Gerencia y Finanzas

The concern about drug-related deaths is one of the main factors in the debate about the added value of DCRs. By providing safety-related rules, supervision of the injecting process and medically trained staff, the evidence shows that overdose deaths can be prevented. The same goes for non-fatal overdoses, which are frequently associated with serious health implications for users and drawing on ambulance and hospitals resources. Nevertheless, given the delicate nature of the activities within the DCRs, emergencies and damage cases connected to the use of drugs, in particular the occurrence of overdose is a realistic risk. The large majority of reported emergencies within DCRs are overdoses relating to heroine. The most frequent way in which heroin overdose causes immediate death is through respiratory depression, often in combination with other drugs, particularly alcohol (JRF, 2006). DCRs can therefore prevent deaths through aiding user’s breathing and administering Naloxone. Because of the fact that medical emergencies are a realistic scenario in DCRs, due attention should be paid to the question of the responsibility and the liability of people and/or institutions connected to the DCR. In what follows, the various and most likely damage claims will be dealt with, together with the relevant criteria for dealing with such claims and possible measures to minimise the risk, although it will, of course, never be possible to exclude the possibility of a claim all together.

Given the fact that overdose or other serious injury cases may occur within the setting of a DCR, a first possible claim could be based on the general principles of civil liability of those concerned. Take for example the situation where a user would—in violation of the house rules—directly inject another user with heroine, resulting in the death of the latter. In that case, the injector may be guilty of manslaughter. Moreover, a person may also be liable for manslaughter if they assisted another in the injection process. This could potentially lead to a charge of DCRs’ employees to be charged with manslaughter if they would act in circumstances that constitute assisting another in an unlawful injection process and death from heroin intoxication results. Besides criminal prosecution, the family of the deceased could mount a civil action, for example, if there were evidence of negligence. In the same sense, those running DCRs could be subject to civil liability, if things would go wrong, for example, if a user died or if a member of staff was injured in negligent circumstances. A civil claim could be successful, if there were evidence that the management of the DCR did not meet health and safety requirements and did not succeed in protecting their employees from injury. On similar grounds, a civil claim directed towards the local government, on whose territory the DCR operates, would be feasible if there were evidence that the responsible authorities did not meet the necessary requirements regarding supervision and control of the DCR and its activities, resulting in damage to users or third parties such as inhabitants from the neighbourhood, etc. Therefore, it is important in the context of this feasibility study to go into these various types of civil damage claims.

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3.4.1 The drug consumption room and its staff

A damage case resulting in injury or death of a user could lead to a claim of a third party (or even the user) towards the DCR and/or its staff members (or, depending on the circumstances, a claim of the staff towards the DCR). Such a claim would be subject to the general principles regarding civil liability (Tort). The basic criterion in this respect is the general cautionary norm. According to this criterion, the concrete behaviour of those held responsible, will be checked against a (reference) norm, the so-called bonus pater familias norm—meaning the behaviour of a normal, careful and forward-looking person (Vansweevelt & Weyts, 2009). This reference norm is an abstract and objective criterion, which is interpreted in a reasonable way.

In order for the claimant to be compensated, he or she would be required to deliver proof of the error, the damage as well as the causality between them (see Article 1382 Civil Code). The error criterion will be judged according to the factual circumstances of the concrete case. It is important in this respect to note that, in considering whether the general cautionary norm is respected, the professional competence of those concerned will be taken into account. The damaging behaviour of a person will be checked against the normal, forward-looking and careful behaviour of those belonging to the same professional category. Consequently, specific obligations are imposed by the jurisprudence depending on the type of profession (for example the obligation to provide information in case of a doctor).

b. Victim responsibility

In Belgian Tort law, it is generally accepted that a victim should be held responsible for the damage when the person concerned has knowingly and willingly subjected himself to a dangerous situation and as such is deemed to have accepted its risks (Vansweevelt & Weyts, 2009). Whenever there is evidence that the victim has acted carelessly, the risk taken by the victim can be taken into account. Given the inherent risk connected to drug use—even within the setting of DCR—it could be expected that any claim of the victim or its relatives, would be met by a defence according to this principle, especially if there is evidence that the user has not respected the house rules or has used the drugs carelessly.

c. Liability for appointees

Since a DCR would frequently work with certain appointees, it should be added that this could lead to a specific form of claim directed towards the DCR, based on the principle of Article 1384, 3°, Civil Code.

According to this principle, a harmful act by appointees can lead to liability of those who appointed them, if three conditions are met. Firstly, a bound of subordination needs to be proven, meaning that a person has the factual possibility to supervise another person’s act. Secondly, the appointee must have made an error that has damaged a third party (for the criterion against which the act will be checked; see above). Thirdly, the harmful act must have taken place in connection to the service of the appointee (Vansweevelt & Weyts, 2009, p. 399). An exception should be made to the foregoing principle for those who are considered employees. On the grounds of Article 18 of the Labour Law, employees that commit a harmful act damaging a third party (or its employer) while performing their duty according to the contract, can only be held liable for fraud, grave error and frequently occurring minor errors (Vansweevelt & Weyts, 2009, p. 426).

d. Possible measures

In order to provide a maximum protection against the various civil claims as mentioned above, a central aim of the DCR must be to guarantee circumstances that would make it difficult—or even impossible— for a claimant to prove that the negligent behaviour of the management of the DCR or its staff, are a sufficient ground to conclude to their civil liability. The DCR should therefore take all measures to provide clean injecting equipment, a clean environment in which to inject, a clear code of conduct and some clinical supervision of the injecting process. House rules and regulations, such as the prohibition of the sharing of injection equipment and injecting in the neck, should be instituted and controlled through the supervision of the consumption process. DCRs should thus be monitored (independently) on a regular basis, guaranteeing a regular observation of their operation, the process of supervision and the enforcement of house rules.

More in particular, the house rules would need to take due account of certain basic rules, such as a detailed and continuous education of the users about all possible ways to prevent damage, as well as carefully defining and limiting the level and nature of help offered to injectors by staff (including the provision of paraphernalia). The rules would also need to carefully govern the safe disposal of needles, to prevent injury to staff or users, and the acts that should be taken if users leave behind suspected drugs. Moreover, clear written procedures would need to be set out for responding to overdose incidents. A possible measure in this respect could be the signing of a contract between the DCR and the users, which should be drafted in such a way as to stress the responsibility of the users and to minimise the risk of the DCR and its staff toward possible future claims.

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Finally, in order to prevent any of the non-medical staff to be prosecuted on the grounds of unlawful practice of a (legally protected) health care profession, it is essential to ensure that a doctor or nurse exclusively performs any of the following acts:62

- Acts seen as the practise of medicine (to be performed exclusively by doctors):63

o The sale and offering, even free of charge, of medicines;

o Giving information and advice on medicines, including the proper use; o Personalised assistance of patients who use their own medicines; - Acts seen as the practise of nursing:64

o Observing, recognising and determining the health status, either on psychological, physical or social level;

o Informing and advising patients and their family;

o Continuously assisting, performing and helping to perform those acts, by which the nurse aims for the preservation, improvement and recovery of the health of healthy and ill persons and groups;

o Being able to take urgent life-saving measures independently and being able to act in cases of crisis or disasters.

3.4.2 The local government

A civil claim may also be directed towards the local administrative authorities, based on the general principle in Belgian Tort law (Article 1382 Civil Code). It is generally excepted that an error of the executing branch can lead to its civil liability, whereby the criterion against which this error should be checked is similar to what is described above (the general cautionary norm). Consequently, the behaviour of the authorities will be checked against the (objective and abstract) behaviour of a normal and careful authority. The same principles and possible measures to be taken for providing a guarantee against such claims as mentioned above, are applicable in this respect. As a result, a claimant would have to deliver substantial proof of the fact that a government has failed manifestly in its duties towards a proper functioning of a DCR. Although this means that the burden of proof would be quite high for a claimant, when establishing a DCR, the local government authorities should pay due attention to their supervising role, meaning that a robust set of rules should be agreed between the local government and DCR.

62 _{See Articles 3-5 and 45-46 of the Law of 10 May 2015 on health care professions, B.S. 18.06.2015.} 63 _{Article 5/1, 1°, 8° and 10°.}