Although the prescription of medicinal cannabis products is not yet widespread in the UK, employers need to be aware of the legal framework concerning its use. Charles Wynn-Evans examines the the HR and legal issues.
Under the Misuse of Drugs Act 1971, it is illegal to possess, supply, produce, import or export cannabis. Cannabis is listed as a class B substance, and possession carries a penalty of up to five years in prison, an unlimited fine or both. Supplying cannabis carries a penalty of up to 14 years in prison, an unlimited fine or both.
Medicinal cannabis in the workplace
Prior to 1 November 2018, cannabis products could not be lawfully prescribed except under licence or authority from the secretary of state. But in 2018 the government conducted a review of the legislation, prompted by several high-profile cases of young children suffering from severe epilepsy. Their condition had been markedly improved by cannabis oil treatments which were then not legally available in the UK.
In this review the chief medical officer concluded there was clear evidence of the therapeutic benefits of medicinal cannabis products and the Advisory Council on the Misuse of Drugs recommended, in addition to additional checks and balances to maintain safe prescribing, that a clear definition of cannabis-derived medicinal products be adopted to allow medicinal cannabis to be prescribed for certain conditions.
The Misuse of Drugs (Amendments) (Cannabis and Licence Fees) (England, Wales and Scotland) Regulations 2018 came into effect on 1 November 2018 and introduced a new definition of a “cannabis-based product for medicinal use in humans”. This is defined as a preparation or product containing cannabis, cannabis resin, cannabinol or a cannabinol derivative that is produced for medicinal use in humans, and is a medicinal product, or a substance or preparation for use as an ingredient of, or in the production of an ingredient of, a medicinal product.
These kind of products can now be made accessed by using one of three patient access routes: as a special medicinal product for use in accordance with a prescription of a doctor on the Specialist Register of the General Medical Council; as an investigational medicinal product without marketing authorisation for use in a clinical trial; or as a medicinal product with a marketing authorisation.
General practitioners are unable to prescribe medicinal cannabis products and a specialist who is authorised to prescribe such products should only do so if the patient has an exceptional clinical need which cannot be met by an existing licensed medicine and established treatment options have been exhausted.
The guidance produced by the National Institute for Health and Care Excellence limits the scope for prescription for medicinal cannabis products to use in relation to people with chronic pain, people with intractable nausea and vomiting, people with spasticity and people with severe treatment-resistant epilepsy.
No changes have been made to UK employment law to take account of this development in contrast to the position in several states in the US where specific protection has been extended to those dismissed or adversely treated in connection with their use of medicinal cannabis.
Consequently, where a situation arises involving the use of medicinal cannabis, HR professionals will need to apply the usual rules. If an employee fails a drug test and attributes that to use of medicinal cannabis then appropriate investigation and verification of the position will be necessary.
Making an exception to an employer’s policy on alcohol and drug use policy may be a reasonable adjustment for an employee whose prescription of a medicinal cannabis product relates to a condition which constitutes a disability for the purposes of the Equality Act 2010.
If an employee raises with the employer the fact that he or she has a prescription for medical cannabis product, the employer will wish to ensure that the employee can substantiate the prescription and appropriate consideration will need to be given to when and on what basis the individual will be taking the relevant product and how that might pose a risk in the workplace.
Employers may wish to update their HR policies to reflect the possibility that employees may be prescribed medicinal cannabis in appropriate circumstances.
So far there have been extremely low numbers of prescriptions for medicinal cannabis products in the UK. That position may of course change over time and employers will need to be alive to the issues that may arise both as a matter of their own HR policies and procedures and the handling of the specific circumstances of an employee who is prescribed medicinal cannabis products.