3Approaches to problem drug use
43.There are two broad approaches to problem drug use—criminal justice, and public health. The former perceives problem drug use as a moral failure and criminal behaviour, which should be dealt with primarily through punitive sanctions delivered by the criminal justice system. It focuses on policing and law enforcement as the primary means of addressing and reducing drug use.107 The UK Government’s current policy on drugs has been characterised as a criminal justice approach—because lead responsibility for drugs policy currently lies with the Home Office. Dr Parkes, University of Stirling, told us that the UK Government’s 2017 Drugs strategy takes “very much […] a criminal justice approach”:
There is little or no mention of harm reduction for drugs within that strategy. It equates recovery quite narrowly with abstinence and it talks about having a vision of a drug-free society.108
The Home Office disputed this characterisation and argued that the current strategy is a “balanced” one which reduces drug demand and supply, whilst also promoting recovery.109 The minister highlighted investment in specialist information for schools, early interventions, and compulsory health education from 2020.110
44.A public health approach recognises substance use as a complex health disorder characterised by a chronic and relapsing nature, which is preventable and treatable, and is not the result of moral failure.111 It views criminal sanctions as ineffective, and instead emphasises health interventions to prevent, treat, and support the recovery of people who use drugs.112 Dr Tweed told us:
A public health approach would move away from criminalising that individual with the stigma, the criminal record, the potential impacts of prison on that person, and would very much focus on how we can help that individual with treatment and harm reduction.113
Dr McAuley explained the public health approach is also concerned with the community impact of drugs, and proposes solutions designed to benefit “not just the individuals using drugs but perhaps the businesses or the residents in areas where public drug consumption is very visible”.114
45.The public health approach also holds that drug use is—and has been throughout history—a reality of human society, which should be faced up to and dealt with pragmatically. This approach accepts that some drug use is inevitable and looks for ways to reduce the harm it causes. Norma Howarth, Signpost Recovery, explained that:
If we are accepting the fact that drugs are a key part of our society—and they are—how do we do something differently, rather than having somebody somewhere unsafe, using badly and paying the most negative consequence of losing their life?115
The Scottish Government has treated drug use as a public health issue rather than a criminal justice issue since 2016, and responsibility for drugs policy lies with the Minister for Public Health, Sport and Wellbeing (rather than the minister responsible for criminal justice).116
Criminal justice approach
Structural effects of criminalisation
46.The vast majority of witnesses we heard from were critical of the criminal justice approach, arguing that it is ineffective in reducing problem drug use, and could even perpetuate the main structural drivers of it. Dr McAuley told us that there is a growing consensus that “the war on drugs or the criminalisation approach […] has largely failed” in the UK as demonstrated by the consistent rise in drug-related deaths, despite taking a criminal justice approach for decades.117
47.One main criticism of the criminalisation of drug use is that it reinforces social stigma, and marginalises substance users, making it harder to identify and less likely that people will come forward to seek help. One witness with experience of problem drug use explained that:
As long as taking drugs is illegal there will always be a stigma attached to drug use or addiction, and those in society who are not immersed in that lifestyle will always have that stance towards people—that lack of understanding and education about where it comes from and why it exists.118
Dr Iain McPhee said, “by criminalising the drug-taking, we automatically make it a problem. In doing so, we increase stigma and discrimination and we also demonise users”.119 We heard first-hand accounts from people with problematic drug use who had not come forward for treatment due to a fear of being judged, discriminated against, or arrested for criminal offences.120
48.Another criticism was that criminalisation “automatically makes drugs more dangerous and harmful” by pushing drug markets “underground”, where there is no way to monitor or regulate the quality and safety of drugs.121 It was also argued that criminalisation can incentivise individuals to consume drugs in the street immediately after purchase, in “closes, alleyways, car parks and so forth”, due to a fear of being arrested for possession of drugs.122 Dr Tweed explained that this rushed use is more likely to result in negative (and often fatal) health implications, such as overdose and blood-borne virus infections.123
Impact of prison sentences
49.We also heard that prison sentences for people who use drugs often make an individual’s situation worse and make it less likely a person will recover. This is because prison sentences can mean individuals lose their job, their home and family and social networks, which makes recovery much more difficult. Dr Budd, Edinburgh Access Partnership, recounted a specific example from his surgery:
I had a chap who was doing really well, who was stable, in his accommodation, on stabilised methadone treatment, not using illicitly and starting to look at volunteering, and the next minute he was back in prison from a drug-related charge six months or a year ago—back in that situation where he is destabilised, loses his housing and is at risk of further harms.124
We heard a similar story from two parents, whose son is currently recovering from problem drug use. The parents explained the devastating impact their son’s imprisonment for a drug-related offence had:
It caused so much trauma that he emerged six months later jobless, crushed and a heroin addict. He became highly dependent on substances to mask the devastation of his life, and it only added to the trauma, taking him further and further out of the reach of recovery.125
50.Criminal records for a drug-related offence can also make it more difficult for people who use drugs, and those who have recovered, to find a job. Norma Howarth, Signpost Recovery, argued that potential employers are often unable to look “beyond [criminal records] to the skills and abilities and future recovery capital of the person who is now ready and wants to take that next step in their life”.126 As discussed earlier, employment security is a key protective factor; the absence of it therefore risks trapping people trying to recover from problem drug use in a cycle of hopelessness and economic insecurity, which makes them more likely to turn towards illicit drugs and harmful behaviour.127
51.Custodial sentences for drug-related crimes can also be particularly counterproductive due to the prevalence of drugs in prisons. Many experts, as well as those with lived experience, told us that people who use drugs often emerge from prison with a worse drug problem than when they entered.128 It is estimated that 13% of people with problem drug use coming out of prison developed their problematic use whilst in prison.129 Assistant Chief Constable Johnson, Police Scotland, told us that a custodial sentence:
Potentially exposes them to more drugs or different sorts of drugs within the prison system, which then puts them back out into society where the inequalities or health issues that have probably led them [to take] the drugs will unfortunately for most of them mean at some point they are going to die.130
In many cases, the exacerbation of individuals’ existing drug problems (or introduction to drugs) within the prison system, combined with a “lack of continuity of care going into prison and then […] on release” means that 11% of all people with problematic drug use die within the first month of having been released from prison.131
52.Some witnesses argued that the solution to this is to remove drugs from prisons, to improve the effectiveness of criminal justice sanctions. For example, Dr Neil McKeganey—a long-time proponent of the criminal justice approach—argued that:
[If an individual] acquires a drug problem because of the preponderance of drug use in prison, that is a set of circumstances that we should be rightly seriously concerned about […] However, that does not lead me to offer the view that criminal justice sanction is the cause of the problem here. I think the problem there is our failure to stop drugs from getting into prisons.132
However, the vast majority of witnesses argued that drugs in prisons are—unfortunately—simply a reality that has to be faced. Iain Clunie, SMART Recovery UK, argued that “people will always find a way” to get drugs into prisons, irrespective of the level of security.133 Jim Duffy, Law Enforcement Action Partnership UK, made the same point:
Every prison in the world is a place where you can get drugs, everyone knows that, and if you hold to the belief that if you put people away in a secure room it is not going to happen, that is just not reality.134
Martin Powell, Transform, summarised this view, arguing that “if you want to end the prison drug problem, stop sending people with drug problems to prison”.135
53.However, Dr McKeganey argued that there is a legitimate role to be played by criminal justice sanctions:
I do think that at a societal level it is really important to have a criminal justice sanction against those activities that one is trying to discourage, to signal very clearly that engagement in those activities could have serious adverse consequences for the individuals involved.136
The Home Office has previously argued that criminal sanctions for drug use are important for sending a message that drug use is not acceptable:
It is important that the Government continues to send a clear message that drugs controlled under the Misuse of Drugs Act 1971, and their supply, present such harms that possessing them under any circumstances must be subject to a commensurately strict regime.137
No other witnesses we heard from supported this perspective.138 When we heard from the Home Office minister responsible for drugs policy, Kit Malthouse MP, he did not argue that criminalisation is needed “to send a clear message”, and he distanced himself from arguments based on “the so-called war on drugs”.139
54.Dr McKeganey also argued that the potential effectiveness of the criminal justice approach has not had the opportunity to be proven, because there has not been any systematic, well-coordinated, and long-term anti-drug campaigns or programmes within Scottish schools; “We have not had a national campaign focused on reducing the incidence and prevalence of drug usage. We have not had it in the media. I think that our school programmes are ad hoc”.140 However, Dr McPhee challenged this, and argued that anti-drug campaigning which tries to “instil fear in young people to act as an inoculation against” drug consumption, is prevalent in the mainstream print and online media.141 Dr McPhee argued that such “insidious and consistent” messaging is “sensationalist” in how it “demonise[s]” people who use drugs, and that it is “ineffective” in addressing problem drug use.142 This point was echoed by Vicki Craik, Crew 2000, who highlighted that a Scottish Government evaluation of the “Just Say No Approach” found it to be counterproductive in reducing drug use and drug harm within young people.143
Public health approach
55.Throughout our inquiry we heard that problem drug use is a complex health disorder. This case was made powerfully by individuals with lived experience; as one woman, whose daughter was recovering from problem drug use, told us:
My daughter did not say at five, “I’m going to be a heroin addict when I grow up”—she wanted to be a school teacher, not a heroin addict. She is ill. She is really, really ill. It is evidence-based that it is an illness. It is a disease of the brain, addiction. How are you a criminal, if you are ill? If you had cancer, you would not get sent to jail for having cancer, but you will get sent to jail because you are an addict—because you are very ill and you need treatment.144
Most witnesses echoed this and argued that Government should therefore treat problem drug use as a health issue. For example, Scottish Families Affected by Alcohol and Drugs argued that “drug use is a public health issue, and our response should reflect this”.145 This view is shared, not just by third-sector organisations, but also by public bodies at the forefront of health service delivery. For example, the Alcohol and Drug Partnerships for Dundee, Glasgow City, Angus, and Perth & Kinross all called for problem drug use to be treated as a public health priority, rather than a criminal justice one.146 This was also the view of NHS Health Scotland, who argued that the public health approach results in “the best possible health outcomes”.147
56.The evidence we heard was overwhelmingly supportive of the public health approach. Witnesses argued that because the public health approach is based on the systematic collection of data to inform policy and practice, rather than ideology, the result is “better outcomes”.148 Our evidence suggests that the public health approach is proven to reduce harm to the most vulnerable people (by reducing stigma and marginalisation) and thereby also delivers benefits to the wider community.149 For example, NHS Shetland told us that “a more health-based focus reduce[s] stigma and promote[s] inclusiveness of this vulnerable sector of society”.150
57.This view was shared by other police representatives, including Chief Inspector Jason Kew, Thames Valley Police, who claimed that amongst the UK’s police officers, “there is a general appetite for a health-based approach to simple possession”.151 It was for similar reasons that Assistant Chief Constable Johnson, Police Scotland, argued that the Scottish Government’s move in 2016 away from criminal justice, towards public health is therefore “a huge bonus”.152 Some witnesses argued that the UK Government should follow suit, and should transfer responsibility for drugs policy from the Home Office to the Department for Health and Social Care. Campaign group Transform argued that doing so would “help ensure the UK has a joined up, health-led approach”.153 Professor Alex Stevens, University of Kent, also supported this proposal, and argued that the Department for Health and Social Care has a greater “institutional commitment to the use of evidence and spending money wisely on the basis of evidence than does the Home Office”, which would result in “a more evidence-based approach to drug policy”.154
58.Transferring primary responsibility to the Department of Health and Social Care was also recommended by the Health and Social Care Committee, in its recent report on drugs policy.155 The Committee argued that transferring responsibility “would not only benefit those who are using drugs, but reduce harm to and the costs for their wider communities”.156 In oral evidence to us, the Home Office appeared open to this suggestion. Kit Malthouse MP, Minister for Crime, Police and Fire, told us that the Home Office is responsible for drugs for “historical” reasons, and agreed that “health [definitely] needs to be as much in the lead as enforcement on drugs”.157 The minister highlighted that departmental responsibility is a matter for the Prime Minister, but that he would “digest” the suggestion.158
59.Some witnesses argued that criminal justice and public health approaches are not necessarily mutually exclusive, and that there are ways they could be combined, such as using the criminal justice system to mandate specific health interventions.159 Drug Treatment and Testing Orders (DTTOs), drug courts, and recorded police warnings were raised as examples of criminal justice interventions which can be used as an opportunity to identify substance use, and provide rapid access to monitored treatment programmes designed to reduce the risk of further offending and harm. Dave Liddell, Scottish Drugs Forum, argued that DTTOs had “proved successful” at getting offenders into treatment and care services.160
60.The Home Office told us that the criminal justice and health related responses to problem drug use are not “binary” options, and that “health, crime and drugs are inextricably intertwined”.161 The minister argued that their current policy of criminalisation seeks to address “all three of those strands at the same time”.162 Mr Malthouse added that the “threat of a criminal justice sanction hanging over them [people who use drugs]” is necessary to try and “push them towards treatment and diversion”.163 The minister used de facto decriminalisation diversion schemes, such as the one in operation in Durham, as an example of this (explored further in chapter 5). He also pointed to the current HOPE (Hawaii’s Opportunity Probation with Enforcement) programme in Hawaii, which operates on a similar basis. However, this argument does not provide a defence of criminalisation of drugs in areas of the UK where diversion schemes are not in place.
61.The criminal justice approach to people with problem drug use has failed. Problem drug use is a health issue, and it should be treated as such by the UK Government. The Government must revise its strategy for addressing problem drug use in line with a public health approach. We support the call from the Health and Social Care Committee for the UK Government to transfer lead responsibility for drugs policy from the Home Office to the Department for Health and Social Care. This would demonstrate its commitment to a health-focused approach to drugs.
Evidence-based policy
62.Some witnesses emphasised that the Home Office has accepted the evidence that its current criminal justice approach does not work. For example, a 2014 report from the Home Office acknowledges that there is “no obvious relationship between the toughness of a country’s enforcement against drug possession, and levels of drug use in that country”.164 The Advisory Council on the Misuse of Drugs—the statutory body responsible for advising the UK Government on drugs policy—has repeatedly recommended, policy changes in line with a public health approach.165 Martin Powell, Transform, argued the issue is “not that they do not accept the evidence, it is that they stick with some of these old ideological ideas about sending messages”.166 This dynamic has been evident in recent months in the comments of the previous Home Secretary. Sajid Javid MP said that his exposure to illicit substances during his childhood has “put [him] off drugs” and that because of this he was very hesitant” to look at policies he felt would “increase drug usage”, despite clear evidence that other approaches might be effective.167
63.Professor Alex Stevens, a former member of the Advisory Council (giving evidence in an academic capacity, rather than on behalf of the Council) argued that, even though the Home Office accepts the evidence against criminalisation, it is disregarded in favour of “rhetorical commitments to toughness”.168 Professor Stevens said that whenever the Advisory Council on the Misuse of Drugs recommends that drugs laws are tightened, the Home Office accepts this recommendation while, whenever the Council recommends that drug laws are liberalised, the recommendation is rejected.169 The Home Office disputed this characterisation, and argued that there are a number of examples of the Government accepting the ACMD’s recommendations (for example, on heat-proof foil and psychoactive substances).170 Mr Malthouse MP also highlighted that the ACMD’s ultimate role is to advise the Committee, and that the final decision always lies with the minister.171
64.The adoption of a public health approach must reflect the UK Government taking an evidence-based approach to drugs policy. The Home Office must commit to implementing an evidence-based approach to drugs policy. This includes the Government giving full weight to all reports and recommendations from the ACMD. Where the UK Government chooses to go against expert advice from the ACMD, the Government must publicly outline its reasons for doing so and set out its evidence base.
The Misuse of Drugs Act 1971
65.The Misuse of Drugs Act 1971 is the main piece of legislation which regulates the production, supply and possession of controlled drugs in the UK, and underpins successive UK Governments’ criminal justice approach to drugs.172 Controlled drugs are categorised into three classes—A, B and C—with correspondingly severe criminal penalties for possession offences. Throughout our inquiry, many witnesses argued that the Act is incompatible with a public health approach, and that it is “long overdue for review and renewal”.173 For example, Dr McAuley told us the Act’s system of classification “is not based on any evidence related to harms”.174 In other words, the criminal penalties associated with each class of drugs do not necessarily match with the harm caused by their consumption. We heard that some changes in classification recommended by the ACMD, to make the classifications reflect the harm caused, have been ignored by the UK Government. For example, Professor Stevens noted that:
The ACMD has recommended that cannabis should be in class C; it is currently in class B. The ACMD has recommended that ecstasy […] should be in class B. It is currently in class A. I also raise the recommendation of the ACMD that khat should not have been controlled under the Misuse of Drugs Act, but it [is].175
66.We also heard that the Act is constraining the Scottish Government’s ability to take a public health approach to drugs. Glasgow City Alcohol and Drug Partnership told us that due to the Act:
Key required levers to enable the full implementation of a public health-based drug strategy are not available to Scottish and local government. This has inevitably hampered the development of an appropriate local response to identified public health needs in Scotland and in Glasgow.176
Other witnesses told us that there are specific public health interventions which the Scottish Government has not been able to implement—most notable is the introduction of a safe consumption facility in Glasgow, which we discuss in more detail in the following chapter. The Scottish Government minister for Public Health, Sport and Wellbeing, Joe Fitzpatrick MSP, argued that, in this respect, “I am fighting with one hand tied behind my back”.177
67.For these reasons, Professor Matheson, Dr McPhee, Dr McAuley, Dr Tweed, amongst many others, supported a review of the Misuse of Drugs Act 1971, to bring it in line with a public health approach.178 Other organisations—including Transform, Release, and NHS Health Scotland—argued that if the UK Government is unwilling to implement a public health approach across the whole of the UK, then drugs laws should be devolved to Scotland to enable the Scottish Government to implement the specific public health interventions it wants. Dr Tweed said that devolution—and its potential to “respond to local needs”—could be a way to address the specific patterns of problem drug use in Scotland.179 This was also the view of the Scottish Government, who told us that devolving drugs laws to the Scottish Parliament would be the best way of ensuring “a more joined-up approach in the interface between the health and social care systems and the justice systems, which are already devolved”.180
68.We have heard that the Misuse of Drugs Act 1971 is outdated, its classification system is arbitrary, and that it is fundamentally incompatible with a public health approach. If the UK Government is to implement a public health approach as we have called for then the Misuse of Drugs Act must be substantially reformed.
Drug-related health services in Scotland
69.Although reserved drug legislation does put some limitations on the Scottish Government, health is a devolved matter, and the Scottish Government has full responsibility for the provision of drug treatment and health services in Scotland. Witnesses raised concerns about the levels of funding for drug-related services in Scotland. We heard that drug treatment services in Scotland have been cut by almost a quarter over the past few years, during a time when HIV and homeless prevalence has increased.181 In 2016–2017 the Scottish Government reduced the budget for Alcohol and Drug Partnerships across Scotland by £15.3 million.182 Dr Emily Tweed highlighted that such funding cuts result in the withdrawal of services, reduced provision, under-staffing or under-skilled staffing, and lack of continuity in relationships for clients.183 Norma Howarth, Signpost Recovery, told us that is has therefore become “incredibly difficult” to continue providing their drug-related services in the face of such budget cuts.184 Dr Budd similarly argued that budget cuts have caused “huge delays in getting people into life-saving opiate substitute treatment [OST]” in Scotland.185 In some cases, it can take up to three months to get someone onto OST, which is resulting in “huge morbidity and mortality”.186 The Scottish Government have since reinstated the reduced funding (and has guaranteed it until 2021), and has announced an additional £20m over the next two years.187
70.We also heard multiple proposals for how the Scottish Government could do more within its existing powers to improve the provision of drug-related health services. Campaign group Transform told us that there is more the Scottish Government could do to expedite the scaling up of the availability of Heroin Assisted Treatment in Scotland.188 Dave Liddell, Scottish Drugs Forum, echoed these calls, and added that more could also be done in relation to the availability of drug-checking services, and recorded police warnings (addressed more fully in chapter 5).189 He also suggested that the methadone dosages currently used may be sub-optimal in some parts of Scotland, and that this could be addressed without any further change in powers.190 Mr Liddell also argued that more could be done to improve the “very poor retention rates” amongst people in treatment who are recovering from drug use.191 We also heard calls from people with lived experience of problem drug use for better funded addiction treatment services in Scotland, more support and funding for recovery communities and family support provisions.192 For example, one person with lived experience told us that “family support services and counselling [should be more] easily available and visible”.193 This point was also made by the Home Office minister responsible for drugs—Kit Malthouse MP—who argued that the Scottish Government “should, and could, invest more” in recovery and treatment.194 The minister added that the UK Government “might […] think about” other interventions such as safe consumption facilities, only “if and when Scotland […] can honestly say that [it is] investing all [it] can in treatment”.195
71.Throughout this inquiry we heard that there is more the Scottish Government could, and should, be doing to address problem drug use with the powers it already has, in areas such as mental health, housing, education, community regeneration, policing and justice. We were particularly concerned to hear of the impact that funding cuts, including previous cuts to alcohol and drug partnerships in the 2016/17 Scottish Government budget, have had on health services for people who use drugs. While it is not for us to make recommendations to the Scottish Government, we believe that if it wants to call for greater powers to tackle the drugs crisis it must demonstrate that it is doing everything it can within its existing responsibilities, including properly funding health services.
111 Nora D. Volkow, Valdimir Poznyak, Shekhar Saxena, Gilberto Gerra, and UNODC-WHO Informal International Scientific Network, Drug use disorders: impact of a public health rather than a criminal justice approach, World Psychiatry, 2017 June, 16(2), pp. 213–214
112 Nora D. Volkow, Valdimir Poznyak, Shekhar Saxena, Gilberto Gerra, and UNODC-WHO Informal International Scientific Network, Drug use disorders: impact of a public health rather than a criminal justice approach, World Psychiatry, 2017 June, 16(2), pp. 213–214
120 Summary of Scottish Affairs Committee’s Problem Drug Use in Scotland public engagement event, June 2019; Summary of Scottish Affairs Committee’s Problem Drug Use in Scotland public engagement event, May 2019
128 Summary of Scottish Affairs Committee’s Problem Drug Use in Scotland public engagement event, June 2019; Summary of Scottish Affairs Committee’s Problem Drug Use in Scotland public engagement event, May 2019
137 Letter from the Home Office to Glasgow City Council, obtained by Committee team
146 Dundee ADP (UMD0011); Glasgow City Alcohol and Drug Partnership (UMD0016); Angus Alcohol & Drug Partnership AND Perth & Kinross Alcohol & Drug Partnership (UMD0010)
155 Health and Social Care Committee, Drugs Policy: First Report of Session 2019–20, HC 143
156 Health and Social Care Committee, Drugs Policy: First Report of Session 2019–20, HC 143
164 Home Office, Drugs: International Comparators, October 2014
165 ACMD (2016) Reducing Opioid-Related Deaths in the UK, London: Home Office
167 The Scotsman, Sajid Javid opposes drug consumption rooms because of childhood experience, 17 June 2019
172 House of Commons Library, Drugs policy, October 2018
182 Scottish Drugs Forum, ADP Funding Timeline
187 Scottish Government, Protecting Scotland’s Future: the Government’s Programme for Scotland 2019–2020
Published: 4 November 2019