The Psychoactive Substances Act 2016

The Act, which came into force at the end of May, bans the production and supply of substances known as ‘legal highs’. These are substances that produce similar effects to those of illegal drugs but whose consumption is not actually against the law.

Hitherto, the substances were marketed as ‘legal’, hence their widely known name, and have been sold openly in shops or online.

Now, under the Act, anyone

• supplying,

• offering to supply or

• possessing with an intent to supply

such a substance will be committing a criminal offence. However, simple possession, where the person in question has no intention to supply anyone else with the substance, is not (generally) illegal.

What does the Act cover?

Any substance that is deemed to be psychoactive will be covered by the Act. A psychoactive substance is defined by the Act as:

“any substance which is capable of producing a psychoactive effect in a person who consumes it.”

As far as the Act is concerned,

“a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state.”

For the purposes of the Act “a person consumes a substance if the person causes or allows the substance, or fumes given off by the substance, to enter the person’s body in any way.”

The Act includes a number of exemptions. They are:

• medicinal products;

• controlled drugs;

• alcohol;

• caffeine, nicotine and tobacco products; and

• foodstuffs.

The Act is set up in such a way that items can be removed or added to the list. Therefore, it is important that employers monitor the status of the exemption list on a regular basis so that they are not caught out by changes in the law.

Enforcement and Sanctions

Police will be given powers by the Act to stop and search individuals, vehicles, vessels and aircraft and (with a warrant) enter any premises to seize substances and/or evidence.

If employers fail to take reasonable steps to prevent the supply of psychoactive substances taking place on their premises, civil sanctions can be taken against them – premises notices and premises orders. The measures set out in the notices and orders can range from requiring the employer to take all reasonable steps to prevent activities prohibited by the Act from taking place on their premises, to imposing a complete ‘access prohibition’ which could effectively close down their premises for a period of anything up to six months.

Breaching a premises order will constitute a criminal offence, punishable by two years in jail, an unlimited fine, or both.

What should employers do?

• Employers need to take steps to assess the risk of psychoactive substances being used in the workplace and put appropriate control measures into action.

• Steps should be taken to review all drug and alcohol policies to ensure that they cover psychoactive substances as well as other illegal drugs.

• Health and safety risk assessments, which may already include drug and alcohol should cover the use of psychoactive substances. If they don’t, they should be amended.

• Disciplinary policies should include a provision in the section on Gross Misconduct about the supply or attempted supply of psychoactive substances or being under the influence of them.

Communication

If employees don’t know about the company’s policy on drug and alcohol use at work, they could have a claim if they are subsequently disciplined for such use. The employer needs to establish an effective communication system so that all employees are aware of

• the policy,

• what it contains,

• what it requires employees to do and

• what will happen to anyone who breaches the policy.

Employees should be asked to sign any such policy to say that they have received and read it. This is important because in the event of disciplinary action, it will support the employer’s position to prove that they have made their employees aware of what the policy requires and as such, the employee wilfully broke company rules.

Employers should also put in place a system that will make it easy for employees to report drug use issues, either from themselves or others.

Education

Although the term ‘legal high’ is well-known, people are less familiar with the details about the substances and their effects. Induction training, refresher training and briefings to employees can make sure that everyone is informed about the ways that psychoactive substances can affect an employee’s ability to safely do their job, assistance programmes that have been put in place and how to access them, and how to report concerns about either the abuse of substances or the welfare of other members of staff.

Testing

Employers should make sure that employees are aware of the drug and alcohol testing arrangements that take place in the company. They should also make sure that any tests which are carried out will detect the presence of psychoactive substances. This may mean that the testing arrangements and methods have to be updated.

Employers should also bear in mind that drug testing requires the consent of the individual concerned. Employers should ensure that their policies mention that a refusal to submit for testing will lead to disciplinary action.

The testing process should also comply with The Employment Practices Data Protection Code – Information about Workers’ Health, published by the Information Commissioner’s Office.

Treatment

In the same way as with employees who are found to have abused drug and alcohol abuse, anyone who is found to be abusing psychoactive substances should be offered occupational health support and counselling. There is, however, no legal requirement to do so.

If all else fails…

If an employee needs to be dismissed, it is important that the reason for the dismissal is made clear by the employer. This could be gross misconduct for taking the substance against the provision of the disciplinary policy or impaired capability, thereby causing a possible danger to themselves or colleagues.