Analysis: Is the Govt's health approach to drug-related harm delivering?

The Government wants legal medicinal cannabis to be accessible and affordable to those who need it. That's not happening at the moment. Photo / Supplied

ANALYSIS

The Government has decided the cannabis referendum result has forced it into a corner on drug law reform, even though Labour holds a parliamentary majority. So where does that leave the thousands of people breaking the law who the Government doesn't think should be criminalised?

Asked whether his hands were tied on drug law reform, Health Minister Andrew Little said: "Kind of."

His answer is a nod to the ghosts of New Zealand First in the corridors of power, in particular the party's insistence on a referendum for the issue of legalising personal cannabis use.

Little and many of his Labour colleagues supported legalisation as a better way to reduce drug-related harm, but the public narrowly voted in favour of the status quo.

The Government now feels it cannot put up a bill to legalise, or decriminalise, without disrespecting the referendum result, even though there might be considerable support in a conscience vote in Parliament.

For Little the referendum result - combined with the higher priority of overhauling the DHB system - is so tight a political straitjacket that a review of drug laws is also off the table for this parliamentary term.

That's despite a review being specified in the Government's long-term plan to address drug-related harm.

This is what a 2018 Cabinet paper from then-Health Minister David Clark said: "I have asked officials to scope a review of the Misuse of Drugs Act (MODA), taking into account the proposed referendum on cannabis and the Mental Health and Addiction Review."

That He Ara Oranga review called for an end to criminal sanctions for people who use illicit drugs. Independent justice review Turuki! Turuki!, which followed it, then called for cannabis to be legalised - and for that to be considered for all drugs.

Those across the health and addictions sector – in an open letter to Ministers including Jacinda Ardern last month - say the 46-year-old law is no longer fit for purpose and needs to be reviewed.

That was also the clear message from a comprehensive Law Commission report - now a decade old - not only because criminal sanctions were a "disproportionate response" to drug use, but also because drug classifications no longer aligned with the harms they cause.

Minister for Health Andrew Little says a review of drug laws - widely considered not fit for purpose - is not on the table this parliamentary term. Photo / Bevan Conley

The review Clark ordered never got off the ground, Little has confirmed.

And even if Little ordered a new review, he feels that significant reforms would only be palatable - despite Labour's parliamentary majority - if accompanied by the kind of social licence that a referendum would deliver.

The upshot is that the Government has given itself barely any wiggle room - but not no room - to make changes to achieve the health-based goals it is currently falling well short of.

One of those goals - despite what Ministers said at the time of a key 2019 law change - is not to criminalise drug users.

In 2020, according to Ministry of Justice data, 3847 people were charged with drug use/possession. Most of them faced other, more serious charges.

According to the most recent police data, just under 300 people a month face the possibility of drug use/possession charges as their most serious offence, and about 56 of them are actually charged.

That is down from about 130 people being charged a month before the 2019 law change, which clarified that police shouldn't prosecute for drug use if a therapeutic approach would be "more beneficial to the public interest".

For a year before the law change, 33 per cent of people facing a drug use/possession charge as their most serious offence were actually charged.

That has fallen to 20 per cent in the most recent statistics - from November 2020 to February 2021.

Little says this is still too high, and if the charging rate doesn't drop further, the law can be tweaked to give a clearer signal to police not to charge people if drug use is their biggest crime.

That wouldn't happen until after a review into the impact of the law change, which reports back in August.

Little also wants the review to dig into why only about 2 to 3 per cent of those facing such charges are engaging with an alcohol and drug helpline.

It's hard to know how many drugs users need help, given that many of them don't suffer from any health harms.

It's also unclear whether there are enough services to help those who need it.

Labour wants to roll out the much-lauded Te Ara Oranga programme - which helps meth users in Northland - to the East Coast and the Bay of Plenty.

It's billed as help not handcuffs for 4000 meth users, who are currently more than five times more likely to be charged by police than cannabis users.

As for other services, the 2019 Budget threw $455 million at primary care addiction and mental health services - but the rollout of that funding has been called glacially slow by some on the frontline.

Little has also been asked about expanding the reach of drug-checking services, which enable users to see whether the substance they have is in fact what they think it is.

The Government passed a temporary law legalising those services - run by KnowYourStuffNZ - in time for the summer festival season, and now intends to make the law permanent.

But people don't take drugs only at festivals, and they're often taken in remote areas: two of the most harmful substances - methamphetamine and fentanyl - were most prevalent in Northland and the East Coast, according to police wastewater testing.

KnowYourStuffNZ doesn't have the people - who are volunteers - equipment or the premises to run a nationwide service. It owns one spectrometer, has just purchased a second, but estimates it will need 12 more - at a cost of about $600,000 - just to have a presence at every festival, let alone all over the country.

Managing director Wendy Allison has suggested using the ill-gotten gains seized under the Criminal Proceeds (Recovery) Act to increase KnowYourStuffNZ's reach.

Finally, the Government wants patients who need help to be able to access and afford legal medicinal cannabis, which currently costs about $1000 a month.

The 2018 changes to the law paved the way for new products to hit the market, but given the high safety standards, they're not expected to be affordable for many patients.

That leaves a black market of so-called green fairies catering to patients who can't afford legal products.

If caught with illegal substances, only the palliative have a legal defence.

Following a Ministry of Health review due in December, the Government could widen the amnesty to more than just palliative patients.

That would pose a new problem of where to draw the new amnesty line, and it wouldn't help green fairies who, as suppliers, are much more likely to be charged than patients.

But it would mean thousands of patients wouldn't be exposed to the threat of criminal charges - as is the case now.