A hard pill to swallow? | Law

A hard pill to swallow?

OPINION: Professor Nicholas Cowdery AM QC, The Law Society Journal, July 2016.

When I was Director of Public Prosecutions, it was always a source of wry amusement to discontinue a case of drug possession or deemed supply because the chemical analysis showed no prohibited drugs in the pills (or powders) seized.

It happened quite often. It mostly involved young people, often at music events – teenagers and early 20-somethings. It was a familiar process of confrontation, search and seizure, then arrest, charge and remand, almost always on bail. Then the pills would be sent for analysis.

I reflected often on the person’s motivation to obtain and use drugs. Scraping together the money, the furtive transaction with a dealer who may or (more usually) may not have been known to the buyer, the keen anticipation of the buzz they would get and perhaps the social kudos that would come from sharing such good fortune. I wondered if, had the “nondrugs” not been detected, they would have been used as intended and enjoyed anyway (the power of suggestion being so strong).

But instead came the bust – along with the tension, anxiety, publicity, dealing with family, friends, employers and educational bodies, the inconvenience and expense of court and often legal representation, fear of future implications of a conviction and penalty and so on.

Sometimes people avoid such consequences by swallowing their stash as police approach – sometimes with disastrous results if it does contain drugs or other dangerous contaminants.

The exonerated people were the lucky ones, up to a point. They were spared the risk of consuming something very harmful without knowing. Thousands take that risk every week, just in NSW. Most survive the experience. Some do not. The National Drug and Alcohol Centre estimates there have been about 100 drug deaths at Australian music events in the past decade.

The point is, even if there is no detected drug in a pill, there can be any concentration of other chemicals or dangerous contaminants.

Drug checking (an expression probably preferable to “pill testing”, because it may extend to other forms of drug presentation), or “adulterant screening”, has been carried out for decades at concerts and other events in the USA and Canada in places where it is not expressly unlawful. It is carried out routinely in The Netherlands (where it is part of the official drug policy) and in Germany, Austria, Switzerland, Belgium, France and Spain. In the latter countries, reliance must be put on regional regulations, ad hoc legal opinions or special agreements. To be able to operate effectively in the current legal environment, drug checking requires political support and good cooperation with the local authorities, police forces, health services and event organisers.

In 2001, the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) produced a scientific report on on-site pill-testing interventions in the European Union, where 80 to 100 per cent of the funding required comes from local, regional or federal authorities. Testing equipment is usually set up near the entrance or in a “chill-out” area of a music festival, close and visible to the audience, and quiet. Testing options may include pill identification (comparison with known batches of identified drugs), the Marquis (colour reaction) test, immunological tests and chromatography. Chromatography (a chemical process that separates mixtures into their components) can be quite fast – as quick as 15 minutes – is very reliable, yields qualitative and quantitative results, and can be used on site, preferably alongside pill identification for maximum effect.

The EMCDDA report distilled the primary purposes of pill testing as: Harm reduction– as well as assessing the content and dosage of drugs, pill testing provides an opportunity to deliver health and safety messages that cover a variety of topics such as acute and short-term health hazards (e.g. dehydration, overdoses), longterm health hazards and addiction, legal risks and safe driving messages. Redirected consumption and consequent market pressure can force the black market to produce safer options.

Prevention– the necessary contact with potential drug users can help change their behaviour through counselling and providing access to information and assistance services. The situation can be used “to provide visitors with information sheets or booklets and to involve them in extended (more than five minutes) information and counselling talks, with presumably preventive effects.”

Monitoring and research– “The fact that on-site pill testing is collecting data and qualitative insights about drug markets, demographic and psychological, medical and social issues concerning rave visitors and other consumers of illicit substances is an important prerequisite to setting up and improving information and prevention projects and to planning scientific studies on patterns of use and related dangers.” Pill testing can create an early-warning system for new drug products, and the information gathered can be broadcast by authorities on the internet and through social media. The report stated unequivocally that, “Pill testing interventions have to be part of a global strategy for prevention and harm reduction in recreational settings.”

Young people involved in drug taking support it. More than 82 per cent of the 2,300 young Australians aged between 16 and 25 years surveyed for the Australian National Council on Drugs in 2013 supported it. The finding is consistent with young people’s overall views about drugs: they want better information to make informed choices.

Senior police and politicians in some Australian jurisdictions are listening. It has been reported that pill testing may be available in some places for next summer’s music festival season. But not in NSW. Earlier this year, in an interview with 2UE, NSW Deputy Premier Troy Grant (a former police officer) labelled drug checking a “very dangerous regime that the NSW government fundamentally rejects”. He argued that if the testing failed and someone died, then the service could be sued for manslaughter (a highly contestable proposition). Grant also challenged the logistics of testing a large number of drugs in a given night, before admitting, “I don’t know a lot about the engineering of the pill testing, or how it’s made up or the science behind it exactly.”

NSW Premier Mike Baird has said the danger from unidentified drugs could be easily addressed. “There’s a pretty simple way that you know you’re going to be safe – don’t take the pills,” was his advice. This is a re-run of Nancy Reagan’s “Just say no” policy. Remember how effective that was in reducing drug use and harms?

People will continue to take the risk. Government has an overall duty to protect the community, including by assisting members of it to avoid foreseeable harm. Adding drug checking to the mix of interventions for users does not prevent measures being taken against unlawful drug producers and suppliers.

Article from LSJ, July 2016, Issue 24, pp. 22 - 23.