The Need for Human-Rights Based Alternatives in TB Treatment. 21/10/2016

Publishedd by AIDSALLIANCE

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.


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

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
  • 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