The European Court of Human Rights last week handed down a decision in a case called Wenner v Germany. It concluded that a failure to offer a man called Wenner opioid-substitution therapy while he was in prison amounted to torture, contrary to Article 3 of the European Convention on Human Rights.
Wenner is 61. He has been an incorrigible heroin addict since he was 17. Five stints of in-house rehab failed to wean him off the drug, and he contracted both hepatitis C and HIV. Since 2001, he received an employment disability pension. Between 1991 and 2008, he was prescribed an opioid substitute called Polamidon. But in 2005 he started taking heroin again. In 2009 he was convicted of drug-trafficking and was sentenced to six years in prison.
A German court directed the prison authorities to send Wenner to a drug detoxification facility. He underwent abstinence-based therapy, but was found to be secretly consuming methadone. The court concluded that he was prone to relapse, and sent him back to prison. There, he complained of chronic pain owing to polyneuropathy (nerve degeneration, presumably caused by his addiction). He was prescribed painkillers, but began acting as if he was an invalid, spending long periods in bed.
Wenner became involved in a protracted argument with the prison authorities over whether he should receive an opioid substitute. Two external doctors examined him. One suggested that the authorities consider giving Wenner a substitute, while the other recommended this treatment.
Under German law, it is lawful to prescribe narcotics in the course of legitimate treatment. But the prison doctors took the view that, as Wenner was no longer experiencing physical withdrawal symptoms, this was unnecessary. One justification for giving addicts substitutes is to prevent them from becoming impoverished and leading them into a life of crime. But, as Wenner was already in prison, these social considerations did not apply. Wenner was discharged in 2014, and immediately started taking drugs again.
After much domestic litigation, which Wenner lost, he complained to the European Court of Human Rights. The court noted that there was a divergence of views among EU member states on whether prisoners should be given opioid-substitution therapy: 30 countries do; 15 do not. Wenner claimed that he was undergoing torture, due to the pain he was suffering and the deterioration in his health. The German authorities countered that he did not have the right to choose what medical treatment he should undergo. The court acknowledged that opioid-substitution therapy was controversial, and that it was not the court’s role to get involved in medical decision-making; it said that it was difficult to decide whether the treatment afforded to Wenner was adequate.