Forensic Investigation Summative Essay
19th January 2018
Discuss the reasons for setting up the Psychoactive Substances Act and any effects the Act has had since its introduction.
The Psychoactive Substances Act 2016 expands upon the existing body of UK drug legislation in order to curb the prevalence of potentially harmful new psychoactive substances by bringing them within the jurisdiction of criminal law, without the need to repeal or amend previous statutes. The production, supply, offer to supply, and import or export of psychoactive substances are explicitly prohibited in the act,1 wherein psychoactive substances are described as those which create a psychoactive effect in a person when consumed. That is “if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state.”2 As such, the act creates a blanket ban on any drug with a potentially recreational use, but allows for certain exemptions. For example alcohol, nicotine, caffeine, and medicinal products.3 Below will be discussed the various reasons for implementing this legislation and the effect it has had since its introduction. **Both those effects which were intended and those outcomes which did not align with the intention behind the act will be considered**.
Reasons for creating the Psychoactive Substances Act
1 Psychoactive substances and existing drug legislation
One of the main reasons for the creation of this statute is in response to the recent rise in popularity of new/novel psychoactive substances (NPS) and “legal highs.” Smith and Morley describe legal highs as substances “that are used recreationally but are not controlled under the Misuse of Drugs Act (1971)” and NPS as those legal highs which have been only recently created.4 These newly invented compounds are used to imitate more common recreational drugs by slightly altering their chemical structure, such that they are a different compound, not prohibited by existing law, but producing a similar psychoactive effect to the original drug.5 Therefore, according to Negrei et al, many of these substances are produced primarily for the purpose of “circumvention of regulatory restrictions, devised for the control of their ‘traditional’ counterparts.”6 The purpose of the Misuse of Drugs Act 1971 and subsequent regulations is to prevent the sale and recreational use of psychoactive drugs. Therefore, these compounds, which produce a like effect without being technically prohibited, created a gap in the law that needed to be filled; new legislation was required to prevent these NPSs from being used as a way to avoid the law.
2 Traditional law-making processes cannot keep up with production of NPSs
The traditional response of the law to newly-popularised recreational drugs is to simply amend existing drug legislation or create new regulations to prohibit the use of a particular substance. However, this can take a very long time due to the “slowness of traditional administrative and legislative processes.”7 In the months it might take for reactive legislation to be drafted, amended, approved by the legislature, finalised, and put into effect, many new tweaked psychoactive compounds can be created and distributed to avoid the reach of this new legislation. New drugs prompted new laws, which necessitated the production of new drugs,
which required new laws to prohibit them, and so on and so forth. Under this system the law is “in a permanent state of playing catch up.”8 Therefore, as it was impossible for traditional law-making avenues to keep up with NPSs, a different approach was required. Thus, the Psychoactive Substances Act was conceived to get around this conundrum by creating a blanket ban on all psychoactive substances being used for non-medical purposes without the need for constant slow reactive legislation.
3 The potential risk of harm from new psychoactive substances
Besides the requirement to have better legal consistency, the creation of this act also has a public health motivation. The purpose of drug legislation is to prohibit the sale and use of recreational drugs but also, in doing so, to protect the public from the potentially harmful effects of unregulated drug consumption.
This is particularly important for NPS as often they have undergone only minimal testing with little known about their effects. With more ‘traditional’ drugs of abuse, such as those prohibited in the Misuse of Drugs Act, there have been numerous long-term studies detailing the effects and risks associated with using these drugs. However, for new psychoactive substances, it is often the case that they become available to users without any knowledge of the potential side effects, toxicity, and health risks.9 Even where testing has been carried out (for example with new drugs that were originally intended for medical use), the available scientific literature may come from animal studies alone with no knowledge of the potential consequences of human use.10 Due to this limited knowledge, it is difficult to say for certain whether or not NPSs will produces a harmful effect, but at the very least we may say they are “not without risk.”11
Furthermore, where studies about new psychoactive substances have been undertaken there is enough evidence to suggest that they do indeed have potentially very harmful or even fatal side effects. For example, the Swedish STRIDA project collected information about cases of harmful intoxication from emergency rooms.12 Alongside more conventional intoxicants, there were many cases of individuals admitted to hospital, including one fatality, testing positive for some form of NPS or unknown substance. Whilst many of these patients were found to have ingested multiple intoxicants, making it difficult to attribute harm to one substance in particular, there were enough instances of hospitalisation associated with consumption of an NPS to conclude that they carry a risk of harmful effects.13
Therefore, in order to continue to protect public health by prohibiting the recreational use of drugs, the law had to be expanded to include these new psychoactive substances, thus providing the impetus to create a Psychoactive Substances Act.
EFFECTS SINCE INTRODUCTION 1000ish
1 Psychoactive Substances Act 2016 (c.2) S.s 4-8
2 Psychoactive Substances Act 2016 (c.2) S. 2(2)
3 Psychoactive Substances Act 2016 (c.2) Sch. 1
4 Smith, P.R. & Morley, S.R. (2017). New psychoactive substances. In: Rutty, G. (Eds.) Essentials of autopsy practise (pp. 59-86). Leicester, UK: Springer International Publishing. Pg. ?
5 Clinical toxicology pg. 705-706…
6 worldwide legislative challenges…pg 2
7 exploring innovative policy responses (NPS)… pg68
8 essentials of autopsy practise pg 80
9 Novel psychoactive substances pg. 11
10 detection of new nps pg. 23
11 clinical toxicology pg. 12
12 Detection of new NPS pg. 1
13 Detection pg 28