New figures released today disclose that 1,187 people have died as a result of drug use in Scotland last year [BBC News]. This blog has previously mentioned the merits and issues associated with establishing medically supervised drug consumption facilities and, indeed, this author has written extensively about them (see for example, “Evidence and Issues Concerning Drug Consumption Rooms” [Link]. As stated in that paper “there is no single rule of law that forbids the creation and operation of such a facility. However, certain actions could expose organisers, managers, and staff at a facility to the risk of investigation, prosecution, conviction or civil suit. While the risk must not be overstated, it must not be understated.” There is much that could be achieved by a combination of Secondary Legislation and multi-agency protocols/agreements. The problem is persuading the UK Legislature to follow the path of other countries that operate such facilities (for a considerable period of time in some states) or even to pilot such a scheme.
The Home Office has published a commendably detailed review into the operation of the Psychoactive Substances Act 2016 since it came into force on 26 May 2016 [Link]. Its conclusions (only summarised below, p.69) are:
1. To put an end to the open sale of NPS: This appears to have been achieved although the main source of supply for NPS “is now likely to be street dealers, particularly for synthetic cannabinoids.”
2. To put an end to the game of ‘cat and mouse’. This does not appear to have been achieved (based on a small number of observations from the Forensic Early Warning System). “Novel drugs which are not controlled under the MDA have continued to emerge”.
3. To reduce the number of people using NPS. This appears to have been achieved for the general adult population, “with a significant reduction in NPS use since the Act, particularly among young adults”. However, what has not changed significantly is the use of nitrous oxide among adults and the use of NPS among children. As for NPS use among vulnerable users, including the homeless, the evidence “is mixed” with “some displacement from synthetic cannabinoids to ‘traditional’ controlled drugs”. In prisons, “the PSA does not appear to have restricted the prevalence of NPS, with use of synthetic cannabinoids in particular appearing to have increased since the Act was introduced”.
4. To reduce the various health and social harms associated with NPS. “This appears to have been achieved in the main, although there are some specific areas of concern…. [W]hile there has been a reduction in NPS-related deaths across England and Wales, there has been a considerable increase in Scotland since the Act has been introduced”.
The Review states that the decisions of the Court of Appeal in R v Chapman  EWCA Crim 319, and R v Rochester  EWCA Crim 1936, are “binding” (p.4, p.14). However, care must be taken when determining the points of legal principle that are truly “binding”. In Rochester, the Court made it clear that whether something is capable of producing a psychoactive effect “is a question of fact, no doubt sometimes assisted by expert evidence” [para.19; emphasis added]. The legal principle, which is ‘binding’, is that “section 2 of the 2016 Act does not distinguish between direct and indirect effect when it defines a psychoactive substance as one which produces a psychoactive effect” [para.25; emphasis added]. The potential implications of this decision extend beyond cases of nitrous oxide presented in canisters for catering use.
BCL Solicitors, David Hardstaff and Daniel Jackson, have raised an important issue in relation to the Proceeds of Crime Act 2002 (POCA), anti-money laundering (AML), and the re-scheduling of cannabis based medicinal products for human use (http://www.bcl.com/a-green-light-for-business/). Others have also done so.
The problem arises in relation to the definition of “criminal conduct” in s.340(2) POCA, namely, conduct which “(a) constitutes an offence in any part of the United Kingdom, or (b) would constitute an offence in any part of the United Kingdom if it occurred there” [emphasis added].
A money laundering offence under ss.327-329 POCA is not committed if a person “(a) …knows, or believes on reasonable grounds, that the relevant criminal conduct occurred in a particular country or territory outside the United Kingdom, and (b) the relevant criminal conduct (i) was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory, and (ii) is not of a description prescribed by an order made by the Secretary of State”. However, the Proceeds of Crime Act 2002 (Money Laundering: Exceptions to Overseas Conduct Defence) Order 2006, provides limited protection.
It would be a harsh result if a person fell foul of the money laundering provisions when handling, in the UK, money obtained by a reputable pharmaceutical company from the manufacture overseas (and under licence there) of a drug which, in the UK, is a “controlled drug” (MDA 1971) and not licenced for production in the UK. Can this result be avoided? It may not be tenable to say that because the company had acted under licence overseas, the same “conduct”, “if it occurred [in the UK]” (i.e., licensed production), would therefore not constitute an offence. This would be to treat the grant or absence of a licence as a circumstance of the “conduct”. If this were held to be sufficient to escape liability, then the outcome would (arguably) be more generous than the limited exception granted by the 2006 Order. In any event, as the writers point out, a “‘like for like’ comparison of the UK’s controlled drug licensing regime with that of another country is unlikely to be straightforward”. Perhaps the most satisfactory answer is to amend the 2006 Order and provide a wider exception or range of exceptions.
See also my post re the regulations in respect of CBMPs [Link]
Today is undoubtedly a landmark moment but – as foreshadowed in earlier posts – the regime will be more restrictive than many persons in the media, and certain commentators, had claimed a few months ago. The reason is that the medicines legislation (and not just the Misuse of Drugs Act 1971) was/is bound to set the ‘pace’ in relation to Cannabis-based medicinal products (CBMPs).
The relevant legislation is The Misuse of Drugs (Amendments) (Cannabis and Licence Fees) (E.W.&S) Regulations 2018 (SI 2018 No.1055), which came into force today.
A useful and comprehensive statement of the current position has been published by the MHRA [link] “The supply, manufacture, importation and distribution of unlicensed cannabis-based products for medicinal use in humans ‘specials’”
A letter dated 31st Oct 2018 from the DHSC and NHS England is informative [link] but there are two statements within it that need to be treated with discretion:
“Moving cannabis based products for medicinal use to schedule 2 will mean those [products] can be prescribed medicinally where there is an unmet clinical need” [p.1]
and that –
“the Government has chosen to restrict the decision to prescribe cannabis-based products for medicinal use to only those clinicians listed on the Specialist Register of the General Medical Council. This restriction has been set out in regulations.” [p.2]
The latter statement is true if the CBMP is unlicensed: in which event, the product must be treated as a “special”. However, IF a CBMP has a “marketing authorisation”, the MHRA state that this prescribing restriction “will no longer apply” [p.6]:
“The Misuse of Drugs Regulations 2001, as amended by [SI 2018 No.1055], provide that the prescriber must be a Specialist doctor registered on the General Medical Council (GMC) Specialist Register to be able to issue prescriptions for unlicensed CBPMs. Once a substance receives Marketing Authorisation this prescribing restriction will no longer apply, and the product is available for patient use as other Schedule 2 drugs. See Regulation 16A of the 2001 Regulations.“
Regardless of whether the CBMP is unlicensed or has a “marketing authorisation”, professional and regulatory guidelines, and ethical considerations, will be relevant. But, how long will it take for a CBMP to acquire a full “marketing authorisation”?
Note that a CBMP (as defined in the Regulations) can be “cannabis” or “cannabis resin” – but, it must be “produced for medicinal use in humans” (and meet the remaining parts of the definition). The MHRA document makes clear that a CBMP that is unlicensed must meet the specifications of a Specialist Medical Practitioner. A CBMP will only acquire a “marketing authorisation” if it satisfies the stringent requirements for doing so. It remains to be seen which products are considered by the regulatory bodies to be eligible for prescribing.
A CBMP remains a “controlled drug” for the purposes of the MDA 1971.
Earlier posts by this commentator have cautioned against an expectation that “Cannabis-Derived Medicinal Products” (CDMP) would – in a matter of weeks or a few months – be made available on prescription by local GPs. The latest correspondence from the Home Office to the Advisory Council on the Misuse of Drugs (21 September 2018) [Link] is a further indication that the caution was not misplaced. The letter states that “the Government decided to act with pace and reschedule cannabis based products for medicinal use, within the current legal framework, as quickly as it could”. It adds “we think it is critical that we do not hinder the use of cannabis-based products for medicinal use for the relief of pain and suffering where medically appropriate and there is evidence…..it is important to reiterate that we are still at an early stage. We will continue to review and evolve our approach in the light of experience” [emphasis added]. The Government awaits the receipt of the ACMD’s “full report on cannabis-derived medicinal products in July 2019”.
As previously stated, the provision of CDMPs is not simply a matter of moving such products (or ‘cannabis’) from Schedule 1 of the Misuse of Drugs Regulations 2001 to another schedule. Any product (whether a controlled drug or not) that is presented as having medicinal properties or which has a medicinal function will attract the complex UK/EU medicines legislation. It is therefore unsurprising that the Government’s latest response (21 Sept) states that CDMPs “like any other medicine….need to comply with the requirements of the Human Medicines Regulations 2012” (Response to ACMD Recommendation 1). Even this is an over-simplification. The recent decision of the High Court concerning the use of Avastin for wet Age-related Macular Degeneration shows how complex the medicines legislation can be: Bayer Plc and Novartis Pharmaceuticals UK Ltd v NHS Darlington CCG and Oths  EWHC 2465 (Admin). That decision may be the subject of an appeal, but whatever the final outcome, the case may have some relevance in the context of CDMPs were a CDMP to be supplied “off-label” or to fulfil a special need (‘specials’). The Bayer case shows the extent to which – in relation to medicinal products – UK law and EU law form a package of measures.
On 21 September the Government also announced its “definition” of “Cannabis based products for medicinal use” [Link]. The “definition” is not as clearly identified on its webpage as being such, but it appears to be: “There are 3 broad requirements for products before they can be prescribed: • the product is or contains cannabis, cannabis resin, cannabinol or cannabinol derivatives; • the product must be produced for medicinal use in humans; • it must be a product that is regulated as a medicinal product or an ingredient of a medicinal product.” The third condition is of particular interest because it is arguably clearer than the Government’s interim definition as it makes plain that the product is one that is “regulated” as a “medicinal product” (a term defined by the Human Medicines Regulations 2012).