UK: Is There A Case For The Right To Medicinal Cannabis

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As the government reexamines its drug policy, we take a closer look at whether there’s a right to medical cannabis.

The government is reconsidering its policy on medical cannabis after cannabis oil for a young boy with severe epilepsy was confiscated at Heathrow airport. Charlotte Caldwell said that her son, 12-year-old Billy Caldwell, was prescribed the oil by a Northern Irish doctor after other anti-epilepsy medication lead to serious side-effects. She also claimed that doctors in both Northern Ireland and Canada had advised that her son’s condition is life-threatening.

Home Secretary Sajid Javid has since intervened and returned the medication to the Caldwell family. The incident has sparked a debate about the future of medical cannabis in the UK. As the government reviews its position, we look at the case for a right to medical cannabis.

The Government Position

After returning the cannabis oil to the Caldwell family, Sajid Javid has announced a government review of medicinal drug policies. Concerns about the government’s current position were echoed by Health Secretary Jeremy Hunt, who called for the free availability of cannabis oil by the NHS.

However, the government’s position is generally more tentative and only looks at medicinal uses for drugs based on the chemicals in cannabis – rather than the unprocessed cannabis plant. This follows the model of ‘Sativex,’ a drug licensed for use to relieve symptoms of multiple sclerosis, which is based on cannabis.

Typically, human rights approaches to drug legalization focus on the benefit to victims of the drug trade. This perspective focuses on the advantages which potentially stem from legalizing, and therefore regulating, drug production and supply. However, the situation is slightly different in cases of purely medicinal drug taking. So, can we really say there is a human right to access medicinal cannabis?

The Right to Medical Care

In the UK, cannabis is classed as a schedule one drug, meaning it is taken to have no viable medicinal value. This is in contrast to the legal status of cannabis in other countries. 23 US states have legalized cannabis for medical purposes and Canada is set to become the first G7 state to legalize it completely. Despite its current classification in the UK, there is no inherent barrier to legalizing medicine based on the chemicals in cannabis – as we can see with Sativex.

Both the World Health Organization and the Universal Declaration of Human Rights recognize a basic right to health and subsistence. These provisions alone are not enough to produce a specific right to medicine based on cannabis. However, there have been increasing calls on the government to recognize the medical benefits of cannabis. It’s possible that the upcoming drugs policy review will offer a concession to this position.

International law also recognizes the need for a ‘progressive realization’ of health goals. This means that more rights should be introduced as a country’s political and economic situation moves forward. The UK is a signatory to the International Covenant on Economic, Social and Cultural Rights which promotes this goal. Under this principle, it may be the case that the UK should look harder at the potential benefits of cannabis-based medicines to meet the needs of patients.

While there are a set of directly enforceable rights under the Human Rights Act 1998, which the NHS (as a public authority) is bound by, these are mainly concerned with protecting against abuses, and promoting equality. These provisions don’t necessarily address the more political and complex decisions about which drugs should be available.

Ultimately, it may be that ‘progressive realization’ leads to increased medical provision for previously banned drugs. It seems that any claim based on human rights would only apply if medicine for a particular illness is not available (or is significantly more expensive) than one based in cannabis.

However, the government shows no sign of contemplating non-medical legalization and the rights issues surrounding cannabis remain as divisive as ever.