The Psychoactive Substances Act 2016 (the Act) made it an offence to produce (1), supply (2) or intend to supply (3), import or export (4) a psychoactive substance. It is not an offence to be in possession of a psychoactive substance, apart from in a custodial institution (5). The term ‘psychoactive substance’ refers to any substance that affects a person, mentally or emotionally, by stimulating or suppressing the central nervous system (6).
In 2013, the New Psychoactive Substances Review Expert Panel (the Panel), was commissioned to review and suggest reform of existing legislation on new psychoactive substances (NPS), due to the continued and unyielding availability of new substances, despite more than 500 NPS being banned under the Misuse of Drugs Act 1971 (MDA) (7). The Panel concluded that the most effective improvement would be a general prohibition on the distribution of non-controlled NPS, similar to the ban implemented in Ireland in 2010 (8). In response, the Government declared its intention to develop proposals for a blanket ban in 2014, and in 2015 committed to ‘create a blanket ban on all new psychoactive substances, protecting young people from exposure to so-called legal highs’ (9). The main objectives of the Act are to restrict the availability of NPS by preventing the open sale of legal highs in shops and online (10, 11), and to impact upon the motivations for using NPS, in particular their high availability, low price and legal status (12).
According to the Panel in 2014, ‘At a time when traditional drug use such as cannabis is declining, NPS pose a significant challenge to governments’ (13). The chemicals in NPS are often illegal and unsafe for human consumption, yet the composition of these substances allows them to evade the controls in the MDA (14). Furthermore, many NPS have not been considered for control under the MDA, and are only legal because their harms have not yet been assessed; most substances have not been tested, their purity is unknown and they become available for purchase before their health and social harms are known (15). There are also concerns from local authorities that anti-social behaviour is becoming more prevalent due to headshops and legal highs (16).
The threat of NPS is becoming progressively more apparent at a regional, national and international level. The number of new NPS reported to the EU Early Warning System (EWA) increased significantly from 24 in 2009 to 101 in 2014 (17). By the end of 2016, the EWA had received reports of over 700 new NPS in more than 100 countries, which is more than three times the number of substances controlled by International Drug Conventions (18). Although not all of these substances can be found in the UK, this rise in the number of new substances in only a few years demonstrates the severity of the issue of NPS and highlights the need for effective legislative action.
NPS also pose a threat to public health; the effects of some new substances may be comparable to those of controlled illicit drugs. There were 63 NPS-related deaths in England and Wales in 2013 and a further 60 in Scotland (19). This rose to 114 deaths in 2015 (20). However, some of these deaths also involved another substance, so may not have been caused by NPS, and the number of deaths caused by legal highs is still low compared to deaths caused by other illicit drugs (21). Preventing harm caused by NPS should be a key motivator behind any legislation implemented to tackle the problem of its use, yet the Act is arguably not concerned with harm, as a number of psychoactive substances with known health risks, including alcohol and tobacco, are exempt, perhaps due to their normalisation in society (22).
Arguably, the Act was implemented to ban nitrous oxide in particular. Written evidence from the Home Office states that nitrous oxide will be included in the definition of a psychoactive substance, and that nitrous oxide was the second most popular drug among young adults, after cannabis, in 2013/14 (23). This is further supported by the Home Secretary’s response to the Advisory Council on the Misuse of Drugs (ACMD), who suggested that the definition of a psychoactive substance be amended to read:
‘Any compound, which is capable of producing a pharmacological response on the central nervous system or which produces a chemical response in vitro, identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act 1971’ (24).
This proposed definition would align the bill with the MDA and provide a narrower scope related to harm, resulting in a clearer and less ambiguous definition. The Home Secretary replied:
‘I believe this approach would lessen the number of substances caught by the Bill… Home Office officials believe nitrous oxide and alkyl nitrites are not pharmacologically similar to any current controlled drug’ (25).
Rejecting the recommendation of the ACMD on these grounds in indicative that the prohibition of nitrous oxide was a key motivator behind the legislation.
There have been some positive outcomes since the Act was implemented in May 2016, but the true picture of the success of the Act will not be available for a number of years. A comparison of the Crime Surveys for England and Wales for 2015/16 and 2016/17 reveals that the use of NPS by adults aged between 16 and 59 ‘statistically significantly decreased’ in 2016/17 from 0.7% to 0.4%. Adults aged 16 to 24 remained more likely than those aged 16 to 59 to have used an NPS in the last year, but there was still a significant decrease; 1.2% of 16 to 24 year olds had used an NPS in the last year in 2016/17, compared to 2.6% the previous year (26). Six months after the ban was implemented, almost 500 people had been arrested, 332 shops across the UK had been prevented from selling NPS, 31 headshops had closed down, and four people were incarcerated, with other cases still progressing through the criminal justice system (27). By 15 May 2017, there had been a total of sixteen prosecutions by the Crown Office & Procurator Fiscal Service under the Act (28).
It could be argued that a prosecution under the Act is unjust as psychoactivity cannot currently be defined using a biochemical test. Hence, there is no guarantee of proving psychoactivity in a court of law. Human experience is the only definitive method of determining psychoactivity and this is rarely documented (29). As a result, judges have little to no evidence to effectively guide their judgements (30). However, in vitro neurochemical tests (31) can reliably provide if a substance is likely to be psychoactive and this result acts as the basis for prosecution.
An additional positive effect of the Act is that it led to the reduction in availability of some NPS online. For example, one study conducted two snapshot availability surveys, one before the Act came into effect and the other one month post-implementation, with a focus on the number of websites offering to sell MDMB-CHMICA. The first identified 47 websites, while the latter identified only 38 websites offering to sell the drug. No significant differences in the price or available forms of the drug were detected. However, during the later survey, the number of websites that declared they were based in the UK decreased significantly from 14 to two, three websites stated that they did not supply UK based customers, and two websites had terminated sales of MDMB-CHMICA due to the Act (32). This study demonstrated a limited reduction in the online availability of one example of an NPS, suggesting some level of success in restricting the availability of NPS, one of the main objectives of the Act.
Despite these successes, the Act has also negatively impacted a number of areas. It received a great deal of criticism, particularly regarding the definition, which has been referred to as too broad. It suggests that any substance not covered by the exemptions laid out in the Act has the possibility to cause harm, including new, unknown substances as well as those known to carry only minimal risk, including flowers, perfumes and vaping (33). Many oppose the decision to ban nitrous oxides, as the ACMD did not believe that its harms warranted scheduling under the MDA (34). In addition, alkyl nitrates, commonly known as poppers, were initially among the banned substances, although the ACMD had previously concluded that they are ‘not seen to be capable of having ‘harmful effects’ sufficient to constitute a societal problem’ (35). It was later established that the definition does not cover poppers, as their effect on the central nervous system is not direct (36). This in itself adds another issue; the definition in the Act does not mention whether or not the effect on the central nervous system must be direct, leaving it open to interpretation.
This uncertainty is further supported by a number of cases involving nitrous oxide. Professor Cowen for the Home Office states that nitrous oxide is likely to be subject to the Act as it is ‘capable’ of having a psychoactive effect, but confirmed that it is also capable of being an exempted substance under Schedule 1 of the Act, which exempts ‘medicinal products’, as defined by the Human Medicines Regulations 2012. The Act does not specify that a medicinal product is only exempt whilst it is being used for medicinal purposes, and as a result, some of those accused of crimes related to nitrous oxide avoided prosecution in the Crown Court in Southwark and Truro. The Home Office responded by stating that ‘Nitrous Oxide is covered by the Act and it remains illegal to supply or intend to supply the substance for its psychoactive effects’ (37). Despite this, the resultant widespread publicity from these cases prompted applications for appeal, leading to the case of R v Chapman in October 2017, which concluded that a general decision cannot be made regarding whether or not a substance is medicinal; this must be decided based on contextual evidence in a case-by-case basis (38). This suggests that the uncertainty surrounding the act may be due to its recent implementation. Perhaps as more cases surrounding NPS progress through the judicial system, judges will have a better basis and understanding for their judgements.
The Act has had a significant negative effect on the services responsible for supporting its implementation. For example, police services reported ongoing major challenges in managing NPS misusers, including an increase in assaults against police officers. They feel ‘failed by the judicial system’ and ‘powerless to prosecute’ due to a vague and ineffective national policy (39). Acute mental health services reported a lack of the confidence and knowledge required to successfully treat misusers of NPS, an increase in bed occupancy, and higher assault rates against staff (40). Patients reported a complete disregard to the Act, with many expressing that the criminalisation of other drugs did not prevent them from using them, so the Act would have no impact on their NPS use (41).
NPS use within prisons is also a major concern; synthetic cannabinoids have been reported as the second most abused drug in prisons in England and Wales (42). The increasing availability of NPS in the prison service alongside the lack of manpower and resources makes the NPS problem seem unsurmountable (43). After his release, one ex-offender described that enforcement of the Act was ‘impossible and ignored by the prisoners’, and stated that the common belief was that the system was ‘powerless to implement the policy and stop misuse’ (44). The situation within these services reflects the views on NPS policy; it is considered ineffective and ignored by NPS users, and service workers are unable to implement the Act due to lack of training, resources, manpower and support.
Another cause of concern in prisons is the emergence of the practice of ChemSex, linked to NPS. The rates of HIV and hepatitis C infection were already significantly higher amongst prisoners. This is exacerbated by this epidemic, as prisoners inject in a more high-risk manner by sharing syringes, in turn increases the risk of infection (45). Similarly, high risk groups in The United Kingdom inject stimulants to enhance sexual experiences. Compulsive reinjecting is common due to the short duration of synthetic cathinones, resulting in a greater probability of sharing and reusing potentially contaminated needles and syringes. The use of synthetic cathinones is linked to high-risk behaviour, including engaging in unprotected sex, and in turn the risk of acquiring blood-borne infections is higher (46). This poses a threat to public health.
The final effect of the Act is that it didn’t really affect usage amongst young people, and arguably created more problems. Young people stated that the Act had not deterred them from using NPS, but it had made them less accessible and more expensive. Some returned to using illegal substances as the price and availability was the same. Lack of education is apparent, with many being unaware of correct dosages and associated risks, but many wouldn’t seek help due to a perceived stigma surrounding NPS, despite wanting to stop using after a bad experience. One young person described the withdrawal symptoms as ‘so intolerable he began using again’ (47). However, this is only reflective of young people in England.
The key legislative recommendation of the Panel was ‘to prohibit the distribution of non-controlled NPS, focusing on the supply, rather than those using NPS’ (48). This has become apparent since the introduction of the Act. In terms of prohibiting the supply of NPS, the Act was a success in that many establishments closed down or ceased sale of NPS, the online availability diminished slightly, and a number of arrests were made. However, the impact of the ban on users and services seems to not have been taken into account. Users are left vulnerable without appropriate care as services do not have the necessary knowledge to facilitate their recovery, and other service workers struggle due to the ineffectiveness of the Act, in addition to lack of resources and apathy from users, especially in prisons. The absence of headshops means that more users now buy from dealers, making them more likely to move on to illicit substances. This also means that there is no regulation of NPS; users are unaware of the contents of what they are taking, the correct dosage, or the risks attached, making the use of NPS more dangerous. Regardless, the Act has been in effect for only a short amount of time, and it may be a number of years before we see the true picture created by the Act.