Ukraine: Letter to UN Special Rapporteurs on Access to Pain Treatment

Professor Juan Mendez

UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

Mr Anand Grover

UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

URGENT APPEAL

Dear Mr Grover and Professor Mendez:

The All-Ukrainian Council for the Rights and Safety of Patients and Human Rights Watch file this urgent appeal on behalf of Oleg Malinovsky, a Ukrainian citizen who has been experiencing persistent, severe and debilitating pain for extended periods of time over the last two and a half years. We believe that the failure of Ukraine’s public health care system to take prompt and reasonable steps toward relieving his pain, despite being fully aware of his suffering, violates article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 7 of the International Covenant on Civil and Political Rights (ICCPR).

We therefore respectfully urge you to raise concern about this case with the Ukrainian government and ask it to take immediate steps to hold accountable those who failed to act appropriately on Mr Malinovsky’s complaints of pain and ensure that adequate pain treatment will be available for the patient in the future.

A Brief Medical History

For the last two and a half years, Mr Malinovsky has suffered from a series of different health conditions that have generated severe pain (described in detail below) and have left him almost completely immobilized. The Ukrainian health care system has been unable to provide a definitive diagnosis for his ailments but a January 2010 medical assessment found that he was suffering from the following health problems (January 2010 Conclusion of the Panel and Recommendations Regarding Further Treatment and Rehabilitation of Malinovsky O.I., Annex 1):

• aseptic necrosis of the heads of both hip joints;
• arthrosis of both knee joints with persistent contracture;
• chronic recurrent synovitis of knee joins, remission stage
• persistent contracture of the shin joints;
• deformations of the radiocarpal joints;
• derivative systemic osteoporosis;
• atrophy of soft tissues of the extremities; and
• persistent pain syndrome.

The patient’s acute medical problems started in early 2008 shortly after he began treatment for a hepatitis C infection that was discovered during a routine medical check-up in 2007. Mr Malinovsky developed numbness in several fingers and was referred to the Kiev Institute of Infectious Diseases. Over the next few months, as Mr Malinovsky underwent diagnostic tests and treatment in several different institutions, his health rapidly deteriorated. He contracted a staphylococcus infection (apparently while in a state hospital), developed recurring high fevers and experienced increasingly severe pain in his hip joints. Various health institutions treated him for the infections and, subsequently, for system-wide rheumatic disease.

These treatments, however, were unsuccessful. To the contrary, Mr Malinovsky’s health problems rapidly worsened. In June 2008, Mr Malinovsky was able to walk unassisted into the City Rheumatology Center. By October 2008, when he was transferred  from the rheumatology center  to the Ukrainian Center of Intensive Therapy of Sepsis,he could no longer walk and was barely able to sit in a wheelchair. In October 2008, the Ukrainian authorities granted Mr Malinovsky disability status.[1]

At the end of March 2009, Mr Malinovsky underwent arthroplasty surgery of his hip joints. By removing portions of the bone in the stiffened joints the surgery resulted in reduced pain and some restored mobility. After the operation, Mr Malinovsky was once again able to sit up in bed and had somewhat greater ability to bend his knees.

History of Mr Malinovksy’s Pain and its Consequences

Mr Malinovksy first experienced severe and persistent pain in his hip joint and right arm in March 2008, after developing a system-wide staphylococcus infection. Over the next few months, the pain spread to his lower spinal area and then rapidly worsened in July, 2008, several weeks after he began treatment at the City Rheumatology Center. The pain had a major impact on all aspects of his life. As any movement of his hips and knee joints caused severe pain, Mr Malinovsky was forced to lie completely still in his bed throughout the day.  As his wife, Natalya Malinovska, told our organizations,

The pain was intolerable with any movement and became more severe with every day because of the pathological process in his hip joints.  The pain affected his sleep, appetite and his psychological condition. He became very irritable and nothing could make him happy anymore. A normal sneeze or cough caused him terrible pain… You could knock on the wall, and if he was lying over there, he would scream [in pain]...

While at the City Rheumatology Center, Mrs Malinovska began asking doctors to treat her husband’s pain, as curative treatment and basic pain medications provided no relief. When her husband’s doctors refused to prescribe stronger pain medications, Mrs Malinovska went to the chief doctor of the institution who, in late August 2008, decided to prescribe morphine. After initially receiving occasional injections of morphine, Mr Malinovsky was soon injected with 1 ml of morphine every night. The morphine provided him with some relief over night and enabled him to sleep again. But he still faced undiminished pain during the day as morphine acts for only about four hours, and he did not receive any effective pain medications at other times of the day.

After his transfer to the Ukrainian Center for Intensive Therapy of Sepsis in October 2008, Mr. Malinovsky continued to receive 1 ml morphine—and later omnopon, also an opioid analgesic—in the evenings. He received omnopon until he had arthroplasty surgery in March 2009. Following the operation, he was relatively pain-free for a six-month period.

In September 2009, Mr Malinovsky once again developed persistent and severe pain, this time involving his wrists and elbows. Because any movement caused severe pain, he was once more forced to keep completely still in bed in the least painful position. He was unable to move his limbs, preventing him from any activity whatsoever, including eating, washing, reading, etc. Any shifting of position caused extreme pain. According to Mrs Malinovska, her husband routinely screamed in pain during this period. She said that her neighbors would sometimes knock on the walls because his screams were disturbing them. As before, the pain strongly interfered with Mr. Malinovsky’s ability to sleep at night. Mr Malinovsky and his wife repeatedly asked for adequate pain medication during this period but doctors refused to provide it (see below for details).

During this period, Mr Malinovsky repeatedly told his wife that he wanted to die because he could no longer bear the pain. At the insistence of doctors at the local hospital, Mrs Malinovska arranged for a psychiatrist to visit her husband who indicated that his depression, insomnia and irritability were not related to any underlying psychiatric disorders but to pain. Certification notice issued by the Kiev City Psychoneurological Center #4 of January 11, 2010 (Annex 2).  The psychiatrist prescribed anti-depressants and sedatives but these had little effect on his pain.

Mr Malinovsky suffered from continuous severe pain for the next six months. During that period, several medical examinations, the last in March 2010, confirmed the existence of persistent pain syndrome.

Following March 2010, Mr Malinovsky’s pain has receded somewhat. At present, he experiences significant pain primarily during movements. The remaining pain continues to restrict his mobility and thus his ability to lead a normal life. As the Ukrainian public health system has still not determined a diagnosis for his condition and curative treatment with antibiotics and hormones have to date been unsuccessful, Mr Malinovsky and his wife live in fear of another worsening of his pain.

Pain Treatment Best Practices

The World Health Organization Pain Relief Ladder is the basis for modern pain management. Originally developed for treating cancer pain, it has since been applied successfully to various other types of pain.[2] The ladder recommends the administration of different types of pain medications, or analgesics, according to the severity of the pain. For mild pain, it calls for basic pain relievers like acetaminophen (Tylenol), aspirin, or nonsteroidal anti-inflammatory drugs that are usually widely available and without prescription. For mild to moderate pain, it recommends a combination of basic pain relievers and a weak opioid, like codeine. For moderate to severe pain, it calls for strong opioids, like morphine. The Pain Relief Ladder also recommends various other medications—known as adjuvant drugs—that serve to increase the effectiveness of analgesics or counter their side effects. These include laxatives, anti-convulsants and anti-depressants.

As painis one of the major clinical symptoms of the conditiondegenerative joint disease, pain treatment is one of the core components of medical treatment for the condition. Ukraine’s Clinical Protocol of Providing Medical Assistance to Patients with Osteoarthrosis, approved by the Order of the Ministry of Health Care of Ukraine, states that successful treatment of the disease includes improvement of patients’ life quality.  The American College of Rheumatology Practice Guidelines underscore that the goals of the contemporary management of the patient with osteoarthritis include control of pain and improvement in function and health-related quality of life.

As a first line, nonsteroidal anti-inflammatory pain killers (NSAIDs) are used for pain relief in patients with osteoarthritis. However, stronger pain medications, including weak and strong opioids, may be required for patients with severe intractable pain. For example, the Practice Guidelines of the American College of Rheumatology recommends that the synthetic opioid tramadol be considered for use in patients with moderate-to-severe pain who have contraindications to NSAIDs, or in patient who have not responded to previous oral therapy.  Patients who do not respond to or cannot tolerate tramadol and who continue to have severe pain may be considered candidates for more potent opioid therapy.  Roy D. Altman et al., Recommendations for the Medical Management of Osteoarthritis of the Hip and Knee (2000), http://www.rheumatology.org/practice/clinical/guidelines/oa-mgmt.asp (November 3, 2010).

The guidelines for treatment of hip and knee osteoarthritis developed by the Osteoarthritis Research Society International (OARSI) recommend that "…The use of weak opioids and narcotic analgesics can be considered for the treatment of refractory pain in patients with hip or knee OA, where other pharmacological agents have been ineffective, or are contraindicated.  Strong opioids should only be used for the management of severe pain in exceptional circumstances…"  W. Zang, Ph.D. et al., OARSI recommendations for the management of hip and knee osteoarthritis, Part II: OARSI evidence-based, expert consensus guidelines, 16 Osteoarthritis and Cartilage, 137, 141 (2008);

http://www.oarsi.org/pdfs/part_II_OARSI_recommendations_for_management_of_hipknee_OA_2007.pdf (November 3, 2010).

Ukrainian standards of treatment of osteoarthrosis correspond to the recommendations above.  The Clinical Protocol of Providing Medical Assistance to Patients with Osteoarthrosis, approved by the Order of the Ministry of Health Care of Ukraine, provides for the short-term administration of opioid analgesics to patients with osteoarthrosis if other pain medicines have been ineffective or could not be tolerated by the patient.  Attachment 6 to the  Order of the Ministry of Health Care of Ukraine on Approval of Clinical Protocols of Providing Medical Assistance in the Specialty of “Rheumatology”, October 12, 2006, No. 676,  http://www.moz.gov.ua/ua/portal/dn_20061012_676.html (November 3, 2010).

Denial of Pain Treatment

This complaint focuses on the denial of adequate pain treatment between September 2009 and March 2010. During this period, Mr Malinovsky and his wife repeatedly informed the doctors at their local public hospital, Poliklinika #4 of the Svyatoshinskiy district in Kiev,[1] about the pain he was suffering and asked them to prescribe him appropriate medications. Yet, throughout this seven-month period, the public health system never made a decision on whether or how to treat his pain. It conducted a number of medical examinations of Mr Malinovsky, including several that confirmed that he suffered from persistent pain syndrome, but never took steps to provide with any additional treatment for his pain.

As soon as Mr Malinovsky’s severe pain resumed in September 2009, he and his wife informed his doctors at the polyclinic.  Mrs Malinovska asked the health care system to prescribe her husband stronger pain medications given the great intensity of his pain.  At the end of 2008 and beginning of 2009, Mr Malinovsky had received morphine over a period of seven months, which had significantly reduced his pain at the time. In September 2009, the only pain medications Mr Malinovsky was taking were over-the-counter nonsteroidal anti-inflammatory drugs, including Dicloberl (which contains diclofenac). This drug, however, was insufficiently potent to control Mr Malinovsky’s pain. A general practitioner and neurologist from the local clinic examined him at his apartment but did not prescribe any stronger pain medications than Mr Malinovsky was already taking.

The clinic doctors recommended that a psychiatrist examine Mr Malinovsky. Mrs Malinovska arranged for such examination, which took place in October or November 2009. The psychiatrist’s concluded that Mr Malinovsky’s "depression episode" was not related to any underlying psychiatric disorders but to the contrary was "on somatogenic account", i.e. arising due to the condition of the body[3].  Certification notice issued by the Kiev City Psychoneurological Center #4 of January 11, 2010 (Annex 2). The anti-depressants and sedatives the psychiatrist prescribed had little effect on the patient’s pain.

Finally, on December 3 and 4, 2009, two panels of physicians examined Mr Malinovsky. In their conclusions the doctors wrote that Mr Malinovsky complained about pain and had asked for opioid analgesics. The December 3, 2009 panel recommended that Mr Malinovsky be seen by a panel of drug treatment doctors to rule out the possibility of drug addiction, even though Mr Malinovsky had last received morphine eight months earlier, had been bedridden since that time, and was in severe pain.  The December 4 panel recommended prescribing Meloxicam, a non-steroidal, anti-inflammatory drug, for his pain, although the patient was already taking Dicloberl, another NSAID, which had almost no effect on his pain. Extract from Oleg Malinovsky’s Medical Record of December 3 and 4, 2009 (Annex 3).  

On December 9, 2010, Mr Malinovsky was examined by the panel of drug treatment doctors from the Kyiv Narcological Hospital "Sociotherapy." Mr Malinovsky does not know what that panel concluded as the Svyatoshinsky clinic has refused to disclose the conclusions, claiming that it contains "confidential business information." Letter of the Svyatoshinsky District Policlinic No. 4 of January 15, 2010 No. 18 (Annex 4).

On December 15, 2009, Mrs Malinovska requested in a letter to the chief doctor of the clinic that her husband be given adequate pain medication. In a response dated December 28, 2009, the doctor refused to prescribe opioid analgesics stating that: "…[Mr Malinovsky] is receiving adequate treatment in accordance with [his] medical symptoms", and that “Taking into account the [undisclosed] conclusion of the [narcological] panel, prescription of the narcotic analgesics you insist on is not recommended.”  Letter of the Svyatoshinsky District Policlinic No.4 of December 28, 2009,  No.911 (Annex 5).

After continued requests for appropriate pain treatment, the chief doctor of the Svyatoshinsky clinic convened an ad hoc meeting of physicians on January 21, 2010, which included Mr Malinovsky’s treating physician, a neurologist, a surgeon, the head of the therapeutic department, and the head of the medical department of the clinic. A representative of the All-Ukrainian Council for the Rights and Safety of Patients and Mrs Malinovska were present during the meeting. The physicians present agreed that since first-step pain medication were ineffective, stronger medications from the WHO Pain Relief Ladder should be provided as soon as possible.  The chief doctor made an oral promise to Mrs Malinovska to resolve the issue within 24 hours but nothing happened.  Letter of Natalia Malinovskaya to the Chief Doctor of the Svaytoshinsky Policlinic of January 25, 2010 (Annex 6). 

On January 26, 2010, Mr Malinovsky was examined by another panel of physicians (a rheumatologist, general physician, surgeon, neurologist and a rehabilitation specialist), none of whom were on staff with the Svyatoshinsky clinic. This panel concluded that Mr Malinovsky suffered from persistent pain syndrome but also claimed that he had abstinence syndrome (drug withdrawal). In other words, it suggested that Mr Malinovsky’s pain was due to withdrawal symptoms related to opioid dependence, not to the degeneration of his joints. It is unclear how the panel drew the conclusion given that it did not include a pain specialist or a specialist on opioid dependence or drug withdrawal. The panel made no recommendations for changes in Mr Malinovsky’s pain treatment regimen.  It did recommend that based on the "objective condition of the patient" and "presence in the anamnesis of the use of opioids by the patient," consultations of a narcologist and psychiatrist are required in order to prescribe an adequate pain medication.  January 2010 Conclusion of the Panel and Recommendations Regarding Further Treatment and Rehabilitation of Malinovsky O.I.  (Annex 1).

Following that examination, the Svyatoshinsky clinic did nothing. Frustrated with the lack of action, Mrs Malinovska insisted that a drug treatment doctor examine her husband. On or around March 21, 2010, after almost two months of inactivity, a drug treatment doctor and psychiatrist examined Mr Malinovsky. This panel concluded that Mr Malinovsky did not have opioid dependence and that his persistent pain syndrome required adequate pain treatment.  March 2010 Conclusion of the Panel and Recommendations Regarding Further Treatment and Rehabilitation of Malinovsky O.I. (Annex 7).

On March 23, 2010, Mrs Malinovska wrote to the chief doctor of the Svyatoshinsky clinic insisting that her husband finally be provided with adequate pain treatment. The chief doctor responded, stating that her husband was being treated in accordance with current regulations. Instead of providing him with stronger pain medications, the chief doctor sent a request to the Head of the Central Administration of Health Care and Medical Services asking it to arrange a new examination of Mr Malinovsky, this time involving leading physicians of the Central Administration.  Letter No.221of the Svayatoshinsky District Policlinic No.4 of March 31, 2010 (Annex 8).  This examination, however, never took place.

By the end of March 2010, Mr Malinovsky and his wife decided that pursuing the Svyatoshinsky clinic any further was pointless. They continued to try to force the issue by pursuing complaints with the prosecutor’s office and a civil court about the de facto refusal to provide him with stronger pain medications.

Remedial Action

On January 11, 2010 Natalya Malinovska filed a complaint with the district police department, asking it to investigate the refusal of the Svyatoshinsky clinic to provide pain medications to her husband.  After the police department refused to bring criminal charges against the administration of the clinic, Mrs Malinovska appealed to the prosecutor’s office of the Svyatoshinsky district, which overturned the decision by the police and ordered it to conduct additional investigation. Letter of the Svyatoshinsky Disctrict prosecutor's Office of March 22, 2010 (Annex 9). Although the prosecutor’s office instructed the police department to notify Mrs Malinovska of the results, they have received no further information on the status of their complaint.

On March 2, 2010, Mrs Malinovskaya complained to the Kyiv State Administration about the refusal to provide her husband with adequate pain medications. Her complaint was transferred to the Central Administration of Health Care and Provision of Medical Services for the City of Kiev, a city government agency responsible for overseeing providers of medical services.  This agency took no steps to look into the merits of her complaint, instead backing the Svyatoshinsky clinic.  Letter of the Central Administration of Health Care and Provision of Medical Services of March 11, 2010 (Annex 10).

On March 25, 2010, Mrs Malinovskaya petitioned the Head of the Central Administration of Health Care and Provision of Medical Services directly, asking her to investigate denial of pain treatment to her husband.  Complaint of the All-Ukrainian Council for the Rights and Safety of Patients to the Head of the Central Administration of March 25, 2010 (Annex 11).  She has received no response to her complaint.

In May 2010, the All-Ukrainian Council for the Rights and Safety of Patients filed a civil action with the Svyatoshinsky District Court gainst the Svyatoshinsky clinic, asking the court to compel the clinic to prescribe adequate pain medications to Mr Malinovskiy.   The court dismissed the complaint, claiming the organization could not file suit on behalf of the Malinovsky family. Decision of the Svyatoshinsky District Court of September 9, 2010 (Annex 12). Given the fact that the All-Ukrainian Council for the Rights and Safety of Patients can file complaints on behalf of its members—and Mr and Mrs Malinovsky are members—the organization has appealed the dismissal. As of this date, the appeal remains pending.

Applicability of Article 12 ICESCR and Article 7 of ICCPR

We note that both mandates have previously raised concern that the failure to ensure access to pain treatment may raise questions under the right to health and the prohibition of torture, cruel, inhuman or degrading treatment or punishment. In a December 2008 joint letter to the UN Commission on Narcotic Drugs, the special rapporteur on torture and health wrote that:

Governments also have an obligation to take measures to protect people under their jurisdiction from inhuman and degrading treatment. Failure of governments to take reasonable measures to ensure accessibility of pain treatment, which leaves millions of people to suffer needlessly from severe and often prolonged pain, raises questions whether they have adequately discharged this obligation.

In his report to the Human Rights Council of January 2009, Mr Nowak, the previous UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment stated that “the de facto denial of access to pain relief, if it causes severe pain and suffering, constitutes cruel, inhuman or degrading treatment or punishment.…” and that governments should take “all measures…to overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care” (para. 72 and 74(e)). In his report to the General Assembly of October 2010, the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health extensively discussed the obligation of governments to ensure the availability of controlled medications for patients who need them.

We believe that the actions—or lack thereof—of the government clinic in this case violates the right to health and the state’s obligation to protect its subjects from cruel, inhuman and degrading treatment for the following reasons:

• The patient in this case faced severe suffering due to his pain that, in our view, clearly rises to the level of cruel, inhuman and degrading. We recognize that a certain level of suffering was inherent in Mr Malinovsky’s health condition. However, the severe untreated pain, and length of time that it was not addressed, greatly and unnecessarily exacerbated the level of suffering. The state authority was clearly aware of the suffering due to pain as government doctors repeatedly examined him, and his wife repeatedly complained about the fact that he experienced severe pain.

• Given the severity of the patient’s pain, the state should have acted with a sense of urgency in examining the patient and determining a course of action. Yet, the government clinic responded without any sense of urgency. It took considerable time before the patient was first examined after he began complaining of severe pain; the clinic repeatedly ordered new examinations, often after significant intervals, some of which appeared to simply repeat earlier examinations; and, eventually, the government clinic failed to provide the patient with stronger pain medications, even though the examinations clearly established that he suffered from persistent pain syndrome. All the while, the patient suffered from severe and debilitating pain.

• While morphine had helped control the patient’s pain before and was available at the government clinic in question, the government clinic appeared more concerned with ensuring that the patient was not opioid-dependent—even though he had not received any opioid medications for eight months—than with treating him for his pain. It appeared to interpret the patient’s request for morphine as evidence of drug dependence rather than as a legitimate request for a medication that had helped control his severe pain before.

We urge you to request the Ukrainian government to investigate the current case and take appropriate measures to ensure that:

1. Mr Malinovsky gets access to appropriate pain medication without undue delay;

1. Medical staff responsible for denying Mr Malinovsky access to appropriate pain medications are held accountable;

1. Mr Malinovsky is rewarded appropriate compensation for the suffering he faced due to the unnecessarily suffering from pain and the failure of the government clinic to take appropriate steps to relieve his suffering.

We look forward to your response,

Viktor Serdyuk                                                                                Joseph Amon PhD MSHP

President                                                                                            Director

All-Ukrainian Council                                                                    Health and Human Rights Division

for the Rights and Safety of Patients                                                     Human Rights Watch

Annex:

1.       Conclusion of the Panel and Recommendations regarding further treatment and rehabilitation of Malinovsky O.I. (January 2010).

2.      Certification notice issued by the Kiev City Psychoneurological Center #4 of January 11, 2010.

3.      Extract from Oleg Malinovsky’s Medical Recordof December 3 and 4, 2009.

4.      Letter of the Svyatoshinsky District Policlinic No. 4 of January 15, 2010, No. 18.

5.       Letter of the Svyatoshinsky District Policlinic No.4 of December 28, 2009, No.911.

6.      Letter of Natalia Malinovskaya to the Chief Doctor of the Svyatoshinsky Policlinic of January 25, 2010.

7.       March 2010 Conclusion of the Panel and Recommendations regarding Further Treatment and Rehabilitation of Malinovsky O.I.

8.      Letter of the Svyatoshinsky District prosecutor's Office of March 22, 2010.

9.      Letter No.221of the Svayatoshinsky District Pliclinic No.4 of March 31, 2010.

10.   Letter of the Central Administration of Health Care and Provision of Medical          Services of March 11, 2010.

11.    Complaint of the All-Ukrainian Council for the Rights and Safety of Patients to the Head of the Central Administration of March 25, 2010.

12.   Decision of the Svyatoshinsky District Court of September 9, 2010.