Beyond Prohibition

Report of the Redfern Legal Centre Drug Law Reform Project

September 1996

2. Steps To Harm Reduction

INTRODUCTION

Our existing drugs policy, grounded in prohibition, is failing. Drug use continues at significant levels, the drug trade continues to flourish, and the social consequences of a thriving drugs black market - including significant property crime and police corruption - continue to cause concern.

We need to continue the process begun a decade ago with the introduction of legal needle and syringe exchanges. That is, we need to continue to shift the primary policy focus from prohibition to harm reduction: to rely less on the criminal law to discourage drug use and supply, and more on education, treatment and research to make drug use as safe and responsible as possible.

Our current approach to drugs confuses legal status with questions of safety. Both alcohol and marijuana are widely used in social situations, both methadone and heroin are highly addictive, both Prozac and ecstasy induce comparable feelings of well-being. Yet the differing legal status of each of these drugs skews social attitudes to their appropriate use, and distorts accurate education messages about their effects and the dangers of misuse.

There is a limit to the constructive harm reduction measures which can be undertaken without changes to the law. We have probably already reached the point at which the laws criminalising drug use represent a real impediment to programmes aimed at minimising the personal and social harm which can be caused by drug use.

Reducing Drug-related Harm

Harm reduction means aiming at reducing the harm that drugs can cause to users and to the broader community. It involves accepting that drug use will never be eliminated, even if we do not approve of it. Harm reduction should be the standard against which we measure the success or failure of existing drug laws, and proposals for change.

Redfern Legal Centre has proposed that in the long term, we should implement a system of controlled availability for most currently illicit drugs. The Centre's Harm Reduction Model of Controlled Drug Availability sets out principles for controlled availability which would produce the greatest degree of harm reduction, and sketches some case studies to illustrate what these principles might mean in practice.

In the immediate future, we should take some less dramatic steps towards reducing drug related harm. Here we outline some immediate steps we should take to implement harm reduction principles in the short term.

Policy Objectives

Although drugs policy could never be described as uncontroversial, there is some common ground. Most would agree that drugs policy should be framed in the context of health objectives and social policy, not with the criminal law as the starting point. Where drug use is problematic, it should be addressed as a health issue, not a legal issue.

What does this mean in concrete terms?

The changes we recommend here address what we consider to be the most significant drug policy issues impacting on public health. The particular objectives of the proposals made here are

1. To establish the legal environment for the implementation of effective education and other health programs to:

reduce overdose deaths

reduce the number of new Hepatitis C infections associated with injecting drug use

at least maintain (and if possible reduce) existing low levels of new HIV infection through injecting drug use

improve the level of responsible disposal of used needles

2. Reduce socially harmful impact of criminal justice system on users of currently illicit drugs.

Taking the steps detailed below will not solve all the problems associated with drug use. Change to the existing legal framework must of necessity be made gradually. Once the proposals for change outlined here are implemented and evaluated, we can consider what further changes to drug law and policy are necessary.

These measures would have only a small initial impact on crime rates and police corruption. These social harms result directly from the drug laws particularly laws about drug supply. We need to move towards greater regulation of the drugs market to enable us as a society to influence the size and operation of the drugs market. Achieving the maximum public health benefits will require regulatory control over matters such as purity, weight, recommended dosages, and labelling.

The greatest source of social harm associated with drugs is the black market. The black market, with its extraordinary profits, fuels police corruption, and generates property crime. And the black market is an unregulated market, with no controls on drug quality, multiplying the dangers of drug use. The enormous profits to be made will always draw a steady stream of new entrepreneurs to the production and distribution of drugs.

The size of the black market is determined by the laws we make about drug supply. While it is likely that we will never be able to completely eliminate the drugs black market, changes to the legal approach to drugs can reduce and marginalise the negative social impact of a contracted illicit market.

We must explore alternative strategies to control the size of the black market, including considering alternative changes to the law about supply. But we cannot sensibly undertake that consideration without first resolving legal and policy issues about use and possession.

Each of the measures outlined below would represent an important step on the way to creating the legal framework for a comprehensive harm reduction strategy.

PROPOSALS FOR CHANGE

1 . Personal Use and Possession

Penalising drug users for the activity of drug use does little if anything to discourage drug-taking.

Criminalising drug using behaviour adds to the social and personal burden on drug users without any corresponding social benefit. The current laws force drug use underground, compounding health problems and making it more difficult to implement effective public health programs.

Police drugs strategy states that police resources should be directed towards drug traffickers and large-scale suppliers, rather than drug users. However, the fact is that 60% of drug matters prosecuted involve drug use or possession offences.

Because there is a distinct socioeconomic bias in the manner in which different communities are policed, there is a differential outcome in how these charges are laid. This means that the drug laws impact unfairly on the poor, the homeless, Aborigines and the young - disproportionately to their actual patterns of usage.

Changing our approach to the legal treatment of drug use would assist in HIV/Hepatitis C prevention by allowing injecting drug users to access (and dispose of) new needles and syringes without fear of police harassment. It would also remove existing disincentives for drug users (such as marijuana smokers) to openly discuss their use with doctors and other health professionals.

There are a number of constructive alternatives to the criminalisation of personal use and possession of drugs.

The options are to:

a. abolish the offences of use and possession;

b. abolish the offence of self administration only; and/or

c. vary enforcement practices

We will briefly discuss the merits of these alternative approaches.

Option a. Abolish the offences of use and possession

The most straightforward solution is to remove the offence of drug using and possession. That is, it would no longer be a criminal offence to use an illicit drug, nor to possess a small quantity for personal use (say 30 grams for cannabis, 1 gram for heroin, amphetamine and other powders). In order to minimise the number of cannabis users accessing the black market, cultivation of up to five cannabis plants per household should also be allowed.

Removing these offences would remove the legal obstacle to drug users seeking appropriate health care, including the estimated 600,000 cannabis users in this State. It would reduce fear of police harassment by injecting drug users accessing needle and syringe exchanges and, especially, contribute to responsible disposal of used needles. Because possession of a used needle is evidence of the offence of drug use, the law currently creates incentives to dispose of used needles quickly rather than thoughtfully.

Removing these offences would be consistent with existing police strategy which states that police resources should be directed towards drug traffickers, not drug users.

Option b. Abolish the offence of self administration only

Because drug use ("self administration") and drug possession are separate offences under the Drugs Misuse and Trafficking Act, it is possible to remove the offence of use without any change to the law prohibiting drug possession.

Removing the criminality of the act of using a drug would improve the capacity of educators and researchers to communicate in direct and plain terms with people about their past and present levels of drug use, and use behaviours.

In practical terms, it would mean that a person who had recently consumed a drug but had no other drugs in their possession, would be not subject to arrest or criminal charges. This would encourage larger numbers of injecting drug users to responsibly dispose of used needles and syringes, positively contributing to reduction in new HIV and hepatitis infections, and to community perceptions of public safety.

Most self administration convictions result from the person admitting having consumed a drug, without other evidence (blood or urine tests are not undertaken to support these charges). This law is selectively enforced against those who are most vulnerable and least aware of their civil rights (especially the right to silence).

If the self administration provision is withdrawn, there would remain ample legal power for the police to control offensive or anti-social behaviour which might accompany drug use. Appropriate community policing strategies would address community concerns about unacceptable behaviour in public places by people under the influence of illicit drugs, while also achieving desirable public health and social equity results.

Option c. Vary enforcement practices

The alternative to legislative amendment is to change how these laws are enforced. There are several ways in which this might be done.

(i) Better directed police discretion

The police have the discretion not to arrest or lay a charge in a wide range of circumstances, subject to their duty to protect the peace and to uphold the law. This exercise of discretion applies in the enforcement of the drug laws. In practice this means that many police officers choose, in many circumstances, not to lay charges where they become aware of minor drug offences. The anecdotal evidence is that the police are increasingly exercising their discretion in this way, perhaps especially with cannabis.

The exercise of police discretion in this way is not only legitimate but desirable. It contributes positively to public health outcomes, and reduces what would otherwise be a literally intolerable burden on criminal justice resources if every episode of drug use or possession which came to police notice were prosecuted.

It is desirable however that there be some standardisation of this exercise of discretion, to achieve greater uniformity of police practice (and therefore social equity) and to better target particular public health objectives.

We propose that the Commissioner's Instructions should be amended to give guidance to police on the exercise of their discretion.

Some suggestions are:

Police guidelines should specifically discourage arrest in overdose and similar medical emergency situations, of either the overdose patient or their associates. Knowing that there was no risk of arrest would encourage people experiencing overdose, or their friends, to seek medical help as early as possible.

People suffering overdose, or other physical or psychological distress, should be able to access medical services without fear of arrest. There are some 220 drug overdose fatalities in NSW each year. Many of these deaths are preventable. Studies show that one in three heroin users report having had at least one overdose experience.

Police should be encouraged not to harass clients of methadone clinics, even if known drug users are likely to congregate there. [This would be an extension of existing guidelines which discourage police harassment of clients of needle and syringe exchanges.]

Existing Commissioner's Instructions (Instruction 16.02), say that police should not interrupt injection, nor deliberately break syringes. In fact, these practices still occur. Relevant police instructions should be made the subject of training and greater management direction.

The Police Service should undertake a comprehensive examination of its practices and protocols as they impact on drugs policy. The fact that there are existing Commissioner's Instructions which are not being applied raises questions about the capacity of the Police Service to respond flexibly and appropriately in this area, in the absence of legislative reform. If measures are taken to develop the application of police discretion in drugs policy, it must be closely monitored to assess the degree of compliance with guidelines. If this approach does not significantly improve the current negative impact of law enforcement on effective drugs policy, the only alternative is to legislate change to laws.

(ii) Formal police cautions

The recent Victorian Premier's Drug Advisory Council Report (the Pennington Report) recommended that the use and possession of illicit drugs be dealt with through a system of automatic formal police cautions for first offenders (with voluntary referral to drug assessment and treatment services). Mandatory good behaviour bonds would be imposed as a sentence for second offenders. Third offenders would be dealt with by a court in the normal way (ie, by decision of the magistrate to impose fines, community service orders, or other appropriate penalty).

A mandatory caution/bond system for drug use and possession offences would make police contact with drug users less negative than it is now (except for repeat offenders), and would allow law enforcement to be accompanied by referral to treatment or counselling services in appropriate cases.

If introduced, this system should be closely monitored for its effect on the number and type of cases brought before the courts. (It should be noted that introducing a system of police referral to drug treatment services may result in an increased demand for those services, which are now significantly under-researched.)

(iii) On-the-spot fines

Some jurisdictions (South Australia, the Australian Capital Territory and the Northern Territory) have introduced a system of on-the-spot fines as a method of "decriminalising" the personal use and possession of marijuana.

Since this system was implemented in South Australia in 1987, there has been a 450% increase in the number of fine notices issued (although research shows that marijuana usage has increased only slightly, in line with increases in other States). Half of the 18,000 people issued with notices last year did not pay their fine on time, exposing them to the risk of arrest, prosecution and incurring a criminal record.

In practice therefore, this initiative has actually increased the cost of police and court time devoted to marijuana law enforcement.

In the ACT and NT, it is too early to say whether there will be a similar escalation in the number of notices issued.

There are few apparent advantages in adopting this measure. The other alternatives offer either more complete and systematic solutions, or the opportunity for more flexible policing practices.

· Remove prison as a sentencing option for drug use or possession

If the offences of drug use and possession are not abolished, then at the least, imprisonment should be removed as an available sentencing option.

Prison sentences are a completely inappropriate penalty for minor drug possession and use offences. Imprisonment has never been evaluated for its effects on drug use or possession recidivism, although anecdotal evidence suggests that it does not deter ongoing drug use. Research into the question should be encouraged.

About 150 people are gaoled each year in NSW for drug use or possession of small quantities of drugs. In 1995 (the most recent figures available), there were 62 people gaoled for use or possession of marijuana, 61 were gaoled for use or possession of heroin, and 44 were gaoled for use or possession of other drugs. Although custodial sentences of up to eight months were imposed, the period of imprisonment for most was less than two months. In relative terms, these prison terms would be considered short. However, considering the minor nature of the offences and prevailing social attitudes, they are extraordinarily harsh.

3 . Allow use of cannabis for medical purposes

If the offences of drug use and possession are removed, there is no need for separate treatment for those who use cannabis for genuinely therapeutic purposes. However, if those offences remain, an exception should exist for the medical applications of cannabis.

Cannabis in smokable form is a valuable alternative to other medical treatments for people living with AIDS and for some cancer and glaucoma patients. It is useful for nausea and pain relief, and to stimulate appetite. Smokable cannabis is now used in the community for these purposes without recognition, support or medical supervision.

Synthetic cannabis products in tablet form are available on prescription, but they are not satisfactory. They are expensive and reported to be less effective in achieving the desired therapeutic results. Many patients who smoke marijuana to control nausea are unable to swallow tablets. For some conditions (eg, weight loss associated with AIDS), there are no effective alternatives.

As well, numerous people living with hepatitis use cannabis as a social alternative to alcohol.

4 Allow possession of drug equipment as well as needles and syringes

Possession of equipment intended for use of prohibited drugs is illegal - needles and syringes are the only exception.

It is anomalous to publicly fund the distribution of needles and syringes, but not to allow the possession of swabs, sterile water and tourniquets for the purpose of using illegal drugs.

Allowing the legal possession of all intravenous drug using equipment would assist in HIV prevention. It would also assist in preventing Hepatitis C infection, which often results from sharing equipment other than needles and syringes., and it would assist in holistic harm reduction (eg, using sterile water to reduce the risk of injecting bacteria which can cause a range of illnesses).

The sale and possession of bongs for the smoking of cannabis is also illegal even though using a bong is probably less harmful than smoking cannabis cigarettes. Further research should be undertaken into the relative physical harms of different methods of consuming cannabis (eg, in cigarettes, through bongs, or in foods).

Legalising the sale and possession of cannabis smoking equipment would assist education strategies aimed at encouraging cannabis users to use in relatively safe ways.

5 . Provide safe injecting spaces

Legal safe injecting spaces (or "shooting rooms") would considerably reduce the harm associated with injecting drug use in public places like parks and laneways. Safe injecting spaces could reduce drug overdose deaths, and should also reduce the number of used syringes unsafely disposed of in public places.

Publicly funded, safe injecting spaces should be introduced on a trial basis in areas of existing high intravenous drug use. The trial should be conducted over two years, with an initial review after six months.

Potential benefits include:

i. Reduction in injecting drug use in public places (such as parks and laneways), with the consequent public health dangers posed by used needles being left in those places.

ii. Improved access and personal safety for ambulance officers and other health workers treating overdoses.

The difficulty with introducing such a trial is that the authorities are wary of funding, even tolerating, facilities at which people would break the law (ie by self administration). We have made a number of suggestions above about reform of the law, or at least law enforcement practices, around drug use and possession. Introducing any of those proposals would clear the way legally for the introduction of safe injecting spaces.

The proposal for safe injecting spaces is a logical extension of existing needle and syringe exchange programs. The legal framework to allow shooting rooms to operate (in the absence of more far-reaching changes to the law), would be similar to the arrangements for needle and syringe exchange programs, namely:

legislative amendment to make it not an offence to inject a prohibited drug on site at an approved safe injecting place (at least for the duration of a trial);

instructions to police to not harass the clients of the facilities (just as existing instructions direct police to not harass needle exchange clients)

statutory amendment to protect workers in safe injecting places from prosecution for aiding and abetting offences.

6 Allow use, possession and supply of Narcan without prescription

Narcan is an anti-narcotic used to revive people in the event of narcotic overdose. It has no pleasurable effects, and no effect on someone who has not used heroin or other narcotics. Wider availability of Narcan has been recommended by researchers at the National Drug and Alcohol Research Centre as an effective way to reduce fatal heroin overdoses.

If Narcan were to be made more readily available, it should be accompanied by an appropriately targeted education campaign to ensure that Narcan is understood to be a first aid measure only. The person revived from the overdose by a shot of Narcan requires further medical attention, involving either calling an ambulance or attendance at a hospital.

FUTURE CHANGE

The implementation of these proposals should be followed by continuing attention to laws and programmes which impact adversely on public health and other social programmes. Relevant government agencies should undertake a comprehensive review to identify which laws require amendment to further reduce drug related harm. Key agencies to be involved in such a review are the Departments of Health, Attorney-General's, Police, and School Education.

In the longer term, the nature and pace of further changes to drug law and policy will need to be considered and debated.

Implementing some or all of the above proposals would significantly improve public health outcomes. Making these changes would allow the community to decide whether and how to take further steps.

We should begin now, in a measured way, to explore and implement workable alternatives to the failure of drugs prohibition.