The Misuse of Drugs Act (MDA) is 40 years old. The world we face now, with emerging new psychoactive substances available via the internet, is very different from what it was in 1971. The vast number of drugs now controlled within it, the ever-expanding range of new psychoactive substances, new routes of supply and changing patterns of drug use make enforcement increasingly difficult, if not impossible in many cases. Although there is clearly still an important role for enforcement in protecting public health and public safety, the enormity of the challenge faced by enforcement agencies, and the drawbacks of an enforcement-based approach, point to a need to review the Coalition Government’s current approach to drug control to determine whether the existing framework is fit for purpose in the twenty-first century.

New psychoactive substances are quickly emerging, made widely available over the internet, and their harms are unknown and untested. This presents a serious concern for public health, and requires a responsible government to confront this challenge. The Coalition Government has proposed the introduction of temporary bans on new psychoactive substances under the MDA. However, there are a number of concerns about this approach. A temporary ban is seen as potentially undermining evidence-based policy making, is likely to be very difficult if not impossible to enforce, may lead to the use of even more harmful substances, and could potentially restrict the development of substances with potential medical benefit. As a simple extension of the current approach, it reinforces the tacit belief that classifying a substance through the MDA will inevitably prevent and deter manufacture, supply and use.

There is no solution or single best drug control option. To claim there is requires either appealing to a set of values or an ideology that others may disagree with, or the ability to conduct a rigorous cost benefit analysis (which would still entail underlying value judgements). A similar conclusion was reached in a major review of evidence-based policy making by an international team of scientists from a variety of fields .145

Nonetheless, the current system is unbalanced, being weighted towards regulating new substances on the basis of a precautionary principle, without addressing the problem of enforceability or recognising the potential or unintended harms that may result from this type of approach.

One reason for the failure to recognise this inherent bias and to make improvements to drug policy is the entrenched, polarised nature of the debate. As our project demonstrates, there are ways in which the issue can be approached which allows analysis of different options and the identification of improvements to the current policy framework.

It is important for researchers and policy makers to question the belief among the media and others that control and prohibition invariably minimises harm, and consider the implications of other complementary regulatory options for new substances. We can also take account of the current political and economic situation in Britain, and likely developments in the near future, and think about how we can offer improvements to policy in the current context that are in line with the
Government’s values and priorities.

Too often recommendations about drug policy reform are idealistic and overly ambitious, ignoring realpolitik. They lack sufficient sensitivity to the political realities that currently prevail. Our approach in this report is pragmatic. Our recommendations are based on three broad principles.

First, our project showed that it was possible to bring together people from different sides of the debate to agree on a range of actions that could improve the current situation. By first agreeing on universally valuable outcomes, it was possible to identify steps towards improving the current approach to the problem of psychoactive substances. Although it does not seek to provide a blueprint for all aspects of drug policy, our approach presents a possible model for making decisions about drug policy that could prove fruitful for those developing policy options for the future.

Second, we must address the imbalance in decision making that leads to a bias in favour of the precautionary principle. This includes, but is not limited to, giving greater attention to other control mechanisms. It also includes recognising harms of some enforcement as well as the benefits of taking some drugs – and being able to talk about these openly and initiate research into methodologies that permit investigation of these issues.

Third, there has been insufficient attention to a wide range of other control mechanisms that have been used in the past for other psychoactive substances; it would be worth exploring these and evaluating the different outcomes. This includes potential long-term reform to provide a comprehensive framework for dealing with all psychoactive substances.

Focus on achieving outcomes where there is consensus

Discussions around the Coalition Government’s legislative response are necessary, but can lead to people taking up intractable and entrenched positions that inhibit progress. By focusing on outcomes that people from all sides of the debate agree are important it is possible to move away from areas of high contention and identify possible practical improvements. For example, using the outcome of protecting young people as the starting point, all participants in the first workshop were able to agree on the importance of gathering information on new substances for all stakeholders.

The following recommended areas for action were identified:

There should be continued investment and support for broader intervention initiatives, delivered in schools and communities, as well as family-based initiatives and mentoring schemes in order to increase resilience to problematic drug use.

These programmes aim to build broader networks of support for young people at greater risk of ‘drug problems’. They also help to develop better emotional and social resilience enabling young people to withstand the lure of drug use, or to experiment with drugs without letting it diminish their ability to reach their potential. The 2010 government drug strategy commendably highlights the importance and role of broader support to reduce the demand for drugs .146 This broader focus has a developing evidence base and is something that stakeholders across the spectrum of debate can agree on. The Government should continue to invest in early intervention initiatives, such as Sure Start and Family Nurse Partnerships and continue to build the evidence base for such programmes. The Government has pledged that the Early Intervention Grant and the Public Health Grant will provide local authorities with the funding and flexibility to tailor approaches to supporting vulnerable families. The Government and local authorities must ensure that this funding is spared from further spending cuts.

Government, local authorities and schools must ensure that drug education is based on accurate information delivered by individuals who will be perceived as credible and authoritative.

The 2010 government drug strategy also recognises the importance of providing accurate and reliable drug education and information in schools and through the drugs advisory service FRANK.147 The strategy advocates providing resources to schools based on best practice, while giving them the freedom to determine the approach they think is best. The experts involved in our project indicated that schools must avoid only providing scare-mongering messages to young people about the effects of drugs. While the bleak realities of drug use should certainly be conveyed to young people, they must be balanced by some recognition of the perceived benefits of drug use. The most effective messengers are likely to include other young people, and people from the local area that young people can identify with. The participants in our workshops also felt that it is important to ensure there are alternative positive activities for young people, such as team sports.

A systematic framework for information collection should be created to tap into the experience of users and frontline workers, as an early warning system and a source of knowledge about potential harms and perceived benefits of new drugs.

The Coalition Government has announced the creation of ‘an effective forensic early warning system’ as part of its efforts to tackle new psychoactive substances, but the details of how such a system would function are unknown. Nor is it clear how the Government will make use of similar initiatives, for example, the Europe-wide Psychonaut Web Mapping Project based at King’s College. This searches the internet and user forums and supplier websites to analyse new and emerging substances, and some of the perceived effects of substances. While there are clear drawbacks to user based reports – for example, experts cannot be sure that drugs actually contain the substances they advertise – this type of initiative can help to provide real-time information into European drug markets. The Government should recognise that when a substance is banned even temporarily, it becomes increasingly difficult to gather accurate information on the effects of new substances on users. A more effective, evidence-based approach could be pursued using early warning monitoring and information gathering, and regulation through consumer protection channels outside the MDA. This form of regulation could then be supplemented by a framework for sharing information among pharmacologists, frontline charities and users to gather and disseminate information on harmful effects.

The development and evaluation of outreach approaches, such as use of amnesty bins in clubs and other venues where use of such drugs is prevalent, should be increased to enable people to adopt less risky behaviours if they do decide to use, but also to provide valuable information about the availability and purity of new substances.

Research over the past 20 years into prevalence of drug use in the UK shows that despite significant investment in tackling illicit substances, millions of people continue to gain access to and use them. Moreover, illicit substances controlled through the MDA are almost inevitably and increasingly cut with other licit and illicit substances that pose harms in themselves and increase the risk of people taking dangerous-sized doses. The Government and enforcement agencies should continue to support pragmatic approaches to personal possession and drug use in an effort to reduce harm. For new psychoactive substances – most of which include pills – such approaches would include measures such as pill testing facilities and amnesty bins in clubs, festivals and other venues where drug taking is prevalent although their impact needs to be evaluated. A number of frontline charities, including Crew 2000 in Scotland, already provide a number of outreach services in nightclubs and festivals. Government support for charities like Crew 2000 doing outreach, as well as the use of amnesty bins and drug testing, should continue in order to facilitate the gathering of information of pattern of drug use and the chemical content of new drugs.

The Government should invest in laboratory-based investigation of current and potential drugs of abuse.

Laboratory-based investigations can provide some indication of the likely effects of new substances after they have been detected, or even before this. This may help policy makers in deciding what types of regulation might be most appropriate and what effects to look out for. This might be an area where co-ordination and co-operation within the EU would be an efficient way of maximising use of resources.

Ensure a more balanced decision-making process and debate

As discussed in chapter 2, the conclusion of Peter Reuter’s paper is that there is a fundamental bias in the political and regulatory system towards prohibition of new psychoactive substances:

The adverse consequences of mistakenly refraining from prohibiting what may turn out to be a dangerous drug are massive both for the individual decision maker and for the political party in power at the time. On the other hand the gains from correctly allowing a new psychoactive substance enter into the market, with appropriate regulatory controls, are modest and not very salient for the decision maker or the government. A Type II error (allowing what should have been prohibited) has much greater consequences than avoiding a Type I error (prohibiting what should have been allowed). That will be true even with a broader array of legal options. Once the decision not to prohibit is explicit, the decision maker faces a risk of significant public retribution.148

There are a number of parallels here with the challenges facing regulatory agencies when deciding whether to bring a therapeutic medicine to market .149 Regulatory agencies have to balance the risk of taking a medicine to market too quickly to provide the benefit to individual users, with the cautious tendency to withhold it until there is greater assurance of low harms. When considering whether to bring therapeutic medicines to market, the benefits to individual users are a significant part of the decision. The benefits to individual users of new psychoactive substances are different and some would argue less morally relevant.

There is an argument that new substances can provide a safer substitute for other more harmful substances. As discussed above, there is some evidence to suggest this was the case with mephedrone and cocaine. However, because the long-term effects of new substances may take some time to become apparent, making a judgement about whether or not they are in fact safer overall is essentially a gamble. There are also the harms related to prohibition to be considered. These include: eliminating the possibility of providing quality control and assurance; increasing the potential harms to individual users; complicating the task of gathering data on the substance that would allow for a more informed decision, since there are no manufacturers with an incentive to collect and analyse such data; and making it less likely that respondents in studies will disclose use.150

As Reuter argues, it is thus important to develop ways to ‘override this bias and to ensure a more balanced set of regulatory decisions’, which requires, in part, a shift in public opinion to consider the benefits of drug taking, including the potential for less harmful drugs to substitute for more harmful drugs.151

As a result, we make the following recommendations:

The Government should conduct more rigorous research into the full range of impacts (including unintended harms) of the control and enforcement elements of drug control and drug policy.

The Government needs to improve the quality of impact assessments on drug harms and the harms of different drug policy options, despite the methodological challenges this throws up. The harms from drug use require data on the numbers of users, hospital admissions, deaths and dependent users. It would also be helpful to have data on the numbers of admissions and deaths caused or aggravated by impurities in the drugs used and the number of incidents involving multiple drug use. There are harms from drug control itself that also require documentation and data, including the number of people with drug cautions and drug convictions. These are critical data for the construction of effective drug policies.

The Government should give greater consideration to identifying and assessing the benefits (in addition to the harms) that individuals and society may derive from using psychoactive substances, including the potential for substitution for more harmful substances.

Government legislation and pronouncements recognise the benefits (beyond medicinal) of using alcohol, which factors into their analysis, but fail to do so with other recreational drugs. As mentioned in chapter 2, the 2010 drug strategy acknowledges the contribution of alcohol to ‘community and family life’, as well as the ‘cultural life of this country’ in addition to the ‘valuable revenue it generates to the economy’ as a result of the manner in which alcohol is regulated. While the authors are not arguing that the benefit of pleasure to users should be on par with potential medical benefits of substances, they ought to be taken into account for the sake of consistency. Therefore surveys relating to drug use should find out the reasons why some young people take drugs and some do not. There is also the potential benefit that a new psychoactive substance may be functioning as a safer substitute to more harmful drugs but to assess this will require study and an evaluation of a functioning and active market. Gathering this type of information is easier within a regulated market – for example, along the lines of the New Zealand ‘restricted substances’ – than after prohibition.

Consider other regulatory options for control

We believe there is now a need to consider a shift to the policy debate to focus on the wide range of regulatory options available, not just the MDA. This can potentially allow improvements to policy without having to become entrenched in the legalise versus criminalise debate. It could encourage a broader consideration of the impact of complementary legislative options, for example regulation through the MDA, versus consumer protection perhaps through the Intoxicating Substances (Supply) Act giving a focus entirely on supply control.

We therefore make the following recommendations.

In the short term the Government should commit to a comprehensive assessment of the use and impact of planned temporary banning powers.

Our project revealed significant concerns among experts that the temporary ban could be unenforceable, lead to other harms, and lead to a neglect in considering other options. The Government needs to confront the increasing unenforceability of the MDA in light of the rapid growth in the synthetic drugs market.

In the short term the Government should give greater consideration to controlling the supply of new psychoactive drugs through the wide range of consumer protection legislation in some instances.

Trading Standards officers and the Medicines and Healthcare Products Regulatory Agency oversee a wide range of regulatory powers, some of which could be applied to new ‘legal highs’, such as the Intoxicating Substances (Supply) Act 1985. This control framework would or could require such things as licensed suppliers, proper labelling of harms and adverse effects, product assurances and liability, age restrictions and appropriate sanctions, whether criminal or civil for breaches. Such measures would comply with international obligations, provide a proportionate response to the challenge and avoid some (but not all) of the consequences of any control regime. It would also allow a full evaluation to be made of the contrasting approaches to control in order to inform future drug policy.

In the long term the Government should consider a radical reform of the measures for the control of psychoactive substances to provide an overall and integrated framework for controlling the supply of all psychoactive substances, including alcohol, tobacco and solvents.

A new Harmful Substances Control Act or framework could be developed. This is an extension of the idea that has been recommended by the RSA Drug Policy Commission and by Dr Les King, a well-known pharmacologist, forensic scientist and former member of the Advisory Council on the Misuse of Drugs (ACMD). Essentially, this would consolidate a wide range of existing legislative provisions covering controlled drugs with those at least for alcohol and tobacco and even perhaps those covering the control of medicines and poisons. This has the advantage of de-cluttering the current drug control legislation and providing an opportunity to remove anomalies that have grown up over the years.

One of the biggest criticisms of current policy is that harmful substances are dealt with through a range of legislative frameworks. For example, solvents are regulated through the Intoxicating Substances Act; alcohol and tobacco are regulated through Trading Standards and licensing; while cannabis is classified according to the MDA. This is not only inefficient; it sends confusing messages about the potential harms of such substances, especially to young people who have access to a plethora of information routes. The Government will find it hard to continue to ignore many of the perceived contradictions inherent in its various approaches to harmful substances. It should commit to undertaking a review to consider the implications of consolidating all legislation that covers potentially harmful substances, including alcohol and tobacco, into one Harmful Substances Control Act.

In summary, it is 40 years since the Misuse of Drugs Act 1971 became law and the ‘drug problem’ is no nearer being solved. The new psychoactive substances now being developed pose new challenges while at the same time our understanding of the problems associated with licit substances has grown. Therefore it seems high time for a new approach. The drugs debate is a hotly contested and polarised area and anyone entering it runs the risk of being characterised as being on one side or the other. However, it is clear that the ‘drug problem’ is complex and multi-faceted and there is no simple solution to it. We would suggest that it is time for a new approach to policy making, legislation and debate on drugs issues focusing on developing consensus and taking a more holistic view of substance use while building better evidence about what works.