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Time for a second opinion? Where we are going wrong on ‘Legal Highs’


14th January 2013

There are parallels between the responsibilities GPs and MPs hold; Doctors in prescribing drugs to maintain our health, politicians in proscribing (banning) drugs to protect public health. When doctors write us a new prescription, they do so in the knowledge that prescriptions have side effects. But we trust them to make an evidenced judgement, that the benefits of what they prescribe should outweigh the risks of the treatment. 

We should expect equivalent balance when politicians write us a new bit of legislation. We should be able to trust that they understand the potential ‘side-effects’ their legislation may have, and have weighed them against the benefits to public health that the ‘treatment’ offers. Unfortunately, some of our politicians seem less concerned by evidence than doctors. In their current efforts to treat a spreading rash of ‘legal highs’, our government is prescribing some seriously bad medicine, as will be explained in this extended blogpost.

“Towards a Safer Drug Policy”

The proliferation of New Psychoactive Substances, often called ‘legal highs’, is rightly seen as a threat to public health. Enforcing the prohibition of familiar recreational drugs has proved far from a walk in the park, but when labs can churn out new drugs which mimic illicit ones but can be sold freely, what is a government to do? In the last few years, the government has repeatedly made Amendments to the Misuse of Drugs Act in an attempt to keep up. They banned GBL, (the solvent which the body converts into the sedative GHB), mephedrone and various similar drugs (which have effects similar to MDMA or speed), and more than 140 synthetic cannabinoids (which have cannabis-like effects). They have also introduced ‘generic’ bans; outlawing as-yet-unmade drugs matching complicated descriptions of molecular architectures, because they might be exploited in future. For example, structures related to mephedrone were outlawed.

To return to the analogy between policymaking and medical treatment, has there been any improvement from the regime that has been tried? Today, GBL is still popular and still allegedly sourced online, drug dealers are doing a roaring trade in mephedrone, although it is now as adulterated as other illicit drugs, and a new legal generation of synthetic cannabinoids has seamlessly displaced those that were banned. Like severing the Hydra’s heads, the government’s strategy seems only to have stimulated the proliferation of new legal drugs. New psychoactive substances currently appear at a rate of one every six days. The market for psychoactives has never offered more choice. The All-Party Parliamentary Group on Drug Policy Reform today publish their detailed report into the situation, “Towards a Safer Drug Policy; Challenges and Opportunities arising from ‘legal highs". They collected evidence from a wide range of witnesses involved in drug science, policy and law, from the ISCD to the Association of Chief Police Officers. The consensus amongs witnesses that the current approach is doomed is striking. Their analysis and recommendations are deserving of serious attention.

When a treatment doesn’t work, we don’t necessarily blame the doctor, but we expect them to look at the facts and consider an alternative course of therapy, according to the tenets of evidence-based medicine. This is an urgent issue, with the government currently lining up the next batch of bans in a Statutory Instrument, a type of legislation that does not undergo scrutiny in Parliament. This new legislation, The Misuse of Drugs Act 1971 Amendment Order 2013, is cause for serious concern about the status of evidence in drug policy. The rest of this blog examines the Amendment in more detail, showing reasons to expect that it will do more harm than good.

The Misuse of Drugs Act 1971 Amendment Order 2013

The new Amendment Order to the Misuse of Drugs Act 1971 bans yet more chemicals, making them Class B. These include O-desmethyltramadol, (a dangerous opioid), methoxetamine (related to ketamine, but stronger), and yet more synthetic cannabinoids that have been developed since the last ban in 2009. Generic definitions have been used in an attempt to prevent more ketamine analogues getting sold, banning molecular structures considered too close to ketamine, and similarly, generic definitions have been used to close off several new avenues for making new legal synthetic cannabinoids. 

In evidence-based medicine, when a doctor makes a prescription they ask themselves questions like;-

  1. Is there evidence that this course of treatment is effective (better than nothing)?
  2. Are there any unpleasant side–effects?
  3. Are there safer or more effective alternatives?
  4. Let’s put the Amendment Order to these same tests to find out how evidence-based it looks. 

    1) Is there evidence that this piece of legislation could be effective?

    It sounds obvious enough, but to answer this question we need to know what ‘effective’ looks like. What outcome do we want to see from the Amendment Order? Politicians sometimes justify drug bans as “sending a message”, but it is vital to stress that the Misuse of Drugs Act is not for sending messages about drugs (it would be nice if we sent messages through education rather than criminalisation). The stated objective of the Amendment Order is simply to “control substances considered "dangerous or otherwise harmful" … as a public health and protection measure”. This is clearly stated in the Explanatory Memorandum.

    By this measure, the Amendment Order is a flop. So far, successive Amendments have failed to control the availability and use of New Psychoactive Substances. The Home Office and Police are “flat-footed” according to the Association of Police Chief Officers spokesperson. If the purpose is truly to protect public health, such legislation cannot be considered effective even if it works in stopping people using particular named chemicals, if it merely encourages the proliferation of new chemicals the risks of which we know even less about.

    The control of new synthetic cannabinoids in the Amendment Order is particularly noteworthy for being a guaranteed embarrassing failure because, astonishingly, since the generic definitions in the Amendment Order were drafted to make legal cannabinoids a thing of the past, at least 12 brand new synthetic cannabinoids have been identified which circumvent these definitions. Dr Les King, one of the most knowledgeable drug chemists around and an ex-member of both the government’s ACMD and the ISCD has reported this situation exclusively on the ISCD website. The upshot of this is that before the Amendment Order has even become law, it is redundant.

    Conclusion;- there is no evidence of effectiveness for the new Amendment Order to the Misuse of Drugs Act 1971. 

    2) Are there any unpleasant side–effects?

    All medical treatments have a risk of side-effects, and in evidence-based medicine, side-effects make a treatment unacceptable if they outweigh the benefits of treatment. The technical word for harmful side-effects of treatment is iatrogenesis. Here, by analogy, we’re asking if the Amendment Order is an ‘iatrogenic’ law.

    The Amendment Order will make methoxetamine a Class B drug, and to prevent another ketamine analogue being sold to replace it, a generic definition has been written controlling any future drugs closely related to ketamine. This move could have serious and lasting side-effects because our current drug control regulations mean that these family-members of ketamine will become very difficult to research. Ketamine is a valuable pharmaceutical drug, with uses in anaesthesia, pain control and treatment-resistant depression, but with side-effects including bladder damage from long-term use. There is every reason to hope that amongst its relatively unexplored analogue family may be drugs with similar or improved properties but less adverse effects. These may never come to light if they are banned before being made.

    A more immediately obvious harmful side-effect of the Amendment Order is one that applies to our drug law more generally, that arrest and up to five years in prison, (the maximum sentence for Class B drugs) does harm to people’s lives more surely than most drugs. Methoxetamine for example was banned on the evidence of a few fairly nasty medical crises, all of which however resolved over time, unlike criminal records.

    The damage criminalisation does to young people is acknowledged by the government’s drugs advisors, but in the Home Office’s ‘Policy Equality Statement’ in the Explanatory Memorandum, the belief is expressed that the damage risked by criminalisation is “outweighed by the need for Government intervention to protect young people from harmful drug use in light of the assessment that they have made it clear that the belief that these substances are “legal and therefore safe” is the main driver for trying them”. If, as discussed, banning new drugs is ineffective in curtailing the availability of legal drugs, then the cost of criminalisation cannot be an acceptable side-effect. Also, research led by ISCD member Dr John Ramsey shows that consumers actually have little knowledge or control as to whether they are breaking the law or not. So-called ‘legal highs’ are so poorly regulated that people who purchase a product disingenuously labelled as an ‘incense blend’ will have no way of knowing if it is laced with genuinely legal cannabinoids or one of the ones that have been outlawed. Neither will the police, as made clear by Tim Hollis of the Association of Chief Police Officers, who opposes the unenforcable strategy of “adding inexorably to the list of illicit substances”. In any case, ISCD member Dr Fiona Measham gave evidence to the All-Party Parliamentary Group's inquiry to the effect that legal status has a minimal impact on most clubgoers' decisions to use legal highs. To genuinely reduce harms, it would seem more urgent to tackle the dangerous belief that legal drugs are safer than illicit ones.

    Conclusion;- Potential side-effects of the Amendment Order are worrying. To outweigh these costs, the legislation would have to offer marked benefits.

    3) Are there safer or more effective alternatives?

    Everyone is concerned about the harms that new psychoactive substances can cause. It is intolerable that, whilst people argue over whether drugs like cannabis should be legal and regulated, decriminalised or prohibited, much more dangerous substances are virtually unregulated and available legally to anyone.

    In this context, the new report by the All-Party Parliamentary Group on Drug Policy Reform is timely. They make many recommendations for better prevention and treatment for the use of new drugs, rather than relying on the justice system to take care of public health concerns. They also want to see discussion of the ultimate causes of the proliferation of products mimicking the effects of illicit drugs. If the possession of small quantities of illicit drugs was decriminalised, would there be such an appetite for untested legal alternatives? The report recommends serious consideration of the regulated approach being instituted in New Zealand, where the onus is on the supplier of a new drug to demonstrate a low risk of harm. The New Zealand model also explicitly demands that “the harms of any form of regulation should not be greater than the harms of the substance being regulated”. It will be some time until we can say with any certainty that this model works well, but it has the advantage of having been developed through a rational evaluation of the challenging situation. As DrugScience's Dr Tim Williams and Prof. Val Curran told the All-Party Parliamentary Group's inquiry, when drug users see that the system for drug control is conceived rationally, they will begin to trust it.

    Conclusion;- We can’t hope to ‘solve’ the problems new drugs cause. Drugs harm and some people will always use them. But by taking an evidence-based approach, we can do so much to reduce unnecessary harm caused by drugs and by drug legislation.

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