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Author: Rudi Fortson

Billy Caldwell and Medicinal Cannabis

Billy Caldwell and Medicinal Cannabis

Every few years, the plight of persons who have used ‘cannabis’ to alleviate pain and suffering due to a medical condition, has captured the attention of the public.  If there is to be a review of the laws relating to the medicinal use of cannabis then this is to be welcomed and long overdue.  The matter might have been addressed in 2005 after the Court of Appeal felt constrained to dismiss a number of conjoined appeals in R v Quayle and others  [2005] 1 WLR 3642.  Each of the appellants had possessed, or cultivated or imported cannabis to alleviate pain.  On the 16th June 2018, the  Home Secretary tweeted that “This morning, I’ve used an exceptional power as Home Secretary to urgently issue a licence to allow Billy Caldwell to be treated with cannabis oil“.

However, in order to make progress in this area, certain issues need to be clarified and carefully understood.  First, the expression “cannabis oil” is misleading.  It is now used loosely to refer to a number of cannabis related substances and products.  Forensic analysts will say that some oils containing THC are “controlled drugs” while other cannabis-related oils (e.g. CBD oils that do not contain any THC) will not be.  Secondly, there needs to be clarity as to the forms of cannabis that have medicinal value.  Merely moving “cannabis” from one schedule to another within the Misuse of Drugs Regulations 2001 does not answer that question.  Thirdly, it is not just the Misuse of Drugs Act 1971 that needs to be considered.  The UK, in common with many other countries, operates a statutory regulatory regime in respect of the production, distribution and licensing of “medicinal products”.  Substances and products that are presented as having medicinal properties or which function as medicines, can fall within that complex regime (see the Human Medicines Regulations 2012 and the Medicines Act 1968).  A breach of the statutory provisions can lead to civil proceedings or criminal prosecution.   The sooner these issues are resolved, the better.

Nitrous oxide canisters for food use: not a “medicinal product”

Nitrous oxide canisters for food use: not a “medicinal product”

In an important judgment handed down today by the Court of Appeal (Criminal Division)(England and Wales) – R v Chapman and others [2017] EWCA Crim 319 – the Court held that canisters of nitrous oxide (“nox”, or N2O) designed and intended for food use and not for a medicinal purpose, are not “medicinal products” (within the meaning of the Human Medicines Regulations 2012) for the purposes of the Psychoactive Substances Act 2016.  The result is – I suggest – correct, and it accords with the reasons given in my earlier blog and article on the PSA 2016: see “The Psychoactive Substances Act 2016“, R. Fortson, Criminal Law Review [2016] Crim L R 303.  N2O is used for many commercial purposes (rather than medicinal).  The Court said [LINK] (at para.32):

“The gas no doubt modifies the physiological functions of those who inhale it, but it brings neither short term nor long-term beneficial effects to human health in these circumstances. The canisters in question were in fact manufactured for use unconnected with medical purposes, widely available and distributed for use in catering, which in itself is a strong indicator that they were not medicinal products. Furthermore, the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.”  

Medically Supervised Drug Consumption Rooms

Medically Supervised Drug Consumption Rooms

A number of countries (but not yet the UK) have permitted or tolerated the establishment of “Drug Consumption Rooms” – sometimes called “Safe Injecting Sites” – being medically supervised places where drug addicts can ingest certain drug substances (albeit illicitly obtained).  These facilities are not so-called “shooting galleries”.  The aim of a DCR, as described by the EMCDDA, is primarily “to reduce the acute risks of disease transmission through unhygienic injecting, prevent drug-related overdose deaths and connect high-risk drug users with addiction treatment and other health and social services” [Link].  Such facilities are contentious, but a strong case can be made for at least piloting such a facility in the UK.  Whether a DCR will be established in the UK remains moot [see the piece by BBC’s Mark Easton [Link].  See also an article by the “Irish Examiner” (31st October 2017) [Link]; and by Caroline Lucas MP in the Argus [Link].

Nitrous Oxide: so-called “hippy crack”

Nitrous Oxide: so-called “hippy crack”

News broke today that two cases, brought under the Psychoactive Substances Act 2016, collapsed in respect of “nitrous oxide” contained in small cartridges of the kind intended to be used in dispensers for (e.g.) whipping cream (see The Metro [link] and the BBC [Link]).   It was reported that in one case, prosecuting counsel informed the Crown Court that  its own expert witness….is “expressing the firm view that nitrous oxide, as the legislation is currently worded, is an exempt substance”.   The PSA does indeed exempt from the legislation “medicinal products” as defined by reg.2 of the Human Medicines Regulations 2012 (S.I. 2012/1916). 

The main problem here, I suggest, is in the definition of “medicinal product”, which is ambiguous, but which has been the subject several decisions of the ECJ.  The solution might be to give that definition a purposive meaning.  Reg. 2 broadly mirrors  the wording of art.1(2) of Council Directive 2001/83 (as amended).  In the ECJ decision of  D and G,  (C-358/13) EU:C:2014:2060; [2014] P.T.S.R. 1217, the Court said: “… the answer to the question referred is that article 1(2)(b) of Directive 2001/83 must be interpreted as not covering substances, such as those at issue in the main proceedings, which produce effects that merely  modify physiological functions but which are not such as to have any beneficial effects, either immediately or in the long term, on human health, are consumed solely to induce a state of intoxication and are, as such, harmful to human health.”  

The test, perhaps, of whether a product is a “medicinal product” or not, is whether it was designed or intended for medicinal or therapeutic use.  It is surely inconceivable that those who produced or supplied cartridges of N2O for food use, have produced/supplied “medicinal products”!

For a detailed article on the PSA 2016, see “The Psychoactive Substances Act 2016“, R. Fortson, Criminal Law Review [2016] Crim L R 303.

On a wider note, this commentator  warned more than once that the PSA 2016 was flawed in its drafting (not least in relation to the exemptions) and liable to give rise to definitional and scientific problems.

An interesting article regarding the two cases appears in “The Independent” (by Lizzie Dearden, Home Affairs Correspondent, 30.8.17) [Link]

[Addendum to the Post]: As to whether these cases represent a drug policy that is working or failing, see a cogent discussion by Professor Harry Sumnall (Substance use, the Public Health Institute, Liverpool John Moores University) -“The laughing gas verdicts represent a failure of Britain’s drug policy“, Guardian, 1st September 2017 [Link].  In an unrelated piece, in the Islington Tribune (1.9.17), another N2O case has come to light, but where the jury convicted [Link].