Drug Consumption Rooms: Legal barriers or just an excuse? Kirstie Douse Head of Legal Services Solicitor Advocate

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1 Drug Consumption Rooms: Legal barriers or just an excuse? Kirstie Douse Head of Legal Services Solicitor Advocate

2 What is a DCR? A facility that allows people to inject/smoke illicitly purchased drugs, usually heroin but in some cases other substances, in a medically supervised environment: No one has every died from an overdose in a DCR Prevents HIV & other BBVs Reduces street injecting & public discarding of needles Increase numbers accessing health services including drug treatment Meets people where they are at & treats them with dignity

4 The law matters The Government has no plans to allow drug consumption rooms, which [would break] laws whereby possession of controlled drugs is illegal. (October responding to Brighton)

5 The Government has no plans to introduce drug consumption rooms. It is for local areas in the UK to consider, with those responsible for law enforcement, how best to deliver services to meet their local population needs. (July 2017 responding to ACMD report)

6 "We have no plans to introduce drug consumption rooms. A range of offences is likely to be committed in the operation of drug consumption rooms. It is for local police forces to enforce the law in such circumstances and, as with other offences of this type, we would expect them to do so. (December responding to Glasgow)

8 Legal issues related to the operation of DCRs Specific drug-related offences under the Misuse of Drugs Act 1971 Other related criminal offences Civil legal issues

9 Offences under the Misuse of Drugs Act 1971 Section 5 (1) & (2) Possession of a controlled drug Clients of DCR DCR staff Section 8 Management of Premises DCR staff Service provider Section 9A prohibition of supply of paraphernalia Staff Section 19 incitement to commit another offence under the MDA 1971 Staff Service provider

10 Section 5 (1) & (2) Possession of a controlled drug Possession is an offence Use/consumption is not an offence

11 Section 8 Management of Premises Occupiers etc. of premises to be punishable for permitting certain activities to take place there. A person commits an offence if, being the occupier or concerned in the management of any premises, he knowingly permits or suffers any of the following activities to take place on those premises, that is to say (a)producing or attempting to produce a controlled drug in contravention of section 4(1) of this Act; (b)supplying or attempting to supply a controlled drug to another in contravention of section 4(1) of this Act, or offering to supply a controlled drug to another in contravention of section 4(1); (c)preparing opium for smoking; (d)smoking cannabis, cannabis resin or prepared opium.

12 Section 9A Prohibition of supply of paraphernalia Exceptions provided in relation to syringes; swabs; utensils for preparation of controlled drugs; citric acid; filters; water ampoules; ascorbic acid and foil. Exceptions only apply to certain groups e.g. pharmacists or those employed or engaged in the lawful provision of drug treatment service. Foil has the additional requirement of demonstrating its supply is in the context of structured steps, (a) to engage a patient in a drug treatment plan, or (b) which forms part of a patient s drug treatment plan. Regulation 6A Misuse of Drugs Regulations 2001

13 Section 19 incitement Provision of a DCR could arguably be considered incitement of possession of a controlled drug

14 Other criminal offences Serious Crime Act 2007 (does not apply to Scotland) Intentionally encouraging or assisting an offence (s.44) Encouraging or assisting an offence believing it will be committed (s.45) Encouraging or assisting offences believing one or more will be committed (s.46) Apply even if the person who is assisted/encouraged doesn t go on to commit the offence

15 Criminal offences that could be managed by policies of a DCR Administration of a noxious thing s23 Offences Against the Person Act Unlawful Manslaughter (R v Kennedy No.2 [2008] 1 A.C. 269)

16 Civil Offences Anti Social Behaviour Act 2014 (can be applied for by police and LAs) UK Health Act 2006 prohibits smoking in smoke-free premises, and defines smoking as smoking tobacco or anything which contains tobacco, or smoking any other substance. Negligence related to professional or medical negligence resulting in injury or death

17 Needle Exchange Programmes

18 Criminal Liability MDA Protection Limited Section 5 (1) & (2) Possession of a controlled drug Clients of DCR DCR staff Section 8 Management of Premises DCR staff Service provider Section 9A prohibition of supply of paraphernalia Staff Section 19 incitement to commit another offence under the MDA 1971 Staff service provider

19 Services already managing many of the legal liabilities Activity NSP DCR Possession (s5 (1) & (2) MDA) YES YES Premises offences (section 8) YES YES Paraphernalia (section 9A) NO POSSIBLY Incitement (section 19) POSSIBLY POSSIBLY Serious Crime Act 2007 POSSIBLY POSSIBLY

20 CPS Guidance on NSP (1) It is well known that blood borne viruses including HIV and hepatitis C can be transmitted between drug users who use the same injecting equipment. A number of schemes have been established to provide counselling and exchange facilities where sterile equipment can be obtained. The Misuse of Drugs Regulations 2001 (as amended) allows that health care professionals and persons employed or lawfully engaged in the provision of drug treatment services are authorised to supply certain drug paraphernalia without committing an offence under s9a of the Act. In the case of specified health care professionals, this includes needles and in the case of drug treatment providers, this includes aluminium foil.

21 CPS Guidance on NSP (2) These schemes need police and CPS co-operation because those who run and use them will necessarily commit offences under the Act. It is therefore not normally in the public interest to prosecute: a PWUD retaining used needles; a PWUD possessing sterile needles; bona fide operators of schemes. Simple possession cases that are based on police surveillance at or near exchange centres should not normally be prosecuted. The need to prevent the spread of serious infections outweighs the normal requirement for prosecution.

22 CPS Guidance on NSP (3) Prosecution may be required when a scheme is not being operated properly, for example when: the provider of equipment was a party to the supply of drugs; the user has committed what may be a more serious offence, such as assisting with the supply of controlled drugs by giving X a needle to inject Y.

23 Two options for the lawful operation of DCRs Amendments to the Misuse of Drugs Act 1971 & the Misuse of Drugs Regulations 2001 Multi Agency Agreement Police, Local authorities, Health providers, Prosecution services

25 Why does this matter?

26 Photo credit: Nigel Brunsdon Not just statistics

27 Photo credit: Nigel Brunsdon

29 Questions?

30 Kirstie Douse Head of Legal Services

Guidelines For Services Providing Injecting Equipment

Guidelines For Services Providing Injecting Equipment Best Practice Recommendations For Commissioners and Injecting Equipment Provision (IEP) Services in Scotland (Scottish Government 2010) January 2014