The Psychoactive Substances Bill – a fundamental shift in drugs legislation and state control.

Part 1: Commentary

Every now and then, a piece of legislation emerges which fundamentally changes the way that the State seeks to regulate how people choose to get intoxicated. The Misuse of Drugs Act was one such piece of legislation. If it becomes law, the Psychoactive Substances Bill will represent another such seismic shift.

It is essential to recognise that, whilst the Bill emerges against a backdrop of concern about Novel Psychoactive Substances (NPS), its breadth and reach far exceeds newly emergent drugs. It represents a step change in how substances are and will be regulated. 

Up until now, substances were lawful to produce and supply provided that they were not currently regulated either by the MDA or the Medicines Act. The Psychoactive Substances Bill reverses this position and says that all psychoactive substances will be illegal to produce or supply unless specifically exempted. 

This fundamentally changes the way that the State manages the risk of substances. Until now the onus has been on the State (via the ACMD) to demonstrate that any specific substance was so dangerous that it needed to be “controlled” under the MDA. Now any substance, old or new, will be automatically prohibited for production, importation or supply unless specifically exempted. It’s all too dangerous for us to access unless the state determines otherwise.

The Act to a large extent nullifies the role of the Advisory Council on the Misuse of Drugs (ACMD) as any new emergent Psychoactive Compounds are automatically covered by this Act. Their only role in relation to new drugs would be (presumably) to determine if they should also be controlled under the MDA, and if so in which Class. 

The Act contains provision to exempt specific psychoactive substances and the Secretary of State has the power to add to this list via Statutory Instrument. There is no formal or independent mechanism for such reviews to take place beyond a loose requirement that the “Secretary of State must consult such persons  as the Secretary of State considers appropriate.”

The list of exemptions includes:

• ·         Controlled Drugs and Medicines,
• ·         Alcohol,
• ·         Tobacco and Nicotine,
• ·         Caffeine,
• ·         Food.

Aside from the obvious inherent contradiction in restricting some very low-risk compounds (e.g. Nitrous Oxide) while not acting on others (e.g. alcohol, tobacco) the legislation in its current form makes prohibits supply of a number of lawful substances, such as Areca Nut (betel, paan).

This is however not the key issue. It will be relatively easy for such substances to be exempted prior to the Act coming in to force. It’s the idea that from this point on the relative risk or safety of a substance is irrelevant. If it’s psychoactive and not exempt, it is forbidden.

Because the legislation is coming at a time of ill-informed moral panic about NPS, the odds are that the legislation will be passed without significant changes to it. It’s a bad time for the sector to lose voices such as Drugscope, however muted they had become over time. The voices that have got the Government’s ear are more likely to be those who will endorse such a blanket ban.

But, ideological objections aside, will this legislation work? That in part depends on how one measures success. If the experience of the Irish Republic is anything to go by, then it will have a significant impact on so-called Head-Shops. The vast majority of Irish Head-shops closed down when similar legislation was introduced. The trade and use of NPS has not, however ceased. It’s still goes on, but more underground, akin to more traditional drug markets.

The other potential development will be the relocation of key suppliers outside of the UK. The legislation creates offences around importation, and includes requirements that can be imposed on internet service companies. However it seems likely that suppliers with websites and storage outside of the UK, and especially outside of the EU will be able to supply NPS with a low level of risk to purchasers in the UK.

In the longer term, as successors to the Silk Road emerge and stabilise, on-line sale of both old and new psychoactive substances will continue and grow via virtual markets. Ultimately, a future Government will have to recognise and accept that prohibitive responses are and will become increasingly obsolete. Sadly this Government is intellectually too myopic and ideologically opposed to any such insight and instead will leave us a terrible legacy: a piece of legislation that views all possible psychoactive substances as equally dangerous and a single response to them – ban them all.

Part 2: The legislation.

The main provisions of the proposed legislation restrict production, supply and importation of Psychoactive Substances.

 A Psychoactive Substance is defined as “is capable of producing a psychoactive effect in a person who consumes it, and is not an exempted substance.” A psychoactive effect is “a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central  nervous system, it affects the person’s mental functioning or emotional state.”

In its current form the Bill creates key offences of production, supply, importation and exportation. It doesn’t make possession for personal use an offence BUT the Bill creates the power for the Police to stop and search for suspected offences under the Act, to seize substances and to destroy them.

There is also provision for the searching of vehicles, buildings etc.
The offences are:

Producing a psychoactive substance

(1) A person commits an offence if—
(a) the person intentionally produces a psychoactive substance,
(b) the person knows or suspects that the substance is a psychoactive substance, and
(c) the person— (i) intends to consume the psychoactive substance for its psychoactive effects, or (ii) knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.

Production here means “producing it by manufacture, cultivation or any other method.”

Supply, a psychoactive substance

(1) A person commits an offence if—
(a) the person intentionally supplies a substance to another person,
(b) the substance is a psychoactive substance,
(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and (d) the person knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied, or by some other person, for its psychoactive effect.

Additional clauses cover Possession with Intent to Supply and Offer to Supply.

Importing or exporting a psychoactive substance

(1) A person commits an offence if—(a) the person intentionally imports a substance,
(b) the substance is a psychoactive substance,
(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and (d) the person—(i) intends to consume the psychoactive substance for its psychoactive effects, or (ii) knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.

(2) A person commits an offence if—

(a) the person intentionally exports a substance,
(b) the substance is a psychoactive substance,
(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and (d) the person— (i) intends to consume the psychoactive substance for its psychoactive effects, or (ii) knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.

Commentary: 

One of the key challenges in drafting this legislation will have been to ensure that labelling products as “plant food” or “not for Human Consumption.”

The key wording in the proposed legislation to address this is “knows, or is reckless as to whether, the psychoactive substance is likely to be consumed”

The expectation is that a court could determine that a person was acting in a reckless way by the production or supply of compounds which a reasonable person could assume were for the purposes of intoxication, irrespective of how they were packaged.

Enforcement Powers:

In addition to the criminal sanctions of fines, imprisonment or action under the Proceeds of Crime Act, the Bill introduces new powers to prohibit activity or close premises.

Prohibition Notices could be served against individuals who are believed to be carrying out prohibited activities such as production or supply of prohibited activities, requiring them to stop any such activity.

Premises notices can be issued to people who own, manage or lease premises where there is a belief that prohibited activities in relation to Psychoactive Substances are taking place, requiring that any such activity ceases.

In situations where such notices have been breached or in other circumstances, Prohibition or Premises Orders can be issues by a court. The standard of proof for these is on balance of probability, though they could be issued as part of a sentence for an offence under the Act.

Commentary:

 If the experience of Eire is anything to go by, the Prohibition and Premises orders will be a key tool to act against shops and other retail outlets. As there is no requirement to prove to criminal standards that the any criminal breach has taken place, it will be relatively easy to enforce and effectively stop sale via shops. 

The full text of the bill can be viewed and downloaded here:
http://www.publications.parliament.uk/pa/bills/lbill/2015-2016/0002/16002.pdf

Project Prevention: Beams and Motes

“We now have such a crisis…that we ought to give active consideration to paying female drug users to take long-term contraception.”

Ah-ha! You think – another diatribe against Project Prevention.

Sections of the drugs support and treatment community have been up in arms as Barbara Harris came to the UK and used her model of cash incentives to promote long-term contraception and sterilisation for drug users.
Nowhere was this state of high dudgeon more apparent than on the pages of the Wired In community where diatribe after diatribe has appeared. Which is ironic as the quote at the top of this article is not from Project Prevention but from the UK’s own Professor Neil McKeganey in an article from the BBC  in 2004. And Professor McKeganey is also one of the Advisory Board of Wired In.
Despite the Professor’s apparent support for at least some of the measures promoted by Project Prevention, he doesn’t seem keen to step in to the current fray and defend the idea of incentivised long term contraception to Wired In members or the wider public. Conversely, despite McKeganey’s stated views on the subject, Wired In don’t seem to have any problem with him being on their Advisory Board.

There are of course significant differences between the views espoused by McKeganey and Project Prevention. McKeganey drew the line at long term contraception while Harris goes further and promotes these measures and sterilisation. And to my knowledge McKeganey only promoted measures for women, not for men.


Of course he is not the only person to make such proposals in recent times: a Greenock MSP made suggested adding oral contraceptives to methadone .

The approach and measures suggested by Barbara Harris are odious and the promotion and incentivisation of non-reversible or permanent sterilisation, to a client group ill-equipped to make such a fundamental decision, is ethically and morally repugnant. It is right that her appearance in the UK has attracted such a wide range of condemnation.


But mere condemnation of Project Prevention is not, in itself, an adequate response. We need to look at some of the failings of interventions in the UK which have created fertile ground for the sterilisation policies of Project Prevention. The wider social picture is one where drugs users are demonised and denigrated in the media. Judgemental and stigmatising language is routinely used and the type of language and attitude which is now unacceptable when discussing mental health, ethnicity or sexuality is commonplace when considering drug use.

This stigmatisation helps foster a climate where measures that would be unacceptable if  promoted for any other social group become more acceptable when applied to drug users.

The wider social context is important, but beyond this, the issue of contraception and family planning for drug users in chaos is something that does warrant proper and detailed discussion. It is a serious and sensitive subject, and one of the tragedies of the Project Prevention backlash is that it will be harder to have this discussion now without people resorting to end-arguments like “Hitler” and “Eugenics.”

It is also a subject that has been considered before, most sensibly in the 2003 ACMD report Hidden Harm, which advocated:

“Contraceptive services should be provided through specialist drug agencies including methadone clinics and needle exchanges. Preferably these should be linked to specialist family planning services able to advise on and administer long-acting injectable contraceptives, contraceptive coils and implants.”

This is an eminently sensible proposal – and one that most right-thinking people would have little problem with. A “belts and braces” approach – temporary barrier contraception (i.e. condoms) to address the risk of STDs combined with effective long acting contraception seems like a balanced approach provided that it is undertaken with the patient’s informed consent and there is sufficient consideration for follow up and referral and support in to drug treatment.

But we haven’t really done this properly. Too much contraception is delivered in a half-hearted way – a couple of condoms given out with a bag of needles, the basket of condoms in the reception of a drugs project – rather than a proper assessment and contraception care plan.

If this were done, and were done properly then the number of unplanned and unwanted pregnancies amongst drug users in chaos could be addressed. And by doing so we can demonstrate there is no place for the bribed sterilisation of Project Prevention. Just as badly delivered needle exchange or badly executed drugs education helps create a climate which embraces “just say no” or “abstinence” models so a failure to adequately address family planning with drug users creates a climate which is ready for Project Prevention.

So instead of just sending off angry letters about how wrong Project Prevention is (and it is very wrong) it is equally important that the field engages with a sensible discussion about how to ensure that the contraception – effective and reversible – is made accessible to drug users, especially those in chaos.

Playing House!

A lukewarm welcome for new Paper on Housing Drug Users
August 2008

It can't have been easy for Gregory Green and Martin Nugent to write a paper on housing drug users which would satisfy the Home Office Drugs Intervention Project, Communities and Local Government, NOMS, The Housing Corporation, NTA and others. Nor can it have been easy to write the report with a single reference to the Misuse of Drugs Act, or Section 8 of the act. But in the 200 odd pagesof Improving Practice in Housing for Drug Users, there's not a mention of this legislation, or the antisocial behaviour act. In short, in this sprawling piece of work, there's not a single line that stresses the legality of working with use on site.


The paper is built around a series of case studies. These include a number of agencies working inclusively with ongoing drug use and injectors, including SHP, In Partnership Project, Norfolk Drug and Alcohol Partnership, New Steine Mews Brighton, and Thamesreach. These are fine projects, each doing innovative work with ongoing users, and who have done so for a number of years. It is highly welcome that there work is finally receiving a level of official recognition and endorsement. It is long overdue; these projects have developed and emerged despite a lack of Governmental backing or endorsement. Remember, this was a Government that sought to expand Section 8 of the Misuse of Drugs Act 1971 which would have ended this type of housing in the projects listed. As Deputy of the Rough Sleepers Unit, Ian Brady repeatedly refused to officially endorse the use of Sharps Boxes in hostel settings. So the Government embracing an "eyes wide open" model is to be welcomed.

Except that the Government doesn't appear to be embracing the report and its presentation and release seem intent on keeping the report out of sight. On the "Tackling Drugs Changing Lives" website, the report isn't mentioned on the "News and Events" sections, and even after going in to the DIP section there's no obvious link through to the paper. It is mentioned in the DIP August 2008 E-Bulletin which also mentions the National Seminar that took place the month before. The previous e-bulletins hadn't mentioned this seminar, making it rather difficult to know that it had happened. But, if you missed this E-bulletin, there's no other direct link to the Papers. The Papers themselves don't represent Government policy and there is a footnote disclaimer in the document to this effect.

The Paper itself is slanted heavily towards an organisational and strategic perspective. It stresses the need for a mult-disciplinary partnership approach, with key players involved and proper assessment of need, provision and outcomes. Search for the word "strategic" in the Paper and you get more than 100 uses of the word; look for references to "injector" and there's not a single use of the word. The report does stress the need, too, for a full spectrum of housing provision covering the full spectrum of drug use. The need for housing for ongoing users as well as for those in treatment, and those now abstinent is well made and welcome

What the Paper does not do is provide a clear vision or endorsement of how work with ongoing users on site can take place. This area feels fudged, and as it is the area which causes the most concern and confusion to providers, the police and commissioners, the lack of clarity here is damaging. Nor does it offset some of the concerns or direction that has been established by other, contrary, Governmental initiatives - most notably the Respect Standard for Housing Management. This model locates substance misuse firmly within a context of anti-social behaviour and primarily promotes an enforcement response to it, through use of demoted tenancies, ASBOs and injunctions, whilst paying lip-service to support and treatment interventions. Similarly, no mention is made in the Paper of the Antisocial Behaiour Act (Power to Close Premises) or its impact on housing drug users.

What there is, within the case studies is reference to "proactive harm reduction approach to managing drug use within premises that they manage." How you do this is not addressed by the paper, and the level of detail provided by the case studies is inadequate and vague. For example, the report says "the case studies have demonstrated that improving understanding, knowledge and skills of workers and service users were important elements of capacity building. This includes awareness and understanding of...drugs, housing and the law."

Ironically, despite asserting that this is an important element, the Paper does not make a single reference in all its pages to where this information could be obtained. No mention of the legislative framework, no mention of the resources available on this site or www.drugsandhousing.co.uk regarding lawful, safe, eyes wide open working. No mention of the Sample Drugs Policy or associated resources. This is not mere sour grapes. Of the projects mentioned in the report, nearly all the service providers mentioned drew significantly on the models that were outlined in Room for Drugs and the Sample Drugs Policy. Certainly, they have developed and evolved their own character, policy and practice since. But the kernel of these initiatives was built on working in an "eyes wide open" model as outlined in these and related papers. The decision by the report authors not to mention this, or to reference these resources is inexplicable.

One of the stragegic documents mentioned in the report is the "Safe Newcastle Policy on Drug Use Within Accommodation." This document has been reviewed previously (see Blog passim) and is at odds with a harm-reduction approach. It requires all known episodes of possession to be reported to the police, requires the removal of drugs and paraphernalia found in resident's rooms, and requires warnings to be issues for all suspected use on site. It would be interesting to know if one of the projects cited as a case-study, Tyneside Cyrenians, follows the Policy as written, because it would be hard to see how on-going use on site were managed in a harm-reduction manner where known use was automatically reported to the police, and rooms were searched on "strong suspicion of drug being used."

After a long wait for a Governmental report which embraced and endorsed full-spectrum, eyes wide open housing models for drug users, the Paper goes some way to fulfilling this need. On balance though, the Paper delivers a few crumbs of welcome recogntion for these models of housing. But buried as they are beneath reams of strategic vision, and obscured by a lack of clear illustration and clarity, it seems that we must wait longer for the report we had hoped for to arrive.

The complete set of papers for Improving Practice in Housing Drug Users - A Partnership Approach can be found here.

The complete Seminar notes are here.

Shelter have organised a Seminar on the back of the publication and details are here.

The Home Office posts "official" position on Section 8(d)

The Home Office has written to people who responded to the consulation to Section 8(d) of the Misuse of Drugs ACt 1971, confirming the current Government position. The letter confirms that the Government does not intend to implement 8(d) at this time, prefering to explore alternative powers under the Anti-social Bhevaiour Bill.

The letter says that the postponement of the amended 8(d) will be for a period of 2 years to allow for evaluation, but that the potential to extend 8(d) "will remain on the statute book" pending evaluation.