The issue of the use of cannabis for the treatment of certain medical conditions has developed an increasingly higher profile in the mainstream media in the last few years. In the UK, the widely reported case of Billy Caldwell, the then 12 year old with a severe form of epilepsy who suffers as many as 100 seizures a day, captured the country’s attention when six months’ worth of the medicinal cannabis his mother had sought to import from Canada had been seized by authorities as she arrived at Heathrow airport early in Summer 2018. The case, in which the then Home Secretary, Sajid Javid, ultimately allowed the child to receive the cannabis oil under the close scrutiny of his hospital, thrust the wider issue of the use of medical cannabis into the spotlight.
The position in the UK contrasts with the position in a growing number of countries around the world where the cultivation, testing and sale/export of cannabis-based products for medicinal purposes is already legal. The legal status of medicinal cannabis around the world varies from a relaxed, general decriminalisation of cannabis such as in Canada and the Netherlands, to much stricter regimes which allow only a limited range of products to be prescribed and used in limited circumstances, e.g., countries that have only de-restricted the use of a singular drug, like Sativex (France).
The issues and the UK story
The science relating to the beneficial effects of Cannabidiol (CBD) and Tetrahydrocannabinol (THC), which is the substance extracted from cannabis with the claimed medicinal qualities, is not yet settled. There are conflicting scientific views about the role CBD can play in the management of serious medical conditions like that endured by Billy Caldwell, or indeed the alleviating effect CBD can have on those suffering from chronic nausea and vomiting caused as a side effect of chemotherapy treatment of cancer. Anecdotally, the therapeutic qualities of CBD are enthusiastically, often forcefully extolled by its users as a life-altering treatment for conditions which are often life-altering themselves. The lack of settled science in this regard is a matter which has been a source of debate in the UK, as highlighted by the British Parliament.
In the ‘UK Government’s response to the Health and Social Care Select Committee’s report on Drugs Policy: Medicinal Cannabis’, published in September this year, the UK Government indicated that: “There is a clear consensus on the need for more clinical evidence. The National Institute for Health Research ((‘NIHR’) is supporting the industry to take action to produce evidence across these areas in a way that will inform decisions on the use of CBPMs (cannabis-based products for medicinal use) that are to be supported by public funding. The NIHR has issued two calls for research proposals on CBPM across the range of indications where the evidence is most developed. The National Institute for Health & Care ExNICE, in its draft guidelines, also recommend that the NIHR should support research in five priority research areas”. These research areas focus specifically on particular products and their use to treat symptoms of particular conditions. It includes a call for research in respect of the use of THC (tetrahydrocannabinol) as an add-on to the use of CBD, to understand the impact and consequences of the psychoactive component of cannabis as a treatment.
The full response can be found by clicking the link below:
The latest development in the UK, announced in November 2019, was the confirmation that two drugs, Epidyolex and Sativex, would be made available on the NHS. The former has been authorised for use only by children with two severe forms of epilepsy – Lennox Gastaut Syndrome and Dravet Syndrome. Sativex has been authorised to treat spasticity and muscle pain in multiple sclerosis sufferers but not for the general treatment of pain, a limitation on the de-restriction on the use of medicinal cannabis bemoaned by those hoping for a wider relaxation of laws relating to the drug.
The Gibraltar story
In Gibraltar, the debate originally centred around the drug by the name of Sativex, a mouth spray that contains both CBD and THC, which was authorised for use by the Gibraltar Health Authority in February 2017. This followed a growing call from activists in Gibraltar in the weeks preceding the move. The authorisation by the Government of Gibraltar took the form of Drugs (Misuse) (Amendment) Regulations 2017, published on 14 February 2017 The full text of the Regulations can be found here:
In July 2018, the Chief Minister of Gibraltar alluded to the fact that the Government was embarked in a process of consultation in relation to ‘the cultivation of cannabis plants which are engineered to have no narcotic qualities for a variety of legitimate uses’. He also confirmed that the matter of ‘exportation’ of these specific, non-narcotic cannabis plants had not been discarded – consideration was being given to the issue.
In June 2019, the Chief Minister explained in his budget address that: “The tried and tested [economic] model in Gibraltar has been to seek out opportunities, license and regulate to the best standards and invest in those sectors. The aim is always to position ourselves as a centre of excellence in these various fields. Applying this approach, I want to announce another opportunity which my Government will shortly be licensing. We are not first movers in this sector, which is already quite developed in a number of countries across the continent. Having reviewed the experience elsewhere, we will seek to adopt a bespoke licensing and regulatory regime to create a first-class ecosystem in this field. Many will have heard of the advances in medicinal cannabis and how medicinal cannabis in different forms is used to treat patients. We have made our own changes in Gibraltar to adapt medical laws in this respect. Indeed, we legislated last year for medicinal cannabis oil to be available on prescription to patients of the GHA. We have attracted interest from a number of very reputable investors to develop investments in Gibraltar in this new area. The proposals include the research, development and production of medicinal cannabis products in carefully monitored and regulated state of the art environmentally advanced facilities.”
He continued: “We have given very careful thought to how this sector and technology might be leveraged in Gibraltar, in particular how leading research and production talent can be attracted to Gibraltar, producing a new world-class ecosystem in a new sector. Controls and monitoring will be critically important to ensure that our good reputation is not threatened and is indeed positively enhanced. We will therefore be considering licensing a select, highly reputable and well-resourced licensees. The new sector will provide diversification that can be exported from Gibraltar. It will also provide high grade, affordable medicinal cannabis products to care for local patients. The new technology will bring jobs in cutting-edge medical research, product development and production. In certain cases, these new facilities will deliver synergies for existing infrastructural facilities with resulting environmental and operational efficiencies. This is the kind of innovation and opportunity we are keen to encourage. It also has the considerable advantage of being Brexit proof. In order to ensure the highest standards, we will establish an agency to deal with research, vetting of purchasers, levying of duty and ensuring quality of supply, meeting local and international standards and full transparency. Such an agency will facilitate trade with third parties, including government-to-government sales. The anticipated sales to European and/or other government agencies will establish our position within the sector and promote our good reputation and international links.”
The latest development in the medicinal cannabis context in Gibraltar
On 22 October 2019, the Gibraltar Government published the Drugs Misuse (Amendment) Regulations 2019, which now provide for the legal supply and possession of medical cannabis for use in strictly limited circumstances. The Regulations, in part, provide as follows:
“Registered medical practitioners working in the Gibraltar Health Authority (“GHA”) will be authorised to supply certain products to patients. Before being permitted to authorise the supply of cannabis-based products, each practitioner will first be required to complete appropriate training in respect of the use of these products. The GHA will ensure that practitioners are provided with initial training and thereafter from time to time.
Practitioners will regulate the supply of certain cannabis-based products to patients who have been diagnosed as suffering from any of the following conditions:
(a) moderate to severe muscle spasticity in multiple sclerosis that has failed to respond to standard medications;
(b) severe, refractory epilepsy that has failed to respond to standard medications;
(c) severe and life-altering pain that has failed to respond to standard and rising levels of pain control medications; and
(d) intractable nausea and vomiting associated with chemotherapy despite the use of standard treatments under supervision.
Each product must be specifically approved by the GHA as safe and effective, in full consultation with practitioners, before being authorised for supply under the regulations. The regulations further specify that a patient shall not administer such products by smoking.”
The Gibraltar Government has therefore moved the medicinal cannabis issue along further than the UK position in what likely presents as a precursor to the next, potentially very significant development, namely the deployment of a licensing regime for the medicinal cannabis in Gibraltar.
As noted above, the Chief Minister has already alluded to a number of the features the Government might envisage such a licensing framework might incorporate. Licensing the importation, cultivation, testing and research into medical cannabis, as well as the exportation of it would provide myriad benefits to the Government in the context of providing these treatments to the local population. In addition to the specific health benefits, it is evident that the Government considers the notion of an industry in medicinal cannabis as potentially another avenue of diversification of the local economy. Controversial though the subject of a new industry in this field may be, there is no controversy in the suggestion that, in the Brexit context, the diversification of the economy is as important as it has ever been in Gibraltar’s modern history.
Moreover, the benefits that Gibraltar plc can offer operators drawn to securing a licence and setting up operations here could, subject to the application of the lessons Gibraltar has learned and applied in the context of Gaming and Distributed Ledger Technology business previously, quickly become a jurisdiction of choice for this kind of economic activity.
The legal and regulatory certainty of operating in a jurisdiction that is taking a science-based, common-sense approach to tackling the emergence of medical cannabis as a form of treatment of widening application around the world, will be a key component of the package that draws operators here. The value-added reality of the tax advantages we offer (no VAT, low corporate tax, no withholding tax, special tax status for specialists relocating to Gibraltar), allied to our guaranteed market access to the UK and the tax treaties recently entered into with the UK and Spain, are likely to make Gibraltar a key player in this field as medicinal cannabis continues along, it seems, its inexorable progress towards the mainstream.