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

The Language of New Drugs - From Education to Assessment

The KFx Cats, Bees and Dragonflies course explores the subject of newer, emerging drugs. One of the issues we address very early in this course is terms of reference. This inevitably brings up the vexed question of what collective terms to use about newer compounds.

For well rehearsed reasons we should eschew the phrase “Legal Highs.” Many of the compounds are no longer legal, and not all are stimulants. There is debate as to whether or not people construe legality to equate with safety. I am of the mind that ‘legal’ has connotations of being sanctioned or approved. It suggests legality via permission. As this is not the case with our newer compounds, I prefer “unregulated” as opposed to “legal.”

The phrase that has become de rigeur amongst academics and policy experts is Novel Psychoactive Compounds (or substances). It’s the phrase of choice for the EU, and the EMCDDA defines it thus:
“a new narcotic or psychotropic drug, in pure form or in preparation, that is not controlled by the United Nations drug conventions, but which may pose a public health threat comparable to that posed by substances listed in these conventions.”

There are a number of problems with this definition, not least some of the compounds are not that new: Nitrous Oxide has been around since the latter half of the 19^th Century, 4-mmc was first synthesised in 1929 and a lot of the benzo-type drugs doing the rounds at the moment were first synthesised in the 1960s.
It also creates the small problem that as soon as the drug is controlled by the UN drug conventions it ceases to be a Novel Psychoactive Compound (NPC).

Most problematically for me it has little or no relevance as a term to end users. A resource, service or awareness session entitled referring to Novel Psychoactive Compounds will not register with key target groups. Asking people “what NPCs have you used in the last month” won’t elicit the information that I am looking for. It’s akin to when the language switched from talking about “glue sniffing” to “volatile substance abuse.” The language may be more accurate but what it gains in accuracy it loses in comprehension.

The other thing that is interesting about all the widely used phrases: “Novel Psychoactive Compounds,” “Legal Highs,” and “Research Chemicals” is that the word Drugs is absent. According to Rick Bradley at KCA, presenting at a seminar in 2014, about 85% of NPS users do not recognise themselves as drug users.

The language we have all adopted contributes to the sense that these are somehow distinct from other drugs.

In turn, this linguistic sleight of hand has, to my mind, disempowered drugs workers. The recurrent theme from training sessions is a sense of not understanding this new world of NPS. These are often experienced workers who can deal with the full spectrum of “traditional” drugs. Reminding these workers that these are still drugs, much like ones they can and have worked with, does much to overcome this sense of disempowerment.

So over time I have tried to find a language that works to address these problems. I ended up finding that the phrase “Newer Unregulated Drugs” worked reasonably well. Except when the law changes. But it’s largely immaterial as I am not egotistical enough to think the phrase will ever catch on. What’s more important is that we have the discussion and explore the role language and terminology plays in constructing paradigms.

Language of Assessment:

What we call our emerging drugs also has a bearing on the assessment process. If we don’t ask and prompt about newer drugs, we may not get this information volunteered. And when it comes to newer drugs this brings with some very specific challenges.

1: Not perceiving substances to be drugs:
As highlighted earlier, there’s some evidence that some people may not consider their “legal” substances to be drugs, so if they are asked about other drugs may not volunteer emergent drugs.

2: Unfamiliar with collective terms:
We want to try and avoid the term “legal highs” for reasons mentioned and use of phrases such as Novel Psychoactive Compounds may not have a high recognition factor with young people.

3: May not be familiar with drug families or link drugs to families
Routinely we would ask people about (for example) their benzodiazepine use. But asking this doesn’t automatically mean that the respondent will link their Etizolam use to the use of benzos, and volunteer this as a response. Similarly, although we ask about cannabis use, the respondent may not volunteer that they are smoking synthetic cannabinoids.

4: May not know what they have used or have misidentified it:
The emergence of generic slang such as “legals” could cover a wide range of drugs. Regionally, slang such as “Monkey Dust” or “Bubble” could refer to a specific compound such as mephedrone or any unknown white powder.  In turn “mephedrone,” once referring to 4-mmc, could now be used interchangeably for other white powder drugs. So assumptions both by user and worker as to what a person is actually using could be both misleading and dangerous.

5: We don’t want to give people a shopping list:
Especially when working with younger, naïve users, it is important that the assessment process doesn’t end up introducing the client to a whole list of substances with which they were unfamiliar. So while initially tempting, an assessment form which either lists or illustrates a wide range of different products is risky. It is still unlikely to be comprehensive – there are SO many brands on the market now. But it also risks introducing substances to a client who was hitherto unaware of that compound of family of drugs. We need to prompt, but without exposing the respondent to still more compounds.

Assessment to Prompt, not Promote:

After a numerous training sessions and a number of false starts, a screening process emerged which addressed all my key concerns. It sits alongside an existing standard screen and looks specifically at newer drugs. Rather than exploring specific substances it looks at types of compound and routes. So for example by asking about smoked substances it can elicit synthetic cannabinoids, kratom, or salvia without naming the substances. Even vague references to “I smoked something, I’m not sure what it was…” can be incorporated.

 

Likewise, by asking about “white powders” we can explore all the different brands and unbranded substances, again without having to give names. Using the same format, the tool asks about Pills and Pellets, and Other Substances (swallowed, inhaled etc) to cover other drug groups.

In training we use the Drug Map to explore the relative location of different drugs. We can use it to explore

potency, duration and effects. In the context of assessment it is left blank, so the respondent can describe how the substance affected them – strong stimulant effect, very hallucinogenic, drowsy and so on. This is useful, not least because it ensures that the client can articulate their experience of the substance. It can also highlight where there’s a high chance they have used something other than their names substance – where the effects described are at variance with typical reports of that drug.

The assessment tool goes on to explore key issues stemming from use and develop an action plan. Sample pages are shown below.

As with other KFx resources this Assessment Tool can be downloaded from the KFx website here. It is free to download and use. If you have any feedback I would be keen to hear it and will revise the tool as feedback is received.

Ideally use of the tool will be combined with staff training to increase awareness and confidence of responding to Newer Unregulated Drugs. Such training is of course available via KFx.

LINKS: 

 The KFx NPS Screening Tool

The KFx Newer Unregulated Drugs Briefing - includes Look-Up Table (August 2014 update)

Newer Unregulated Drugs - Just the Look-Up Table (August 2014 update)

Mephedrone Briefings (revised August 2014)