Misuse of Drugs Act 1971 (Amendment) Order 2018

Lord Paddick Excerpts

Wednesday 21st November 2018 Grand Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am grateful to the Advisory Council on the Misuse of Drugs for its advice, which has helped to inform the draft order before us. The order was first laid before Parliament on 17 October and will control pregabalin and gabapentin as class C drugs under the Misuse of Drugs Act 1971. Should the order be made, pregabalin and gabapentin will be subject to permanent control under Schedule 2 to the Misuse of Drugs Act 1971 through an amendment to Part 3, which specifies the drugs that are subject to control under the 1971 Act as class C drugs.

The order follows the recommendation from the ACMD to control the two drugs under class C of the 1971 Act, as their harms are comparable with those of other substances controlled as class C drugs. To help those with a legitimate medical need access these drugs, and subject to Parliament’s approval of the order before the Committee now, we will schedule both drugs under Schedule 3 to the Misuse of Drugs Regulations 2001 through regulations.

Pregabalin and gabapentin are prescription medicines which are used to manage a number of disabling long-term conditions, including epilepsy. They are also licensed for the treatment of general anxiety disorders. In its advice, the ACMD identified a number of harms—in particular, it drew attention to the dangers that can arise when the drugs are used in combination with other central nervous system depressants. In these circumstances, they can cause drowsiness, sedation, respiratory failure and death.

The ACMD also highlighted the risk of addiction that pregabalin and gabapentin presented, as well as the potential for illegal diversion and medicinal misuse. Its advice also drew attention to the concerns of health staff in prisons who reported a high number of prisoners being prescribed the drugs without a thorough assessment of their needs.

Across the United Kingdom, there have been significant increases in the prescription of both drugs: pregabalin prescriptions have increased from 2.7 million in 2012 to 6.25 million in 2017, while gabapentin prescriptions have risen from 3.5 million in 2012 to over 7 million in 2017. In tandem, there has been an increase in the number of deaths related to pregabalin and gabapentin since 2009. In the last five years there have been 408 deaths where pregabalin was mentioned on the death certificate, and 203 in the case of gabapentin. This compares with four and one for pregabalin and gabapentin respectively in 2009.

By controlling the two drugs, we will restrict the potential for misuse by making diversion and their illicit supply more difficult but without compromising access for those who have a legitimate need to access the drugs for healthcare purposes. Parliament’s approval of this order will enable UK law enforcement to take action against those who illegally supply these drugs and against those who illegally possess them. Possession of a class C drug is an offence resulting in up to two years in prison or an unlimited fine, and the supply or production of a class C drug is an offence resulting in up to 14 years in prison or an unlimited fine.

If approved, the order will send a clear message to the public that the drugs should only be in the possession of those who have been legitimately prescribed them. We hope that the significant supply offences for class C drugs will make people think twice before they consider diverting pregabalin and gabapentin into the illegal market.

The measure to control these drugs is scheduled to come into force in April 2019. Given the widespread use of the two medicines, this will help to provide the healthcare sector with sufficient time to implement the new requirements. I can assure Members that all relevant information will be communicated to other stakeholders and the wider public. The Home Office will issue a circular with legislative guidance for the police and the courts. Guidance will also be published following engagement with interested parties about the effect of the legislation in preparation for it coming into force in April. In addition, the Government will continue to update its messaging on the harms of these substances.

I hope I have made the case to control these harmful drugs and I commend the order to the Committee.

[Lord Paddick (LD)]

My Lords, I am very grateful to the Minister for explaining the order to us. As she has said, this puts two substances into class C of the Misuse of Drugs Act 1971, on the recommendation of the Advisory Council on the Misuse of Drugs.

We support any evidence-based scientific approach to reducing the harm caused by drugs, legal or illegal. My question is very simple. The noble Baroness talked about a very clear message being sent to the public, but why do the Government not always act on the scientific, evidence-based assessment of the ACMD?

The problem with drugs classification under the Misuse of Drugs Act is threefold. First, based on independent scientific assessment, drugs are not classified according to the potential harm that they cause. For example, GHB—gamma-hydroxybutyrate—is believed to cause a significant number of deaths—perhaps as many as several a week in the UK alone. Yet it is classified as a class C drug. Cannabis which, to my knowledge has not been the direct cause of any drug-related death, is a class B drug. Because of this, and several other misclassifications of which I could give examples, the classification of drugs under the Misuse of Drugs Act has fallen into disrepute among those who might arguably be helped most if they knew that the classification of drugs was based on how dangerous they were.

At this stage, I should point out an interest to the Committee. A former partner, who then became my best friend and who was very experienced in the use of recreational drugs, died from an accidental overdose of GHB.

Secondly, because the classification system does not reflect potential harm, only potential sentence, it has become irrelevant to most drug users. They quite simply work on the basis that the penalty is irrelevant to them as they have no intention of getting caught.

Thirdly, any drug classified under the Misuse of Drugs Act carries a heavier penalty than a new psychoactive substance covered by the Psychoactive Substances Act 2016 in that possession of a new psychoactive substance is not an offence, whereas possession of any drug classified under the Misuse of Drugs Act is an offence. This is even though some of the new psychoactive substances are more harmful than drugs classified under the Misuse of Drugs Act.

Our drugs laws are a mess, the Government’s drugs strategy is ineffective and, if we are to stop our young people dying, we need a fundamental rethink. We called for a scientific, evidence-based review of our drugs laws when we debated the Psychoactive Substances Bill—a proposition both the Conservative and Labour Benches refused to support. Therefore, I note with interest the comments of the Parliamentary Under-Secretary of State at the Home Office, Victoria Atkins, in the other place, when this order was discussed by the Tenth Delegated Legislation Committee on 12 November this year, at 6.05 pm, where she said that the Government have announced,

“an independent review of the misuse of drugs in the 21st century”. —[Official Report, Commons, Tenth Delegated Legislation Committee, 12/11/18; col. 4.]

Can the Minister provide the Committee with further details of who will be conducting this review, what their terms of reference are, and any other details that may be of interest?

[Lord Rosser (Lab)]

My Lords, I thank the Minister for explaining the purpose of the order and its provisions. We support it but I have some points that I would like to raise. As has been said, the order controls pregabalin and gabapentin as class C drugs under the Misuse of Drugs Act 1971. Currently these two substances are subject to the Psychoactive Substances Act 2016.

The two substances are used, as the Minister has said, to manage a number of disabling long-term conditions including epilepsy and general anxiety disorders. Although they have legitimate medicinal uses for which they can continue to be used, the two substances in question, when taken with other central nervous system depressants, can be the cause of serious harm including respiratory failure and, at worst, death. The Advisory Council on the Misuse of Drugs has said the two substances in question can be addictive, with the potential for illegal diversion and supply and medicinal misuse. Prescription rates have soared—the Minister gave the figures—while the number of deaths related to the two substances have also increased: just over 400 from pregabalin over the last five years and just over 200 from gabapentin.

Concerns were raised in 2014 by the Health and Social Care Board about the potential misuse of pregabalin. Apparently, in February 2015 Her Majesty’s Inspectorate of Prisons reported concerns of health staff in prisons that a high number of prisoners were being prescribed the drugs without a thorough assessment of their needs, and in a way that did not meet best-practice guidelines. Does that mean prisoners in prison being prescribed the drugs without a thorough assessment of their needs or prisoners prior to their coming into prisons being prescribed the drugs in the wrong way? Either way, the question must be how that has been allowed to happen. What will the planned guidance and communication say to address the issue of drugs of this kind being prescribed without a thorough assessment of the patient’s needs?

For how many years have these two substances been available? What is it that starts the procedure for the control of such substances as class C drugs as per this order? With concerns being raised in 2014, it does not seem to be a particularly quick process. Who or what organisation makes the initial move, and what is then the procedure for getting the matter before the Advisory Council on the Misuse of Drugs? Or is it the advisory council that has to take the initiative in the first instance?

Paragraph 12.2 of the Explanatory Memorandum states:

“Enforcement of offences in relation to drugs controlled by the Order will be subsumed into the overall enforcement response to controlled drugs”.


That statement is in marked contrast to the impact of the order on pharmacies, GPs and the NHS as a whole, for which precise figures have been given in the Explanatory Memorandum with regard to the additional cost. So what will the additional cost be of implementing this order to the police, the court system and the Prison and Probation Service of enforcing these new offences? What is the estimated number of new offences that will be committed each year as a result of controlling these two substances as class C drugs? Is the reality for our overstretched police that either they will not arrest many people for offences related to those two substances or, if they do, it will be at the expense of investigating, enforcing and arresting people for other offences? Is that what,

“subsumed into the overall enforcement response to controlled drugs”,

really means? If not, what does that phrase mean?