Examination of Witness (Questions 100-120)
20 APRIL 2004
PROFESSOR DAVID
COWAN
Q100 Chris Bryant: How much notice do
people get, do you think?
Professor Cowan: Well, before
probenecid was banned, we were doing tests with the Norwegians.
They were conducting some out-of-competition tests and this goes
back more than a dozen years now, and when the samples were delivered
to us, they told us that the competitors disappeared for five
hours. In those five hours a number of the competitors had taken
probenecid, so it can work very quickly. If you are going to use
water, it dilutes the sample because of trying to beat the concentration
threshold and it will not work for all things, but if you are
trying that approach, then it is time just to produce enough urine
which might be a matter of hours.
Q101 Chris Bryant: So if you are a footballer
and you are given 24 hours' notice, then that is quite enough?
Professor Cowan: I would rather
not be as specific as saying footballers, but if I answer the
question generally, my preference with nil-notice testing is that
the person is accompanied from the time they are informed that
they are going to have the test.
Q102 Michael Fabricant: You said just
now in answer to Chris Bryant that you would find it helpful if
substances were made prohibited substances and then the moment
you detect an element of this prohibited substance, or molecule
I suppose I should say, then you know that the person has committed
an offence. My first question is somewhat related to Chris Bryant's
earlier questions regarding medicines. Is it possible for the
body to metabolise in any way a prohibited substance through a
combination of quite innocent substances that somebody might be
taking?
Professor Cowan: We would normally
talk about a diagnostic metabolite to make just that distinction
that I think you are implying. Theoretically, we can break everything
down to carbon dioxide, but of course you cannot penalise someone
for having carbon dioxide coming out of their body, so what we
have to do is to make sure that these metabolites that we detect
do actually link back to a prohibited substance. They have to
be quite specific.
Q103 Chairman: If I could just interrupt
at that point, I have raised this before and I am not at all clear
about this, so perhaps you could clarify it. If anybody can clarify
it, you can. In what circumstances is either a controlled or a
prohibited substance something which ought to be allowed? I will
give you a personal example. When I had very severe back trouble,
I was prescribed Coproxamol by my doctor. My condition then deteriorated
and I went into hospital and took the Coproxamol with me. It was
confiscated in the hospital on the grounds that it was a controlled
drug and I could not have it. My doctor then told me to give it
back again. When there is a dispute in that way, what is the appropriate
ruling on, say, Coproxamol?
Professor Cowan: Again I experienced
a case where a competitor had had a colic and had been hospitalised
and was given pethidine as a prohibited painkiller. This information
was not in the public domain and in my mind the case was dealt
with quite properly. The person was not competing and they had
had the medication needed for their wellbeing and the sport quite
appropriately said, "Yes, we know this. It was declared".
We found it in the sample, but no action was taken. Unfortunately
those sort of cases do not get the same publicity as the more
notorious ones.
Q104 Michael Fabricant: Just going back
to my original question then, is it right to say then that, therefore,
there can be examples of false positives because of this combining
in the body of quite innocent substances?
Professor Cowan: We quite deliberately
describe our findings as adverse findings when apparently a rule
has been broken and we try to avoid this term "positive"
just because of the connotation you are putting on it and we prefer
positive to be, say, at the end of the hearing when an offence
has been shown to have been committed. I suppose the contradiction
is that there is a strict liability principle applied in sport
where is it not our finding that says an offence has taken place?
I suppose in simple terms that is the case and, not being legally
qualified, I would not try to argue that one through. In practice,
provided that the process is carried through in a sensible manner,
then I am very comfortable with it. I am less comfortable because
there are some inadequacies in the hearing process or there may
be some other agendas that people are running, that sport anti-drug
rules are misused, in my mind, to discipline a competitor, but
I am not familiar with this thing of false positive, as you put
it. To me, a false positive would be that we had made a mistake
and we had misidentified something.
Q105 Michael Fabricant: How do you see
yourself in the role as being a policeman? What I mean by that
is this: Chris Bryant was asking you about recreational drugs
and you said, "Okay, with regard to stimulants", and
you mentioned cocaine, "there might be an example there,
I guess, where somebody might perform better because they will
take greater risks", but I presume in straightforward athletics
cocaine would not have any particular advantage—correct
me if I am wrong—because it is not going to give you better
muscle performance and certainly a depressant, if that is the
word for it, like cannabis, is probably going to un-enhance you,
so is it your role, is it your committee's role actually to say,
"Yes, this athlete, this sportsman has taken drugs for recreational
use, which may be against the law, but actually does not affect
their performance in any better way, so, therefore, they would
not win unfairly"?
Professor Cowan: I think the first
part of your question was asking me whether I have the role of
a policeman. I do not like to think that. I think I like to help
to protect sport and to help to protect athletes in general so
that they do not get in the scenario where they have to take drugs
in order to win. That is the sort of level playing field approach
where I feel that our team can actually make a contribution. Policing
would be where we fail then. We are on the penalty side only and
I think our role is bigger than that. With respect to your more
specific question, I have learnt over the years not to be too
dogmatic, not to be too predictive about what an athlete might
take. Often we have got it wrong. I remember when we found an
anabolic steroid in a half marathon, and marathon runners look
pretty slim, do they not, so why would they use that? Gradually
we realised that some of the behavioural effect might be quite
important. If you are too laid back to bother to win, you will
not win and a drug like cocaine might just give you the push in
order to be that much more aggressive and say, "I'm going
to win today", and I mentioned earlier about cannabis in
surfing.
Q106 Michael Fabricant: Yes, and was
it not cocaine which gave you more of a stimulus?
Professor Cowan: Yes, but then
with cannabis, because that would normally be a sedative, and
maybe alcohol is quite a good analogy, you might be quite gregarious
after taking some alcohol, as long as you do not take so much
that you do not know what you are doing, but a small amount, I
was taught, is the first state of anaesthesia and the first state
of anaesthesia is when you lose your inhibitions.
Q107 Michael Fabricant: You mentioned
earlier on the Medicines Act. Perhaps you could just state for
the record and for my information whether anabolic steroids are
banned under the Medicines Act.
Professor Cowan: They come under
Schedule 4 of the Misuse of Drugs Act.
Q108 Michael Fabricant: And what does
that mean?
Professor Cowan: It actually makes
it a controlled drug which means that unauthorised possession
is an offence. However, there is a let-out under the Act that
if it is for your personal use and it is in a formulated product,
then it is permissible to use that as your defence, so if the
police found that you had a big sack full of anabolic steroids,
the court would have to show that that is more than your personal
needs and that might be a bit difficult to do.
Q109 Michael Fabricant: Do you think
there is an argument to say that anabolic steroids really should
only be prescribed by a doctor and unless you have a prescription,
they should be illegal?
Professor Cowan: Yes, that is
my view, not just because it is a controlled drug, but because
it is controlled under the Medicines Act as a prescription-only
medicine, that that is the legal scenario.
Q110 Michael Fabricant: And if that were
the case, would that then prevent the sort of scenario that Chris
Bryant described of these drugs being sold in gymnasia?
Professor Cowan: It is illegal
for them to do that. It is going to be covert.
Q111 Michael Fabricant: Do you think
there is an industry whereby there are people actually trying
to determine how they can be one step ahead of people like you,
producing drugs which will improve people's performance in sport,
or is it far more random than that with just small shysters trying
to sell the odd drug here and there?
Professor Cowan: We know that
in the former East Germany, VEB Jenapharm actually produced a
preparation of testosterone and epitestosterone. The only reason
for doing that, in my mind, would be to beat the sports test,
so occasionally we do discover some examples where it does go
closer to your description of an industry that is actually designed
to beat the test. I think the majority of cases though are more
hit and miss. It is opportunistic in some cases or once one has
started going down the road of misusing drugs, you are starting
to cheat and then you will get your source of supply or more than
one source of supply and continue to take it. I suspect that is
going to be more of your own volition rather than involving others.
Q112 Michael Fabricant: At the margin,
is it difficult to decide what is a drug and what is a naturally
occurring substance that one is simply supplementing? For example,
you see these large tins on sale of, not collagen, I do not know
what it is, but sort of protein that people take and anabolic
steroids are not naturally occurring in the body and when one
takes a supplement, as you have already described, that is illegal,
but proteins of course occur in the body, so if you take a supplement
of them, that is not illegal or is it? How do you make the decision?
Professor Cowan: I can see two
parts to that question and I will first talk about substances
that would be covered under the Medicines Act. Earlier when I
described about the Dietary Supplements Health Education Act of
the United States, the issue there was that under US legislation
the Government there determined that if this is natural in the
environment in some way, like Ma-Huang or ephedrine is the chemical
contained in it, then it should be possible to sell that with
more limited control by government and if we did not want too
much government legislation, let people, they are adults, let
them take what they want to take. Only recently has the US Government,
and I have to be careful how I put this, but in my mind it is
largely because of deaths which have occurred in sport by people
taking large amounts of ephedrine that the US Government now are
tightening up those controls. In this country, substances which
might come through as dietary supplements are controlled by the
Medicines Control Agency and the MCA[2]have
made a number of determinations where they have written to dietary
supplement manufacturers and said, "Look, in our view, what
you are selling here is a medicine, and the message is that you
cannot do that". The second part, as I understand it, is
how does one decide what is controlled and what is not, and for
that the World Anti-Doping Agency have actually written a protocol
of the different characteristics that they wish to consider before
they added a substance to their list. The one that is uppermost
in my mind is harmful when misused, but one has to be careful
about that because everything could be a poison. For example,
you can drown yourself in water and yet you need water to live,
so there is some difficulty in that decision-making and that is
something we are quite used to in society. After all, Arthur Conan
Doyle smoked opium and at that time that was permissible in society,
but now you cannot legally smoke opium.
Q113 Michael Fabricant: And Queen Victoria
took laudanum and laudanum of course was heroin.[3]
Professor Cowan: I could not possibly
comment.
Q114 Michael Fabricant: Your prime role
of course is in the detection of these drugs. Do you provide an
input into these organisations which actually determine whether
a drug is legal or not? Do you make recommendations?
Professor Cowan: Well, internationally
I have had the privilege to serve on a number of those committees
and at that time, yes, I will make comment along that line because
my background is in pharmacy and part of my work is actually to
know something about drugs.
Q115 Michael Fabricant: Are there any
protocols which you believe are leaving out certain drugs which
ought to be included or, to put it another way, are there some
drugs which are included in the protocols as being banned which
you think should be legal?
Professor Cowan: Specifically
at the moment, the World Anti-Doping Agency have decided to permit
caffeine again and one of the ephedrines. My concern about those
is whether that will then increase the overuse—and I will
be careful not to call it "misuse" since it is allowed
now—and whether people now will take larger amounts of caffeine
in sport than when it was controlled and whether they will take
larger amounts of these ephedrines than when they were controlled.
The World Anti-Doping Agency have now put in a monitoring programme
to see whether that does happen or not, so at least we now have
that better evidence-based system.
Q116 Michael Fabricant: Going back to
my earlier question about false positives, did they remove caffeine
because people were drinking too many cups of coffee and purely
by accident it tipped over the edge and, therefore, it was beyond
the permitted minimum or was there another reason why they took
caffeine off?
Professor Cowan: I think I just
about know enough about the law to answer that, that intent is
not one of the requirements to show a strict liability offence
to have been proven, so I guess it is sort of tough in that if
you have taken too strong a coffee, then it might be a bit of
bad luck. Scientifically, we cannot show intent in any of our
tests. We do not have the means of doing that and powers at the
present time do not have to make that determination. I think if
they had to prove intent in the same way as they might, say, in
a criminal law offence, knowingly being in unauthorised possession
of a controlled drug, then the court would have to show not only
that you had the white powder in your possession, but that you
knew it was a controlled drug. For that, the police have powers
of stop and search and of actually interrogating, interviewing
witnesses. We do not have that same approach in sport and I would
not suggest we would wish to have it. The other side of the coin
then is that we have a strict liability offence because we do
not have the means to go to these other steps. I would like just
to make another comment about caffeine because that is quite an
interesting substance. Most people convert it in the body very
rapidly, so a very small percentage comes out in a urine sample.
People have said to me, "Well, they went over the limit even
though they took a normal amount of caffeine", and my response
to that is, "But they had more in their body at the time
because they were not metabolising so much. They were getting
more benefit from it. There was more stimulant effect". In
terms of cheating, if I say, "I went off the blocks early
in a race—was I cheating?" Technically, I broke the
rules, the starter's gun would be fired again and I would be called
back again. I think the problem with drugs in sport is this other
connotation, that it is not just the cheating bit, but they are
a drug misuser and we are not showing that in our drug tests.
A one-off occurrence of someone going over the caffeine limit
means that they cheated at the time that was found.
Q117 Alan Keen: It has been fascinating,
listening to you as an expert in your field, but you must get
frustrated sometimes about the whole structure and the administration
of drug-testing. Would you like to tell us about the thoughts
you have sometimes about what you would like to do if you were,
for instance, a drug tsar overall of sport? How would you change
the present system?
Professor Cowan: Well, I have
to keep reminding myself that we need to consult the athletes
as well. They are the ones who are suffering the problems if drug
misuse is rampant in sport. Because the drugs can have possible
harmful side-effects and that is one of the key reasons why many
of these substances are prohibited, then you can imagine that
if we allowed everyone to take drugs, there would be somebody
saying, "I don't want to have to take drugs", and there
are a number of athletes out there, saying, "I don't want
to have to take drugs. Look, you must do your job properly to
stop that situation". That is usually the driving force that
keeps me going in there and if athletes say, "We want to
take drugs. We want to have the right to do what we want",
I would say, "Okay, I will move over to an area where people
need what we can do", but I know that athletes do want us
actually to do it and they get frustrated because we are not doing
it right, not well enough yet and we need to do more for them.
That is how I then deal with my frustration and I then go back
and say, "Well, the deaths are not quite as common as we
used to have". I think what we are doing is better than nothing,
but I would like many things to move forward a lot more rapidly.
I am getting more impatient as I get older.
Q118 Alan Keen: Do you think there should
be much more co-ordination of the drugs policy in sport? Is this
the sort of thing that we can recommend? Whether people will take
notice of it is another thing, but it is an opportunity for people
like you to put your views forward.
Professor Cowan: My feeling is
that the things which would give the biggest advances at present
would be if we had better hearing systems, that we had things
like rules of evidence. If I have to give evidence in a Crown
court, a criminal court or a civil court, I know that there are
rules of evidence, that there are certain ways that a case will
be heard, everybody knows that and I think that is very helpful.
In too many sports hearings, and I am talking internationally
now as well as nationally, I have been in cases where I have had
four lawyers trying to ask me questions at the same time and sometimes
you feel it is just like a free-for-all rather than a proper hearing
of a case. Now, that is an extreme situation, I should say, because
most cases are done in a proper manner, but that is a process
which I would like to see tightened up somewhat and I think that
would be the quickest and the cheapest benefit if we can get national
and international agreement on how we would do that.
Q119 Alan Keen: Are there any technical
reasons why all sport cannot be tackled under the same banner
or should separate sports be looked at completely separately from
others? Should there be one body?
Professor Cowan: I think there
are some differences between the sports and I know people in cycling
say to me, "We are competing all year round. We do not have
an off season and an on season, so please don't simply say we
are going to have out of competition the same way as others because
we are always liable for testing all year round". The World
Anti-Doping Agency's prohibited list does recognise that different
substances are controlled in different sports, so there are some
small differences, but otherwise I think just the mere fact that
often a competitor goes from one sport to another, that during
their sporting career, they may change sports, therefore, I think
there is a lot of reason to say that we should have some more
uniformity between the different governing bodies of different
sports.
Q120 Chairman: Thank you very much. Could
I say, Professor Cowan, that this session, in my view, has done
credit to the whole select committee system. The way in which
you have responded to questions and indeed the questions which
have been put have given us a very valuable period and I am most
grateful to you.
Professor Cowan: Thank you.
2 Now MHRA (Medicines Health Regulatory Agency). Back
3
Laudanum is opium tincture and contains morphine. Back
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