Please, do not make us suffer any more. Access to Pain Treatment as a Human Right H U M A N R I G H T S W A T C H

Transcription

1 Please, do not make us suffer any more Access to Pain Treatment as a Human Right H U M A N R I G H T S W A T C H

2 Please, do not make us suffer any more Access to Pain Treatment as a Human Right

3 Copyright 2009 Human Rights Watch All rights reserved. Printed in the United States of America ISBN: Cover design by Rafael Jimenez Human Rights Watch 350 Fifth Avenue, 34th floor New York, NY USA Tel: , Fax: Poststraße Berlin, Germany Tel: , Fax: Avenue des Gaulois, Brussels, Belgium Tel: + 32 (2) , Fax: + 32 (2) hrwbe@hrw.org Rue de Lausanne 1202 Geneva, Switzerland Tel: , Fax: hrwgva@hrw.org 2-12 Pentonville Road, 2nd Floor London N1 9HF, UK Tel: , Fax: hrwuk@hrw.org 27 Rue de Lisbonne Paris, France Tel: +33 (1) , Fax: +33 (1) paris@hrw.org 1630 Connecticut Avenue, N.W., Suite 500 Washington, DC USA Tel: , Fax: hrwdc@hrw.org Web Site Address:

4 March Please, do not make us suffer any more Access to Pain Treatment as a Human Right Executive Summary... 1 Background: Pain in the World Today... 5 Prevalence of Pain... 5 The Impact of Pain... 6 Pain Management: Elements, Effectiveness, Cost... 7 Widespread Consensus: Pain Relief Medications Must Be Available... 9 The Pain Treatment Gap Pain Treatment, Palliative Care and Human Rights Health as a Human Right Pain Treatment and the Right to Health Pain Treatment and the Right to Be Free from Cruel, Inhuman and Degrading Treatment Obstacles to Provision of Pain Treatment and Palliative Care Failure to Ensure Functioning and Effective Supply System Failure to Enact Palliative Care and Pain Treatment Policies Lack of Training for Healthcare Workers Excessively Restrictive Drug Control Regulations or Enforcement Practices Fears of Legal Sanction Cost Breaking Out of the Vicious Cycle of Under-Treatment Uganda Vietnam Recommendations To governments around the world To global drug policy makers To WHO, UNAIDS, and the donor community To the global human rights community Acknowledgements... 45

5 Executive Summary For two days I had agonizing pain in both the back and front of my body. I thought I was going to die. The doctor said that there was no need to medicate my pain, that it was just a hematoma and that the pain would go away by itself. I was screaming all through the night. An Indian man describing his stay in hospital immediately after a construction site accident in which he sustained spinal cord trauma. 1 Cancer is killing us. Pain is killing me because for several days I have been unable to find injectable morphine in any place. Please Mr. Secretary of Health, do not make us suffer any more A classified ad placed in a Colombian newspaper in September 2008 by the mother of a woman with cervical cancer. 2 Physicians are afraid of morphine Doctors [in Kenya] are so used to patients dying in pain they think that this is how you must die. They are suspicious if you don t die this way [and feel] that you died prematurely. Physician at hospice in Kenya. 3 In 1961, the world community adopted an international agreement the 1961 Single Convention on Narcotic Drugs that proclaimed narcotic drugs indispensible for the relief of pain and suffering and instructed countries to make adequate provision to ensure their availability for medical needs. Today, almost fifty years later, the promise of that agreement remains largely unfulfilled, particularly but not only in low and middle income countries. In September 2008, the World Health Organization (WHO) estimated that approximately 80 percent of the world population has either no or insufficient access to treatment for moderate to severe pain and that every year tens of millions of people around the world, including around four million cancer patients and 0.8 million HIV/AIDS patients at the end of their lives suffer from such pain without treatment. 1 Human Rights Watch interview, Kerala, India, March 20, The name of the patient is withheld for reasons of privacy. 2 The ad appeared in the newspaper El Pais in Cali, Colombia, on September 12, Human Rights Watch interview with Dr. Weru of Nairobi Hospice, Nairobi, Kenya, June Human Rights Watch March 2009

6 The poor availability of pain treatment is both perplexing and inexcusable. Pain causes terrible suffering yet the medications to treat it are cheap, safe, effective and generally straightforward to administer. Furthermore, international law obliges countries to make adequate pain medications available. Over the last twenty years, the WHO and the International Narcotics Control Board (INCB), the body that monitors the implementation of the UN drug conventions, have repeatedly reminded states of their obligation. But little progress has been made in many countries. Under international human rights law, governments must address a major public health crisis that affects millions of people every year. They must take steps to ensure that people have adequate access to treatment for their pain. At a minimum, states must ensure availability of morphine, the mainstay medication for the treatment of moderate to severe pain, because it is considered an essential medicine that should be available to all persons who need it and is cheap and widely available. Failure to make essential medicines available or to take reasonable steps to make pain management and palliative care services available will result in a violation of the right to health. In some cases, failure to ensure patients have access to treatment for severe pain will also give rise to a violation of the prohibition of cruel, inhuman and degrading treatment. There are many reasons for the enormity of the gap between pain treatment needs and what is delivered, but chief among them is a shocking willingness by many governments around the world to passively stand by as people suffer. Few governments have put in place effective supply and distribution systems for morphine; they have no pain management and palliative care policies or guidelines for practitioners; they have excessively strict drug control regulations that unnecessarily impede access to morphine or establish excessive penalties for mishandling it; they do not ensure healthcare workers get instruction on pain management and palliative care as part of their training; and they do not make sufficient efforts to ensure morphine is affordable. Fears that medical morphine may be diverted for illicit purposes are a key factor blocking improved access to pain treatment. While states must take steps to prevent diversion, they must do so in a way that does not unnecessarily impede access to essential medications. INCB has stated that such diversion is relatively rare. 4 In many places, these factors combine to create a vicious cycle of under-treatment: because pain treatment and palliative care are not priorities for the government, healthcare workers do not receive the necessary training to assess and treat pain. This leads to widespread 4 International Narcotics Control Board, Report of the International Narcotic Control Board for 2008, United Nations, Please, do not make us suffer any more 2

7 under-treatment and to low demand for morphine. Similarly, complex procurement and prescription regulations and the threat of harsh punishment for mishandling morphine discourage pharmacies and hospitals from stocking and healthcare workers from prescribing it, again resulting in low demand. This, in turn, reinforces the low priority given to pain management and palliative care. This low prioritization is not a function of low prevalence of pain but of the invisibility of its sufferers. To break out of this vicious cycle, individual governments and the international community must fulfill their obligations under international human rights law. Governments must take action to eliminate barriers that impede availability of pain treatment medications. They must develop policies on pain management and palliative care; introduce instruction for healthcare workers, including for those already practicing; reform regulations that unnecessarily impede accessibility of pain medications; and take action to ensure their affordability. While this is a considerable task, various countries, such as Romania, Uganda and Vietnam, have shown that such a comprehensive approach is feasible in low and middle-income countries and can be successful. In pursuing steps to improve pain treatment, countries should draw on the expertise and assistance of the WHO Access to Controlled Medications Programme and INCB. The international community should address the poor availability of pain treatment with urgency. The UN General Assembly Special Session on Drugs that will take place in Vienna in March 2009 is a unique opportunity to begin to do so. At the meeting, which will conclude a year-long review of the last ten years of drug policy, countries will set priorities for the next ten years of global drug policy. In Vienna, the international community should recommit itself to the mandate of the 1961 Single Convention for states to ensure adequate availability of controlled medicines for the relief of pain and suffering. For too long, the global drug policy debate has been strongly focused on prevention of the use and trade of illicit drugs, distorting the balance that was envisioned by the Convention. In March 2009, the international community should set ambitious and measurable goals to significantly improve access to opioid analgesics pain medications made from opiates and other controlled medicines worldwide over the coming ten years. After March 2009, global drug policy actors, such as the UN Commission on Narcotic Drugs and INCB, should regularly review progress made by countries toward adequate availability of pain treatment medications, carefully analyzing steps taken to advance this important issue. Donor countries and agencies, including the Global Fund to fight AIDS, Malaria, and Tuberculosis and the U.S. President s Emergency Plan for AIDS Relief, should actively encourage countries to undertake comprehensive steps to improve access to pain relief 3 Human Rights Watch March 2009

8 medications and support those that do, including through support for the WHO Access to Controlled Medications Programme. UN and regional human rights bodies should routinely remind countries of their obligation under human rights law to ensure adequate availability of pain medications. Please, do not make us suffer any more 4

9 Background: Pain in the World Today Prevalence of Pain Chronic moderate and severe pain is a common symptom of cancer and HIV/AIDS, as well as of various other health conditions. 5 A recent review of pain studies in cancer patients found that more than fifty percent of cancer patients experience pain symptoms 6 and research consistently finds that 60 to 90 percent of patients with advanced cancer experience moderate to severe pain. 7 The intensity of the pain and its effect vary depending on to the type of cancer, treatment, and personal characteristics. Prevalence and severity of pain usually increase with disease progression. Although no population-based studies of AIDS-related pain have been published, multiple studies report that 60 to 80 percent of patients in the last phases of illness experience significant pain. 8 Even though the increasing availability of antiretroviral drugs in middle and low income countries is prolonging the lives of many people with HIV, pain symptoms continue to be a problem for a significant proportion of these patients. 9 Several studies have found that between 29 and 74 percent of people who receive antiretroviral treatment experience pain symptoms Pain is also a symptom in various other diseases and chronic conditions and acute pain is often a side effect of medical procedures. This paper, however, focuses primarily on chronic pain. 6 M. van den Beuken-van Everdingen, et al., Prevalence of pain in patients with cancer: a systematic review of the past 40 years, Annals of Oncology, vol. 18, no.9, Mar. 12, 2007, pp C. S. Cleeland, et al., Multidimensional Measurement of Cancer Pain: Comparisons of U.S. and Vietnamese Patients, Journal of Pain and Symptom Management, vol. 3, 1988, pp. 1, 23-27; C. S. Cleeland, et al., Dimensions of the Impact of Cancer Pain in a Four Country Sample: New Information from Multidimensional Scaling, Pain vol. 67, 1996, pp ; R.L. Daut and C.S. Cleeland, The prevalence and severity of pain in cancer, Cancer, vol. 50, 1982, pp ; Foley, K. M., "Pain Syndromes in Patients with Cancer," in K. M. Foley, J. J. Bonica, and V. Ventafridda, ed., Advances in Pain Research and Therapy, (New York: Raven Press, 1979), pp ; Foley, K. M., "Pain Assessment and Cancer Pain Syndromes," in D. Doyle, G. Hank, and N. MacDonald, eds., Oxford Textbook of Palliative Medicine, 2nd ed., (New York: Oxford University Press, 1999), pp ; Stjernsward, J., and D. Clark, "Palliative Medicine: A Global Perspective," in D. Doyle, G. W. C. Hanks, N. Cherny, and K. Calman, eds., Oxford Textbook of Palliative Medicine, 3rd ed., (New York: Oxford University Press, 2003), pp Green, K., Evaluating the delivery of HIV palliative care services in out-patient clinics in Viet Nam, upgrading document, London School of Hygiene and Tropical Medicine, 2008; Kathleen M. Foley, et al., "Pain Control for People with Cancer and AIDS," in Disease Control Priorities in Developing Countries, 2 nd ed., (New York: Oxford University Press, 2003), pp ; Larue, Francois, et al., Underestimation and under-treatment of pain in HIV disease: a multicentre study, British Medical Journal, vol.314, 1997, p.23, (Accessed April 2007); Schofferman, J., and R. Brody, "Pain in Far Advanced AIDS, in K. M. Foley, J. J. Bonica, and V. Ventafridda, eds., Advances in Pain Research and Therapy, (New York: Raven Press, 1990), pp ; E. J. Singer, C. Zorilla, B. Fahy-Chandon, S. Chi, K. Syndulko and W. W. Tourtellotte, Painful Symptoms Reported by Ambulatory HIV-Infected Men in a Longitudinal Study, Pain, vol. 54, 1993, pp Selwyn, P. and Forstein, M., Overcoming the false dichotomy of curative vs. palliative care for late-stage HIV/AIDS, JAMA vol. 290, 2003, pp Green, K., Evaluating the delivery of HIV palliative care services in out-patient clinics in Viet Nam, upgrading document, London School of Hygiene and Tropical Medicine, Human Rights Watch March 2009

10 Experts believe that worldwide there are 24.6 million people who suffer from cancer annually, and that more than 7 million people die of it every year. Overall, 12 percent of all deaths worldwide are due to cancer. 11,12 WHO warns that these numbers will continue to grow over the coming years, with 30 million people projected to be living with cancer by UNAIDS estimates that about 32 million people live with HIV worldwide, that some 4.1 million people are newly infected each year, and that almost 3 million die of the disease. 14,15 The Impact of Pain Moderate to severe pain has a profound impact on quality of life. Scientific research has demonstrated that persistent pain has a series of physical, psychological and social consequences. It can lead to reduced mobility and consequent loss of strength; compromise the immune system; interfere with a person s ability to eat, concentrate, sleep, or interact with others. 16 The psychological consequences are also profound. A WHO study found that people who live with chronic pain are four time more likely to suffer from depression or anxiety. 17 The physical effect of chronic pain and the psychological strain it causes can even influence the course of disease. According to WHO, [p]ain can kill Pain has social consequences for people experiencing it and often also for their care givers, who may face sleep deprivation and other problems as a result. These social consequences include inability to work, care for children or other family members, and participate in social activities. 19 Pain can also interfere with a dying person s ability to bid farewell to loved ones and make final arrangements. While the physical, psychological and social consequences of pain are measurable, the suffering caused by the pain is not. Yet, there can be little dispute about enormity of the misery it inflicts. People who experience severe but untreated pain often live in agony for 11 Parkin D.M., et al., Global cancer statistics, 2002, CA: A Cancer Journal for Clinicians, vol.55, 2005, pp World Health Organization, National Cancer Control Programmes: Policies and Managerial Guidelines, second edition, 2002, pp. vii, xii. 13 Ibid, p. xii 14 World Health Organization, Achieving Balance in National Opioids Control Policy: Guidelines for Assessment, 2000, p UNAIDS, Report on the Global AIDS Epidemic, May 2006, p Brennan F, Carr DB, Cousins MJ, Pain Management: A Fundamental Human Rights, Anesthesia & Analgesia, vol. 105, No. 1, July 2007, pp Gureje O, Von Korff M, Simon GE, Gater R., Persistent pain and well-being: a World Health Organization study in primary care, JAMA, vol. 80, 1998, pp See also: B. Rosenfeld, et al., Pain in Ambulatory AIDS Patients. II: Impact of Pain on Psychological Functioning and Quality of Life, Pain, vol. 68, 1996, pp. 2-3, WHO, National Cancer Control Programme: Policies and Managerial Guidelines, 2002, p R. L. Daut, C. S. Cleeland and R. C. Flanery, Development of the Wisconsin Brief Pain Questionnaire to Assess Pain in Cancer and Other Diseases, Pain, vol. 17, 1983, pp. 2, Please, do not make us suffer any more 6

11 much of the day and often for extended periods of time. Many people interviewed by Human Rights Watch who had experienced severe pain in India, expressed the exact same sentiment as torture survivors: all they wanted was for the pain to stop. Unable to sign a confession to make that happen, several people told us that they had wanted to commit suicide to end the pain, prayed to be taken away, or told doctors or relatives that they wanted to die. 20 Pain Management: Elements, Effectiveness, Cost According to WHO, Most, if not all, pain due to cancer could be relieved if we implemented existing medical knowledge and treatments. 21 The mainstay medication for the treatment of moderate to severe pain is morphine, an opioid that is made of an extract of the poppy plant. Morphine can both be injected and taken orally. It is mostly injected to treat acute pain, generally in hospital settings. Oral morphine is the drug of choice for chronic pain, and can be taken both institutional settings and at home. Due to the potential for its abuse, morphine is a controlled medication, meaning that its manufacture, distribution and dispensing is strictly controlled both at the international and national levels. The WHO Pain Relief Ladder is the basis for modern pain management. Originally developed for treating cancer pain, it has since been applied successfully to HIV/AIDS-related pain. 22 The ladder recommends the administration of different types of pain medications, or analgesics, according to the severity of the pain. For mild pain, it calls for basic pain relievers like acetaminophen (Tylenol), aspirin, or nonsteroidal anti-inflammatory drugs that are usually widely available and without prescription. For mild to moderate pain, it recommends a combination of basic pain relievers and a weak opioid, like codeine. For moderate to severe pain, it calls for strong opioids, like morphine. Indeed, WHO has held that for managing cancer pain, opioids are absolutely necessary and, when pain is moderate to severe, there is no substitute for opioids such as morphine. 23 The Pain Relief Ladder also recommends various other medications, known as adjuvant drugs, that serve to increase the effectiveness of analgesics or counter their side effects, including laxatives, anti-convulsants and anti-depressants. 20 Human Rights Watch interviews in March and April 2008 in the Indian states of Kerala, Andhra Pradesh, West Bengal, and Rajasthan. 21 WHO, Achieving Balance in Opioid Control Policy, 2000, p O'Neill, J. F., P. A. Selwyn, and H. Schietinger, A Clinical Guide to Supportive and Palliative Care for HIV/AIDS, (Washington, DC: Health Resources and Services Administration, 2003). 23 WHO, Achieving Balance in National Opioids Control Policy. 7 Human Rights Watch March 2009

12 Pain medications vary greatly in terms of cost. Basic oral morphine in powder or tablet form is not protected by any patent and can be produced for as little as US$0.01 per milligram. 24 (A typical daily dose in low and middle-income countries ranges, according to one estimate, from 60 to 75 milligrams per day). 25 Other pain medications, such as Fentanyl skin patches that gradually release the active substance, are very costly, and some protect by patent. Because oral morphine can be produced cheaply, providing pain management should be possible at the community level even in developing countries. However, a 2004 study by De Lima and others found that, for a variety of reasons (see below, under Cost), opioid analgesics, including basic oral morphine, tend to be considerably more expensive in both relative and absolute terms in low and middle income countries than in industrialized nations. 26 Chronic pain management often comes as a part of broader palliative care services. Palliative care aims to improve the quality of life of patients and their families facing problems associated with life-threatening illnesses, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual. 27 The World Health Organization recognizes palliative care as an essential component of a national response to HIV/AIDS, cancer and other diseases. 28 The organization estimates that, despite an overall 5-year survival rate of nearly 50% in developed countries, the majority of cancer patients will need palliative care sooner or later. In developing countries, the proportion requiring palliative care is at least 80%. Worldwide, most cancers are diagnosed when already advanced and incurable. 29 For those with incurable cancers, the only realistic treatment options are pain relief and palliative care. 30 Palliative care is often provided alongside curative care services. 31 While 24 Kathleen M. Foley, et al., "Pain Control for People with Cancer and AIDS." 25 Ibid. This is an estimate for low and middle income countries. The average daily dose in industrialized countries tends to be higher. This is due, among others, to longer survival of patients and the development among patients of tolerance to opioid analgesics. communication with Kathleen M. Foley, January 23, De Lima L, Sweeney C, Palmer J.L, Bruera E., Potent Analgesics Are More Expensive for Patients in Developing Countries: A Comparative Study, Journal of Pain & Palliative Care Pharmacotherapy, vol. 18, no. 1, 2004, pp WHO, National Cancer Control Programmes: Policies and Managerial Guidelines, second edition, 2002, p. xv, xvi. 28 Ibid., pp Ibid. 30 Cited in WHO, Achieving Balance in National Opioids Control Policy, p. 3. Please, do not make us suffer any more 8

13 palliative care providers may offer inpatient services at hospices or hospitals, their focus is frequently on home-based care for people who are terminally ill or have life-limiting conditions, thus reaching people who otherwise might not have any access to healthcare services, including pain management. Widespread Consensus: Pain Relief Medications Must Be Available For decades, there has been a consensus among health experts that opioid pain relievers like morphine and codeine must be available for the treatment of moderate and severe pain. Almost fifty years ago, UN member states articulated that consensus as follows when they adopted the 1961 Single Convention on Narcotic Drugs: The medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and adequate provision must be made to ensure the availability of narcotic drugs for such purposes. 32 The International Narcotic Control Board, the body charged with overseeing the implementation of the UN drug conventions, clarified in 1995 that the Convention establishes a dual drug control obligation: to ensure adequate availability of narcotic drugs, including opiates, for medical and scientific purposes, while at the same time preventing illicit production of, trafficking in and use of such drugs. 33 The World Health Organization has included both morphine and codeine in its Model List of Essential Medicines, a list of the minimum essential medications that should be available to all persons who need them. WHO has also repeatedly stated that palliative care and pain treatment are an essential not optional component of care for cancer and HIV/AIDS. For example, in its guide on the development of national cancer control programs it observes 31 While there is increasing acceptance of the need for palliative care and pain treatment services for cancer patients, the focus on ensuring antiretroviral treatment to people living with HIV has detracted attention from palliative care needs of this group. In a March 2007 report, DFID noted that dominant global and national policy on increasing access to treatment, and progress made in expanding access to ARVs, has added to the perception that palliative care is increasingly irrelevant. This is contrary to clinical evidence of the need for palliative care alongside treatment. Not only do people on ARVs often need palliative care services, millions of people continue to die of AIDS and many could benefit from palliative care and pain treatment services. DFiD Health Resource Center, Review of global policy architecture and country level practrice on HIV/AIDS and palliative care, March 2007, p Preamble of the 1961 Single Convention on Narcotic Drugs, (accessed January 15, 2009). 33 INCB, Availability of Opiates for Medical Needs: Report of the International Narcotics Control Board for 1995, (accessed January 15, 2009), p.1. 9 Human Rights Watch March 2009

14 that a national disease control plan for AIDS, cancer and noncommunicable disorders cannot claim to exist unless it has an identifiable palliative care component. 34 Over the last twenty years, the INCB, WHO and other international bodies have repeatedly reminded countries of their obligation to ensure adequate availability of opioids for the treatment of pain. In 1986, the WHO recommended the use of oral morphine for treatment of long term pain. In 1989, INCB made a series of recommendations to states on the need to improve availability of opioid analgesics. 35 In 1994/5, it conducted a survey to identify obstacles to improving such availability and assess the response of member states to its 1989 recommendations. 36 In 1987 and 1996, the WHO issued guides to cancer pain relief with recommendations for countries on improving opioid analgesic availability. 37 In 1999, INCB devoted a chapter in its annual report to the issue. 38 In 2000, WHO developed a tool for governments and providers to use in evaluating national opioid control policies and recommendations on improving availability. 39 In 2007, in consultation with INCB, WHO established the Access to Controlled Medications Programme, which aims to address all identified impediments to accessibility of controlled medicines, with a focus on regulatory, attitude and knowledge impediments. 40 In its annual reports, INCB routinely expresses concern about the poor availability of pain treatment medications in many countries and calls on member states to take further steps. Various other international bodies, such as the UN Economic and Social Council and the 34 WHO, National Cancer Control Programme: Policies and Managerial Guidelines, 2002, pp A copy of the report is on file with Human Rights Watch. The report is not on the INCB website. 36 INCB, Availability of Opiates for Medical Needs: Report of the International Narcotics Control Board for 1995, p WHO, Cancer Pain Relief, ( Geneva: World Health Organization, 1987); WHO, Cancer Pain Relief, Second Edition, With a guide to opioid availability, ( Geneva: World Health Organization, 1996). 38 INCB, Report of the International Narcotic Control Board for 1999, Freedom from Pain and Suffering. 39 WHO, Achieving Balance in National Opioids Control Policy: Guidelines for Assessment, (Geneva: WHO, 2000) WHO/EDM/QSM/2000.4, (accessed January 15, 2009). 40 Joint report by WHO and INCB, Assistance Mechanism to Facilitate Adequate Treatment of Pain with Opioid Analgesics, March 2, 2007, (accessed January 12, 2009). Please, do not make us suffer any more 10

15 World Health Assembly, have also called on countries to ensure adequate availability of opioid analgesics. 41 The Pain Treatment Gap Most, if not all, pain due to cancer could be relieved if we implemented existing medical knowledge and treatments There is a treatment gap: it is the difference between what can be done, and what is done about cancer pain. World Health Organization 42 Despite the clear consensus that pain treatment medications should be available, approximately 80 percent of the world population has either no or insufficient access to treatment for moderate to severe pain and tens of millions of people around the world, including around four million cancer patients and 0.8 million end-stage HIV/AIDS patients, suffer from moderate to severe pain each year without treatment, according to the World Health Organization. 43 Approximately 89 percent of the total world consumption of morphine occurs in countries in North America and Europe. 44 Low and middle income countries consume only 6 percent of the morphine used worldwide 45 while having about half of all cancer patients 46 and 95 percent of new HIV infections. 47 Thirty-two countries in Africa have almost no morphine distribution at all, 48 and only fourteen have oral morphine. 49 However, inadequate pain management is also prevalent in developed countries. In the United States, an estimated 25 million people experience acute pain as a result of injury or surgery, and between 70 and 90 percent of advanced cancer patients experience pain. Surveys of subjects ranging from children to elderly patients have shown that over one third 41 United Nations Economic and Social Council, Resolution 2005/25: Treatment of pain using opioid analgesics. (New York: UN General Assembly ECOSOC) 2005, (accessed January 12, 2009). See also, among others, ECOSOC resolutions 1990/31 and 1991/43; and World Health Assembly, Resolution WHA on Cancer prevention and control (Ninth plenary meeting, 25 May 2005 Committee B, third report), (accessed January 12, 2009). 42 WHO, Achieving Balance in Opioid Control Policy, p World Health Organization Briefing note, Access to Controlled Medications Programme, September, On file with Human Rights Watch. 44 INCB, Report of the International Narcotic Control Board for 2007, E/INCB/2007/1, 2008, p International Narcotics Control Board, Report of the International Narcotics Control Board for 2004, United Nations, WHO, National Cancer Control Programme: Policies and Managerial Guidelines, 2002, p National institute of allergy and infectious diseases, NIH, DHHS, HIV Infection in Infants and Children, July 2004, (accessed january 22, 2009); Fauci AS. AIDS epidemic: Considerations for the 21 st century,.new England Journal of Medicine, vol. 341, no. 1414, 1999, pp INCB, Report of the International Narcotics Control Board for 2004, United Nations, E/INCB/2004/1, 2005; INCB, Use of essential narcotic drugs to treat pain is inadequate, especially in developing countries, press Release, March 3, correspondence with Anne Merriman, January 24, Human Rights Watch March 2009

16 are not adequately treated for pain. 50 Lack of access to pain medication in pharmacies and fear of addiction on the part of both patients and providers are significant limiting factors in the United States. 51 Studies in Western Europe also document under-treatment of pain. A study of people living with HIV in France found that doctors underestimated pain severity in over half of their patients and under-prescribed both opioids and antidepressants. 52 Up to 85 percent of people living with HIV have untreated pain, twice the proportion of people with cancer whose pain is untreated. 53 A study in the U.S. found that less than 8 percent of AIDS patients who reported severe pain were treated according to official treatment guidelines, and women, less-educated patients, and patients with histories of injection drug use were most likely to report inadequate treatment for pain Foley, Kathleen M., Ideas for an Open Society, Pain Management, vol. 3, no. 4, 2002, ment.pdf (accessed January 15, 2009), p Ibid., p Larue, Francois et al., Underestimation and under-treatment of pain in HIV disease: a multicentre study, British Medical Journal, vol. 314, no.23, 1997, (Accessed April 2007). 53 International Association for the Study of Pain, Pain in AIDS: A Call for Action, Pain, vol. 4, no. 1, March Breitbart W, et al., The undertreatment of pain in ambulatory AIDS patients, Pain, vol. 65, 1996, pp Please, do not make us suffer any more 12

17 Pain Treatment, Palliative Care and Human Rights Health as a Human Right Health is a fundamental human right enshrined in numerous international human rights instruments. 55 The International Covenant on Economic Social and Cultural Rights (ICESCR) specifies that everyone has a right to the enjoyment of the highest attainable standard of physical and mental health. The Committee on Economic, Social and Cultural Rights, the body charged with monitoring compliance with the ICESCR, has held that states must make available in sufficient quantity functioning public health and health-care facilities, goods and services, as well as programmes and that these services must be accessible. Because states have different levels of resources, international law does not mandate the kind of health care to be provided. The right to health is considered a right of progressive realization. By becoming party to the international agreements, a state agrees to take steps to the maximum of its available resources to achieve the full realization of the right to health. In other words, high income countries will generally have to provide healthcare services at a higher level than those with limited resources. But all countries will be expected to take concrete steps towards increased services, and regression in the provision of health services will, in most cases, constitute a violation of the right to health. But the Committee on Economic, Social and Cultural Rights has also held that there are certain core obligations that are so fundamental that states must fulfill them. While resource constraints may justify only partial fulfillment of some aspects of the right to health, the Committee has observed vis-à-vis the core obligations that a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations, which are non-derogable. The Committee has identified, among others, the following core obligations: To ensure the right of access to health facilities, goods and services on a nondiscriminatory basis, especially for vulnerable or marginalized groups; To provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs; To ensure equitable distribution of all health facilities, goods and services; 55 International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 11; also in the Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September , art Human Rights Watch March 2009

18 To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population. 56 Pain Treatment and the Right to Health As morphine and codeine are on the WHO List of Essential Medicines, countries have to provide these medications as part of their core obligations under the right to health, regardless of whether they have been included on their domestic essential medicines lists. 57 They must make sure that they are both available in adequate quantities and physically and financially accessible for those who need them. In order to ensure availability and accessibility, states have, among others, the following obligations: Since manufacturing and distribution of controlled medicines like morphine and codeine are completely in government hands, states must put in place an effective procurement and distribution system and create a legal and regulatory framework that enables healthcare providers in both the public and private sector to obtain, prescribe and dispense these medications. Any regulations that arbitrarily impede the procurement and dispensing of these medications will violate the right to health. States must adopt and implement a strategy and plan of action for the roll out of pain treatment and palliative care services. Such strategy and plan of action should identify obstacles to improved services as well as steps to eliminate them. States should regularly measure progress made in ensuring availability and accessibility of pain relief medications. The requirement of physical accessibility means that these medications must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as persons with HIV/AIDS. 58 This means that states 56 UN UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4 (2000), (accessed May 11, 2006), para. 43. The Committee on Economic, Social and Cultural Rights is the UN body responsible for monitoring compliance with the International Covenant on Economic, Social and Cultural Rights. 57 The 15 th edition of WHO List of Essential Medicines, approved in 2007, (accessed January ), includes the following opioid analgesics: Codeine Tablet: 30 mg (phosphate); Morphine Injection: 10 mg (morphine hydrochloride or morphine sulfate) in 1 ml ampoule;oral liquid: 10 mg (morphine hydrochloride or morphine sulfate)/5 ml., Tablet: 10 mg (morphine sulfate); Tablet (prolonged release): 10 mg; 30 mg; 60 mg (morphine sulfate). 58 CESCR, General Comment 14, para. 12. Please, do not make us suffer any more 14

19 must ensure that a sufficient number of healthcare providers or pharmacies stock and dispense morphine and codeine, and that an adequate number of healthcare workers are trained and authorized to prescribe these medications. Financial accessibility means that, while the right to health does not require states to offer medications free of charge, they must be affordable for all. 59 In the words of the Committee: Payment for health-care services has to be based on the principle of equity, ensuing that these services, whether privately or publicly provided, are affordable to all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households. 60 Countries also have an obligation to progressively implement palliative care services, which, according to WHO, must have priority status within public health and disease control programmes. 61 Countries must ensure an adequate policy and regulatory framework, develop a plan for implementation of these services, and take all steps that are reasonable within available resources to execute the plan. Failure to attach adequate priority to developing palliative care services within healthcare services will violate the right to health. Pain Treatment and the Right to Be Free from Cruel, Inhuman and Degrading Treatment The right to be free from torture, cruel, inhuman and degrading treatment or punishment is a fundamental human right that is recognized in numerous international human rights instruments. 62 Apart from prohibiting the use of torture, cruel, inhuman, and degrading 59 Ibid., para Ibid., para WHO, National Cancer Control Programme: Policies and Managerial Guidelines, 2002, p International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 7 provides, No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment ; Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, article 16 provides that Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity ; Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67, entered into force February 28, 1987; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 15 Human Rights Watch March 2009

20 treatment or punishment, the right also creates a positive obligation for states to protect persons in their jurisdiction from such treatment. 63 As part of this positive obligation, states have to take steps to protect people from unnecessary pain related to a health condition. As the UN Special Rapporteur on Torture, Cruel, Inhuman and Degrading Treatment and Punishment wrote in a joint letter with the UN Special Rapporteur on the Right to Health to the Commission on Narcotic Drugs in December 2008, Governments also have an obligation to take measures to protect people under their jurisdiction from inhuman and degrading treatment. Failure of governments to take reasonable measures to ensure accessibility of pain treatment, which leaves millions of people to suffer needlessly from severe and often prolonged pain, raises questions whether they have adequately discharged this obligation. 64 (ECPT), signed November 26, 1987, E.T.S. 126, entered into force February 1, 1989; African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, See for example the judgment of the European Court of Rights in Z v United Kingdom (2001) 34 EHRR A copy of the letter is available at (accessed January 16, 2009). Please, do not make us suffer any more 16

21 Obstacles to Provision of Pain Treatment and Palliative Care There is no lack of information about the reasons why so many people who suffer from severe pain cannot get access to adequate pain treatment. In dozens of publications spanning several decades, the World Health Organization, the International Narcotics Control Board, healthcare providers, academics and others have chronicled the barriers in great detail. 65 A common theme of many of these publications is the failure of many governments around the world to take reasonable steps to improve access to pain treatment and palliative care services and to strike the right balance between ensuring availability of controlled medications for legitimate purposes and preventing their abuse. In its 2007 Annual Report, the INCB repeated its previous calls for improvement: The low levels of consumption of opioid analgesics for the treatment of pain in many countries continue to be a matter of serious concern to the Board. The Board again urges all Governments concerned to identify the impediments in their countries to adequate use of opioid analgesics for the treatment of pain and to take steps to improve the availability of those narcotic drugs for medical purposes To date, these calls have largely fallen on deaf ears. Because of countries failure to act on the recommendations of WHO and INCB, many of the same obstacles that the organizations identified two decades ago remain today. These barriers include the failure of many governments to put in place functioning drug supply systems; the failure to enact policies on pain treatment and palliative care; the existence of unnecessarily restrictive drug control regulations and practices; fear among healthcare workers of legal sanctions for legitimate medical practice; poor training of healthcare workers; and the unnecessarily high cost of pain treatment. 65 See for example, INCB, Availability of Opiates for Medical Needs: Report of the International Narcotics Control Board for 1995, p. 1, (accessed January 15, 2009); INCB, Report of the International Narcotics Control Board for1999 ; INCB, Report of the International Narcotics Control Board for 2007, WHO, Achieving Balance in National Opioids Control Policy ; ECOSOC resolution 2005/25 on Treatment of pain using opioid analgesics (36th plenary meeting 22 July 2005), (accessed January 16, 2009); World Health Assembly, Resolution WHA on Cancer prevention and control (Ninth plenary meeting, 25 May 2005 Committee B, third report), (accessed February 2009). 66 INCB, Report of the International Narcotics Control Board for 2007, para Human Rights Watch March 2009

22 While there is no doubt that it will not be easy to overcome some of these barriers and implement comprehensive pain treatment and palliative care services, particularly for countries with limited resources, much progress could be made if governments took the action required of them by international human rights standards and the UN drug conventions. Indeed, the governments of countries like Romania, Uganda and Vietnam each of which have adopted comprehensive approaches to improving availability of pain treatment have shown that much can be done to comply with the basic standards required, even by countries with limited resources. While each of these countries still has much to do to make pain treatment and palliative care fully available they are all moving in the right direction. Failure to Ensure Functioning and Effective Supply System Opioid analgesics are controlled medicines. As such, their manufacture, distribution and prescription are strictly regulated; these medications cannot be traded freely on the market. The 1961 Single Convention on Narcotic Drugs has created a system to regulate supply and demand. Every year, countries submit estimates of their need for morphine and other controlled medications to INCB, which then approves a quota for countries and authorizes producing countries to grow a specified amount of raw material. Once INCB has approved their quota, countries may then purchase morphine up to the approved amount. Each individual transaction across international borders must be authorized and registered by INCB. On a national level, special drug control agencies are responsible for communicating with INCB about the need for morphine, imports and exports, and for regulating and overseeing all domestic transactions involving controlled medications. Under the UN drug conventions, countries have an obligation to ensure a functioning and effective supply system for controlled medications. The INCB has held that an efficient national drug control regime must involve not only a programme to prevent illicit trafficking and diversion but also a programme to ensure the adequate availability of narcotic drugs for medical and scientific purposes. 67 Such drug availability programs must be capable of ensuring that adequate amounts of morphine and other controlled medicines are available in the country at any given time, that an effective system of distribution is in place to provide healthcare providers and 67 INCB, Availability of Opiates for Medical Needs: Report of the International Narcotics Control Board for 1995, p. 14. Please, do not make us suffer any more 18