Keynote Address: Regulating Drug Use: Prohibition and Legalisation

  • Peter Dunne

I am delighted to be opening this conference on ‘Regulating Drug Use: Beyond Prohibition and Legalisation’.

I am well aware that I am speaking to a room full of experts of every stripe, who have devoted their careers, in one way or another, to the study of drugs and drug use.

Many of you have been kind enough to let me and my office know your position on various drug issues over the years, and I acknowledge that.

I would like to begin with a warm thank you to Dr Chris Wilkins for inviting me to speak.

I would also like to acknowledge everyone in this room, and the work you have all done with and on behalf of people who are affected by drug use.

While we may not agree on what the most appropriate responses to addressing drug issues are, I always note your input and opinions, and the debate that you contribute to and keep alive here in New Zealand, and internationally.

Our understanding of drug issues would be much the poorer without your work, and that of many others like you.

Fundamentally, drug policy is about people’s health and wellbeing and I believe it is important to remember and acknowledge that at the outset.

Compassion, innovation, and proportion

New Zealand’s National Drug Policy, launched last year, embodies an approach to drugs that is compassionate, innovative and proportionate.

These are the three key words I have used to describe the ideal approach and attitude to drugs and people who are affected by drug use, including when I spoke at the UN General Assembly Special Session on the world drug problem in New York last month.

Compassionate: we should not be driven by a punitive approach towards drugs, particularly to drug use and possession.

Instead, we should adopt a health-centred approach that places personal wellbeing at its centre.

This means treatment for people who need it, and public health measures like needle exchange programmes to reduce harm from drug use, rather than criminal penalties as a first resort.

The punitive approach on drugs has led to the expenditure of vast sums of money and resources for very little return.

We know the “War on Drugs” has failed, so it is well past time to move on from that mind-set, and focus more on drug policies that will be effective in reducing social harms.

Innovative: drug use and the kinds of drugs being used, how they are distributed, and who is doing the producing and distributing is changing rapidly and dramatically.

Drug law around the world is increasingly unable to keep up.

New psychoactive substances have proven very difficult to integrate into existing drug legislation.

The Internet is increasingly being used to deal in and traffic drugs.

There are new players in the drug market: organised, technologically sophisticated criminal networks able to take advantage of the opportunities that the Internet gives them.

We need to consider how to meet these challenges and come up with flexible new methods to tackle them.

Proportionate: our response to drug use and users must be appropriate to the offence and the scale of the harm caused.

We need to reconsider our approach to drug use and possession.

Criminal convictions carry devastating consequences for the lives of the people they are imposed on, and we need to be certain that our approach is not causing as much, or more, harm than the drugs themselves.

But that should not mean any lessening of our intolerance of the criminal connections that control the distribution and manufacture of drugs, both nationally and internationally, who should continue to be legally accountable for the misery and harm they perpetuate.

Thanks to your work and that of many other experts, we understand with great clarity where the challenges are in designing a drug policy that can minimise harm and promote personal wellbeing.

We know where we want to go, and are beginning to chart out ways, like New Zealand’s Psychoactive Substances Act and National Drug Policy, of how to get there.

But we need to make sure we bring the public along with us – framing the debate appropriately is crucial.

If the public gets the impression that a more health-focused approach to drug issues really means we have surrendered to the gangs and criminal cartels, they will not support such moves.

The public sees the harm that results from drug use, so in designing policy we need to take careful account of the prevailing mood and people’s concerns about the problems they see in their communities.

The National Drug Policy allows for compassion towards drug users in drug treatment courts, providing an alternative to criminal justice sentencing for those who need help to reduce or eliminate their drug consumption.

It is innovative in seeking to provide such alternatives within the existing landscape, and aims to be proportionate in its treatment of drug offences, particularly at the lower end of the scale.

Despite the theme of this conference, the Government does not intend to change the legal status of any drugs currently scheduled under the Misuse of Drugs Act.

Not changing the legal status of these drugs, however, does not mean that we are bound to a punitive approach to the people who use them.

A review of drug utensil regulation under way at present will examine whether criminal penalties are consistent with an approach to drugs that is compassionate, innovative, and proportionate.

Next year, a review of penalties for drug possession offences will help ensure that we are able to respond appropriately to low-level drug crime.

Measures like these show the way forward to a better approach to drugs and drug users.

The Psychoactive Substances Act

The legislative environment sets the parameters for what can be done.

New Zealand’s Psychoactive Substances Act illustrates how innovative legislation can be used to manage problems that had become unmanageable under the previous legislative framework, in this case the Misuse of Drugs Act.

The Psychoactive Substances Act was developed in response to an environment in which a plethora of substances not controlled by the Misuse of Drugs Act were completely unregulated and freely available.

Early attempts to place controls on the availability of psychoactive substances were inadequate.

Manufacturers were able to keep ahead of attempts to control new psychoactive substances by developing new products with astounding rapidity.

As a result, it became clear that the Misuse of Drugs Act was not able to handle the situation that had arisen.

The Misuse of Drugs Act places the burden of proof on authorities to show that a substance is harmful before it can be scheduled.

In a situation where many new substances were becoming available almost literally overnight, the capacity of regulatory authorities to handle the situation was quickly overwhelmed.

The Psychoactive Substances Act reverses the burden of proof, requiring prospective manufacturers to show that their product poses no more than a low risk of harm.

Only if this test is met can a substance be legally to be sold, albeit with restrictions similar to the sale of alcohol.

In allowing for the legal sale of substances that pose no more than a low risk of harm, the Psychoactive Substances Act differs fundamentally from almost every other approach to recreational drugs in the world.

New Zealand’s psychoactive substances regime attempts to regulate a legal commercial market for those substances that pass the Act’s testing regime.

Overseas regimes tend to attempt to ban the sale of new psychoactive substances, in the vein of previous attempts to control recreational drugs.

New Zealand’s regime recognises that prohibition of new psychoactive substances has not worked, in any context, either to stop drugs from being available or to prevent the harm that they can cause.

The Psychoactive Substances Act has not yet been put to the test, as no manufacturer has been able to meet the stringent requirements for testing.

However, this situation will not last indefinitely, and when substances are submitted for approval under the Act, New Zealand will have a modern, ready-made piece of legislation to handle the situation.

It is my personal view that, at that point, we could consider applying the same regulatory regime to drugs currently scheduled under Class C of the Misuse of Drugs Act.

I would like to turn now to the issue of ‘medicinal cannabis’.

This issue is much misrepresented in public debate.

For a start, let us get the language right.

There is no such thing as medicinal cannabis, but there are medicinal products derived from elements of the cannabis plant.

So we should be talking about prescription and non-prescription cannabis based products.

Nor is it true that these products are illegal in New Zealand.

They can be prescribed by a medical specialist, or a general practitioner acting on the advice of a specialist, with the approval of the Ministry of Health.

Medical uses of controlled drugs, not just cannabis, are already provided for under the Misuse of Drugs Act, and the National Drug Policy includes actions that will improve access to controlled drugs for medicinal purposes.

The law is not the issue here, then.

My attitude, and the Government’s attitude, has always been to treat cannabis-based products like any other medicine.

This means that any cannabis-based product intended for medicinal use must first go through the appropriate clinical trial and approvals process before it can be imported, manufactured, prescribed or dispensed.

What is little reported or remarked on is the lack of pharmaceutical grade cannabis-based products that meet these criteria.

Sativex is the only such product currently approved in New Zealand.

Beyond Sativex, the cupboard is, at the moment, rather bare.

However, I do not expect it to remain so indefinitely.

Research presently under way should result in a greater variety of products becoming available in the medium term future.

We would welcome a greater range of clinically proven cannabis-based products being available for doctors to be able to prescribe for their patients, but in the meantime, the prudent approach is the cautiously pragmatic one we have adopted.

I am determined that at all times our decisions must be evidence based.

Let me now deal with the canard that, Solomon-like, I decide which patients get access to such products, and which do not.

There is a longstanding provision in our Medicines Act that allows the Minister to approve a non-prescription medicine for a patient, if the patient’s medical advisers believe that to be in their best clinical interests.

It is not particular to cannabis-based products, but is a general provision designed to deal with the situation where a medicine may not yet be an approved one, but where the medical opinion is that a patient would benefit from it.

I have used that provision twice over the last year, to approve access to non-pharmaceutical grade cannabinoid products, in response to two applications made to the Ministry of Health by treating clinicians of patients with particularly severe conditions.

Contrary to the public narrative, this is not a case of my sitting in judgement on any particular patient – I am neither that insensitive nor stupid – but rather, one of using a perfectly adequate provision of the law to a patient’s benefit, where the medical specialists believe a non-prescription product is justified.

Here is the bottom line: over 90% of applications for patients seeking access to Sativex and 100% of patients seeking access to non-prescription cannabis-based  products have been approved, which hardly suggests that suffering patients are being denied access to these medicines.

Much has been made of the guidelines that I asked the Ministry of Health to develop to assess these applications, and the majority of public comment on it, from people who should know better, has been erroneous and misleading.

The fact is these guidelines were always intended only as a guide by which to assess applications.

They are not tablets of stone, nor inflexible.

Earlier this year I requested an independent review of the guidelines, and the feedback from a range of clinical specialists and the New Zealand Medical Association has this week been reported back to me.

That feedback received has been unanimously positive, recommending one change to the guidelines, with which I concur, and strongly endorsing their continued use.

I am satisfied that the combination of the guidelines and the discretionary authority contained in the Medicines Act are more than  adequate to deal with the current situation, until such time as more products have been registered and approved by the relevant authorities.

Unlike some more interested in headlines than substance, I will always put my faith in medical specialists on this issue.

So I stand by what I said in New Zealand’s National Statement to the UN in April - identifying the greatest therapeutic benefits and determining the most appropriate ratios, dosage and delivery mechanisms will only come through a robust, scientific approach.

Otherwise we are essentially flying blind and hoping for the best, an approach that flies in the face of evidence-based medicines policy.

As I said at the beginning of this speech, New Zealand’s National Drug Policy embodies an approach to drugs that is compassionate, innovative, and proportionate.

These three themes are consistent with international practice, and the Policy places New Zealand in a good position as we look to the future.

We will continue to watch international developments with interest.

I am confident that New Zealand’s policy and regulatory settings will be able to meet any new challenges that arise in the ever-shifting international drug landscape.

That said, having introduced the Alcohol and Drug Addiction Act’s replacement to Parliament in December 2015, I would like to see our ageing Misuse of Drugs Act overhauled and will be giving that due consideration this year.

In closing, I would like to reiterate my thanks for the kind invitation to address this conference.

I am sure that the discussions that arise here will be fruitful, and interesting.

We can expect drug policy to continue to be an area of change, and it is truly exciting – and rewarding – to be part of that change.

Thank you.