Misuse of Drugs (Changes to Controlled Drugs) Order 2005 and Misuse of Drugs (Presumption of Supply Amphetamine) Order 2005

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Misuse of Drugs (Changes to Controlled Drugs) Order 2005 and Misuse of Drugs (Presumption of Supply Amphetamine) Order 2005 Report of the Health Committee Contents

1 Misuse of Drugs (Changes to Controlled Drugs) Order 2005 and Misuse of Drugs (Presumption of Supply Amphetamine) Order 2005 Report of the Health Committee Contents Recommendation 2 Introduction 2 Misuse of Drugs (Changes to Controlled Drugs) Order Misuse of Drugs (Presumption of Supply Amphetamine) Order Appendix 7

2 Misuse of Drugs (Changes to Controlled Drugs) Order 2005 and Misuse of Drugs (Presumption of Supply Amphetamine) Order 2005 Recommendation The Health Committee has examined the Misuse of Drugs (Changes to Controlled Drugs) Order 2005 and Misuse of Drugs (Presumption of Supply Amphetamine) Order 2005 and recommends that the related notice of motion be approved. Introduction The notice of motion for the approval of the Misuse of Drugs (Changes to Controlled Drugs) Order 2005 and Misuse of Drugs (Presumption of Supply Amphetamine) Order 2005 was lodged on Thursday, 23 June 2005 and stood referred to us from that time. The Misuse of Drugs (Changes to Controlled Drugs) Order 2005 changes the classification of amphetamine (commonly known as speed) and MDMA (commonly known as ecstasy) from Class B2 to Class B1. The Misuse of Drugs (Presumption of Supply Amphetamine) Order 2005 lowers, from 56 grams to 5 grams, the amount at which amphetamine is presumed to be for supply. We questioned officials from the Expert Advisory Committee on Drugs, the Ministry of Health, and the Ministry of Justice about the process that the Expert Advisory Committee on Drugs followed in recommending these classifications. We have satisfied ourselves that this process was correct and true to the requirements of subsections (1), (1A), and (4) of section 4 of the Misuse of Drugs Act Amphetamine Amphetamine (2-amino-1-phenylpropane) is a psychostimulant with similar effects to methamphetamine, although it is manufactured from different precursor substances. It can be difficult for users to differentiate between amphetamine and methamphetamine, and amphetamine has sometimes been sold as methamphetamine. Common street names for amphetamine include speed, crank, go fast, whiz, uppers, buzz, and rev. Most research evidence relates to the substances amphetamine, dexamphetamine, and methamphetamine (P), which are collectively known as amphetamines. Therapeutic benefits from amphetamine have been the subject of disagreement in the medical community, and the use of amphetamines for most conditions for which it was previously prescribed is no longer recommended. However, dexamphetamine is still prescribed to treat narcolepsy, and amphetamine and methamphetamine are both amongst the substances prescribed to treat hyperkinetic syndromes in children, such as Attention Deficit Hyperactivity Disorder (ADHD). Dexamphetamine has an emerging therapeutic use as a substitute drug for injecting users of amphetamines or cocaine. 2

3 Amphetamine is currently a controlled drug under Part 2 of the Misuse of Drugs Act s Second Schedule (Class B2). The Misuse of Drugs (Changes to Controlled Drugs) Order 2005 seeks to reclassify amphetamine under Part 1 of the Second Schedule to the Act (Class B1). The presumption of supply level for amphetamine is set at the default under the Act. The Misuse of Drugs (Presumption of Supply Amphetamine) Order 2005 seeks to lower this to 5 grams or more, or 100 flakes, tablets, capsules, or other drug forms, each containing some quantity of amphetamine. MDMA MDMA [2-methylamino-1-(3,4,methylenedioxyphenol) propane] is related to both the amphetamine family of psychostimulants and the hallucinogen mescaline. Common street names for MDMA include ecstasy, E, X, XTC, Adam, eckie, hug, and the love drug. There is no conclusive evidence to either prove or disprove the contention that MDMA has therapeutic value, and it is unlikely such research will be conducted in the near future. This is because the classification of MDMA in the United States of America makes it virtually impossible to obtain research funding to examine its therapeutic value. MDMA is currently a controlled drug under Part 2 of the Misuse of Drugs Act s Second Schedule (Class B2). The Misuse of Drugs (Changes to Controlled Drugs) Order 2005 seeks to reclassify MDMA under Part 1 of the Second Schedule to the Act (Class B1). Misuse of Drugs (Changes to Controlled Drugs) Order 2005 The Misuse of Drugs Act was amended in 2000 to allow the expeditious classification and reclassification of controlled drugs. The Schedules to the Act contain lists of substances classified as Class A controlled drugs, Class B controlled drugs, Class C controlled drugs, or precursor substances. The different classifications affect matters such as search and seizure powers, as well as penalties for possession, manufacture, and supply. The Expert Advisory Committee on Drugs, a specialised committee established under the Act to provide the Minister of Health with expert advice on the risk of harm to individuals or to society from any drug, advises the minister on drug classification issues. After receiving advice from the Expert Advisory Committee on Drugs on a particular drug, the minister may decide to recommend that the Governor-General make an Order in Council to amend the Schedules to the Act, either to add a new substance to the Schedules, or to increase the classification of the substance. We are concerned to note that the reports of the Expert Advisory Committee on Drugs have not been made available on the National Drug Policy website in a timely or consistent manner, despite these reports routinely containing a recommendation that this occur. The Ministry of Health told us that a new process had been agreed to facilitate publishing the minutes of the Expert Advisory Committee on Drugs. We would like to see this process applied to all the Expert Advisory Committee on Drugs reports and papers. Some of us are concerned that the public has not had an opportunity to have input into the process either during the Expert Advisory Committee on Drugs, or our, consideration of these orders. 3

4 Reclassification of MDMA The Expert Advisory Committee on Drugs has recommended that MDMA be moved from Class B2 to Class B1. This recommendation was based on concerns about the sharply rising prevalence of MDMA use and importation into New Zealand, evidence that ecstasytype drugs have a neurotoxic effect and that MDMA seems likely to be proven to be moderately dependence-producing, the absence of conclusive evidence that MDMA has any therapeutic application, links between New Zealand s MDMA market and organised crime, and an increasing incidence of attempted MDMA manufacture in New Zealand. MDMA is classified as a Schedule 1 or a Class A drug in other jurisdictions. The assessment and classification of MDMA by the World Health Organization and the United Nations drug control treaties recognises that MDMA s risk of abuse constitutes an especially serious risk to public health and that it has very limited (if any) therapeutic utility. The Expert Advisory Committee on Drugs noted that MDMA has addiction potential, has acute toxic effects, has been associated with suicide ideation, and has resulted in three deaths in New Zealand (mainly attributable to over-hydration and hypothermia). However, it also noted that the public health risk of ecstasy was notably lower than that of alcohol. The recommendation to move from Class B2 to B1 was not based on an increase in the risk to the public health of the substance, but rather on the increasing problems associated with enforcement relating to ecstasy. We are concerned that no evidence is collected nationwide on acute hospital admissions related to individual drug use. We were told this was because many people were admitted following use of multiple substances. It would be useful to have such data collected. Reclassification of amphetamine The Expert Advisory Committee on Drugs found increasingly prevalent amphetamine use and importation into New Zealand, clear evidence of the high risks of harm associated with amphetamine use, limited therapeutic applications for the drug, evidence of drug substitution between amphetamine and other amphetamine-type stimulants, a need for decisive police powers to tackle street-level amphetamine offending, links between New Zealand s illicit amphetamine market and organised crime, and growing concern about the effect of amphetamine use on road safety. New Zealand law enforcement data indicates that amphetamine-type stimulants are increasingly available. However data systems have not until very recently distinguished between amphetamine and other amphetamine-type stimulants. The number of people arrested for amphetamine-type stimulant possession increased approximately 650 percent between 1996 and Increasing numbers of people have also been charged with supply offences for amphetamine-type stimulants in recent years. In 2002, 596 people were arrested for possession of such stimulants and 292 for importation, supply, and manufacture offences. Used mainly for its stimulant and euphoric effects, amphetamines are associated with pronounced long-term physical and psychological effects. Mental health problems appear very common among regular amphetamine users, with studies reporting sample prevalence rates for depression of percent; for anxiety percent; for hallucinations

5 percent; for paranoia percent; for mood swings percent; for aggression and violence percent; for panic attacks 9 35 percent; and for suicidal ideation percent. Like its counterpart methamphetamine, amphetamine can quickly cause addiction, has been linked overseas to violence, and can cause psychoses, depression, and erratic behaviour. It is also linked to deaths from cerebral vascular haemorrhage. Effect of reclassifications The proposed reclassifications will have the effect of enabling police officers, under section 18 of the Act, to detain, search, and seize for these drugs without warrant. There are minor effects on the licensing regime but no effects on the permitted administration or supply of these drugs. The Ministry of Health told us the proposed reclassifications reflected the potential risk of harm associated with these substances and were consistent with New Zealand s international obligations under the United Nations drug classification framework. The changed classification would provide enforcement agencies with greater powers to counter sophisticated drug-running operations. We were told that some drug-running syndicates see New Zealand as an easy target and couriers are willing to accept the existing penalties as an acceptable risk. The Ministry of Health told us that a move to Class B1 would be expected to target dealers and importers rather than users. We are concerned that search and seizure powers are in reality used to target users and small-time dealers, and do not provide an incentive for the Police to target larger-scale dealers. The Chair of the Expert Advisory Committee of Drugs assured us he would raise with his committee our concern at the lack of substantive evidence in relation to the need for increased Police powers. The ministry told us that reclassification would send a strong message that these substances are harmful and it was not in the public interest for them to be used as recreational drugs, while also providing enforcement agencies with the power to detain, search, and seize without warrant in cases where they suspect amphetamine or MDMA offences are occurring. Misuse of Drugs (Presumption of Supply Amphetamine) Order 2005 Ability to set presumption of supply level by Order in Council Schedule 5 of the Act provides for a rebuttable presumption that when a person is found with a certain amount of a controlled drug, he or she possesses the drug for the purpose of dealing (by sale or supply). The onus is on the person found with the drug to prove that he or she was not supplying the drug and that the drug was intended for personal use. This presumption is referred to as the presumption of supply. Clause 2 of Schedule 5 provides that the presumption of supply is set at a default amount of 56 grams for all controlled drugs, except those that have a specific presumption of supply level listed in clause 1 of Schedule 5. Following a recent amendment to the Act, a specific presumption of supply level for a substance can now be set by Order in Council if the substance is being classified or reclassified at the same time. Previously the Act allowed a presumption of supply level to be changed by an amendment to the Act only. 5

6 Presumption of supply level for amphetamine Amphetamine has a presumption of supply amount of 56 grams currently. The Expert Advisory Committee on Drugs recommended that the presumption of supply for amphetamine be set at 5 grams or more of amphetamine, or 100 flakes, tablets, capsules or other drug forms, each containing some quantity of amphetamine. This change would have the effect of enabling greater maximum sentences for offences involving possession of 5 to 56 grams for supply. The new recommended level is based on the recommended doses for legal therapeutic use, which are in the region of 5 to 10mg for amphetamine. Taking the upper level, 5 grams of pure amphetamine would be the equivalent of about 500 doses. As for other drug forms, the ministry told us that illicit amphetamine users commonly consume more than one tablet a session, sometimes up to five or more over a 48-hour period. Possession of 100 or more amphetamine tablets, capsules, or other drug forms would (as a rebuttable presumption) therefore be far in excess of likely quantities for personal use. The new presumption of supply level would be consistent with that already set for the chemically related phenethylamines MDMA and MDEA, and the parent compound MDA [2-amino-1-1(3,4-methylenedioxyphenyl) propane] in Schedule 5 to the Act. Further, it would also align the presumption of supply level for amphetamine with that for the related substance methamphetamine. Effect of change The proposed change will have the effect of significantly increasing penalties for offences involving possession of 5 to 56 grams of amphetamine. Possession for supply offences carry a maximum sentence of up to 14 years in prison. This compares with the offence of possession of a Class B controlled drug, which carries a maximum sentence of 3 months imprisonment or a fine of $500, or both. We were told that sentences imposed for supply offences have seldom reached half the maximum allowable. 6

7 Appendix Committee procedure The committee met on 6 July 2005 to consider the orders. Hearing evidence took 27 minutes and the committee spent a further 29 minutes in consideration. Committee members Steve Chadwick (Chairperson) Dr Paul Hutchison Sue Kedgley Nanaia Mahuta Mark Peck Katherine Rich Heather Roy Lesley Soper Barbara Stewart Judy Turner Dianne Yates Nandor Tanczos replaced Sue Kedgley for this item of business. 7

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