Chapter 9: Drug classification system

Background

There are significant differences in the potential for harm caused by the use and availability of different drugs. New Zealand uses a three-tiered ABC classification system to distinguish and represent those different harms. The current system is used to decide whether or not a particular substance should be prohibited, and if so what class the substance sits in. This in turn determines the penalties that apply to their misuse – which could be drug use, possession, manufacture, supply or trafficking.

The Misuse of Drugs Act has been amended several times since 1975. These have altered the process by which drugs are classified within the ABC system.

In this chapter the Law Commission highlight some recently conducted analysis on the ABC classification system. This overview adds to recent criticism of the process by which drugs are classified. Historic classifications, particularly, are a sticking point. This is made more complex by the opinion that drug classification matters little in the deterrence effect; that the definition of harm is ambiguous, creating confusion in classification decisions; that the process is hindered and over-influenced by political pressures; and that scientific evidence and knowledge does not lead the debate in classification decisions.   

Key questions to consider

Should the ABC classification system be retained? If so, are changes to it required?

The Drug Foundation agrees with the Law Commission that the current classification system remain. However, a review of the present classifications is required to ensure they are in-line with current evidence.

The Law Commission presents several options for reform of the current classification system, these include Option 1: a single maximum penalty for all drugs; Option 2: a two-tier classification system; and Option 3: retaining the current three-tier ABC classification system. While criticism surrounds the current system, it nonetheless appears most appropriate for New Zealand. One advantage is that it separates more accurately, than does a single or two-tier system, the different harms caused by different drugs. Furthermore it provides clearer signals as to the level of penalty associated to certain types of offending involving particular drug types.

If the current system was to be retained, the Law Commission suggests that (1) regular reviews are conducted to ensure decisions are in line with developing scientific knowledge and changes in the drug scene. (2) Before new legislation is passed, a full scale review of current classifications would also be necessary to ensure their appropriateness; as it is clear that some current classifications are inconsistent with what is now known about drug harms. Furthermore, it would be desirable that (3) monitoring and evaluation be regularly conducted to assess the effects of classification decisions, and any changes that are made to them.

The Drug Foundation considers the Law Commission’s suggestions specific to Option 3 appropriate and supports those views.

If classifications are retained, are any changes required to the way in which classification decisions are made? If so, what?

The Drug Foundation agrees with the Law Commission that changes are required to the way in which drug classification decisions are made. This includes, for instance, using a rational scale of drug harm in such decisions.

Retaining a drug classification system, as would be the case for Option 3, would require a re-consideration of the classification criteria and better defining ‘harm’. The assessment of ‘harm’ (associated to a drug) is vital to informing decisions on drug regulation and penalties. It is therefore necessary to consider how to assess the nature and severity of drug harm.

In this chapter the Law Commission outline several proposals for better defining drug harms. While there are some differences in opinion between these proposals, most agree that a set of defined factors should be taken into account – these include physical harms, dependence potential and social harms. The Drug Foundation agree that changes should be made to the current classification process and generally support the use of a rational scale of drug harm in that process.

Do you agree that there should be separate criteria for the decision to regulate a drug and the decision to classify a drug in order to determine penalty?

The Drug Foundation agrees with the Law Commission that there should be separate criteria for determining regulations and for setting penalties.

The Law Commission also considers there are problems with the current approach to classification and determining penalties. Currently the same factors taken into account to determine if a drug should be prohibited are also those which decide the maximum penalties for drug related offences. The Law Commission argues these are very different decisions which depend upon quite different considerations. Importantly, a single list of factors for both decisions currently means that a number of factors have no relevance to penalties for drug offences. They argue that the factors considered need to be different, primarily because the culpability (a person’s blameworthiness in a drug offence) of an offender should be based solely on the harm he or she causes - not for harm that is done by others.

Do you agree that drug classifications should be made by primary legislation rather than by Order in Council?  If so, should there be a requirement for the Minister to table an expert report on drug harms when legislation is introduced?

The Drug Foundation recommends that Orders in Council are abolished, and that classifications should be made by primary legislation. The Minister should still be required to table an expert report on drug harms during classification.

If the Order in Council process is retained, should it be available for reducing classifications as well as increasing them?

Due to the perceived danger of new drugs, changing drug trends and the expansion of the illegal drug market, a speedy classification process was implemented within the Act. Drugs are now formally classified within law using an Order in Council (an affirmative resolution procedure); a procedure the Law Commission state as perhaps having overstated importance.

The Law Commission state this because the majority of Orders have not made classification changes to new drugs; rather they have re-classified existing controlled drugs. There are also suggestions that Orders are no more expeditious than urgent legislation – this is most evident with the classification of ephedrine and pseudoephedrine taking over ten months, and an Order to classify ketamine having lapsed. 

A particular concern is that a drug’s classification determines whether an offence is committed. The Law Commission rightly note that decisions of this magnitude require full parliamentary scrutiny, which an affirmative resolution process does not permit. Furthermore, that procedure is available only to create new offences and increase penalties but not to reduce them. The only advantage appears that the Minister is required to take into account evidence by expert opinion before promoting an Order.

The Drug Foundation agrees with the Law Commission’s view that the Order in Council process has unacceptable risks, and that drug classification decisions require full parliamentary scrutiny. Furthermore, if the affirmative resolution process was abolished, the Minister should still be required to present advice from the Expert Advisory Committee on Drugs (EACD) to Parliament during formal classification proceedings.

Do you agree that there is a need for an expert committee to advise on drug regulation and drug classification (if a classification system is retained)?

The Drug Foundation recommends that an expert committee remain to advise on drug regulation and drug classification. There is a need for such expertise in classification decisions.

The Act requires the EACD to advise the Minister when making drug classification decisions. The existence of a statutory committee of experts like the EACD ensures that expert evidence about the nature and severity of drug harms is at least considered when making classification decisions. The Law Commission highlights four issues for consideration. These include (1) whether the Committee should be independent; (2) whether the expert committee should retain consumer representation; (3) whether the current composition of the Committee has the necessary expertise; and (4) the Committee’s optimal size.

The Drug Foundation supports the Law Commission’s recommendations on the EACD committee. These are as follows: 

Should the committee be independent?

There are strong arguments both for and against committee independence. The Commission consider an independent committee the better option, with the chair not being a Government official, and the committee holding statutory independence. Furthermore, the evidence upon which recommendations are based should be publicly available.

Should it have consumer representation?

The argument for having a consumer’s voice on the committee is to ensure that decisions on drug policy remain well informed. While a consumer may lack the specific expertise of other Committee members, they are more likely to provide insight on areas were evidence is currently lacking – such as impacts on social situations, drug trends and availability.

The Drug Foundation believes such a role would require being well resourced. In addition, the individual should have the capacity to keep abreast of relevant trends and knowledge, be active in membership or association with the wider consumer health networks, and have the capacity to interact in viable working relationships with the other Committee members.

What expertise is required?

The Law Commission consider that expertise in pharmacology, toxicology, drug and alcohol and drug treatment and community medicine remain in the Committee; and consider that the addition of neuroscience, emergency medicine, psychiatry and expertise in drug policy, research and evaluation would add value. Expertise in drug policy would also contribute information on the approach of other jurisdictions, alternative regulatory approaches and the evidence of their effectiveness.

What is the Committee’s optimal size?

The Committee’s optimal size must account for appropriate expertise without becoming unduly large and cumbersome. The Law Commission recommends eight people who between them have the appropriate expertise as captured in the description above.

The Drug Foundation believes that the expanded Committee would require being well resourced. In addition, it would need to be supported by a professional secretariat, capable of reviewing and presenting preliminary data on specific classifications, while also keeping abreast of any developments (locally and internationally), and able to maintain credible links to all relevant stakeholders.

The Law Commission also notes that there is scope to expand that role to include an advisory capacity over drug education and treatment. This is much the same role undertaken by the UK’s Advisory Council on the Misuse of Drugs (ACMD), who advise ministers on measures for preventing or dealing with drug misuse.