HSE and Gardaí may have different perspectives on drug testing, but the common aim is to reduce harm
Crowds enjoy a previous Electric Picnic in Stradbally.
There has been much comment and confusion after the HSE announced it was to pilot drug testing at Electric Picnic.
When the broke the news in August, most people seemed to welcome the development.
But others expressed doubt, given the limited scope of the testing and fears that gardaí would be hanging around medical tents looking to arrest people.
The published an interview last Monday with the lead Garda officer on drug policy.
Detective Superintendent Sé McCormack said An Garda Síochána supported the HSE health-led initiative but stressed that there was “no amnesty” for possessing drugs and that the legal position had not changed.
He added that gardaí did not intend to conduct surveillance on medical tents and would not be watching who would be going in or out of them.
The comments sparked considerable reaction online, with many people saying it reinforced their suspicions that gardaí would be arresting people going to the tents to seek medical help and with the intention of handing over a substance that they were going to take or a substance like the one they had taken.
There were claims that gardaí were effectively undermining the project before it got off the ground.
It needs to be borne in mind that the relevant parties in this — primarily the HSE (and the Department of Health) and the gardaí (and the Department of Justice) have different perspectives, based on their statutory functions and duties.
But testing is part of Government policy.
Actions in the National Drugs Strategy 2017-2015, published in the autumn of 2017, included one to "strengthen Ireland’s drug monitoring system".
The Programme for Government, published in June 2020, said one action was: “increase and support drug-quality testing services, particularly at festivals”.
In between, the HSE had been working on proposals for “back of house” testing for a couple of years.
Leading the drive has been long-standing drug expert in the HSE, consultant psychiatrist Eamon Keenan, head of the addiction service, and Nicki Killeen, the HSE’s Emerging Drug Trends project manager.
"Back of house" refers to either or both of the following: users in medical tents disposing of substances into an “amnesty bin” (the traditional description of the bin, but more on this anon) or substances seized by police.
The harm reduction purpose is to test the substances — typically tablets or powders — for “potency and contamination”.
Scientists examine if unanticipated, and possibly more dangerous, chemicals are in the substance, different to what they were sold as, or if the substance contains what was expected, but of much higher purity.
These trends have been repeatedly found in British festivals by drug checking services.
If HSE scientists identity either or both trends, they will send out information and alerts in “real time”, rather than months and months later, which has been traditionally the case in Ireland.
The first of two proposals from the HSE to gardaí in 2019 was turned down, while a decision on the second one did not come in time, with gardaí telling the at the time their legal officers were still examining it.
The HSE set up an expert group on the issue, which reported in September 2019. This recommended piloting "back of house" testing at a festival.
It said both Department of Justice and An Garda Síochána support was “required”.
It added: “Should the pilot evaluation of a ‘back of house’ system prove positive, a comprehensive ‘front of house’ approach should be considered.”
Front of house is where users or potential users can approach the drug testing service, hand over the substance and find out what is in it, and go on their way, usually after a one-to-one conversation.
In relation to the back of house proposal, the HSE has had to convince the various parts and levels of An Garda Síochána to agree.
Referring to this issue, Det Supt McCormack said in his interview: “It's about making sure that we know what we're involved in, because there are always different agendas and always different considerations. So, we're looking at it from criminal justice consideration. How can we do this without breaching the law?”
This was part of the reason why gardaí went public, as the word “amnesty bin” was used in media coverage, based on the traditional description that had been used, including in the 2019 report.
Det Supt McCormack stated: “Some agencies have been using the word ‘amnesty’. This is not an amnesty bin. There is no amnesty bin. They are surrender bins.”
This was to make clear to festival goers that there was no exemption to the law, including in cases where people might tell gardaí they are going to the medical tent to hand over their drugs.
“There is no defence ‘I’m on my way to the tent’,” he said.
He was essentially reiterating what the law was and is.
However, those in the wider public are trying to make sense of the HSE, on the one hand, wanting people to surrender their drugs for testing, but the gardaí, on the other hand, saying that anyone carrying drugs, including to the tent, could be arrested.
It is understandable some are perplexed and annoyed, but this is the legal position.
The Government has not, yet at any rate, implemented a change to the laws on possession and gardaí are obliged to enforce the law as it stands.
But taking the statements as issued, and reading between the lines, gardaí will not be near medical tents checking people out or arresting them. It is difficult to imagine any garda stopping people clearly suffering medical or psychiatric distress from getting medical help as quickly as possible.
Gardaí have said they will not be inside these tents — unless the medics request their presence, such as in a public order incident or if someone wants to make a complaint about a crime committed against them.
However, gardaí are saying, understandably from their point of view, that a carte blanche cannot be given to people who simply state they were heading for the medical tent to hand up drugs if they are stopped and searched.
Now, grey areas and hard cases could come up. It is possible someone who is behaving irrationally or aggressively to a garda, but who is heading to the medical tent or is being brought there by a friend, could end up being searched. There will be operational policing issues on the ground.
The medics in the tent and the scientists in the security area, where the bins are brought to, have legal licences from the Health Products Regulatory Authority to possess the drugs.
The HSE is clear there is no way anyone, namely a garda, can link a person to a substance surrendered into a bin, so there is no way they can be prosecuted.
HSE officials do not want anything that will put off people who need medical help from seeking it, so there is room for tension in this area.
However, the HSE says it is very happy with the input from gardaí and there appears to be a good relationship between Dr Keenan and Ms Killeen with Det Supt McCormack.
The HSE does not know how many people will use the surrender bins, neither do the gardaí.
But amid all the confusion and concern, it should be remembered that this is a first. It is a landmark first step. And more steps are likely to follow.
The HSE is determined it wants to copy this pilot at other festivals, and, perhaps, even in nightclubs.
Down the road, as recommended by the 2019 report, it would like to extend it to ‘front of house’ testing.
That will be a whole different ball game from a legal perspective.
But, as we can already see, legal clarity is crucial, no matter what the agenda or perspective.
And, at the end of the day, the common objective of all concerned is to reduce harm.
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