The long-overdue review of the Psychoactive Substances Act paints a damning, but unsurprising, picture of the law’s failing.

The Psychoactive Substances Act was put in place in 2013, and amended in 2014, in response to new substances popping up faster than lawmakers could regulate. The law aimed to safely regulate the chemicals used in party pills, and then synthetics (synthetic cannabis).

But a Ministry of Health review of what was supposed to be a ground-breaking approach to drug law, instead speaks at length about its failures – a view shared by Minister of Health David Clark.

The results of the review come hot on the heels of Clark’s new plan to deal with psychoactive substances – namely synthetics – and as recommended in the report, a look at the failed Psychoactive Substances Act will come as part of a wider review of drug policy.

Increasing level of harm

Over the past five years, the number of deaths linked to, or caused by, synthetics has steadily risen. The coroner’s count is now over 50, with many more deaths likely from things like coronary issues linked to synthetics use.

There were currently no approved products, meaning substances had been pushed underground into an unregulated space.

Convictions have also increased, from seven in 2013 to 43 in 2017. Māori are over-represented in these statistics, with 99 Māori, 49 Pākehā, 19 Pasifika, and five others were convicted of psychoactive substances.

Meanwhile, there had been an increase in the amount of seized products, and a significant increase in damiana leaf at the border – the common plant used as a base for the synthetic substances.

When the law came into force it included a provision for a mandatory review of the legislation after five years. That deadline – July 17, 2018 – came and went, while Health Minister David Clark fielded criticism over inaction.

Last week the Government released a new plan to tackle synthetics, which included a new classification in the Misuse of drugs Act, which would entrench police discretion on drugs, and give the cops they powers they needed to do their job in this area.

Then on Tuesday, the Ministry of Health’s review of the 2013 law was released, with the report painting a clear picture of legislation that had failed some of the country’s most vulnerable people.

The report said the law had not achieved its purpose of protecting health and minimising harm.

It had not enabled the availability of low-risk substances through a regulated market, primarily because animal testing provisions limited the availability to prove products were low risk, the report said.

The supply and use of unregulated, high-risk, substances has made monitoring an management of associated risks more difficult.

Clark said the report was “very critical”, and rightfully so.

“It is fair to say the Psychoactive Substances Act hasn’t enabled the availability of low-risk psychoactive substances through a regulated market, and the appropriate thing to do is look at the act and how it’s functioned, or rather not functioned, in lighto f the wider response to the issues of drugs and addiction in New Zealand.”

The Government had just received the Mental Health and Addictin Inquiry findings, and now Clark was “moving with urgency” to respond to the bold recommendations early next year.

“Anyone who deals with addictions in this country will think that we need to better.”

Do tougher penalties work?

The Ministry of Health’s report also said offences and penalties may be disproportionate to the harm posed by the increasing availability of high-risk products.

In-line with the recent recommendation from the Mental Health and Addiction Inquiry to decriminlaise and regulate all drugs, the report said increased penalties did not necessarily work as a deterrent.

“The intrenational and domestic evidence does not support the contention that increased penalties results in reduced incidences of offending.”

Clark said there seemed to be “no credible evidence” increased penalties were a significant deterrent to people when it came to drug use. Instead, the government planned to take a therapeutic approach.

“That is the direction of travel but we need to be careful there aren’t any unintended consequences.”

“I think anyone who deals with addictions in this country will think we need to do better.”

The Green Party echoed this sentiment, with the party’s drug reform spokesperson Chloe Swarbrick who said the war on drugs had not worked.

The party called for a complete repeal and replacement of the Misuse of Drugs Act 1975 and the Psychoactive Substances Act 2013.

When frontline practice and policy diverged it showed practice and regulation weren’t aligned and regulation nedded to change, Swarbrick said.

NZ Drug Foundation director Ross Bell said some parties had overplayed the deterant effect of tougher penalties, which was not backed up by evidence.

However, the Government’s plan to reclassify psychoactive substances under the Misuse of Drugs Act meant police could have the powers they needed to do their jobs.

National’s answer to synthetics

Meanwhile, National MP Simeon Brown has criticised the Government for dragging its feet when it came to action on synthetics.

The report from the Ministry of Health was five months overdue.

“That shows this Government has not been taking this issue very seriously,” Brown said.

The report confirmed the importance of Brown’s private member’s bill, he said.

The bill called for harsher penalties for suppliers and dealers, and somewhat aligned with the government’s new plan to tackle synthetics – essentially increasing the maximum penalty for maximum offending. The idea was to target those profiting from the harm caused to others, especially those in organised crime syndicates.

The bill has passed two readings with the help of New Zealand First, but Labour and the Green Party have not supported the bill.

Brown said the changes to the government’s approach – announced last week – was a step in the right direction, but he was worried about the speed in which chemicals could be classified.

He urged the Government to support his bill through its third reading as a complementary measure in the fight against synthetics.

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