Police want delay in cannabis legislation

The medical cannabis legislation introduced by the incoming Government would give people who are dying a legal out clause from using cannabis, but would keep it a crime to grow or supply them with cannabis, posing some legal difficulties.

There were signs the bill was rushed to fir within Labour’s 100 days commitment.  It is now being reported that the police opposed this approach.

RNZ: Police asked for delay on cannabis legislation

The Health Minister pushed ahead with giving full legal protection to the terminally ill to use cannabis, despite advice from the police asking for that particular provision to be delayed.

The legislation currently before Parliament, means anyone terminally ill will not have to rely on the discretion of the police or the courts if they’re caught with cannabis.

If their case gets to court they can present certification from their practitioner to avoid prosecution.

Under the Bill the definition of “terminally ill” is that someone is likely to only have about 12 months to live.

Official papers obtained by RNZ show there were conflicting views among government agencies about how far the medicinal cannabis bill should go.

They show while the police supported giving terminally ill people “reassurance” they would not be prosecuted, in principle, they wanted the statutory defence deferred.

Police wanted to “ensure any legislative provision was workable” and that it would not create “unintended consequences”.

The proposed legal situation would be messy.

However, Health Minister David Clark disagreed.

“The police suggested deferring because they’re concerned about how these things are to be policed – that’s their job – we of course are concerned to be compassionate in our response.”

Futhermore, the Justice Ministry said it was a “concern” there was not legal protection for other people getting cannabis on behalf of someone who was terminally ill.

Clark dismissed this, saying he expected the Police to turn a blind eye to supplying, but that would put the police in a difficult situation.

Dr Clark said it was too difficult to extend the defence further, including defining exactly who would be supplying the cannabis in the broader network.

“And we preferred to favour the terminally ill and try to restrict, where possible, the supply of cannabis.”

More likely it was too difficult for Labour to get NZ First to agree to extend the defence further.

Nelson lawyer Sue Grey has represented many people charged with obtaining or possessing cannabis for medicinal purposes, and argued friends and family should also have the full legal protection.

“Because the sickest people can’t supply themselves and to put their family under that intense pressure of prosecution for helping a dying or sick person is just completely unfair and unjustified.”

The proposed ‘solution’ is poor.

…the Health Ministry opposed the defence for friends and family saying that would “significantly broaden the proposal”.

And it argued it could have unintended consequences:

“A person could set up a business supplying illicit cannabis to terminally ill people and argue that the exception and statutory defence cover this activity.”

So instead, people on their death bed are supposed to wish that some cannabis to relieve their suffering will fall out of the sky into their laps.

Yes, an unintended consequence of sensible legislation could mean that some non-dying cannabis users may find it a bit easier to source some product for relief. That would hardly be calamitous – cannabis use is unlikely to significantly change with sensible law changes, except for those who are suffering and want some relief.

All they can do now is suffer, or load themselves up on prescription drugs or alcohol, which cannot be any worse than a bit of cannabis.

The people working for medical cannabis

Have we got we have got medical cannabis laws right? Russell Brown asks this at NZ Herald on Medicinal cannabis: For the love of her son:

The death of Rose Renton’s son prompted a dramatic change in the direction of her life. Russell Brown explores whether we have got medical cannabis laws right.

At the request of his family and doctors, Alex became the first New Zealand patient to be granted ministerial approval to import a non-pharmaceutical grade cannabis product in June 2015. The treatment couldn’t save him, but New Zealand’s conversation about medical cannabis turns on the weeks he spent in hospital, his brain in crisis.

In the course of approving the request to import an oil containing cannabidiol (CBD), Associate Health minister Peter Dunne had officials draw up guidelines for future applications, which had been provided for in law for years but never made before.

Helen Kelly applied, unsuccessfully, for another cannabis product under those guidelines. Dunne ordered a review and the Labour Party promised to make access easier.

This year, Dunne removed the requirement for ministerial approval for CBD products altogether.

And now, Alex Renton has landed his mother in court. Rose Renton, who lives in Nelson, is the most high-profile of a series of “green fairies” to face charges of growing, processing and possessing cannabis for supply.

Although Kelly very publicly eased her pain with the cannabis products people brought to her door, no one seemed inclined to make any arrests. That has changed this year.

That’s a shame. Police discretion could be used if it is not in the public interest to prosecute.

Shane Le Brun, who has participated here, has a different approach – to change the medical and legal systems.

A few kilometres, almost in line of sight of Rose Renton’s house, Shane and Kat Le Brun are fighting a very different battle — not to reject the system, but to make the system work better.

They had been married three months, he an army munitions officer, she an early childhood teacher, on the day in 2010 when their lives changed. Kat stepped out on an icy deck at the school where she was working, “my leg went from underneath me and I landed awkwardly on my back and butt. That was it.”

Doctors eventually discovered three of her spinal discs had prolapsed. In the seven years since, the 31 year-old has had spinal surgery and then been re-injured — knocked over by a child in a sandpit — and twice gone into respiratory arrest from opioids administered by emergency medics.

Her condition is managed to some extent with methadone, the only opioid prescribed for long-term use. It’s slowly destroying her teeth.

Over time, she’s had various powerful opioids, ketamine, gabapentin, valium and an anti-depressant (stress is known to aggravate her condition). She has tried cognitive behavioural therapy and acupuncture.

And on one terrible evening in hospital, when she couldn’t stop screaming, she was given an anti-psychotic and shut in a room by herself for the night.

But there is one treatment she’s not allowed — or at least, can’t legally get. Cannabis.
She says that the first time she tried cannabis (“I got it from a family member”) she slept well for the first time in four or five years.

Shane, who now works in IT, had already taken a nerdish interest in her pain medication (to the extent that they suspect he appeared to “know too much” and was incorrectly flagged as a drug-seeker by the system) and turned his attention to cannabis.

He formed a charity, Medical Cannabis Awareness NZ, which campaigns for the availability of affordable medicines via the non-pharmaceutical provisions first used by Alex Renton’s doctors.

Last year, MCANZ was responsible for 80 per cent of ministerial approvals for their use. Ministry officials who were once suspicious of medical cannabis now speak to him regularly.

Ironically, the one he hasn’t been able to help is Kat.

“I do find it very difficult,” she says. “It feels at times that he’s fighting harder for others than he is me. At the height of my pain, I have been known to throw a few pillows at Shane and say to him, you’re doing all this work and you have been for so long and I’m still not further ahead.

Her frustration is compounded by the stigma Shane’s advocacy attracts.

“I have been discriminated against because of what Shane does. I think people hear the world cannabis and freak out — because it’s illegal in their eyes. And all they know of when you say that word is getting high.

That’s a real shame, but eventually, hopefully soon, she will benefit from Shane’s efforts.

Kat’s own bid to be legally prescribed a cannabis product hit a familiar roadblock — doctors. A senior medic at Burwood spinal unit told them there was insufficient evidence for him to prescribe Sativex, the only Medsafe-approved cannabis product in New Zealand.

“I presented the doctor with a printout of a trial of Sativex for allodynia and hyperalgesia,” says Shane. “And he tried to change the topic because I basically knew more than he did.”
Kat adds: “The report came back and said ‘the husband seems to know a lot about cannabis’ and made it seem really dodgy.”

“We had to go doctor-shopping,” Shane says. “It’s disappointing, because she’s exhausted all reasonable options.”

The ministry has since taken a different view, acknowledging that a cannabis product is a benign option for Kat and approving access. Now, they face the other big roadblock for legitimate medical cannabis in this country: cost.

The cost of producing, testing and proving medicinal products is high, especially when there is a very restricted market.

Last year, MCANZ helped Auckland MS patient Dr Huhana Hickey win approval for a functionally identical product made by the Canadian company Tilray.

But that has ended up being more costly than they’d hoped and the couple are now pinning their own hopes on a similar product made by another Canadian company, CanniMed.

Remarkably, the Ministry of Health is now prepared to approve CanniMed’s whole dried cannabis products, for use in vapourisers. It has also tabled work on regulations for growing cannabis locally for research as part of advice to the new Government.

Shane believes local production to precise medical standards is the only long-term answer.

“The patient population views the green fairies and illegal suppliers as heroes,” he says.

“As a charity, we cannot condone or promote illegal activity. But come on — there’s 100,000 people who claim they use cannabis medically at least sometimes and around 50 people in the country accessing it legally at any one time. There’s just a huge disparity.

Lawyer Sue Grey has taken another approach.

She was a specialist in environmental law when, five years ago, she was asked to act for 61 year-old Golden Bay woman Victoria Davis, who had been charged with cannabis cultivation and possession. Davis had been growing for her husband John, a double amputee wracked with phantom pains.

Grey won her client a discharge without conviction, in part by presenting a doctor’s letter to the judge.

She thought she would move on, but in 2015, Davis recommended her to another Golden Bay resident in legal trouble, Rebecca Reider. Reider was facing serious charges after posting herself two bars of cannabis chocolate — which had been legally prescribed to her for chronic pain in California and delivered to her family’s home.

Again, Grey presented medical records and Reider was eventually discharged.

But she also studied the Misuse of Drugs Act and discovered that Reider was allowed to import a controlled drug if it was prescribed and she brought it in herself.

Then, advocating for terminal cancer patient Tom Harris, Grey challenged the Ministry of Health’s position that CBD is a controlled drug under the Misuse of Drugs Act. The Government’s own agency, ESR, wrote in unequivocal support of her argument.

CBD officially remains a controlled drug — but when Dunne announced this year that CBD prescriptions would no longer require ministry approval, it was effectively a surrender.

But the situation remains vague and confusing.

The law, Grey agrees, is a real mess. She says she feels for the police.

“I’ve spent a lot of time working with the Nelson police, the drug squad and the prosecutors. When I first started working with them they had zero tolerance for any excuse for medicinal or any other cannabis.

“Now, they’ve really learned a lot — but they’re in a difficult position because their job is to uphold the law. They have discretion, but they have to report to their bosses. They’re the meat in the sandwich, really.”

Ultimately it’s our MPs, our political parties, and our Government that put the front line police in an invidious position.

Dunne tried to progress things on the medical front, but was hampered by an unsympathetic National government.

Labour have promised progress, Greens should be a shoe-in for support, but it will still require support from NZ First or national to change out of date and hopelessly impractical laws.

But the Minister now responsible for the health side of cannabis, David Clark, could push progress along there.

And surely the Minister of Police Stuart Nash could give some direction on the policing side of cannabis, especially where illness is involved.

Renton, Le Brun and Grey have done a lot and have achieved a bit, but it’s time for our elected representatives to take responsibility for a messy and stupid situation.

If Jacinda Ardern chose to show leadership on this she would be likely to get a lot of popular support. People are suffering necessarily and sadly.

 

Legal challenge of MoH on medical cannabis

A post by Russell Brown at Public Address asks Is the Ministry of Health acting outside the law on medical cannabis?

The key barrier to the use of medical cannabis – or to even discovering what its uses might be – has long been marijuana’s illegality under the Misuse of Drugs Act. But what if it transpired that a key component of cannabis is not, and has never been, controlled by the act? And that heavy restrictions on its use and importation are in fact taking place outside the law?

…it’s the subject of an intended legal challenge notified by Nelson lawyer Sue Grey.

From a letter from Grey to Associate Minister of Health Peter Dunne outlines her claim.

NOTICE OF INTENDED LEGAL CHALLENGE RE STATUS OF CANNABIDIOL “CBD” UNDER THE MISUSE OF DRUGS ACT

I write on behalf of various interests who seek urgent clarification of the legal status of Cannabidiol “CBD” under the Misuse of Drugs Act.

In summary:

  1. CBD is not explicitly scheduled under the Misuse of Drugs Act.
  2. CBD does not meet the statutory criteria under Section 3A for scheduling under the Misuse of Drugs Act1 as there is no evidence that it poses a very high, high or moderate risk of harm to individuals or to society.
  3. Information obtained under the Official Information Act and from the Ministry of Health website identify a significant disagreement within the New Zealand government officials over the status of CBD under the Misuse of Drugs Act.!!Some from the Ministry of Health claim CBD is indirectly covered by Schedule 2 (1)(2)2 as a Class B drug based on their assessment that it is “an isomer of tetraDhydrocannabinols” (THC). In contrast, the government’s leading expert analytical chemist, Dr Keith Bedford and his expert team at Crown Research Institute Environmental Science and Research, “ESR”, have published a paper explaining why THC is not within this definition, because CBD has a different chemical formula, structure and function to THC and accordingly it is not caught within the definition of “an isomer within the same chemical designation”
  4. Dr Bedford’s expert view has been made clear to the Ministry of Health and to his colleagues on the government’s Expert Advisory Drug Committee (“the EADC”). The minutes of the EADC’s April 2016 identify no scientific or legal reason why Dr Bedford’s view is wrong. It appears the different views relate solely to policy consideration and perhaps vested interests, although it remains unclear to me why some members of the committee would prefer to continue to treat CBD as if it is illegal. Clearly government policy cannot override the law that was written by Parliament, and in particular s3A of the Misuse of Drugs Act.

Grey also claims.

  • Medicines containing CBD are (in my view unlawfully) treated as if Ministerial approval is required under Regulation 22 of the Misuse of Drugs Regulations, resulting in considerable bureaucratic hoops and hurdles, delay in access and unnecessary cost for patients who are typically already very ill, and their families who are typically already very stressed.
  • The complex situation is compounded by the apparent policy of Medsafe (disclosed in documents obtained under the Official Information Act) to attempt to prohibit foods or other products which contain CBD from being sold as foods or dietary supplements, apparently because CBD is also scheduled under the Medicines Regulations. I can find no lawful basis for this policy and do not understand how Medsafe can reconcile this with the law or with the FSANZ proposal to approve the sale of hemp seed foods for human use.
  • I understand from other Official Information Act responses and from recent coverage on TV3’s Story (on the use of CBD as a supplement for managing Alzheimers by Mr Robinson, father of Nicky Evans) and other documentation that I have been shown, that NZ Customs have been instructed to seize products that contain CBD at the NZ border. This is despite the expert advice to the Ministry of Health that CBD has no known harmful effects to individuals or society and it is outside the scope of the Misuse of Drugs Act schedules.
  • The current policy of Ministry of Health, and adopted by NZ Customs to treat CBD as if it is covered by the Misuse of Drugs Act to try to justify the seizure of products which contain CBD, is in my view unlawful, unreasonable and unjustified as CBD is not covered by the Misuse of Drugs Act.

Grey asks for the Court to make declarations on:

A) CBD is not explicitly prohibited under the Misuse of Drugs Act

B) CBD has a different chemical formula and different structure and function to THC and accordingly it is not restricted as “an isomer within the same chemical designation as tetrahydrocannabinols”and is not covered by Schedule 2 of the Misuse of Drugs Act ;

C) CBD does not meet the criteria of section 3A for classification under the!! Misuse of Drugs Act, as it does not cause a very high, high or moderate risk of individual or social harm;

D) Products containing CBD do not require Ministerial approval to be prescribed or recommended under Regulation 22(1) of the Misuse of Drugs Act because CBD is not subject to that Act.!!Regulation 22(1) of the Misuse of Drugs Act does not apply or is being unlawfully applied to medicines and other products containing CBD

E) The actions of NZ Customs in seizing or restricting access into or out of New Zealand of products because they contain or may contain CBD is unlawful.

It will be very interesting to see how the Court deals with this, if it has to go that far. Brown posts:

Grey has received a response from Customs minister Nicky Wagner, explaining that Customs – which has been seizing medical CBD products at the border –  is guided by the advice of the Ministry of Health, which is that “CBD is a class B1 controlled drug as it is an isomer of tetrahydrocannabinol. Customs has acted on that basis.”

“How long do we have to wait? We’ve got people who are sick now,” Grey said. “They don’t want to have to wait another six months or two years for the advisory committee to align itself with what the law already says.

“I’m still hoping that the Minister of Health will get some control over his officials and ask what are you guys doing, why don’t we just listen to what the experts are saying and accept that it’s not covered by the Misuse of Drugs Act and it doesn’t need to be? Then we won’t need to go to court. But if they don’t come to that conclusion fairly quickly, then we will file in court.”