Paraphernalia Legislation- Welcome changes marred by restrictive drafting:

The Government has amended the legislation relating to drugs paraphernalia. The changes increase the range of equipment that can be given out by drugs workers and allied professionals. The legislation ameliorates the situation created by Section 9a of the Misuse of Drugs Act 1971, which made it unlawful to distribute equipment other than hypodermic syringes and needles for the administration of controlled drugs unlawfully held.

The changes to the legislation are contained in Statutory Instrument Number 1653, and follow recommendations made by the Police Foundation review and the ACMD. It also follows extensive lobbying by harm reduction groups including The Exchange, UKHRA, Lifeline and others.

The changes and their ramifications are considered in detail in the revised KFx publication "Injecting Equipment And Sharps Bins - Legal and Practice Issues (September 2003.)" The key changes are that certain professionals can distribute certain equipment as detailed below:

Clearly, there is much to welcome here. The Government has recognized that the legislation impeded effective harm reduction work. Further, it recognizes that it is unacceptable that workers should be obliged to work on the wrong side of the law, even if prosecution is unlikely. The various groups and individuals who have lobbied, provided the evidence base and stuck their necks out to achieve this change deserve praise for facilitating this change.

However, as with many other recent changes or developments within the drugs field, the amendments to the paraphernalia legislation have been marred by an overweening desire to maintain 'control' on the part of Government. This tendency has been apparent through the proposals to amend Section 8(d) of the MDA, the reclassification of cannabis, and now the present example. In each case, rather than choose a simple revision or rescinding of the relevant legislation, the Government has chosen a response that on the one hand changes or relaxes the legislation but which simultaneously introduces new restrictions and ambiguities.

The revisions to the paraphernalia legislation are a case in point. Rather than removing the existing restrictions entirely, the amendment makes provision for a handful of additional items to be made lawful for distribution by a limited range of professionals.

The outcome of this is an inconsistent piece of legislation, which results in the following:

· It is lawful for doctors, vets, pharmacists and others undertaking "lawful" drugs treatment work to give out specified paraphernalia. However peer supply of this paraphernalia remains illegal. So on the one hand a drugs worker commits no offence by giving citric acid to an injector but the injector would commit an offence if they passed some of that citric on to a partner. To compound this confusion it is not illegal for a peer to distribute on needles and syringes to peers, but it is illegal for them to pass on other paraphernalia such as citric or utensils.
· The list of items that can be distributed is at some points inclusive and at other points exclusive. The legislation specifies that it is now lawful to distribute citric acid. However, it remains illegal to distribute other acidifiers such as ascorbic acid.
· Conversely, the list of 'utensils for preparation' designated in the legislation gives a few examples but is not an exhaustive list. It mentions 'spoons, bowl, etc,' but this does not exclude other equipment being distributed. However, by specifying utensils for 'preparation' this would appear to mean that the distribution of items for consumption (other than syringes and needles) remains illegal. This means that the distribution of foil, pipes etc remains illegal.
· The Government has not seen fit to amend the Medicines Act, and so water for injection remains a prescription only medicine. This impedes the ability of some agencies, especially those working outside the NHS, to secure satisfactory arrangements for its legitimate distribution.

The paraphernalia legislation, like much of the Misuse of Drugs Act 1971, has become a hindrance to harm reduction work whilst having a diminishing benefit in terms of law enforcement. Across the country, innumerable shops and market stall sell drug paraphernalia with virtual impunity. The only bodies that are substantially impeded by the legislation are those seeking to undertake harm reduction work.

In reality, the paraphernalia legislation has never been an effective piece of legislation and is routinely flouted. But rather than accept this and rescind the legislation, the Government has instead tinkered with it, as it has tried to tinker with Section 8 of the Act, and with cannabis reclassification.

The resultant legislation continues to restrict practice, and throws up new ambiguities. It is unclear exactly who it applies to. The Drugs Legislation Enforcement Unit within the Home Office is unclear itself as to who the legislation applies too. They intend that it should extent to all parties engaged in drugs work, even if not directly employed as drugs workers. So it is intended that the legislation should also apply to housing workers, police or others engaged in drug treatment initiatives. However, the DLEU also acknowledge that this is not explicit within the legislation and the exact interpretation of bodies authorized to distribute equipment under the legislation would need to be decided by a court. Similarly, the DLEU were not in a position to determine the scope of the term 'utensils,' and this too would be open for interpretation by a court..

In further worrying comments since the amendment was passed, it has become apparent through discussions on the UKHRA board, that serious concerns are being raised regarding the resources available to ensure adequate distribution of equipment. Some commentators have noted that distribution of equipment is hampered less by law than by fiscal concerns.

Unless the relaxation of the law is matched by additional ring-fenced funds to purchase equipment and ensure that it is distributed effectively alongside informed harm-reduction information, then the changes to the law will remain a cosmetic exercise.
While the changes to the paraphernalia legislation are to be welcomed, and represent a step on the incremental process of legislative change, this welcome is tempered by unhappiness that the changes remain restrictive, in terms both of the equipment and the groups covered. It enfranchises professionals while excluding users themselves. It allows for some equipment but forbids others. And neither it nor the accompanying guidance places any onus on services or those commissioning them to ensure that this extended provision is made available across the UK.