1.This circular draws attention to the contents of the above statutory instrument (SI), SI 2014/ 2081 which comes into force at 00:01 on 5 September 2014.
2.The Misuse of Drugs (Amendment No. 2) (England, Wales and Scotland) Regulations 2014 amends the Misuse of Drugs Regulations 2001 (the 2001 Regulations) (SI 2001/3998) to authorise the lawful supply, or offer to supply, of foil by persons employed or engaged in the lawful provision of drug treatment services.
3.The SI together with an explanatory memorandum can be found at www.legislation.gov.uk. The SI is also published by The Stationery Office. Telephone orders/general enquiries 0870 600 5522 or online at www.tso.co.uk/bookshop.
4.Whilst the Home Office has legislative responsibilities for the Misuse of Drugs Act 1971 and its associated legislation, the policy area is shared with the Department of Health and this instrument has been drawn up in consultation with them and Public Health England.
5.This SI is made under sections 22 and 31 of the Misuse of Drugs Act 1971. The act received royal assent on 27 May 1971. Section 31(3) of the act provides that the Secretary of State may not make regulations under the act except after consultation with the ACMD. The ACMD has been consulted as required by statute and supports the legislative change.
6.This statutory instrument amends regulation 6A of the 2001 Regulations to make the provision of foil by persons employed or engaged in the provision of drug treatment services, subject to a strict conditions, lawful.
7.The act prohibits the provision, supply, or offer to supply of articles or paraphernalia which may be used for administering or preparing a controlled drug. To date, needles and specified injecting articles have been allowed when provided by specified healthcare professionals. The purpose is to reduce the risks associated with injecting from water and blood-borne diseases and prevent other infections.
The ACMD considered the balance of benefit from providing foil for the purposes of inhaling controlled drugs as opposed to injecting, and has recommended that the provision of foil, to move people away from injecting to inhaling, should be made lawful. The ACMD advises that the provision of foil reduces the health harms of injecting drugs as the physical harms of inhaling drugs are significantly less than injecting. It found no evidence that the provision of foil would encourage drug use.
8.The government’s 2010 drug strategy, ‘Reducing demand, restricting supply, building recovery: supporting people to live a drug-free life’, acknowledges the importance of public health measures to reduce infections and mortality. In light of evidence that inhaling reduces health harms, and the provision of foil would not encourage drug use, the government has accepted the ACMD’s advice on the strict conditions that the provision of foil is only made lawful in the context of ‘structured steps’ to get individuals into treatment in the first place, or as part of a treatment plan. The ACMD supports the lawful provision of foil within this context.
9.The 2001 Regulations provide the framework under which controlled drugs are made available for use in healthcare, including the lawful provision of drug paraphernalia. Provisions enabling the lawful provision of foil are being included in the 2001 Regulations to ensure that the specific healthcare professionals working in this sector can lawfully provide foil under the strict conditions that it is in the context of structured steps to get people into treatment or as part of a treatment plan.
10.The SI inserts 2 new provisions into the 2001 Regulations:
regulation 6A(3) authorises a person employed or engaged in the lawful provision of drug treatment services, when acting in their capacity as such, to supply or offer to supply aluminium foil in the context of structured steps:
(a) to engage a patient in a drug treatment plan, or
(b) which form part of a patient’s drug treatment plan.
regulation 6A(4) defines the term ‘drug treatment plan’ for the purposes of the authority being granted.
Persons lawfully employed or engaged in the provision of drug treatment services
11.Under current provisions a practitioner, a pharmacist, a person employed or engaged in the lawful provision of drug treatment services, a supplementary prescriber acting in accordance with the terms of a clinical management plan and a nurse independent prescriber are all authorised to supply swabs, spoons and cups (for drug preparation), citric acid, filters and water for injection without further conditions.
As distinct from current exempt paraphernalia, aluminium foil can only be supplied lawfully by ‘persons employed or engaged in the lawful provision of drug treatment services’. This means a healthcare professional currently specified in regulation 6A(2) is generally not authorised to supply, or offer to supply, foil unless they are also ‘employed or engaged in the lawful provision of drug treatment services’ as specified at paragraph 12 below.
Drug treatment service
12.A drug treatment service is not defined in the SI. However, for the purposes of the authority being granted a drug treatment service includes, but is not limited to, needle and syringe programmes, including community pharmacies and other drug treatment services, who must additionally meet the conditions below under which the provision of foil is made lawful.
13.Foil may be provided in the context of ‘structured steps’ to be lawful. For the purposes of these changes ‘structured steps’ includes informal discussions with a patient in order to sign post them into treatment as well as stages when a treatment plan is being developed.
Drug treatment plan
14.A ‘drug treatment plan’ must be written and specific to the individual service user and agreed by the patient and the person employed in the lawful provision of drug treatment services. The legislation only refers to a ‘treatment plan’ but the clear ambition of the drug strategy and of the Home Secretary in allowing for the provision of foil is that this will be treatment aimed at recovery from dependence, not only the reduction of harm. A treatment plan is not a requirement at the stage when steps are being taken to engage a patient in treatment.
15.Although not covered in the legislation, the expectation is that in the vast majority of cases foil will be provided at the early stages to engage a patient into treatment, or at a time when a patient has been assessed and commenced treatment but has yet to stop taking drugs. However, it is also recognised that there may be exceptional circumstances when provision of foil may be necessary later in a patient’s treatment at a time when they are at risk of a relapse to help them avoid returning to injecting.
16.The effect of the amendments at paragraph 10 above is that anyone supplying, or offering to supply, foil for use in inhaling drugs outside of these conditions will be doing so in breach of the prohibition on the supply of drug paraphernalia under the 1971 Act.
Letters of comfort
17.Following implementation of the legislative changes, drug treatment providers who have previously supplied foil as a result of ‘letters of comfort’ issued by some police forces will be expected to comply with the new legislative provisions. This means the further provision of foil after the legislative change comes into force must be in accordance with the conditions set out in the legislation. Police forces will be informed of the expectation to comply with the conditions as set out in the legislation.
Application to England, Wales and Scotland
18.The changes to the Misuse of Drugs Regulations 2001 described in this circular apply to England, Wales and Scotland. Northern Ireland will amend its own Misuse of Drugs Regulations separately. The contact there is:
Health Protection Branch
Department of Health, Social Services and Public Health
22 Castle Buildings
19.Any enquiries about the contents of this circular should be directed to:
Drugs and Alcohol Unit
5th floor Fry building NE
2 Marsham Street