Cross-Examination: Legal highs bring legal lows
Cross-Examination is a blog series about current legal issues in New Zealand produced by EJP Communications volunteers.
Our society abhors death – particularly the death of a young person. A death that is regarded as ‘unnecessary’ greatly compounds that sense of tragedy.
The suicide of Harley Pataka was certainly ‘unnecessary’ to his mother Katie Bayliss, who blamed her son’s death on the synthetic cannabis he smoked shortly before he died. Her grief over the loss of her son motivated Bayliss to set up the “Ban Synthetic Cannabis NZ Wide” Facebook page, in the hope that banning such ‘legal highs’ will spare other mothers her pain. As of April 22nd, the page had attracted 33,730 likes.
Bayliss’ and other similar pages document expressions of alarm at the harm being done by synthetic cannabis. National and regional newspapers document cases of synthetic cannabis causing users, often addicted, to become agitated, paranoid, suicidal and psychotic. A growing body of medical research confirms these reports, and the Ministry of Health has acknowledged that these synthetics produce more “adverse events” than ‘natural’ cannabis.
In response to cases of serious harm apparently resulting from use of legal highs, protests were staged against the drugs in twenty-two centres across the country on April 5th. The Napier, Hastings, and Hamilton territorial authorities have all moved to utilize their powers to restrict the sale of these products. Bans already exist in most Western jurisdictions; including Australia, the United States, and the United Kingdom. New Zealand, for two years from August 13th 2011, also had such a ban in force.
However, with the commencement of the Psychoactive Substances Act 2013 on July 18 2013, New Zealand has embarked on what Massey University drug researcher Chris Wilkins describes as “quite a radical experiment” in potentially legalising synthetic cannabinoids and similar products.
Parliament overwhelmingly supported the legislation; the Act passed 119 – 1. Associate Health Minister Peter Dunne has stated that this majority means legal highs “are here to stay”. Certainly, except for the Conservative Party, no party has stated any intention to reinvigorate the debate on prohibition. Therefore, it now seems likely that any change in policy on synthetics will alter their regulation rather than prohibit them entirely. Whilst making no comment as to the validity of Dunne’s remark, this discussion accordingly focuses on the regulatory provisions that have been put forward.
The stated purpose of the 2013 Act is to “protect the health of, and minimise harm to, individuals who use psychoactive substances” by regulating the availability of these substances. Regulation is achieved through precautionarily prohibiting all psychoactive substances (except tobacco, alcohol, and medicines); with manufacturers having to bear the cost of clinical trials to establish that their product poses no more than a “low risk of harm” to users. Once this is achieved, the Psychoactive Substances Regulatory Authority (PSRA) constituted under the Act is required by section 37 to approve that product for sale. Until the regulations giving full force to the Act are implemented later this year, forty-two existing products have been granted interim approval, contingent on no evidence emerging that they pose more than that ‘low risk of harm’.
PSRA’s October 2013 report Safety Assessment of Psychoactive Products notes that many reported adverse reactions to synthetics relate to chronic users who have substituted ‘natural’ cannabis for synthetics. Whilst the report notes that severe adverse events do also result from acute use, it indicates that the major harm associated with synthetics relates to chronic usage.
Medical literature identifies a direct correlation between social deprivation and the problematic use of drugs. Whilst drug use is seen at all socioeconomic levels, the most deprived members of society are the ones most likely to develop addictions. Furthermore, the most deprived individuals are the least likely and able in society to seek support for drug use; rendering them the least able to effectively combat drug problems. Harms associated with drugs thus fall disproportionately on the socially marginalised.
These studies were, admittedly, undertaken in regards to illicit drugs. However, the identified normative effect of the law in discouraging illicit drug use means that ‘legal’ highs are more likely to be used in all communities than ‘illegal ones’ – including socially marginalised groups. Certainly, as legalisation reduces the price of drugs, and makes drugs more practically accessible, it seems likely that these substances will be even more likely to be used in poorer groups. Indeed, following the Safety Assessment of Psychoactive Products’ statement that chronic natural cannabis users are the most likely to undertake chronic synthetic use, since marginalised groups demonstrate the greatest incidence of chronic cannabis use, it seems highly likely that socially marginalised groups will experience the greatest incidence of chronic, and thus problematic, synthetic cannabis use.
The concentration of protests on April 5th, greater protest perhaps indicating a greater prevalence of synthetics in those areas, in centres of relative socioeconomic deprivation such as Whangarei and the Bay of Plenty lends credence to this inference. It is also significant that synthetic cannabis retailing seems concentrated, based on the list of approved retailers on the Ministry of Health website, in areas with large Maori populations – Maori consistently identified in government publications as one of the most socially marginalised groups in New Zealand.
It appears, then, that the worst effects of synthetic cannabis will be seen in our most marginalised communities, insofar as the greatest chronic use will be seen there; reflected it seems by the greatest market for these products appearing to exist in these most heavily marginalised communities. Accounting for the full extent of the harm done by synthetics, therefore, requires considering the prevalence of chronic use indicated in this distribution, and more anecdotally by media reports.
However, the harm assessment methodology adopted in the Safety Assessment of Psychoactive Products is predicated on the assumption that these products are intended for acute and intermittent use. Even though it does note the particular harms associated with chronic use, and accounts for them in adducing whether a product poses only a “low risk of harm”, PSRA appears to regard chronic use of psychoactive substances as something other than their intended use. The activity of the marginalised is thus, impliedly, aberrant.
The manufacturers of these synthetics may indeed intend their acute and intermittent use – this has proved difficult to verify due to the manufacturers’ low public profile. However, it appears that the most common use of these products, or at least the most harmful use of these products, is chronic. Furthermore, anecdotal and clinical evidence is emerging that the synthetics are more potent and addictive than the natural cannabinoids PSRA sees them as displacing. Both in their apparent and actual use, and perhaps therefore in their very nature, synthetics seem more chronic than acute in their use. PSRA’s proposed standard, on the wording of the report, does not account for this.
This could be addressed by PSRA’s standard for assessing whether synthetics pose only a “low risk of harm” being modified to recognise that synthetics are, at least practically, substances widely seen as being for chronic use amongst the most marginalised, and thus most vulnerable, members of our community – the individuals that the PSRA itself has noted are the most likely to take up the use of synthetics in noting the displacement of natural cannabis by synthetic products. Doing so can only ultimately further the aim of the Psychoactive Substances Act of protecting the health of the users of synthetics by reducing the harm done to those whose health will be most harmed by legal highs.
The horror expressed on April 5th at the impact of synthetic cannabinoids on communities, many of them already vulnerable due to their marginalisation, reflects that the present definition of a “low risk of harm” is insufficient to truly represent a ‘low risk of harm for those most at risk’. The Psychoactive Substances Regulatory Authority, at present, is failing the most marginalised members of our community; even as it implicitly recognises their particular vulnerability. If the regime is to succeed in carrying out the purposes of the Psychoactive Substances Act, this inequality must be addressed.
Addressing that inequality, one can hope, will reduce the experience of tragedy for those most vulnerable to it.
*Since the publication of this post the Government has announced a new policy on the legalisation of legal highs. View the analysis of the recent policy changes here.
The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.
Psychoactive Substances Regulatory Authority Safety Assessment of Psychoactive Products Report (Ministry of Health, 1 October 2011) at 2-3; Simon Collins “Legal Highs Linked to Psychosis” The New Zealand Herald (online ed, Auckland, 5 April 2014).
 Collins, above n 1.
Sections 66-69 Psychoactive Substances Act 2013 provide for territorial authorities to devise and implement “Local Approved Products Policies”. These policies (as provided by s 68) allow territorial authorities to restrict the premises from which psychoactive substances may be sold within their jurisdiction, limit how close together such premises may be, and prevent premises from opening from within the vicinity of schools, churches, and other community facilities. These Policies will enter into full effect once national regulations be prepared under the act come into force later this year.
Max Daly “Synthetic Solutions: The Global Response to ‘Legal’ Highs” Matters of Substance (online ed, Wellington, February 2014).
 As reported in Collins, above n 1.
Peter Dunne, Associate Minister for Health “Hamilton City Council Policy shows Psychoactive Substances Act has teeth” (Press Release, 11 March 2014).
Psychoactive Substances Act 2013 s 3; Daly, above n 4.
Psychoactive Substances Regulatory Authority, above n 1, at 2-3.
See Advisory Council on the Misuse of Drugs Drug Misuse and the Environment (United Kingdom Ministry of Health, 1998); Gabriele Schäfer “Family Functioning in Families with Alcohol and Other Drug Addiction” (2011) Social Policy Journal of New Zealand 37 1; Sandro Galea, Arijit Nandi and David Vlahov “The Social Epidemiology of Substance Use”(2004) Epidemiologic Rev 26 36.
David C. Mare, Peter Mawson and Jason Timmins Deprivation in New Zealand: Regional Patterns and Changes (New Zealand Treasury, Treasury Working Paper 01/09, 2009) at 9-18.
 At 20.
As reported in Collins, above n 1; Psychoactive Substances Regulatory Authority, above n 1, at 2-3.