Regulating a volatile substance as an MDA “controlled drug”
- appropriate scheduling of nitrous oxide to enable use for medical, dental, veterinary, healthcare and some scientific purposes (“medical-related uses”) and
- how to enable legitimate non-medical related, lawful uses, including industrial uses.
- “The ACMD is unable to conclude with certainty the breadth of nonmedical-related uses of nitrous oxide, or the potential unintended consequences of scheduling under the Misuse of Drugs Regulations 2001 for these uses.”
- “The ACMD considers that a licensing regime for nitrous oxide would be disproportionate, complex and have an undesirable impact on legitimate uses.”
- “If exemptions were to be applied to nitrous oxide, the ACMD considers that these should be based on type of use grouped into two categories: medical-related and non-medical-related.”
- “None of the current schedules under the Misuse of Drugs Regulations 2001 are wholly appropriate for nitrous oxide. Schedule 5, with modifications, would offer the most suitable controls while enabling medical-related and non-medical-related uses with fewest burdens.”
Recommendation 1 i) Nitrous oxide be inserted into Schedule 5 of the Misuse of Drugs Regulations 2001. ii) Schedule 5 of the Misuse of Drugs Regulations 2001 be amended specifically for nitrous oxide to enable all activities required for legitimate uses. iii) Schedule 5 of the Misuse of Drugs Regulations 2001 be amended specifically for nitrous oxide to enable control of import and export, production, possession, and supply for non-legitimate uses.
Recommendation 2 That further consultation is needed with other Government departments and stakeholders to: i) Agree a legally robust definition of legitimate use of nitrous oxide, ensuring coverage of legitimate non-medical-related uses. ii) Determine any unintended implications or consequences of the proposed definition.
It is submitted that those recommendations should serve as further warnings to the Government about the correctness of its decision. Given that the Government is principally targeting the handling of nitrous oxide for recreational use, it is conceivable that the substance will be placed into Schedule 5 of the Misuse of Drugs Regulations 2001 (the intensity of control being the lightest under the Act). However:- The expressions “legitimate use” and “non-legitimate use” are not ones found in legislation (and certainly not in the MDA 1971 or its associated Regulations).
- The Government may decide to permit the distribution and use of nitrous oxide in all situations except when the consumption of nitrous oxide (other than for a recognised medical purpose) is for producing a psychoactive effect in a person who consumes it – or something along those lines.
- Nitrous oxide would be the first gas to be controlled under the MDA 1971. Past administrations seem to have decided against regulating volatile substances under the MDA 1971.
- Parliament enacted the Intoxicating Substances (Supply) Act 1985 which made it an offence to supply or to offer to supply a substance – “other than a controlled drug” – to a person under the age of eighteen (or to their agent) if the supplier knew or had reasonable cause to believe (i) that the person was under that age and (ii) that the substance was (or its fumes) were likely to be inhaled by that person for the purpose of causing intoxication. The Act was superseded and repealed by the PSA 2016.
- The moment that a psychoactive substance becomes an MDA “controlled drug”, the PSA 2016 will cease to apply to it.
- Applying the current Government’s approach in relation to nitrous oxide, there is the potential for the MDA 1971 to be applied in respect of other substances of misuse such as butane gas, glues, or other volatile substances.