Police infringement of the right to privacy of replacement therapy patients

“We are extremely concerned by the problem that the people on the lists … issued with these drugs on the methadone programme, their status does not coincide … with them needing help. We therefore asked for all data about these people.  What you’re saying about HIV infected people and that this is personal information … even if such information was asked for, we will never publish it because it’s information about a person, but for work in respect to these people we also need this information. We are not asking for it to divulge it in full, we need it because these are groups at risk who we need to know about”.  This was the “argued response” of the Head of the Ministry of Internal Affairs at a press conference.

 Events leading up to that statement

In order to prepare analytical material on the programme in Ukraine for preventing the spread of the AIDS epidemic among drug addicts, the Ministry of Internal Affairs received an Instruction from the President’s Administration to provide certain information. NGOs working in this sphere have learned that in connection with this instruction, anti-narcotics units in the regions were on 18 January sent Instruction No. 40/2/1-106 “On processing individuals taking part in replacement therapy”.

They are instructed to:

ascertain the full legal and actual address of the medical establishments were replacement therapy is administered; the number of people involved in it; identifying those who use methadone and bupremorphine;

according to lists sent of drug addicts and people known to be taking a rehabilitation course with replacement therapy question each person, their relatives as per the form of the explanation drawn up;

the explanation form should contain the individual’s personal data; the circumstances of treatment, psychological and physical state; information about whether they are HIV-positive.

The regional departments of the MIA sent the relevant medical establishments requests for lists of those registered for replacement therapy, with their personal data provided. Since the instruction did not provide a standardized request form, the versions differed in various regions.  While the Zhytomyr region refers vaguely to “official need”, the Vinnytsa region request cites not only Article 11.17 of the Law on the Police, but the Regulations on the Civil Service for Fighting Economic Crime,

The lack of concern in these documents for such niceties as observance of the law is nothing when compared to the direct work of police officers in “processing individuals”. The instruction stipulates that explanations will be taken from members of this high-risk group according to a form established by the MIA management as well as other actions as per the Instruction. However according to information from NGOs working in this area, particularly the International HIV/AIDS Alliance in Ukraine) there have by no means isolated instances where those on replacement therapy have been forced to give explanations on threat of not receiving medication, exclusion from the programme, physical and psychological violence, divulgence of confidential information, etc.

In considering the Minister’s assertions, cited above, the author suggests turning to the Constitution, where Article 19 § 2 states that Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine., while Article 32 § 2 stipulates that the collection, storage, use and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interests of national security, economic welfare and human rights

Article 10 Item 21 of the Law on the Police states that the latter must according to established procedure “identify and notify health establishments about people who are part of the risk group for AIDS and bring these people, as well as those who are HIV positive and injecting drug addicts for mandatory examination and treatment on the application of a health establishment with the Prosecutor’s sanction.

The procedure for identifying drug users as one of the groups at risk of contracting AIDS was established by a Joint Order of the Ministry of Health, MIA, Prosecutor General’s Office and Ministry of Justice from 10.10.1997. it does not envisage any information requests from the MIA to Ministry of Health departments regarding this group, still less so those who are HIV positive. It would seem that the MIA was either in a great hurry or simply decided not to pay attention to such an inconvenient clash with legal norms.

The author points out also that Article 11 Item 17 of the Law on the Police does envisage that the police receive any information in writing but only in cases involving crimes which the police are dealing with.

According to Article 13 § 3 of the Law on Countering the Spread of Illnesses caused by HIV and the legal and social protection of people living with HIV, information about whether or not a person is HIV positive is confidential medical information. The same article gives a comprehensive list of cases and procedure for providing such information.

The law does not allow for the provision of this information by an official or member of the medical staff of a health establishment. Such behaviour is against the law and reflects the crime set out in Article 132 of the Criminal Code.

With regard to the above-cited statement made by the Minister of Internal Affairs, it should be noted that the State guarantees all those in the group of heightened risk of HIV infection the same rights and possibilities as other citizens, including the possibility of administrative and court protection of their rights.  Discrimination on the grounds of belonging to the group of heightened risk of HIV infection is prohibited. . The MIA Instruction is clearly discriminatory with respect of people belonging to a heightened risk group.

Article 14 § 5 of the Law on Measures to Counter the Unlawful Sale of Narcotic and Psychotropic Substances, who voluntarily turns to a drug clinic for treatment, is guaranteed anonymity on his or her request. Such information can be provided to the police only if the person is charged with a criminal or administrative offence. Divulgence of the information runs counter to a number of other laws.

The author says in conclusion that such actions from the MIA have become possible as a result of the flawed drug policy of the State which has for a long time been based not only consistent measures aimed at properly fighting drug crimes, but effectively at harassing drug addicts who are themselves victims and the result of this crime, with this also leading to further criminalization of the drug dependent lawyers of society.  One of the consequences is that it becomes impossible to effectively fight the spread of HIV and AIDS.

Abridged from the original article by Andriy Tolopilo