The Psychoactive Substances Act – What you need to know

After almost a year of debate since its initial proposal, the Psychoactive Substances Bill (now referred to as the Psychoactive Substances Act) reached Royal Assent on the 28th of January 2016 and became law on 26th May 2016.

It is essential that all staff in drug services, services supporting people who use new psychoactive substances, and people who use illegal (controlled) drugs are aware of the law and what the Act potentially means for them.

So what is it?

The Act makes it an offence to produce, supply or offer to supply any psychoactive substance, if the substance is likely to be used for its psychoactive effects, regardless of its potential for harm. The only exemption to the Psychoactive Substances Act (PSA) is those substances already controlled by the Misuse of Drugs Act, nicotine, alcohol, caffeine, ‘poppers’ and medicinal products.

What happened to existing laws?

The PSA didn’t replace the Misuse of Drugs Act (1971), so laws around existing illegal (controlled) drugs remain the same. Temporary Class Drug Orders (TCDOs), which are rapidly implemented temporary bans, can still be applied and the Human Medicines Regulations (2012) will remain the same. However, the Intoxicating Substances Supply Act (1985) will be scrapped, which made it an offence to sell volatile substances (e.g. glues, gases) to under 18s if it was believed they would be inhaled to cause intoxication.

At present, a substance causing concern must be reviewed by the Advisory Council on the Misuse of Drugs (ACMD) to assess any potential harm. The ACMD then advise the government on a course of action. The government do not have to take this advice but are bound to consult with the ACMD first. The ACMD still have a role and a ‘new’ or emerging psychoactive substance can still be brought under the Misuse of Drugs Act, but this Act was introduced without fully consulting the ACMD and has fundamentally changed drug legislation.

Is it a criminal offence to possess a banned psychoactive substance?

Possession of a psychoactive substance is not an offence, except in a ‘custodial institution’ (prison, young offender centre, removal centre etc.). Possession with intent to supply, importing or exporting a psychoactive substance are all offences under the PSA.

What are the penalties for breaking the law?

*Summary convictions in Northern Ireland are up to 6 months and/or a fine.

Offences under the PSA would be considered ‘aggravated’ if they involved supply to under 18s, were near a school or a children’s home (Local authority children’s homes etc).

Why are ‘poppers’ legal?

The PSA does not apply to ‘poppers’ (alkyl nitrites such as isopropyl nitrite).

Calls for an exemption for poppers because of their prevalence in LGBT communities and a fear that banning them would lead to the use of more dangerous substances were rejected. The government planned a review of the evidence; however, after the ACMD pointed out that poppers would not fall within the Acts definition of a psychoactive substance, the review was scrapped.

What about Nitrous Oxide?

Nitrous oxide, otherwise known as NOS or laughing gas, is exempt when for example it is used as a propellant for whipped cream, but covered by the PSA if sold with the likelihood of it being used for it’s psychoactivity. However, in August 2017, a case of Intent to Supply was dismissed on the grounds that nitrous oxide was exempt as it could be used a medicine regardless of the likelihood of it being used for intoxication. The judge ruled that the PSA does not make it clear that a substance is exempt only when it is used for medicinal purposes, however, this argument was rejected by the Court of Appeal in October 2017.

This article is based on information in the DrugWatch resource A simple(ish) guide to the Psychoactive Substances Act 2016′