The need for human-rights based alternatives in TB treatment

Detention-based approaches, including Kenya’s imprisonment of people who have stopped their TB treatment, are both contrary to human rights provisions and may undermine the prevention and treatment of TB.

That is the key finding of an article published in the July edition of the Health and Human Rights Journal  that included contributions from researchers at the Alliance.

The World Health Organisation (WHO) estimates that nine million people develop TB every year, a sixth of whom die as a result. Public health laws are widely applied to contain infectious diseases and for health protection. A variety of more specific laws related to infectious disease are used for controlling the spread of diseases including and beyond TB.

Denis Nzokia 2217

 © Nell Freeman for the Alliance

Compulsory isolation of TB patients

More specifically, use of compulsory isolation of TB patients appears to be commonly provided by the law in different countries, with a number of high-burden countries having current legislation allowing for this practice, including Armenia, Belarus, Georgia, the Republic of Moldova, and Ukraine. In other high-burden countries such as South Africa, proposals for detention have been opposed.

But prison-based detention is rare, with cases reported in Israel and Kenya. In Israel, patients who are lost to follow-up on treatment were either hospitalized under a court order and after failing to comply with the order, hospitalized in prison or referred directly to a prison hospital. In Kenya, people lost to follow-up were detained in ordinary prisons without health facilities.

Human rights literature suggests that compulsory treatment infringes on the right to health of people lost to follow up in at least two ways:

  • it generally disregards evidence-based medicine, therefore failing to meet the quality requirement of the right to health; and
  • disregards informed consent, which is a critical element of voluntary counselling, testing and treatment.

That said, the researchers acknowledge the health of other members of society cannot be ignored and the state has a responsibility to protect the public from unnecessary risks.

The Siracusa Principles

The ‘Siracusa Principles’ adopted by the UN Economic and Social Council set out circumstances in which it may be justifiable to limit individual rights, for example, by use of quarantine or restrictions on movement, to deal with  “a serious threat to the health of the population or individual members of the populations.” But WHO stresses that this must be a last resort.

In Kenya, the Public Health Act Chapter 242 has existed since 1921, and has been applied as a tool for TB containment. Section 27 of the Act makes provisions for the mandatory isolation of a person with an infectious disease. It states that:

“Where, in the opinion of the medical officer of health, any person has recently been exposed to the infection, and may be in the incubation stage of, or is infectious with any notifiable infectious disease and is not accommodated in such manner as adequately to guard against the spread of the disease, such person may, on a certificate signed by the medical officer of health, be removed, by order of a magistrate at the cost of the local authority of the district where such person is found, to a place of isolation and there detained until, in the opinion of the medical officer of health, he/she is free from infection or able to be discharged without danger to the public health, or until the magistrate cancels the order.” 

The researchers compare existing Kenyan law with the Syracusa Principles, guidance from WHO and other key global health actors. They argue that the present use of incarceration in Kenya “raises concerns both in terms of human rights law and scientific evidence, thus questioning whether application of the Siracusa Principles is appropriate and calling for the consideration of human rights-based alternatives, which may also be effective from a public health point of view.”

They argue that:

  • compulsory isolation in prison curtails human rights as it infringes the right to voluntary informed consent, contravenes freedom of movement of people lost to follow-up and could breach their rights to privacy
  • global health is moving away from authoritarian control approaches towards empowering individuals to take greater control of their health, but authoritarian approaches remain strong in TB programmes, despite its disempowering impact on communities
  • mandatory custodial isolation fails to account for the scale of wider epidemiological and health systems context in Kenya. A lack of resources means Kenya’s wider health systems are failing to cope with TB. “Arguably, people lost to follow-up on TB treatment in Kenya are, at least in part, punished due to the failings of the health systems.”
  • mandatory custodial isolation could reinforce existing inequalities through the socioeconomic deprivation of people with TB. Lack of employment has been independently associated with TB among Kenyan prisoners. Loss of income for imprisoned patient’s wider families could exacerbate the social exclusion
  • mandatory isolation of people lost to follow-up could adversely affect their psychological well-being, thus undermining their right to achieve their highest attainable standard of mental health

Human-rights based alternatives

The researchers suggest alternative human rights-based options along three broad categories at: preventing primary loss to follow-up; improving premises and conditions of isolation; and amending public health laws to exclude prison as a setting for mandatory isolation. 

They argue that it is important to understand why people get lost to follow up and how they can be best supported to adhere to treatments. Alternatives to detention-based approaches are suggested primarily through strengthening health systems for TB care. The researchers also argue for the reform of existing public health legislation and the formulation of new policies relating to isolation policy.

Detention of People Lost to Follow-Up on TB Treatment in Kenya: The Need for Human Rights-Based Alternatives, by Gitau Mburu, Enrique Restoy, Evaline Kibuchi, Paula Holland, and Anthony D. Harries