficient in the circumstances.

80. In the light of the foregoing, the Court concludes that the respondent State failed to provide credible and convincing evidence showing that the applicant had received comprehensive and adequate medical care in detention, at a level comparable to that which the State authorities have committed themselves to provide to persons in freedom, where drug substitution treatment was available. In coming to this conclusion, the Court bears in mind the particular circumstances of the applicant’s case as a long-term drug addict without any realistic chance of overcoming addiction and having received substitution treatment for many years. In this context, the authorities failed to examine with particular scrutiny and with the help of independent and specialist medical expert advice, against the background of a change in the medical treatment, which therapy was to be considered as appropriate. The respondent State therefore failed to comply with its positive obligation under Article 3. There has accordingly been a violation of Article 3 of the Convention.