Psychoactive Substances Act 2016

The Psychoactive Substances Act 2016 came into force in the UK on 26 May 26 2016. In the Act, a ‘psychoactive substance’ is defined as one that ‘produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state; and references to a substance’s psychoactive effects are to be read accordingly’.1 The Act differs from the established approach to drug control under the UK’s Misuse of Drugs Act 1971 in that it covers substances by virtue of their psychoactive properties, rather than the identity of the drug or its chemical structure.2 

Critics of the Act argue that this focus on the psychoactive properties of the substance is too broad ‒ it means that technically the authorities could decide that any substance that changes a person’s mood could be included, irrespective of any evidence of the substance being harmful. In an effort to address this, the guidance accompanying the Act2 states that the effects of the substance are to be ‘as measured by the production of a pharmacological response on the central nervous system or which produces a response in in-vitro tests qualitatively identical3 to substances controlled under the Misuse of Drugs Act 1971’ (p. 3).2 However, the guidance also notes that the Act captures all psychoactive substances that are not controlled by the Misuse of Drugs Act or are otherwise exempt. Exempted substances include controlled drugs (within the meaning of the UK’s Misuse of Drugs Act 1971), medicinal products, alcohol, tobacco products, caffeine, and food.1 

NPS come of age: a UK overview

To coincide with the introduction of the new Act, DrugWise published a report on novel psychoactive substances (NPS) ‒ also known as new psychoactive substances. NPS come of age: a UK overview4 by Harry Shapiro provides a description of NPS from a range of angles, including the evolution of NPS in the UK; their use; how treatment services are dealing with the needs of their users; and the development of the new legislation. He compared the picture of NPS use in the UK in 2016 as ‘not dissimilar’ to that which appeared with the emergence of crack cocaine in the UK: ‘much sensational media reporting and dire predictions for the future, but ultimately finding a level in the drug scene with regular use primarily concentrated among those with existing serious drug problems and other vulnerable groups’ (p. 3). 

The Internet and the lack of regulation of the substances involved were identified as enabling NPS to take their place in the global and UK drug markets. Their arrival was described as a ‘game-changer’ in terms of the Internet becoming a new route for wholesale and retail supply, distribution, and information exchange on drugs’ effects between users. In terms of the range of NPS, while Shapiro accepted that there can be ‘bewilderment’ among drugs workers at the ongoing appearance of ‘new’ substances, the difference between them was not always that significant. He described five groupings, and argued that many of the new compounds were simply variants of the first grouping: 

• Synthetic cannabinoids
• Stimulant-type drugs (including mephedrone)
• Hallucinogenic-type drugs
• Opiate-type drugs
• Tranquiliser-type drugs

NPS users

NPS use has increased in the UK since 2006. However, identifying patterns and prevalence of their use in official datasets was found by Shapiro to be ‘patchy’. Among the reasons given for this was that the user groups most affected (e.g. students in student accommodation, adult prisoners, young offenders and the homeless) were unlikely to be identified in the UK’s routine official surveys that provide prevalence data. Based on his overall assessment of the evidence available, Shapiro generalised that NPS use is ‘most problematic in communities experiencing higher levels of poverty and deprivation and, where young people are involved, among those who in years gone past would have been involved in solvent use and heroin smoking’ (p. 12). He drew particular attention to the reported high levels of synthetic cannabinoid receptor agonists (SCRAs) use among prisoners in the UK. In particular, he noted the associated increases in levels of violence between prisoners and against staff, debt, intimidation, self-harm and ‘general psychotic behaviour’. The legal status of the substances and the fact that they could not be identified by the mandatory drug testing process in prisons had both contributed to the worsening situation. 

Health impacts

Shapiro found a growing body of international evidence to demonstrate the potential acute and chronic health harms associated with the use of NPS. He noted in particular the ‘devastating effects’ of injecting mephedrone. While NPS were implicated in 62 fatalities in the UK in 2014, only seven deaths were as a direct result of taking an NPS in isolation. In most cases, ‘traditional’ drugs (e.g. heroin and methadone) were also implicated. 

Meeting users’ needs

Relatively few people were coming forward to treatment services citing an NPS as their primary drug problem. Drug workers saw more use out in the community with clients who were not accessing treatment, for example, homeless and rough sleepers. However, those working in the community with young people reported problems with a range of NPS, especially mephedrone and synthetic cannabinoids. Shapiro emphasised the need for drug workers to ‘deal with the problem in front of you’, as the ‘whole intention’ of NPS was to mimic the effects of controlled drugs; in theory the symptoms service users present with should be similar to those already seen. He therefore recommended the clinical guidance published by Project Neptune.5 

Legislation

Legislating for NPS is described as having provoked some of the most heated debate about UK drug law since cannabis was reclassified from Class B to Class C in 2004. The report described the legislative process gone through which culminated in the ‘blanket ban’ encapsulated in the Psychoactive Substances Act 2016. Shapiro described it as having met a ‘storm of criticism’ in the media and from drug law reform campaigners, commentators and academics. In particular, it was criticised for having turned the Misuse of Drugs Act ‘on its head’ by effectively saying that any substance that was psychoactive was harmful. It was also criticised for having removed the notion of relative harms, and there was scepticism about the legal robustness of any attempt to define ‘psychoactivity’.

1 Psychoactive Substances Act 2016 (UK). Available online at http://www.legislation.gov.uk/ukpga/2016/2/pdfs/ukpga_20160002_en.pdf

2 Psychoactive Substances Act 2016: forensic strategy. Home Office Circulars 2016. London: Home Office. https://www.gov.uk/government/publications/circular-0042016-psychoactive-substances-act-2016

3 ‘Qualitatively identical to’ means that the substance interacts with the same target as a known psychoactive drug controlled under the Misuse of Drugs Act 1971.

4 Shapiro H (2016) NPS come of age: a UK overview. London: DrugWise. https://www.drugsandalcohol.ie/25551/

5 Abdulrahim D and Bowden-Jones O, on behalf of the NEPTUNE Expert Group (2015) Guidance on the clinical management of acute and chronic harms of club drugs and novel psychoactive substances. London: Novel Psychoactive Treatment UK Network (NEPTUNE). http://neptune-clinical-guidance.co.uk/wp-content/uploads/2015/03/NEPTUNE-Guidance-March-2015.pdf