Heightened sense A critical view of drug laws in the UK and worldwide

A spanner in the works: the limits on intervention

Like it too rough and you could go to prison. Credit: Oliver Gruener

People are not usually forcibly prevented from harming themselves, and drug use is the exception rather than the rule

As a follow-up to last week's post equating the present treatment of drug users with the historic treatment of gays, it's worth noting that unorthodox sex helped to define the boundaries of where one can consent to harm as recently as 1987.

It began with the investigation of a murder that never happened.

Greater Manchester Police launched Operation Spanner after coming into the possession of some pornography depicting gay BDSM activity. GMP's Gene Hunts, unable to determine what was actually going on, believed someone was being tortured and killed.

Finding everybody involved alive and well, the police and CPS decided to charge everybody anyway, initiating prosecutions for actual bodily harm.

The defence that the activities were all consensual, therefore no assault could have been committed, was rejected by the aptly named Judge Rant. After deciding to plead guilty, 16 defendants were given sentences ranging from fines to four and a half years in jail.

An appeal to the House of Lords in 1993 and to the European Court of Human Rights in 1997 both failed. In the former, the court cited the opinion of an 1882 case rejecting a defence of consent for bareknuckle boxing, with Lord Templeman adding that:

"In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty."

Piercings or tattoos are fine, as the principal purpose is ornamental and the infliction of pain incidental. Standard boxing is okay too, since it's a regulated sport. Bareknuckle fighting and consensual sadomasochism are not – especially if the latter is homosexual, given that a few comparable cases involving straight sex have been determined to be perfectly legal. That old prejudice again.

So the established limits in which the state is allowed to interfere with someone's private life in order to stop them from harming themselves, or even from risking harming themselves, is in specific circumstances where the "self"-harm is actually being done by someone else. Or, of course, in cases of mental illness.

It's generally accepted that the "harm principle", by which authority may intervene with someone's liberty only to prevent harm to third parties and not to protect him from himself, applies only to those of sound mind.

Setting out the principle in On Liberty, JS Mill spoke of members of a "civilised community", language perhaps appropriate to his Victorian readers but less so today, when we are more likely to think of children and anyone otherwise incapable of making rational decisions, such as those suffering from certain mental illnesses.

But there is a paradox here. Consider the penalties. In the UK, someone who is mentally ill and deemed to be a risk to himself or others can be detained for involuntary treatment – if appropriate treatment is available. The period for which they may be detained is six months for the first two courses of treatment, or a year for subsequent ones.

Now, certain prohibitionists like to make much – too much – of the possible impact of cannabis on mental health. This, they say, is sufficient cause to ban the drug and punish its users "for their own good". Since it has been moved back up to class B, against expert advice, the maximum penalty for personal possession is five years' imprisonment.

The difference in penalty is staggering, and reveals the extent of prejudice against drug use. If one already has poor mental health and is a risk to oneself or others, maximum detention is only for a year, and as a patient. If one merely increases the risk of developing schizophrenia by 40% or so, it can result in detention for five years as a criminal. Punishment simply for risking one's own mental health is more severe than the restrictions on someone already suffering from a mental illness and at serious risk of doing harm to himself or others.

Serious addiction might arguably be considered a mental illness. Moderate and recreational use is not.

Other than cases of notifiable disease, where intervention is justified on the grounds of protecting others, these are the only circumstances under which an adult patient may be treated against his wishes. Even direct and deliberate acts of self-harm, such as cutting, cannot be forcibly prevented if determined not to result from mental illness. Otherwise, forcing treatment upon someone is considered to be an assault – even if they'll die without it.

Jehovah's Witnesses provide a useful, if obvious, example. Their faith requires them to refuse blood transfusions even if needed to save their life. Last year in the UK, a 15-year-old boy died after refusing a transfusion needed to treat injuries sustained in a car accident.

We may beg, plead and cajole them to receive treatment – but not compel.

Forcing someone to undergo a medical procedure and forbidding them from actively undertaking risky behaviour are both intrusive. The differences between compulsion to act and prohibition from acting are slight. Just as forced treatment is an assault, unjustified and exceptional restrictions on action ought to be considered wrongful imprisonment – bars and chains don't have to be made of steel to be just as real.

Instances where the risk of harm comes from the use of certain drugs are just about the only situation in which adults of sound mind are prevented from doing harm entirely to themselves.

Ultimately, however much prohibitionists might like to claim that their stance is based on evidence, there's no escaping that in reality it comes from prejudice – from finding drug use distasteful. It couldn't credibly be anything else, since forbidding drug use outright is an exception to the limits on intervention against self-harm rather than being the rule.

Most actions or pastimes that put one at risk are culturally accepted, and therefore legally permissible. Bareknuckle boxing, sadomasochistic (particularly gay) sex and drug use are taboo, and it is because of this, not any highminded notion of saving people from themselves, that they are prohibited. To pretend otherwise is a lie.

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This post was edited at 1545 on 23 April. The 13th paragraph originally read "certain prohibitions" rather than "prohibitionists". This has now been corrected.