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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
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Tripping Out of Prison: An Exploration of Legal and Ethical Issues Concerning Psychedelic-Assisted Psychotherapy in a Correctional Setting
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Jessica Smalberger
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago, Dunedin, New Zealand – Te Whare Wānanga o Ōtākou
October 2022
Acknowledgements
To Professor Colin Gavaghan, your passion for exploring innovative solutions to big issues and introducing me to this side of law paved the way for this dissertation.
To Professor John Dawson for your guidance, encouragement and knowledge. I could not have completed this without your miniature lectures on medical law, so thank you.
To Dr Anna High and Dr Danica McGovern, for your insights and advice throughout my time at law school and kickstarting my interest in criminal law.
To my family, for all your love, help and support. To Matthew, for putting me on to Michael Pollen and this whole topic in the first place.
To my flatmates and friends throughout the years who have made my time at Otago unbelievably fun, I could not have asked for a better bunch. To Caccia and Georgia, for being down in the trenches with me.
Finally, to Morning Magpie, for fuelling this dissertation.
Table of Contents
Introduction
The recent renaissance in human psychedelic research has uncovered seemingly endless beneficial applications of psychedelic-assisted psychotherapy (PAP). This dissertation is an exploration of the theoretical and legal implications of using these drugs as a means of rehabilitation in a correctional environment. PAP could be used as a targeted treatment for specific mental illnesses or substance- abuse issues, or as a form of moral bioenhancement (MBE) for prisoners in New Zealand. The resulting issues to be addressed are legal questions concerning the legal rights of prisoners who would receive this medical treatment as part of their rehabilitation.
In examination of these issues, this dissertation will be in three parts. Part I discusses the potential benefits and risks of using PAP in prison on an entirely voluntary basis. This is the starting point concerning its use for rehabilitative care in prison. Part II goes on to discuss the possibility of imposing PAP as a compulsory condition of a criminal sentence. It concludes that, while there are general exceptions in the law allowing for compulsory medical treatment to proceed, in some circumstances, enforcing PAP would not be justified. Part III examines the nature of coercive treatment. It explores the possibility of incentivising voluntary PAP through an offer of early release. I conclude that this could be considered justified and acceptable under New Zealand law.
Psychedelics or hallucinogens are a class of psychoactive substances that produce changes in perception, mood and cognitive processes.1 Psychedelics are distinguished through their ability to reliably induce states of altered perception, thought and feeling that are not naturally experienced outside of dreams or at times of religious exaltation.2
Classic psychedelics include lysergic acid diethylamide (LSD) and psilocybin (commonly found in “magic” mushrooms). Empathogens such as methylenedioxymethamphetamine (MDMA) are known to cause emotional connectivity as well as increased sociability and affability and are
1 “Psychedelics” (10 November 2021) The Alcohol and Drug Foundation <www.adf.org>.
2 David Nichols “Psychedelics” (2016) 68 Pharmacol Rev 264 at 268-269 citing Jerome Jaffe “Drug addiction and drug abuse” in Alfred Goodman and others (eds) Goodman & Gilman’s: Pharmacological Basis of Therapeutics (8th ed, McGraw Hill, New York, 1990).
considered hallucinogens.3 interchangeably.
This dissertation will use “hallucinogens” and “psychedelics”
Natural psychedelics have been used for hundreds if not thousands of years for holistic healing by many Indigenous peoples.4 Early reports on the “unique potency” and highly individual effects of LSD in the early 1950s catalysed the widespread use of psychedelics by psychologists and psychiatrists in research and therapeutic practice.5 It is estimated that tens of thousands of patients were treated with psychedelic psychotherapy over a period of about 15 years.6
Early researchers recognised the potential utility of hallucinogen-based therapy in correctional settings. Three notable studies evaluated the impact of LSD and psilocybin on criminal offenders. Tenenbaum in 1961 found promising results in a small-scale study of treatment-resistant sex- offenders, noting enhancements in empathy, insight, communication, treatment engagement and recall of memories.7 Arendsen-Hein reported similar effects in “criminal psychopaths”, where 14
out of 21 participants demonstrated noticeable improvement.8 Finally, Timothy Leary’s famous
Concord Prison Experiment, though flawed, suggested there could be promising effects on a broad spectrum of recidivist offenders.9
By the end of the 1960s, research into psychedelic treatment had become extremely popular. But, as the use of psychedelics diffused into wider society, their unethical and covert use hardened sociopolitical attitudes towards them.10 By 1967, psychedelics had been placed in Schedule I of the 1967 United Nation (UN) Convention on Drugs. This defined them, under international law, as
3 Albert Garcia-Romeu, Brennan Kersgaard and Peter Addy “Clinical Applications of Hallucinogens: A Review” (2016) 24(4) Exp Clin Psychopharmacol 229 at 229-230.
4 Robin Carhart-Harris and Guy Goodwin “The Therapeutic Potential of Psychedelic Drugs: Past, Present, and Future” (2017) 42 Neuropsychopharmacol Rep 2105 at 2106.
5 Carhart-Harris and Goodwin, above n 4, at 2015.
6 Carhart-Harris and Goodwin, above n 4, at 2105.
7 Bertrand Tenenbaum “Group therapy with LSD-25. (A preliminary report)” (1961) 22 Dis Nerv Syst 462.
8 GW Arendsen-Hein “LSD in the treatment of criminal psychopaths” in Richard Crocket, Ronald Sandison and Alexander Walk (eds) Hallucinogenic Drugs and Their Psychotherapeutic Use (H. K. Lewis, London, 1963) at 101.
9 Timothy Leary “The effects of consciousness-expanding drugs on prisoner rehabilitation” (1969) 10 Psychedelic Rev 45.
10 James Rucker, Jonathan Iliff and David Nutt “Psychiatry & the psychedelic drugs. Past, present & future” (2018) 142 Neuropharmacology 200 at 205.
having no accepted medical use and the maximum potential for harm and dependence. National legislation throughout the Western world then followed suit, mimicking the 1967 UN Schedules. Official medical use of psychedelics ceased as doctors were no longer allowed to prescribe them. Without a clinical focus, research dwindled almost to a standstill for about 25 years.11
Over the past two decades, clinical and academic interest in psychedelic drugs has piqued again, reflecting the shift in socio-political narratives which increasingly tend to question the relative
benefits and harms of the so-called “war on drugs”.12 Numerous studies have reported their
beneficial effects on mental illness and some have suggested the possible value of using psychedelics as a form of moral bioenhancement.13 Consequently, there is cause to examine the potential effect of PAP in correctional settings.
The research referenced in this dissertation concerning PAP was sourced from reports, books and articles reviewing the literature, that discuss the pre-2016 research, and from original searches of
the subsequent literature.14 Similarly, concerning the impact of psychotropic medication, this
11 Carhart-Harris and Goodwin, above n 4, at 2105.
12 Rucker, Iliff and Nutt, above n 10, at 201.
13 For example see Carhart-Harris and Goodwin, above n 4; Emma Gordon “Trust and Psychedelic Moral
Enhancement” (2022) 15(19) Neuroethics 1; Norbert Paulo and Jan Christoph Bublitz "How (not) to Argue For Moral Enhancement: Reflections on a Decade of Debate" (2019) 38 Topoi 95; Brian Earp "Psychedelic Moral Enhancement" (2018) 83 R Inst Philos Suppl 415; and Rafael Ahlskog "Moral Enhancement Should Target Self-Interest and Cognitive Capacity" (2017) 10 Neuroethics 363.
14 The most useful review sources for PAP were: Carhart-Harris and Goodwin, above n 4; Rucker, Iliff and Nutt, above n 10; William Richards “Psychedelic psychotherapy: insights from 25 years of research” (2017) 57(4) J Humanist Psychol 323; Eduardo Schenberg “Psychedelic-Assisted Psychotherapy: A Paradigm Shift in Psychiatric Research and Development” (2018) 9(733) Front Pharmacol 1; Matthew Johnson, William Richards and Roland Griffiths “Human Hallucinogen Research: Guidelines for Safety” (2008) 22(6) J Psychopharmacol 603; and Victor Lange and Sidsel Marie “Exploring Moral Bio-enhancement through Psilocybin-Facilitated Prosocial Effects” (2021) 8(1) J Cogn Neurosci 23.
Significantly useful subsequent literature on PAP included: Zach Walsh, Peter Hendricks, Stephanie Smith, David Kosson, Michelle Thiessen, Philippe Lucas and Marc Swogger “Hallucinogen use and intimate partner violence: Prospective evidence consistent with protective effects among men with histories of problematic substance use” (2016) 30(7) J Pharmacol 602; Peter Hendricks, Brendan Clark, Matthew Johnson, Kevin Fontaine and Karen Cropsey “Hallucinogen use predicts reduced recidivism among substance-involved offenders under community corrections supervision” (2014) 28(1) J Psychopharmacol 62 at 65; Michelle Thiessen, Zach Walsh, Brian Bird and Adele Lafrance “Psychedelic use and intimate partner violence: The role of emotion regulation” (2018) 32(7) J Psychopharmacol 749; William Smith and Paul Appelbaum “Novel ethical and policy issues in psychiatric uses of psychedelic substances” (2022) 216(109165) Neuropharmacol 1; and Earp, above n 13.
dissertation draws on review articles supplemented by original searches of the subsequent literature.15
This dissertation will start by assessing the efficacy of PAP as an aspect of voluntary rehabilitation. This Part discusses at some length the potential benefits and risks of psychedelics. The largely scientific discussion is necessary for establishing the justifications (or lack thereof) for the later legal and ethical arguments. The legal and ethical arguments principally concern compulsory medical treatment in prison and the issue of legal consent in what could be a coercive environment. Overall, this dissertation will conclude that, if used in a justified manner, prisoners could consent to PAP. In doing so, PAP may serve the purpose of rehabilitating offenders and of reducing future offending through its implementation either as a form of therapy or as moral bioenhancement.
15 The most useful review sources for psychotropic medication were: David Finkelhor and Melanie Johnson “Has P s y c h i a t r i c M e d i c a t i o n R e d u c e d C r i m e a n d D e l i n q u e n c y ? ” ( 2 0 1 5 ) 1 8 ( 3 ) T VA 3 3 9 ; a n d Zheng Chang, Paul Lichtenstein, Niklas Långström, Henrik Larsson and Seena Fazel “Association Between Prescription of Major Psychotropic Medications and Violent Reoffending After Prison Release” (2016) 316(17) JAMA 1798.
Part I
Offering Psychedelic-Assisted Psychotherapy as Voluntary Rehabilitation
The most basic starting point for rehabilitating offenders via PAP would be to offer it as one of many entirely voluntary treatment options. Before examining the potential for PAP to be used in this way, in rehabilitative programmes in prison, it is necessary to describe what a PAP session entails.
PAP describes the therapeutic process for administering psychedelics. PAP consists of three stages: preparation, psychedelic session(s) and integration. Patients are continuously monitored and supported by trained mental health professionals during the drug session(s).16 The preparatory and integrative psychotherapy sessions are drug-free.
The preparatory sessions are used to educate the patient about the therapy and to form the relationship between the patient and clinician(s).17 “Integration” helps patients process the events that occur during psychedelic sessions and may consist of individual and group counselling, similar to 12-step programmes.18 During the drug sessions, which occur between those two stages, patients generally listen to instrumental evocative music and are encouraged to stay introspective, open to feelings, and attentive to thoughts and memories.19 They are free to engage in psychotherapy at any time. The sessions may last up to eight hours. The number of drug sessions varies from one to twelve, depending on which drug is being administered.
A modern understanding of psychedelic drugs suggests that hallucinogens can engender long-term behavioural change. For this reason, PAP could potentially be beneficial in a correctional environment in pursuit of the rehabilitation and reintegration of offenders back into society. It could be offered as a therapeutic option, using PAP as part of treatment for specific mental health or addiction disorders. The effect of this on crime is discussed later in the chapter. It could also be offered as a form of MBE. MBEs can be controversial interventions, however it is submitted that PAP avoids many of the classic MBE-based objections.
16 Johnson, Richards and Griffiths, above n 14, at 610, 611 and 616.
17 Rosalind Watts and Jason Luoma “The use of the psychological flexibility model to support psychedelic assisted therapy” (2020) 15 J Contextual Behav Sci 92 at 92.
18 Watts and Luoma, above n 17, at 94; Schenberg, above n 14, at 5.
19 Richards, above n 14, at 334.
This Part will determine the appropriateness of offering PAP on a strictly voluntary basis. I will conclude that PAP could be a part of a rehabilitative programme and, based on current research, a compelling and effective option.
I Voluntary Treatment
The Department of Corrections is obligated to improve public safety and the maintenance of a just society.20 One part of this is assisting in rehabilitating offenders and reintegrating them into the
community through providing programmes and other interventions.21 Options offered must be
reasonable and practicable in the circumstances and within the resources available.22 potentially significant benefits from offering PAP on a voluntary basis.
There are
Voluntary treatment requires an offender to consent to the intervention. Valid consent generally consists of three core components: informed understanding, decisional capacity and voluntarism.23 This is endorsed in the Code of Health and Disability Services Consumers' Rights (the Code), and reflects the intention to recognise and respect patient autonomy.24 Voluntary consent is made in the absence of coercion and is freely given.25 Where treatment is offered without incentive or threat, it will be difficult to assume there has been inducement or coercion.26 Issues about vitiated consent due to coercion will be discussed in Part III. For this Part, it is assumed the given consent is valid.
20 Corrections Act 2004, s 5.
21 Corrections Act, s 5(c).
22 Corrections Act, ss 6(1)(c)(i), 6(1)(h) and 52.
23 Warren Brookbanks “The Right to Refuse Mental Health Treatment, and Informed Consent” in Sylvia Bell and Warren Brookbanks (eds) Mental Health Law in New Zealand (2nd ed, Brookers Ltd, Wellington, 2005) 225 at 229 referencing Laura Roberts “Informed Consent and the capacity for voluntarism” (2002) 159 AMJ Psychiatry 705.
24 Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996, rights 1 and 2; Brookbanks, above n 23, at 229.
25 Health and Disability Commissioner Act 1994, s 2(1); see also Kaimowitz v Department of Mental Health for the State of Michigan 42 USLW 2063 (Mich Cir Ct 1973), as reproduced in (1976) 1 Mental Disability L Rep 147; Re T (Adult: Refusal of Medical Treatment) [1992] EWCA Civ 18; [1993] Fam 95, [1992] 3 WLR 782; Brookbanks, above n 23, at 229 referencing Roberts, above n 23, at 543.
26 R (on the application of H) v Mental Health Review Tribunal [2007] EWHC 884 (Admin) at [37].
All interventions must be balanced against the rights of prisoners, and interventions must not bemore restrictive than is reasonably necessary.27 The New Zealand Bill of Rights Act 1990
(NZBORA) and several other international agreements to which New Zealand is a signatory secure prisoners’ rights not to be subject to torture, or to cruel or degrading or disproportionately severe treatment or punishment, to refuse to undergo medical treatment and to be treated “with humanity and with respect for the inherent dignity of the person”.28 Administration of PAP would need to be consistent with these statutory requirements. The next section will examine whether PAP can constitute a voluntary rehabilitative programme.
II Psychedelic-Assisted Psychotherapy – A Rehabilitative Programme
The Department of Corrections advertises that their approach to rehabilitation programmes is to implement those which offer a pathway to change, thereby reducing reoffending.29 An intervention with greater benefits and lesser risk should be preferred over an alternative.30 Finally, it must be cost effective, as interventions are only implemented within the resources available to the chief executive.31
Rehabilitative programmes are designed to reduce reoffending through the facilitation of
rehabilitation and reintegration.32 Koi and others identified that rehabilitation and reducing
recidivism are fundamentally different goals.33 Decreasing recidivism is a policy goal. It is
concentrated on decreasing the statistical likelihood of reoffending, thereby decreasing the frequency of crime and improving the safety of society. In contrast, individual rehabilitation
27 Corrections Act, s 6(1)(g).
28 Including, but not limited to, United Nations Convention on the Rights of Persons with Disabilities GA Res 61/611 (2007) (ratified in New Zealand in 2008); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment GA Res 39/49 (1987) (ratified in New Zealand in 1989); United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007) (ratified in New Zealand in 2010); New Zealand Bill of Rights Act 1990, ss 9, 11 and 23.
29 “Our Approach to Rehabilitation Brochure” (June 2014) Department of Corrections <www.corrections.govt.nz>.
30 Harry Love “Best use of Psychological Service treatment resources: Psychological treatment effectiveness” (1999) Department of Corrections <www.corrections.govt.nz>.
31 Corrections Act, s 52.
32 Corrections Act, ss 3, 6(1)(c)(i) and 6(1)(h).
33 Polaris Koi, Susanne Uusitalo and Jarno Tuominen “Self-Control in Responsibility Enhancement and Criminal Rehabilitation” (2018) 12 Crim Law and Philos 227 at 234.
concerns the well-being of the offender, treating the offender’s quality of life as an end in itself.34 It is possible to prevent individuals from reoffending without rehabilitation, for example, physically restraining them for life. Similarly, an offender who has been fully rehabilitated may still reoffend if placed in circumstances where no other viable course of action is apparent. In practice, the two tend to complement one another, with rehabilitation contributing to reduced overall recidivism.35
There are two distinct avenues for PAP to be employed for the advancement of these goals: as a means of therapy or in pursuit of moral bioenhancement. In comparing PAP with current interventions, a conclusion can be drawn that, based on available research, psychedelics could be a useful intervention in prisons.
For PAP to be offered in prisons, there should be a logical connection between its effects and the rehabilitation and reintegration of prisoners back into society.
In practice, interventions which are aimed at treating or managing mental health and addiction are generally considered within the scope of rehabilitative programmes, as there is a logical link between their effect and reduction in crime. It has been estimated that rates of mental illness are between three and four times higher in prison than in the wider community.36 Nearly all prisoners (91 per cent) have been diagnosed with either a substance use disorder or a mental health disorder over their lifetime.37 Substance use disorders are highly correlated with offending.38 The same is true of many mental illnesses, particularly psychosis and Attention-Deficit/Hyperactivity Disorder
34 Koi, Uusitalo and Tuominen, above n 33, at 234.
35 Ray Smith Annual Report 2014/15 (Chief Executive Annual Report, Department of Corrections, 2015) at 31.
36 Jill Bowman, “Comorbid substance use disorders and mental health disorders among New Zealand prisoners” (2016) 4(1) New Zealand Corrections Journal 15 at 16.
37 Bowman, above n 36, at 16.
38 Susan Young, June Wells and Gisli Gudjonsson “Predictors of offending among prisoners: the role of attention-deficit hyperactivity disorder and substance use” (2011) 25(11) J Pharma 1524 at 1526-1527.
(ADHD).39 While overall mental illness is not regarded as the principal factor in producing criminal behaviour, treating or managing the mental illness can impact individuals’ ability to respond to interventions that address risk factors.40
There is a plethora of rehabilitative programmes offered to prisoners. These generally focus on preparing prisoners to reintegrate into society by encouraging them to adopt law-abiding
behaviour.41 The methods include challenging criminal behaviour and thinking patterns,
strengthening problem-solving abilities, enhancing interpersonal skills and emotional regulation,
providing support with substance dependency and improving mental health.42 They are most
effective when linked with other interventions targeting the psychosocial needs of released individuals.43
These psychological interventions, while beneficial for some, have limited efficacy. Most are deemed “modest at best” in terms of their effect on recidivism.44
39 Finkelhor and Johnson, above n 15, at 341. Evidence cited includes:
For evidence demonstrating that schizophrenia and psychosis were associated with about 5% of crime, see: Seena Fazel and Martin Grann “The population impact of severe mental illness on violent crime” (2006) 163 Am J Psychiatry 1397.
For evidence of a strong correlation between ADHD and criminal delinquent behaviour, see: Travis Pratt, Francis Cullen, Kristie Blevins, Leah Daigle and James Unnever “The relationship of attention deficit hyperactivity disorder to crime and delinquency: A meta-analysis” (2002) 4 Int J Police Sci 344.
For associations between crime and drug use and drug and alcohol dependence, see: Trevor Bennett, Katy Holloway, and David Farrington “The statistical association between drug misuse and crime: A meta-analysis” (2008) 13 Aggress Violent Behav 107; Albert Kopak, Lisa Vartanian, Norman Hoffmann and Dana Hunt “The connections between substance dependence, offense type, and offense severity” (2013) 44(3) J Drug Issues 219; Benjamin Nordstrom and Charles Dackis “Drugs and crime” (2011) 39 J Psych Law 663.
40 Finkelhor and Johnson, above n 15, at 341 and 343.
41 Department of Corrections “In prison: Employment and support programmes: Rehabilitation programmes”
42 Department of Corrections, above n 41.
43 Gabrielle Beaudry, Rongqin Yu, Amanda Perry and Seena Fazel “Effectiveness of psychological interventions in prison to reduce recidivism: a systematic review and meta-analysis of randomised controlled trials” (2021) 8 Lancet Psychiatry 759 at 768.
44 Beaudry and others, above n 43, at 771.
Psychotropic medication45 has been recognised as helping to manage addiction and potentially some negative dispositions, resulting in decreased recidivism for certain types of offending, such as violent and sexual offending.46 The medication may manage or alleviate symptoms, allowing the offender to focus on interventions and self-improvement.47 Psychotropics are, where appropriate,administered to prisoners.48 Research shows that the response to this drug treatment is highly
variable and poorly predictable.49 Even with the experience of short-term relief, there is little
evidence to support the conclusion that continued medication use improves long-term outcomes.50
It is important to reiterate that these intervention options pursue both individual and societal objectives. On an individual level, administration of psychotropic medication or attendance and participation in cognitive behavioural therapy programmes could achieve the goal of treating or managing mental illness and addiction, helping to alleviate certain constraints on an offender’s personal functioning. On a societal level, these interventions are aimed at reducing reoffending through improving cognitive functioning, thereby enhancing morality. Though moral reform theories have largely fallen out of favour over the past century, recent advances in neuroscience and psychology indicate that these theories may be gaining support once again. Interventions, such as PAP, could achieve both these aims.
(b) Psychedelic-assisted psychotherapy
45 Psychotropic medication is any medication prescribed to stabilise or improve mood, mental status or behaviour through adjusting levels of brain chemicals or neurotransmitters, like dopamine and serotonin. See Malini Ghoshal “What is a psychotropic drug?” (2019) Healthline <www.healthline.com>.
46 See Antoine Douaihy, Thomas Kelly and Carl Sullivan “Medications for Substance Use Disorders” (2013) 28(3-4) Soc Work Public Health 264 at 273; Seena Fazel, Johan Zetterqvist, Henrik Larsson, Niklas Långström and Paul Lichtenstein “Antipsychotics, mood stabilisers, and risk of violent crime” (2014) 384 Lancet 1206 at 1206.
47 Robert Morgan, David Flora, Daryl Kroner, Jeremy Mills, Femina Varghese and Jarrod Steffan “Treating Offenders with Mental Illness: A Research Synthesis” (2012) 36(1) Law Hum Behav 37 at 38, 39 and 47.
48 Brian McKenna and L Sweetman Models of Care in Forensic Mental Health Services: A review of the international and national literature (Ministry of Health, 2021) at 54.
49 Jeffrey Lieberman, Scott Stroup, Joseph McEvoy, Marvin Swartz, Robert Rosenheck, Diana Perkins, Richard
Keefe, Sonia Davis, Clarence Davis, Barry Lebowitz, Joanne Severe and John Hsiao “Effectiveness of antipsychotic drugs in patients with chronic schizophrenia” (2005) 353 NEJM 1209; Roy Perlis, Michael Ostacher, Jayendra Patel, Lauren Marangell, Hongwei Zhang, Stephen Wisniewski, Terence Ketter, David Miklowitz, Michael Otto, Laszlo Gyulai, Noreen Reilly-Harrington, Andrew Nierenberg, Gary Sachs and Michael Thase “Predictors of recurrence in bipolar disorder: Primary outcomes from the Systematic Treatment Enhancement Program for Bipolar Disorder (STEP- BD)” (2006) 163 Am J of Psychiatry 217.
50 See generally Shannon Hughes and David Cohen “A systematic review of long-term studies of drug treated and non- drug treated depression” (2009) 118 J Affect Disord 9.
Contemporary research indicates PAP may be more effective than current rehabilitative programmes for contributing to the rehabilitation and reintegration of prisoners.
PAP has been heralded as highly effective in the treatment of mental illness and addiction. The Food and Drug Administration in the United States designated MDMA a breakthrough therapy for post- traumatic stress disorder (PTSD) following 17 different trials reporting its “spectacular” results.51 Improvements were said to last up to four years, after just three drug sessions.52 LSD has been successful for treatment in anxiety, with studies reporting just two drug sessions resulted in sustained therapeutic benefit with no acute or chronic drug-related severe adverse events.53 Psilocybin has likewise shown promise in mental health and addiction treatment.54
Psychedelic treatment has consistently shown encouraging results for the treatment of addiction, and reduced offending and recidivism.55 In 2014, hallucinogen use was found to be significantly associated with a reduced likelihood of reoffending in a longitudinal observational study that investigated the outcome of over 25,000 offenders with a history of substance abuse.56 The study concluded that, among 15 predictors of recidivism, hallucinogen use proved the single strongest protective factor. Brazil now administers Ayahuasca (another type of psychedelic medication) during certain religious rituals as part of therapy for the rehabilitation of violent and sexual offenders in jail.57 Hallucinogens have been shown to improve interpersonal functioning, resulting in decreased aggression and conflict between intimate partners.58 It was found that people who had
51 Kai Kupferschmidt “All clear for the decisive trial of ecstasy in PTSD patients” (26 August 2017) Science
52 Michael Mithoefer, Mark Wagner, Ann Mithoefer, Lisa Jerome, Scott Martin, Berra Yazar-Klosinski, Yvonne
Michel, Timothy Brewerton and Rick Doblin “Durability of improvement in post-traumatic stress disorder symptoms and absence of harmful effects or drug dependency after 3,4-methylenedioxymethamphetamine-assisted psychotherapy: a prospective long-term follow-up study” (2013) 27(1) J Psychopharmacol 28 at 35.
53 Peter Gasser, Dominique Holstein, Yvonne Michel, Rick Doblin, Berra Yazar-Klosinski, Torsten Passie and Rudolf Brenneisen “Safety and efficacy of LSD-assisted psychotherapy in subjects with anxiety associated with life-threatening diseases: a randomized active placebo-controlled phase 2 pilot study” (2014) 202(7) J Nerv Ment Dis 513.
54 Charles Grob, Alicia Danforth, Gurpreet Chopra, Marycie Hagerty, Charles McKay, Adam Halberstadt and George Greer “Pilot study of psilocybin treatment for anxiety in patients with advanced-stage cancer” (2011) 68(1) Arch Gen Psychiatry 71; Albert Garcia-Romeu, Roland Griffiths and Matthew Johnson “Psilocybin occasioned mystical experiences in the treatment of tobacco addiction” (2014) 7(3) Curr Drug Abuse Rev 157.
55 See generally Garcia-Romeu, Griffiths and Johnson, above n 54.
56 Hendricks and others, above n 14, at 65.
57 Simon Romero “In Brazil, Some Inmates Get Therapy With Hallucinogenic Tea” (28 March 2015) The New York Times <www.nytimes.com>.
58 Walsh and others, above n 14, at 603
used hallucinogens in their life, even recreationally, were around 66 per cent less likely to be arrested for perpetration of intimate partner violence as those who had not.59
Present research suggests that PAP has the potential to be more effective in promoting rehabilitation and reintegration of prisoners than current rehabilitative programmes as a means of therapy.
One aim of the justice system is to reduce criminal behaviour.60 The possibility of an effective neurobiological intervention that can improve pro-social behaviour is exciting, even more so if it reduces recidivism and incarceration rates. Moral enhancement represents an increase in the moral value of an individual’s actions or character. Moral bioenhancement seeks to achieve this through medical, pharmacological or bio-technical techniques.61
(a) Moral bioenhancement and psychedelic-assisted therapy
Research into psychedelics has occurred almost exclusively within a highly medicalised context that has had little bearing on the moral enhancement literature.62 Some authors of MBE literature have identified convincing evidence that psychedelics can foster apparent moral improvement.63
Brian Earp posited that PAP could be a practically achievable and ethically justifiable method of MBE.64 The intervention alters not just human behaviour, but human biology too.65 It avoids the
pitfalls associated with low-level “dial adjustment”.66 Dial adjustment illustrates the theory that
neuro-interventions could improve moral behaviour by tweaking specific cognitive traits. Earp
59 Walsh and others, above n 14, 605.
60 Corrections Act, s 5(c); Sentencing Act 2002, s 7.
61 Marina Budić, Marko Galjak and Vojin Rakić “What drives public attitudes towards moral bioenhancement and why it matters: an exploratory study” (2021) 22 BMC Med Ethics 163 at 164.
62 Earp, above n 13, at 431.
63 See Paulo and Bublitz, above n 13.
64 Earp, above n 13, at 417.
65 Robert Sparrow “Commentary: Moral Bioenhancement: Worthy of the Name” (2017) 26(3) Camb Q Healthc Ethics 411 at 412.
66 Earp, above n 13, at 417 and 419.
contends that, due to the delicate interconnectedness of many if not most neural processes and systems, attempts at achieving MBE through low-level dial adjustment would be futile at best and, at worst, disrupt or impair other important brain functions.67 Instead, Earp argues that PAP exerts a more general or “wide-ranging” effect on the subject experiencing it. He contends PAP would contribute to the consumer's moral improvement in a “robust, sustainable, flexible-across-contexts sort of way, without simply collapsing into Ritalin-style cognitive enhancement.”68
Improving general moral capacity and agency is likely to have a marked benefit on the provision of a safer society. Earp, Hughes and Smith all stress that PAP should be seen as a facilitator to moral growth: one that allows the agent to engage with the moral domain in a more productive or insightful way and not as something that “magically overrides all conscious, rational thought to
directly instil the desired moral changes in the agent”.69 accompanied by mental or emotional groundwork.
It requires active participation,
(b) Moral bioenhancement and rehabilitation of prisoners
Whether MBE can be used to combat recidivism is contentious. Late nineteenth century criminogenic theories attempted to find psychological and biological bases for criminal behaviour, suggesting that criminals are a class of people who can be distinguished in terms of their
dispositions towards crime.70 In the 1960s, sociological criminology became the dominant
discourse, leading to a shift towards seeing crime as the outcome of social circumstances.71 This theory maintains that, while there may be particular dispositions which lead to criminal offending,
these are triggered by a person’s environment.72 They contend that the appropriate focus of
intervention is to control the social conditions that predispose to criminal behaviour. This suggests that a pharmacological intervention may not be an effective solution to a social problem. However,
67 Earp, above n 13, at 418-419 referencing Molly Crockett “Moral Bioenhancement: A Neuroscientific Perspective” (2014) 40(6) JME 370.
68 At 417.
69 Earp, above n 13, 433 and 425; James Hughes “Using Neurotechnologies to Develop Virtues: A Buddhist Approach to Cognitive Enhancement” (2013) 20(1) Account Res 27 at 32; Huston Smith “Do Drugs Have Religious Import?” (1964) 61(18) J Philos 517 at 529.
70 Gulzaar Barn “Can Medical Interventions Serve as ‘Criminal Rehabilitation’?” (2019) 12 Neuroethics 85 at 94.
71 Barn, above n 70, at 94 citing John Tierney Criminology: Theory and context (3rd ed, Harlow: Pearson Longman, United Kingdom, 2010) at 82.
72 Barn, above n 70, at 94.
PAP proposes to improve an agent’s ability to navigate social conditions. In improving moral and cognitive functioning, an offender would be better placed to respond to their environmental triggers. Through removing specific learned behavioural traits, the agent may be better positioned to improve their social circumstances.
Targeting anti-social behaviour may aid the rehabilitation and reintegration of prisoners. Authors such as Persson and Savulescu, Earp and others and Schaefer suggest that there is a reliable positive association between prosociality and MBE, in that it generally leads to agents behaving in a way
that benefits other individuals or groups.73 Prosocial attitudes and emotion-like states would be
empathy, sympathy, trust and a felt connection to others.74 Examples of paradigmatic types of
prosocial behaviour would be different forms of altruism, sharing and helping.75
Psychedelic treatment has been said to increase prosocial attitudes, and thereby the likelihood of prosocial behaviour.76 Strong positive changes, such as improved attitudes towards close relatives and even people in general, have been reported from participants, their friends and family as lasting
73 Lange and Marie, above n 14, at 31 referencing Ingmar Persson and Julian Savulescu Unfit for the Future: The Need for Moral Enhancement (Online ed, Oxford University Press, 2012); Brian Earp, Thomas Douglas and Julian Savulescu “Moral Neuroenhancement” in L Syd Johnson and Karen Rommelfanger (eds) The Routledge Handbook of Neuroethics (Routledge, New York, 2017) at 170; and Gerald Schaefer “Direct vs. Indirect Moral Enhancement” (2015) 25(3) KIEJ 261.
74 Lange and Marie, above n 14, at 26.
75 Lange and Marie, above n 14, at 26.
76 Natasha Mason, Elisabeth Mischler, Malin Uthaug and Kim Kuypers “Sub-acute effects of psilocybin on empathy, creative thinking, and subjective well-being” (2019) 51(2) J Psychoact Drugs 123.
from a moderate to extreme degree even four to five years after administration.77 Large population studies consistently show that use of psychedelic substances is associated with a reduction in antisocial behaviour, such as assaults and partner violence, even when covariates are controlled.78 These benefits are achieved by increasing the capacity for emotion regulation in participants.79 Emotion regulation is generally seen as necessary for proficient moral cognition and appropriate behaviour.80
In this way, PAP could be used as a rehabilitative programme in the pursuit of MBE. This would widen the potential participants, as it could be used both as a means of therapy for mental illness and substance abuse, as well as a general means of moral and cognitive enhancement, even where specific disorders are not present.
77 Evidence referenced in Lange and Marie, above n 14:
A 2021 web-based survey of 886 subjects who had participated in a psychedelic group session concluded that the drug led to enduring pro-social effects, such as increased interpersonal tolerance and social connectedness in the majority of study participants. See Hannes Kettner, Fernando Rosas, Christopher Timmermann, Laura Kärtner, Robin Carhart- Harris and Leor Roseman “Psychedelic Communitas: Intersubjective Experience During Psychedelic Group Sessions Predicts Enduring Changes in Psychological Wellbeing and Social Connectedness” (2021) Front Pharmacol 12.
In 2020, it was found that PAP had positive effects on social behaviour and relationships even four to five years after its administration in well over two-thirds of participants: Gabrielle Agin-Liebes, Tara Malone, Matthew Yalch, Sarah Mennenga, K Linnae Ponté, Jeffrey Guss, Antony Bossis, Jim Grigsby, Stacy Fischer and Stephen Ross “Long-term follow-up of psilocybin-assisted psychotherapy for psychiatric and existential distress in patients with life threatening cancer” (2020) 34(2) J Psychopharmacol 155.
Significant positive changes in mood and behaviour, more positive attitudes to oneself and others, and general positive social and altruistic changes were reported by patients having received PAP both two and fourteen months after the study completion: see Roland Griffiths, William Richards, Matthew Johnson, Una McCann and Robert Jesse “Mystical- type experiences occasioned by psilocybin mediate the attribution of personal meaning and spiritual significance 14 months later” (2008) 22(6) J Psychopharmacol 621.
Evidence of improved relationships with friends family and people in general can be sourced from Lange and Marie, above n 14: see for example Roland Griffiths, Matthew Johnson, William Richards, Brian Richards, Robert Jesse, Katherine MacLean, Frederick Barrett, Mary Cosimano, and Maggie Klinedinst “Psilocybin-occasioned mystical-type experience in combination with meditation and other spiritual practices produces enduring positive changes in psychological functioning and in trait measures of prosocial attitudes and behaviors” (2018) 32(1) J Psychopharmacol 49; Robin Carhart-Harris, David Erritzoe, Eline Haijen, Mendel Kaelen and Rosalind Watts “Psychedelics and connectedness” (2018) 235(2) Psychopharmacol 547.
78 Evidence referenced in Lange and Marie, above n 14: see, for example, Peter Hendricks, Michael Crawford, Karen Cropsey, Heith Copes, N Wiles Sweat, Zach Walsh and Gregory Pavela “The relationships of classic psychedelic use with criminal behavior in the United States adult population” (2018) 32(1) J Psychopharmacol 37; Thiessen and others, above n 14.
79 Evidence referenced in Lange and Marie, above n 14: see, for example, Thiessen and others, above n 14; Simon Young “Single treatments that have lasting effects: some thoughts on the antidepressant effects of ketamine and botulinum toxin and the anxiolytic effect of psilocybin” (2013) 38(2) JPN 1.
80 Lange and Marie, above n 14, at 45.
Safer rehabilitation programmes should be prioritised. This would advance protection of prisoners’ rights. PAP is potentially a safe option, relative to current psychotropic interventions. This is not to say that PAP will necessarily replace psychotropic medication, as certain psychiatric histories81 exclude the possibility of having PAP. Rather, its comparative safety indicates that risk- minimisation may be a positive factor in advocating for its implementation.
Psychotropic medications carry several adverse side-effects. The emotional effects of certain psychotropic medications, in particular antipsychotic drugs, can induce a “flattening” of emotions, manifesting itself as boredom, listlessness, purposelessness and apathy. This can directly affect the patient’s mental processes by affecting motivation.82 Side-effects are not only unpleasant but can result in patients being significantly less responsive to rehabilitation.
Psychotropic medication may even contribute to crime. Frequent prescription and dispensation to patients can result in the diversion and/or abuse of drugs from legitimate to illicit use.83 Prison inspires creative methods of abusing common psychotropic medications. Although the full extent of diversion is unknown and unknowable, it is understood to be a considerable and ongoing problem.84
Current research suggests PAP carries less harm potential. Schenberg suggests there would be little risk of diversion and abuse of psychedelics if their use was exclusively licensed by especially licensed clinicians, as opposed to general prescription and dispensation to patients.85 Psychedelics have been described as “one of the safest known classes of [central nervous system] drugs”.86
81 For example, schizophrenia or psychosis: see Johnson, Richards and Griffiths, above n 13, at 608.
82 Jami Floyd “The administration of psychotropic drugs to prisoners: State of the law and beyond” (1990) 78(5) Cal L Rev 1243 at 1271.
Examples of adverse side effects attributed to psychotropic medication include altered sleep pattern, muscular rigidity, constipation, sexual dysfunction, seizures, depression, increased risk of suicide, dry mouth, diarrhoea, abdominal pain, nausea, and vomiting.
83 Keith Berge, Kevin Dillon, Karen Sikkink, Timothy Taylor and William Lanier “Diversion of Drugs Within Health Care Facilities, a Multiple-Victim Crime: Patters of Diversion, Scope, Consequences, Detection, and Prevention” (2012) 87(7) Mayo Clin Proc 674 at 681.
84 Berge and others, above n 83, at 681.
85 Schenberg, above n 14, at 6.
86 Nichols, above n 2, at 275.
Research has repeatedly shown that psychedelics do not cause dependence or compulsive use.87 Looking at psilocybin, Gable in 1993 concluded that it carries some of the lowest risks of deathacross all substance abuse categories.88 Psychedelics have the potential to escalate dangerous
behaviour when consumed by unprepared individuals and/or in unsafe settings. In controlled settings, Multidisciplinary Association for Psychedelic Studies (MAPS) reported a 0.03 per cent incidence risk of serious adverse events from psychedelics.89 Finally, two large-scale population studies, conducted in 2013 and 2015, each comprising of over 130,000 adults in the United States, found no evidence of an association between psychedelic use and mental health problems, including schizophrenia, psychosis, depression, anxiety disorders or suicide attempts.90
A common concern linked to psychedelics is that they induce hallucinogen persisting perception disorder, described as “flashbacks” of the drug experience long after its acute effects have subsided.91 While a few trials had reports of some type of flashback phenomena, these were of short duration, transient and mostly benign.92 A 2022 study, confirming previous investigations in the 1960s and 1970s, concluded that no cases in their controlled settings met the criteria for the disorder.93
Psychological risks, such as susceptibility to psychotic or manic episodes, can largely be avoided through screening for specific mental illnesses. Those with a predisposition towards psychotic illnesses (i.e., personal or family history of schizophrenia or bipolar disorder) are excluded from clinical treatment with psychedelics.94 While this avoids risk, it is one of the key limitations of PAP.
87 See Adam Halberstadt “Recent advances in the neuropsychopharmacology of serotonergic hallucinogens” (2015) 277 Behav Brain Res 99; Matthew Johnson, Roland Griffiths, Peter Hendricks and Jack Henningfield “The abuse potential of medical psilocybin according to the 8 factors of the Controlled Substances Act” (2018) 142 Neuropharmacology 143; and Nichols, above n 2.
88 Robert Gable “Toward a comparative overview of dependence potential and acute toxicity of psychoactive substances used nonmedically” (1993) 19(3) Am J Drug Alcohol Abuse 263.
89 Johnson, Richards and Griffiths, above n 14, at 609; Multidisciplinary Association for Psychedelic Studies (MAPS) Investigator’s Brochure (11th ed, 2019).
90 Pål-Ørjan Johansen and Teri Krebs “Psychedelics not linked to mental health problems or suicidal behavior: A population study” (2015) 29(3) J Psychopharmacol 270.
91 Felix Müller, Elias Kraus, Friederike Holze, Anna Becker, Laura Ley, Yasmin Schmid, Patrick Vizeli, Matthias Liechti and Stefan Borgwardt “Flashback phenomena after administration of LSD and psilocybin in controlled studies with healthy participants” (2022) 239(6) Psychopharmacology (Berl.) 1933 at 1934.
92 Müller and others, above n 91, at 1940.
93 Müller and others, above n 91, at 1940.
94 Johnson, Richards and Griffiths, above n 14, at 608.
Whereas cognitive therapy is potentially available for any prisoner, PAP would be an exclusive treatment option.
On balance, the low risk profile should support the use of PAP as a rehabilitative option.
Whether and when an offender is offered a suitable specialised programme is decided by the Chief Executive of Corrections.95 That decision depends, in part, on the Department’s ability to deliver those programmes.96 The Court of Appeal has held that there is no obligation to provide treatment “irrespective of cost or likely benefit”.97 However, legislation indicates that there is an onus on the Department to provide treatment where resources would allow for it.98 The Department commented that currently the “social and political environment of having to carefully justify all expenditure”
means that efficacy of treatment is of paramount importance.99 Where treatment options are
considered equally effective, interventions will be prioritised according to cost.100
Psychological Services already provide significant treatment hours for prisoners.101 With PAP
requiring significantly less treatment sessions than more commonly distributed cognitive psychotherapy, coupled with the fact that fewer dosages would need to be funded, it is highly likely that PAP would be a more cost-effective means of intervention. For example, a Phase-3 study on MDMA-assisted psychotherapy for the treatment of PTSD estimated for every 1,000 patients treated, the medical care system could expect 30-year savings of USD 132.9 million (not to mention averting 61.4 premature deaths).102 This estimate was based on comparative treatment effectiveness,
95 Lake v R [2021] NZCA 352 at [26].
96 Corrections Act, s 5(1)(c).
97 Miller v New Zealand Parole Board [2010] NZCA 600 at [143].
98 Corrections Act, s 52; International Covenant on Civil and Political Rights, art 10(3).
99 Brendan Anstiss “The Effectiveness of Correctional Treatment: New Zealand Correctional Programming”
Department of Corrections <www.corrections.govt.nz>.
100 Love, above n 30.
101 Love, above n 30.
102 Elliot Marseille, Jennifer Mitchell and James Kahn “Updated cost-effectiveness of MDMA-assisted therapy for the treatment of posttraumatic stress disorder in the United States: Findings from a phase 3 trial” (2022) 17(2) Plos One 1 at 1.
treatment costs and future medical costs. It did not account for the reduced risks and severity of substance abuse, domestic violence or involvement with the criminal justice system, suggesting the savings rate could be even higher.103
A significant cost of PAP would be constructing the necessary facilities. Set and setting are crucial for treatment effectiveness. “Set” refers to mind-set and “setting” is the context or environment in which the session takes place.104 These can be influenced by many factors, from the comfort and aesthetic appeal of the room to the quality of the patient’s relationship with the clinicians and the mood they help to set. The session rooms should be made to appear as comfortable as living rooms. At minimum, the patient should be able to sit or lie on a couch.105 These facilities would have to be constructed. The present prison environment has been described as “counter-therapeutic” and not conducive to mental well-being.106 Creation of this therapeutic space would be a one-off cost and is arguably already required, regardless of implementation of this intervention. It may be advanced that creating spaces more suitable for therapeutic outcomes could benefit prisoners, even without psychedelic medication.107
Both legislation and reports from the Department of Corrections support the idea that, where a treatment is equally if not more effective, and falls within the resource constraint, that intervention should be prioritised. Considering PAP’s ability to target rehabilitation and reintegration, coupled with its relative safety and expected cost benefit, it should be offered as a rehabilitative programme, at least voluntarily.
III The Lawfulness of Using Such Drugs for Therapeutic Purposes
103 Marseille, Mitchell and Kahn, above n 102, at 10; see Gillian Sanders, Peter Neumann, Anirban Basu, Dan Brock, David Feeny, Murray Krahn, Karen Kuntz, David Meltzer, Douglas Owens, Lisa Prosser, Joshua Salomon, Mark Sculpher, Thomas Trikalinos, Louise Russell, Joanna Siegel and Theodore Ganiats “Recommendations for Conduct, Methodological Practices, and Reporting of Cost-effectiveness Analyses: Second Panel on Cost-Effectiveness in Health and Medicine” (2016) 316(10) JAMA 1093.
104 Mind Medicine Australia “What is Psychedelic-assisted therapy” <www.mindmedicineaustralia.org.au>.
105 Mind Medicine Australia, above n 104.
106 McKenna and Sweetman, above n 48, at 56 and 61.
107 McKenna and Sweetman, above n 48, at 56 and 61.
MDMA and psilocybin are not currently registered as medicines for therapeutic use in New Zealand. Despite extensive evidence indicating the relative safety of psychedelic drugs, both psilocybin and LSD are classified as Class A substances (very high risk), and MDMA as Class B (high risk).108
A medicine can be approved for distribution, supply or use, provided certain conditions are met.109 Conditions may relate to who can prescribe the medicine or for what indication. For example, certain controlled drugs, such as heroin, can be prescribed for the treatment of addiction.110 New Zealand has independent decision-making as to regulation and supply of therapeutic products. Changes in regulation from other jurisdictions may impact local policy.
The Royal Australian and New Zealand College of Psychiatrists (RANZCP) positioned itself against medically controlled patient access to MDMA and psilocybin in its “Therapeutic Use of Psychedelic Substances Clinical Memorandum, May 2020” (the CM).111 They centred their stance around safety concerns. However, the CM has been criticised as being seriously flawed, in that it contains referencing errors, misinformation, irrelevant data and incomplete research.112 This year, the RANZCP updated its CM.113 It conceded that psychedelic therapies demonstrate a high safety ratio and low risk profile with limited physiological concerns.114 However, they maintained that concerns relating to training of clinicians and unknown safety issues should still limit the speed at which this type of therapy is regulated.115
108 Misuse of Drugs Act 1975.
109 Medicines Act 1981, s 23; Misuse of Drugs Regulations 1977, reg 22.
110 Misuse of Drugs Act, s 24.
111 The Royal Australian and New Zealand College of Psychiatrists Clinical Memorandum: Therapeutic use of
psychedelic substances, May 2020 (Melbourne, May 2020).
112 Victor Chiruta, Paulina Zemla, Pixie Miller, Nicola Santarossa and John Hannan “Critique of the Royal Australian and New Zealand College of Psychiatrists Psychedelic Therapy Clinical Memorandum, Dated May 2020” (2021) JMHS 145 at 146.
113 The Royal Australian and New Zealand College of Psychiatrists Clinical Memorandum: Therapeutic use of
psychedelic substances, June 2022 (Melbourne, June 2022).
114 At 4.
115 At 5.
In Australia, both MDMA and psilocybin are Schedule 9 (prohibited substance) drugs and are notavailable for use in a medically controlled environment.116 These substances may be used in
medical and scientific research.117 Recently, on the basis that research is still limited, and risk of diversion in the case of MDMA, the Therapeutic Goods Administration have declined to reschedule these drugs in a manner that would permit more extensive use.118 It was noted that down-scheduling could be further considered if there was more evidence of therapeutic value from further clinical trials.119
Elsewhere, governments have announced funding for research and have granted individuals access to various psychedelic interventions. Canada legislated a Special Access Program, allowing physicians to request restricted psychedelic drugs for their patients to use as part of a wider psychotherapeutic treatment programme.120 In 2020, the Israeli government announced funding and approved treatments under the Compassionate Use programme to grant people with urgent medical conditions access to promising treatments which are still in the clinical trial phase.121 That same year, Oregon not only legalised psilocybin, but became the first jurisdiction in the world to lay out
plans for regulating the drug’s therapeutic use.122 As evidence and application of psychedelic
medication increases globally, should it continue to be compelling, it is possible that down- scheduling would occur in New Zealand. This would enable PAP to be used in New Zealand prisons.
IV Summary
116 Poisons Standard June 2022, sch 9.
117 Therapeutic Goods Administration Delegate’s final decision and reasons for decision – Psilocybin and MDMA (ACMS#32) (Australian Government, November 2020) at 5 and 11.
118 The Therapeutic Goods Administration is the medicine and therapeutic regulatory agency of the Australian
Government.
119 Therapeutic Goods Administration, above n 117, at 10.
120 Regulations Amending Certain Regulations Relating to Restricted Drugs (Special Access Program) pursuant to Controlled Drugs and Substances Act SC 1996 c 19, s 55(1) and Food and Drugs Act RSC 1985 c F-27, s 30.
121 David Carpenter “Israel makes a big move towards the acceptance of MDMA-assisted psychotherapy for PTSD” (7 February 2020) Forbes <www.forbes.com>
122 Zoe Cormier “Psilocybin Treatment for Mental Health Gets Legal Framework” (1 December 2020) Scientific American <www.scientificamerican.com>.
A central aim of the justice system is to promote the rehabilitation and reintegration of offenders back into society, and, in doing so, reducing reoffending. On a voluntary basis, current research indicates PAP is a compelling intervention. It fits the criteria for implementing rehabilitative programmes: it facilitates rehabilitation and reintegration, possibly more effectively than current interventions, it has a comparatively low risk profile, and finally, current research suggests it is a cost-effective option.
PAP could achieve these purposes through administration on a therapeutic basis or as a form of MBE. On a therapeutic basis, it may achieve these objectives through alleviating symptoms of mental illness or addiction, allowing for the offender to focus on adjusting the social environment or personal factors that contribute to the triggers for committing crimes. As a form of MBE, the effect on prosociality indicates it can meet these objectives for a near indiscriminate group of offenders (after screening for specific psychiatric histories).
Currently, psychedelic medications are classed as high and very high risk, under New Zealand law on misuse of drugs. Arguably, this is out of date, although that discussion is outside the scope of this dissertation. Emerging evidence does strongly suggest that it is no more risky than other psychotropic medication and potentially a lot more effective. New Zealand independently regulates therapeutic products. As evidence continues to emerge and more jurisdictions recognise the reported benefits from PAP, it is possible that psychedelic medications could be down-scheduled in New Zealand. This should be seriously considered as it would enable PAP to be implemented as a rehabilitative programme within our prison system.
This Part has established the benefits of offering treatment voluntarily. The following Part will examine if the same goals could be achieved through enforcing this treatment as a compulsory intervention.
Part II
Enforcing Psychedelic-Assisted Psychotherapy in Prison I Compulsory Medical Treatment
The law recognises that prisoners, along with everyone else, have a right not to be touched without a lawful justification or excuse.123 Derived from this general right not to be touched by others is the right of a competent patient to refuse treatment.124 In upholding the right to give, withdraw or refuse consent to treatment, the law is able to respect a person’s autonomous decisions concerning their healthcare.125 The starting position is that compulsory medical treatment, such as enforced PAP, breaches this fundamental right. To breach this right may risk tortious liability, for example, for trespass to the person, or the commission of a criminal offence, such as assault, or a human rights violation.126
If a person’s right to refuse treatment is infringed, some lawful justification or excuse is required to permit the lawful provision of that service.127 The common law provides some protection through establishing defences to commission of the relevant legal wrongs, such as the doctrine of necessity. Another justification is the existence of valid consent on the part of the patient. This could be described as the “consent requirement”. Other justifications are contained in specific legislation. This Part concludes that there is no justification for enforcing PAP in prisons.
123 Iris Reuvecamp and John Dawson “Healthcare in the Absence of Consent” in Iris Reuvecamp and John Dawson (eds) Mental Capacity Law in New Zealand (Thomson Reuters: Wellington, 2019) 125 at 125.
124 Brookbanks, above n 23, at 238.
125 Iris Reuvecamp “The Role of Capacity in Other Legislation” in Iris Reuvecamp and John Dawson (eds) Mental Capacity Law in New Zealand (Thomson Reuters: Wellington, 2019) 191 at 192 citing New Zealand Bill of Rights Act, s 11; Code of Health and Disability Consumers’ Rights, right 7(1).
126 Reuvecamp and Dawson, above n 123, at 125; Stephen Todd “Trespass to the Person” in Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) 101 at 107.
127 Reuvecamp and Dawson, above n 123, at 126.
The general legal position is that medical treatment cannot be enforced against the patient’s will.The tort of battery might apply where there is no consent to medical treatment.128 This tort is
concerned with “the act of intentionally applying force to the body of another person without that person’s consent or other lawful justification”.129 The remedy for this may be exemplary damages, although a patient is more likely to pursue a non-tortious remedy under the Code.130
Section 11 of NZBORA enshrines every person’s right to refuse medical treatment in recognition of a person’s autonomy, human dignity and bodily integrity. The right protected by section 11 can still be limited in demonstrably justifiable situations under s 5 NZBORA, but such justifications must be prescribed by law, and they are likely to be interpreted narrowly to promote compliance with the
NZBORA.131 The test under s 5 NZBORA in this case is one of proportionality between the
government’s rehabilitative intervention and the infringement on a prisoner’s rights.132
The prisoner’s right to autonomous decision-making in relation to health care is covered by the general right of a consumer to give informed consent to health care, endorsed in the Code, issued under powers conferred by the Health and Disability Commissioner Act 1993 (HDC Act).133 The Code defines ten rights which apply to “every” health consumer, which includes prisoners where they are consumers of health and disability services. Right 7 states that “[e]very consumer has the right to refuse services and to withdraw consent to services”. If a provider of health services fails to uphold these rights, they may be exposed to civil liability created by the HDC Act.134
128 Stephen Todd “Defences” in Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) 1149 at 1171; see Freeman v Home Office (No 2) [1984] QB 524, [1984] 2 WLR 130.
129 Todd, above n 126, at 107. See, for example, P v T [1998] 1 NZLR 257 (CA).
130 Todd, above n 128, at 1171. Exemplary damages require outrageous misconduct that is deliberate or reckless needs to be established before they will be awarded.
131 New Zealand Bill of Rights Act, ss 4 and 7.
132 Reuvecamp, above n 125, at 200.
133 Reuvecamp, above n 125, at 233.
134 Reuvecamp, above n 125, at 235.
There is no legislation in New Zealand providing general authority for the non-consensual treatment of prisoners. The Sentencing Act 2002 certifies that:135
No sentence or condition imposed or order made under this Act limits or affects in any way any enactment or rule of law relating to consent to any medical or psychiatric treatment.
This means that, while a condition relating to medical treatment may be imposed, the prisoner still retains the right to consent to, or refuse, that treatment, negating support for compulsory medical treatment of prisoners, except where justified by some other rule of law.136
The Corrections Act 2004 similarly does not provide support for enforced medical treatment. Section 83 of that Act has specific and strict requirements which allow for the use of force against prisoners, but only in specified situations, and when reasonably necessary. Medical treatment would not be captured by this provision.137
The default position then is that PAP cannot be enforced as compulsory treatment in prison.
There are certain recognised justifications for circumventing this default position. A patient’s consent of course provides a defence to a claim of non-consensual medical treatment. In an action for battery, if the defendant can prove the patient consented, there is no liability.138 Right 7 of the Code provides that “[s]ervices may be provided to a consumer only if that consumer makes an informed choice and gives informed consent...”. Thus, a patient who gives informed consent can legally be treated. Informed consent is discussed extensively in Part III.
135 Section 146.
136 See for example Sentencing Act, ss 52(4)(a) and (b).
137 The provision only applies to the use of physical force which is reasonably believed to be reasonably necessary—
(a) in self-defence, in the defence of another person, or to protect the prisoner from injury; or(b) in the case of an escape or attempted escape (including the recapture of any person who is fleeing after escape); or
(c) in the case of an officer,—
(i) to prevent the prisoner from damaging any property; or(ii) in the case of active or passive resistance to a lawful order.
138 Todd, above n 128, at 1166.
The common law has developed a principle of necessity which may be used to justify an otherwise unlawful interference with another person.139 The doctrine applies, in some circumstances, when providing health and disability services.140 Its justification for the curtailment of s 11 NZBORA ’s right has been confirmed in R v Harris as a “reasonable limit prescribed by law” under s 5 NZBORA.141 Leason v Attorney General stated that the doctrine may justify actions necessary forthe protection of others.142 Nevertheless, relying on the doctrine of necessity to argue that
compulsory medical treatment of prisoners would be lawful in general in order to avoid greater harm or pursue some greater good, even when the prisoner has the competence to refuse the treatment, would be far too wide an extension.143 As cautioned by Tipping J in Dehn v Attorney- General, too loose an approach would be “tending towards a mask for anarchy”.144
There are several examples of statutory provisions that authorise compulsory medical treatment,
many seen within legislation concerning mental health.145 In a general sense, many of these
provisions override the right to refuse medical treatment in the interests of the patient and/or public safety. However, these powers are also subject to appropriate safeguards.146
A patient can be committed to compulsory treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992 if they are considered to be “mentally disordered”147 within the meaning of the Act.148 Section 59(1) gives explicit statutory authorisation for treatment to be
139 Todd, above n 128, at 1187.
140 Reuvecamp and Dawson, above n 123, at 127 referencing Re F (Mental Patient Sterilisation) [1991] UKHL 1; [1990] 2 AC 1, cited as
F v West Berkshire Health Authority [1989] 2 All ER 545 (HL).
141 Reuvecamp and Dawson, above n 123, at 129, referencing R v Harris HC Palmerston North CRI-2006-054-1008, 21 November 2006 at [42].
142 Todd, above n 128, at 1187 citing Leason v Attorney General [2013] NZCA 509, [2014] 2 NZLR 224.
143 Todd, above n 128, at 1187.
144 Todd, above n 128, at 1187 citing Dehn v Attorney-General [1998] 2 NZLR 564 (CA), on appeal [1989] 1 NZLR
320 (CA).
145 See for example s 70(1)(e)-(h) of the Health Act 1956, ss 49-52 Children, Young Persons and Their Families Act 1989, s 73 of the Land Transport Act 1998, and s 13 of the Criminal Investigations (Blood Samples) Act 1995.
146 Rosslyn Noonan Brookers Human Rights Law (online ed, Thomson Reuters) at [BOR10.03].
147 Section 2 defines mental disorder, in relation to any person, as: An abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it—
(a) poses a serious danger to the health or safety of that person or of others; or(b) seriously diminishes the capacity of that person to take care of himself or herself;— and mentally disordered, in relation to any such person, has a corresponding meaning.
148 Section 59(1).
provided without consent, even if the patient explicitly refuses treatment. The authorised treatment is limited to “treatment for mental disorder”.149 However, for several reasons, this regime is unlikely to apply in the present context. This is because most of the relevant prisoners are unlikely to be “mentally disordered” in the relevant sense, and because the treatment proposed would not necessarily be “for mental disorder”, but for moral bioenhancement also. Moreover, for prisoners to be treated under the authority of the mental health legislation, they would need to be transferred to ahospital which already regularly exceed 100 per cent occupancy levels.150 unlikely to occur.
Such a transfer is
The courts can impose compulsory medical treatment for substance abuse under the Substance Addiction (Compulsory Assessment and Treatment) Act 2017. Under that legislation, the patient must accept medication or treatment even if their consent has not been given. But this regime only applies to those who suffer from substance abuse addiction and do not have the capacity to make an informed decision about their treatment for that addiction. So, this regime would again have limited application in the present context and would also require prisoners’ transfer to special facilities for the treatment of addiction, which have very few places available.
The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 provides courts with appropriate compulsory care and rehabilitation options for persons who have an intellectual disability and who are charged with, or convicted of, an offence. Again, these provisions are too restrictive in application to authorise compulsory treatment in the present context, which would be intended for far more general use in prison and likely would not require the offender to be intellectually disabled in the relevant statutory sense.
Thus, none of the current legislation would permit compulsory treatment of a broad range of offenders, especially not in the context of moral bioenhancement. New legislation would therefore need to be enacted to impose such a limit on offenders’ rights.
II Should an Exception Be Made for Psychedelic-Assisted Psychotherapy?
149 District Health Board v MH [2012] NZFC 4432.
150 Naomi Arnold “Not enough support for mentally ill shunted between prison and care” (19 June 2022) The New Zealand Herald <www.nzherald.co.nz>.
Voluntary consent to medical treatment is the embodiment of patient autonomy. Nevertheless, justifications can be advanced for restricting such autonomy. John Stuart Mill articulated the Harm principle, predicating that power may be exercised over a member of society against their will if necessary to prevent harm to others.151 This principle is often used to justifiably limit autonomy.152 Perhaps the most obvious example of this in action is imprisonment: the liberty of a prisoner is severely constrained as a result of their criminal conduct, which is justified as a means of preventing harm to others in the community.153
Even when compulsory treatment is authorised, clinicians should balance an individual’s rights
against the need for the intervention.154 Compulsory treatment should be provided in a manner
consistent with the NZBORA, the Code and Te Tiriti o Waitangi principles, to the greatest extent possible, and in the least restrictive way.155 This should help avoid unnecessary infringement on people’s human rights. Ultimately, the aim should be to promote and re-establish patients’ autonomy and welfare.156
A Creating an Exception is Not Justifiable for Psychedelic-Assisted Psychotherapy
Prisoners are considered consumers under the Code when they receive health or disability services.157 The Code provides that services may be provided only if the consumer gives consent, “except where any enactment, or the common law, or any other provision of this Code provides otherwise”.158 Thus, the Code itself recognises that any new enactment authorising persons to be treated against their will would override the right to consent guaranteed by the Code. Nevertheless, any limitation should satisfy the tests outlined by Tipping J, in Hansen, when applying s 5 NZBORA, concerning the circumstances in which limits on rights can be justified.159
151 Nils Holtug “The Harm Principle” (2002) 5 Ethical Theory Moral Pract 357 at 357.
152 Holtug, above n 151, at 360.
153 Sentencing Act, s 7.
154 Ministry of Health Human Rights and the Mental Health (Compulsory Assessment and Treatment) Act 1992
(September 2020) at 7.
155 Ministry of Health, above n 154, at 7.
156 The Royal Australian and New Zealand College of Psychiatrists Code of Ethics (5th ed, Melbourne, 2018) at [1.3].
157 Code of Health and Disability Consumers’ Rights, s 4.
158 Right 7(1).
159 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [104].
In 2019, the High Court ruled that it was justifiable, under s 5 NZBORA, to curtail the rights of certain mentally ill persons in the interest of public safety or their own welfare.160 More recently, s 11 NZBORA has been held to be both engaged and justifiably limited in the contexts of Covid-19 measures and water fluoridation for tooth decay. The justification in both cases was based on risk- minimisation, given the implications of the health risks in the absence of treatment, and on using scientific evidence regarding public health benefits from treatment.161 Following this recent case law, it may be argued that compulsory PAP could be justified on a risk-minimisation basis for public safety.
Under Hansen, the purpose of the intervention must be sufficiently important to justify
encroachment on prisoners’ rights.162 Ensuring public safety, offender rehabilitation and
reintegration are all important objectives which might be achieved by the rehabilitative intervention.163 Reoffending rates in New Zealand are high, with around 70 per cent of people with previous convictions being re-convicted within two years following release from prison, and almost half being re-imprisoned.164 New Zealand’s prison population has a higher percentage of sentenced prisoners convicted of violent and sexual offences than any of the 31 jurisdictions of the Council of Europe, the United States and Australia.165 Further, New Zealand’s incarceration rate is significantly higher than those of Australia, England, Wales and most European countries.166 The Department of Corrections is obligated to pursue the aim of rehabilitating prisoners in the most efficient means
possible.167 Thus an intervention targeting reduction in harm to others could be considered
sufficiently important.
160 Wright v Attorney-General [2019] NZHC 59 at [38].
161 See New Health New Zealand v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948 at [74], [112] and Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 3012 at [126].
162 R v Hansen, above n 159, at [104].
163 Corrections Act, ss 6(1)(c)(i) and 6(1)(h).
164 Ministry of Justice “Hāpaitia te Oranga Tangata” (16 July 2021) <www.justice.govt.nz>.
165 Marcus Boomen “Where New Zealand stands internationally: A comparison of offence profiles and recidivism rates” (2018) 6(1) New Zealand Corrections Journal 87 at 87.
166 Boomen, above n 165, at 87.
167 Corrections Act, 6(1)(h).
If the expected benefit is sufficiently important and urgently needed, interventions can be fast- tracked. In some instances, a “precautionary principle” can support the case for action before sufficient evidence is available to confirm the belief that an intervention would be effective.168 A precautionary principle usually applies in the context of a public health emergency. It allows for fast-tracked solutions “[w]here the goal is to avert serious injury or death... the response does not admit of surgical precision”.169 In that situation, “proof to the standard required by science is not required” but rather “the application of common sense to what is known, even though what is known may be deficient from a scientific point of view”.170 Some may feel the prevalence of mental illness and substance use in our prisons, coupled with the disproportionately high rates of incarceration and recidivism constitute a crisis, both for public safety and prisoners’ health. However, in contrast to the situation in a public health crisis, where the intervention to be rushed may be the only treatment option available, many avenues are available to manage these forensic issues with offenders, in the present context. While arguably PAP has the potential to be more effective than those avenues, there is no justification for rushing administration of PAP, let alone enforcing it against prisoners’ will.
According to Hansen, the means used must be rationally connected to the stated purpose.171 Several studies have indicated the potential for PAP to achieve its goals.172 There has also been an indication that PAP facilitates cognitive enhancement and pro-sociality so as to improve competent moral cognition and appropriate behaviour.173 The Department of Corrections identified that:174
[p]rosocial relationships trigger and maintain change by providing encouragement and making crime costly. Some participants shared that the emotional support they received from people around them (e.g., family, prison officers) helped spur them to change.
168 Four Aviation Security Service Employees, above n 161, at [112]; Taylor v Newfoundland and Labrador [2020] NLSC 125 at [118], [122] and [411]; RJR–MacDonald Inc v Canada [1995] 3 SCR 199 at [137].
169 Four Aviation Security Service Employees, above n 161, at [411].
170 Four Aviation Security Service Employees, above n 161, at [112] citing RJR–MacDonald Inc v Canada, above n 168, at [137].
171 R v Hansen, above n 159, at [104].
172 For example, see Hendricks and others, above n 14, at 65; Walsh and others, above n 14, at 603.
173 Lange and Marie, above n 14, at 45; see also Paulo and Bublitz, above n 13.
174 April Lin, Gabriel Ong, Carl Yeo, Eng Hao, Loh, Doris Chia and Jasmin Kaur “Effective rehabilitation through evidence-based corrections” (2018) 6(1) New Zealand Corrections Journal 73 at 76.
It could be established that there is a rational connection between PAP and a reduction in offending.
Additionally, the intervention should be no more restrictive than is reasonably necessary to achieve the stated purpose, and the limit imposed must be proportionate to the objective sought.175 In Four Aviation Security Service Employees, the intervention (mandated vaccination) was considered both reasonably necessary and proportionate to the objective (to protect the health of New Zealanders
and minimise the severe social and economic disruption created by the virus).176 In that case,
vaccines were not compulsory, but the consequence of not receiving treatment was unemployment – a severely restrictive set of options. Receiving two injections is a reasonably invasive requirement. However, that intervention was the only available protection against a Covid outbreak (apart from another significant curtailment of rights, in the form of quarantine, and the less effective measure of using masks and social distancing).177 PAP is also quite intrusive as an intervention. Not only would the offender be required to receive at least one dose of a drug, it would mandate psychotherapeutic sessions both before and after the drug session. The drug session alone would result in significant intrusion into the offender’s privacy and autonomy, plus the offender would be incapacitated for six to eight hours. Additionally, there are numerous alternative rehabilitative options available on a voluntary basis. Thus, the limit would not be proportionate to the objective. Consequently, under the Hansen approach, there is little support for a justified encroachment on s 11 NZBORA in this context.
Further, there is evidence that PAP would be less effective and potentially dangerous if it were administered entirely against a patient’s will. Research and experimentation with this therapy in the 1960s at times neglected the importance of set and setting. Unethical scientific methods, at times including restraining patients during the experience and administering unsafe doses to unprepared patients, resulted in adverse patient outcomes.178 This produced reports of individuals jumping from buildings and ending their lives, and, while still extremely rare, cases of psychotic reactions lasting
175 R v Hansen, above n 159, at [104].
176 Four Aviation Security Service Employees, above n 161, at [95] and [126]. 177 Ministry of Health “How COVID-19 vaccines work” <www.health.govt.nz>. 178 See generally Johnson, Richards and Griffiths, above n 14.
more than 48 hours.179 These early mistakes reveal the significance of appropriate settings and care for the patient.
As emotional experiences can be intensified when under the influence of psychedelics, preparation,
set and setting are crucial to avoid escalation of dangerous behaviour.180 Forced PAP seems to
heighten the rare risk of induced long-term psychosis and severely impact the therapeutic potential of psychedelics, diminishing their purported benefit. Their compulsory use is therefore unjustifiable, since the drugs would introduce risks that would outweigh the benefits of maintaining health or public safety.
Moreover, if compulsory medical treatment of prisoners was allowed, it would set a significant and dangerous precedent, under which any medical treatment purported to reduce some factor of criminality might be imposed as a compulsory condition of a sentence.
With PAP as a therapeutic option, the purview of administering compulsory treatment would inevitably be widened, including even those who are competent to consent. It would widen the scope of the treatment considered necessary to stop a patient causing harm to others or to protect the patient from serious harm.181 This would be too broad an ambit.
PAP as compulsory MBE is a disconcerting concept. One could imagine the criteria for this condition would be extrapolated from current laws around incapacity. In 2006, the English Court of Appeal concluded that a detained mental health patient was incapacitated and could be treated without consent, because his inability to accept the correctness of the diagnosis of mental illness
179 See for examples of reports Anne Schlag, Jacob Adam, Iram Salam, Jo Neill and David Nutt “Adverse effects of psychedelics: From anecdotes and misinformation to systematic science” (2022) 36(3) J Pharmacol 258.
Evidence sourced from Johnson, Richards and Griffiths, above n 14: see report where one single case of a psychotic reaction lasted more than 48 hours out of 1200 experimental, non-patient research participants administered with LSD or mescaline, see Sidney Cohen “Lysergic acid diethylamide: Side effects and complications” (1960) 130 J Nerv Ment Dis 30.
For report of one case out of 247 participants in which an LSD related psychotic episode lasted more than 48 hours, see William McGlothlin and David Arnold “LSD revisited: A ten-year follow-up of medical LSD use” (1971) 24 Arch Gen Psychiatry 35.
180 Johnson, Richards and Griffiths, above n 14, at 609.
181 B (R on the application of) v (1) Dr SS (Responsible Medical Officer) [2006] EWCA Civ 28, [2006] 1 WLR 810 at
[134].
meant he was unable to process essential information about his treatment.182 In a similar way, a disturbing proposition could be that, where an offender does not believe the State’s diagnosis that they are of amoral standing, they could be treated against their will. This would give far too much discretion to the State. As cautioned by Lord Reid:183
[w]e have too often seen freedom disappear in other countries not only by coups d'etat but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.
Taken as a whole, there seems to be little possibility that PAP could justifiably be administered as a compulsory treatment programme.
III Summary
The default position for the lawful administration of medical treatment is that consent of the patient is required. Compulsory medical treatment is therefore generally considered unlawful in New Zealand, with few notable exceptions. The existing limitations on the right to consent are unlikely to encompass a situation in which PAP was administered compulsorily. Parliament can create new exceptions to s 11 NZBORA. However, such limits need to be demonstrably justified, to satisfy the requirements of s 5 NZBORA. In reviewing the current research into PAP against the high threshold for validating such a limitation, it seems highly unlikely that such an exception would be justified under the strict Hansen tests. Thus, I would conclude that New Zealand law should not permit PAP to be enforced against a prisoner’s will.
182 B (R on the application of) v (1) Dr SS (Responsible Medical Officer), above n 181, at [26].
183 S v McC [1972] AC 24, [1970] 3 WLR 366 at 374.
Part III
Would an Offer of Psychedelic-Assisted Psychotherapy as a Condition of Sentence Reduction Vitiate Consent?
Nevertheless, even if the use of PAP is limited to consensual situations, there is still the further question of what constitutes voluntary consent, on the part of a prisoner, to participate in PAP, when prisoners might be thought to be operating in an inherently coercive environment.
Any patient, including a patient in prison, will usually have the right to make an informed choice about their care and, in most instances, must therefore give their permission to proceed with the treatment. That requires them to give informed consent. This requirement is entrenched in New Zealand law in the HDC Act and the Code. There are three general elements for assessing the validity of such consent: capacity or competence of the agent, understanding of the treatment and voluntary authorisation.184
This Part will therefore examine capacity, understanding and voluntary authorisation to determine when the circumstances in which PAP might be offered would vitiate consent. The most contentious part of this discussion centres on the voluntary authorisation requirement. However, use of PAP in prisons poses unique considerations for the entire consent process. Even so, I will conclude that PAP can be the subject of effective consent, in a prison environment, in certain circumstances. This will be followed with discussion of the justification for the use of minimal coercion, in this context, and of practical considerations for ensuring treatment efficacy where there is perceived coercion.
I Capacity
The patient’s capacity to make their own decision is fundamental to the ethical principle of respect
for autonomy.185 There is a general presumption that everyone is competent to make medical
decisions about themselves unless the contrary is established.186
184 Brookbanks, above n 23, at 229; In Re T (Adult: Refusal of Medical Treatment), above n 25; Freeman v Home Office (No 2), above n 127.
185 Brookbanks, above n 23, at 226 citing Roberts, above n 23.
186 Code of Health and Disability Consumers’ Rights, right 7(2); Protection of Personal and Property Rights Act 1988, s 5.
New Zealand case law has not defined the meaning of competence, but some basic principles can be drawn from English decisions. In Re MB, the English Court of Appeal held a person lacks capacity to consent “[if] some impairment or disturbance of mental functioning renders the person unable tomake a decision whether to consent to, or to refuse, treatment.”187 In New Zealand, Dawson
indicated a person is generally considered to have capacity when they can:188
(a) understand the information relevant to the task or decision involved;
(b) retain that information;
(c) use it or weigh it in the process of making a decision; and
(d) communicate their decision.
In the present context, most prisoners would be considered competent within those criteria.
II Understanding
In New Zealand, the concept of mana tangata (personal autonomy) refers to every person’s right to make their own decisions based on adequate understanding of the implications. This requires them to be appropriately informed of risks of harm to themselves or their collective.189 It is essential that their informed consent is acquired, as this is a “fundamental expression of respect for the dignity of persons and peoples”.190 Without adequate understanding no real consent may be obtained, meaning the treatment can constitute a battery.191 The Code therefore provides that consumers have a right to make an informed choice and give informed consent.192 Informed consent involves the exchange of information to make a reasoned decision based on the patient’s understanding of the information
187 Re MB (Caesarean section) [1997] EWCA Civ 3093, [1997] Fam 542 at [30(4)].
188 John Dawson “General principles and sources of mental capacity law” in Iris Reuvecamp and John Dawson (eds)
Mental Capacity Law in New Zealand (Wellington, Thomson Reuters, 2019) at 4.
189 The National Ethics Advisory Committee “National Ethical Standards: Informed Consent” (27 April 2021)
190 Code of Ethics Review Group The Code of Ethics (For Psychologists Working in Aotearoa/New Zealand, 2002)
(Wellington, 2002) at 10.
191 Code of Ethics Review Group, above n 190, at 10; in the case of Mohr v Williams 95 Minn 261, 104 NW 12 (Minn SC 1905) an operation constituted an assault and battery, as the patient only consented to an operation on the right ear, and the operation was carried out on the left.
192 Right 7.
provided, ideally, involving the practitioner responsible for the procedure.193 A patient’s inadequate understanding may vitiate the consent.
The HDC Act does not specifically define “informed consent”, simply referring to consent which is obtained in accordance with the Code and is “freely given”.194 The Code follows the patient-centred standard of disclosure derived from Rogers v Whittaker.195 Right 6 stipulates that the consumer has a right to receive the “information that a reasonable consumer, in that consumer’s circumstances, would expect to receive”.
Material risks should be communicated to the patient, subject to therapeutic privilege.196 However, exactly what constitutes a material risk may vary between patients. Rogers noted that not every patient will be a “reasonable” one.197 There, the High Court emphasised the subjective needs of a patient, determining that a risk is material if a reasonable person would attach significance to it, or, “if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”198 Subsequent New Zealand case law reiterated this focus on the subjective needs of the patient.199
Though the Code explicitly provides for a patient-centred standard of disclosure, it expresses this standard in objective terms in contrast to the subjective test based on the “particular patient” test.200 In practice, the difference is minimal as Right 6 places the emphasis on the reasonable patient in the “particular circumstances” of the patient.201 Disclosure extends beyond the risks of the proposed
193 Alan Shirley Policy: Informed Consent (Wairarapa District Health Board, February 2012) at 1-2.
194 Health and Disability Commissioner Act, s 2.
195 Right 6; Rogers v Whittaker [1992] HCA 58, (1992) 175 CLR 479.
196 Therapeutic privilege allows for a doctor’s discretion in disclosure: the doctor does not have to disclose information that he believes would be inconsistent with the patient’s best interests. See Rogers v Whittaker, above n 195, at 9, referencing Canterbury v. Spence (1972) 464 F 2d 772 at 789.
197 Rogers v Whittaker, above n 195.
198 At [16].
199 Rogers v Whittaker was followed in New Zealand in B v Medical Council HC Auckland HC11/96, 8 July 1996; see also Re M, Medical Practitioners Disciplinary Tribunal, 8 June 2004 (File 287-04-118D).
200 Right 6; Rogers v Whittaker, above n 195, at [16].
201 Joanna Manning “Informed Consent to Medical Treatment: The Code of Patients' Rights” (2004) 12 Med L Rev 181 at 194.
treatment to include information about alternative treatment options, their expected risks, benefits and side effects.202
Standard medical procedures have expected and predictable experiences and side effects. In contrast, PAP potentially poses a unique problem for obtaining informed consent, due to difficulties in explaining the experience the patient is likely to undergo.
Psychedelics appear to alter the mind in ways that are “qualitatively and quantitatively different” from changes created by most psychotropic medications.203 These experiences are often described as “ineffable” and in vague and difficult to comprehend terms, such as “ego dissolution” or “oceanic boundlessness”.204 Unless the patient has personally experienced this mystical feeling it is almost impossible to understand and be fully informed about the anticipated experience. The difficulty in explaining the procedure may impact prisoners’ rights to give fully informed consent, although it may be said that a description of any novel sensation is difficult to fully appreciate. Typically, people are permitted to consent to things which they have not previously experienced. Being informed that the experience will be highly individual should suffice.
Special care should be taken to discuss the unique nature of psychedelic treatment. This is best performed during preparatory stages. Certain elements of the therapeutic process require special attention. More time should be spent with patients who have never experienced psychedelics. Preparatory sessions would be a useful stage for safeguarding and receiving ethically appropriate informed consent.205 Emma Gordon, in reference to Johnson and others, suggests that preparatory sessions can help the patient trust that the clinician(s) promises, or commitments, will be carried out
202 Code of Health and Disability Consumers’ Rights, rights 6(1)(a)–(e).
203 Smith and Appelbaum, above n 14, at 1.
204 William Smith and Dominic Sisti “Ethics and ego dissolution: the case of psilocybin” (2021) 47 J Med Ethics 807 at 808.
205 Gordon, above n 13, at 9.
during the drug session.206 Gordon argues that this trust facilitates moral enhancement and improves treatment efficacy.207
Three components of PAP in particular will be novel and potentially unexpected for patients.208 These are the possibility for permanent personality change, the implications of hyper-suggestibility and potential issues arising from loss of autonomy during the drug session(s).
PAP has the potential to create permanent and unpredictable changes to personality.209 Personality changes may be unwelcome if the participant’s newfound values stand in opposition to their earlier ones. Most commonly, people are likely to become more open to different experiences and different
points of view.210 They may become more or less spiritual or experience personality changes,
perhaps disrupting relationships with loved ones.211 This is an especially pertinent risk in the prison context, as a person’s support group is integral to their reintegration post-release. Further, if the patient changes in a way they did not specifically endorse, there is no way to withdraw consent: ceasing treatment will not revert the patient to the original state.
These changes to personality structure are largely considered positive and directly correlated to the benefits of PAP. They are associated with enhanced therapeutic outcomes within a psychotherapeutic setting.212 Even if these changes are temporary, they could provide a window of opportunity for constructive therapeutic change to occur. This has been shown to result in shortened, more effective and more complete therapy.213 Both the negative and positive sides of personality change should be communicated to the prisoner.
206 Gordon, above n 13, at 9 referencing Johnson, Richards and Griffiths, above n 14.
207 At 9.
208 Smith and Sisti, above n 204, at 809.
209 Smith and Sisti, above n 204, at 809.
210 Gordon, above n 13, at 9.
211 Smith and Sisti, above n 204, at 809.
212 Smith and Sisti, above n 204, at 808.
213 José Bouso, Rafael dos Santosa, Miguel Alcázar-Córcoles and Jaime Hallak “Serotonergic psychedelics and
personality: A systematic review of contemporary research” (2018) 87 Neurosci Biobehav Rev 118 at 130-131.
Psychedelics can leave patients vulnerable to exploitation in the hyper-suggestible state left by their
lingering effects.214 Hyper-suggestibility carries both positive and negative implications.
Psychedelic induced neuroplasticity, primarily present after LSD-treatments, is considered integral
to the therapeutic benefit of the treatment.215 It allows patients to end reinforced patterns of
behaviour, for example addictions, and initiate newer, healthier patterns of behaviour. There are common concerns linked to hyper-suggestibility, primarily fuelled by the media, which should be discussed and explained to apprehensive patients.
(a) Brainwashing and belief transmission
Brainwashing is to indoctrinate so intensively and thoroughly as to effect a radical transformation of
beliefs and mental attitudes.216 The idea that patients can be brainwashed by their “guide” has
generated intense public, scientific and legal debate.217 brainwashing is pseudoscience.218
The academic consensus is that
There is a plausible chance of belief transmission. Ritualistic sessions are often influenced by a “socialisation of hallucinations”, whereby interaction and discussion with other participants “shape the psychedelic experience by directing attention, expectations and perception.”219 In this way, the entire group is often left having “discovered” the same life truths, leading to cohesion within that community.
In a related thread, discourse on neuro-interventions often generates concern around State prescribed morality, although this too is probably overstated in terms of PAP. Usual arguments
214 Robin Carhart-Harris, Mendel Kaelen, Matthew Whalley, Mark Bolstridge, Amanda Fielding and David Nutt "LSD enhances suggestibility in healthy volunteers" (2015) 232 Psychopharmacol 785 at 786.
215 Carhart-Harris and others, above n 214, at 791.
216 Webster’s New World College Dictionary (Houghton Mifflin Harcourt, 2010).
217 David Dupuis “Psychedelics as Tools for Belief Transmission. Set, Setting, Suggestibility, and Persuasion in the Ritual Use of Hallucinogens” (2021) 12(730031) Front Psychol 1 at 3.
218 Dupuis, above n 217, at 3.
219 Dupuis, above n 217, at 2.
identify that, though at least part of the aim of any criminal justice system is to re-shape offenders’ values and their immoral decisions, the state may use an intervention to “directly re-shape [anoffender’s] values”.220 This idea is comparable to the historic criminalisation of homosexuality,
where hormone therapies were imposed to suppress “deviant” behaviour.221 Today, this practice is condemned because we acknowledge that homosexuality is not immoral, or a crime. In the current case, the offender will have committed a crime. However, the point remains that this does not necessarily indicate a flaw in their morality, thus attempting to directly re-shape their values as such may be misguided.222
David Dupuis tempered these concerns, presenting evidence that while psychedelics assist social affiliation, belief transmission relies upon the patient’s efforts to test the idea through their own personal verification process.223 The experience does not offer a sudden conversion and automatic persuasion, rather, participants are guided towards a new belief system or pattern of behaviour through discussion and self-reflection.224 To ensure patients are not being exploited, specific and transparent guidelines, regularly reviewed, may offer a sufficient solution. Clinicians should take care to alleviate these sorts of concerns with patients.
(b) False memory
Some believe that the vulnerable mind state induced by psychedelics creates an increased danger of inducing false memories. The first study examining the effect of MDMA on the susceptibility to form false memories was published this year. Its data suggested that vulnerability to suggestive pressure and misinformation in memories is likely not increased during or after MDMA
intoxication.225 This should be further investigated, as if PAP were to cause false memories in
220 Laura Cabrera and Bernice Elger "Memory Interventions in the Criminal Justice System: Some Practical Ethical Considerations" (2016) 13 JBI 95 at 100 citing Elizabeth Shaw “Direct brain interventions and responsibility enhancement” (2014) 8(1) Crim Law Philos 1 at 14.
221 Barn, above n 70, at 94.
222 Barn, above n 70, at 94.
223 Dupuis, above n 217, at 5.
224 Dupuis, above n 217, at 13.
225 Lilian Kloft, Henry Otgaar, Arjan Blokland, Stefan Toennes and Johannes Ramaekers “Remembering Molly:
Immediate and delayed false memory formation after acute MDMA exposure” (2022) 57 Eur Neuropsychopharmacol 59 at 66.
patients due to suggestive pressure from a clinician it risks incorrect diagnoses and other adverse consequences.226 At present, this is not an established risk.
(c) Confessions and psychiatric privilege
Finally, prisoners may be concerned that, while under the influence of psychedelics, they may confess information that could be used against them. Clinicians should explain that confessions made during the drug session would most likely be inadmissible under s 28 of the Evidence Act 2006. The list in s 28(4) is not exhaustive, but it indicates the circumstances which may cause confessional statements to be unreliable, including “any pertinent physical, mental, or psychological condition of the defendant when the statement was made” and the circumstances in which questions were put to the defendant. Justice Hardie Boys elucidated that a confession is a statement or document “to which a clear and not a distorted or disordered mind should be brought... It is essential that the judgment is not clouded nor the mind overwrought”.227 Statements made while a person is hallucinating to an extreme degree are unlikely to be considered reliable.
Every person has the right to withdraw consent from medical treatment and to change their consent.228 PAP could pose a unique risk here, as human autonomy may be lost during the brief psychedelic experience.
With administration of psychotropic medication or conventional psychotherapeutic interventions, patients, having experienced part of the therapeutic process, can decide whether they want to continue with it.229 They may lack the time to do so with psychedelic medication. Psychedelics’ effects appear to happen quickly, even within single doses.230 If someone starts to have a “bad trip” (acutely dysphoric states marked by disorientation, anxiety, paranoia, and altered sensory experiences), or if their personality changes in an unwanted or unexpected way, they cannot
226 Kloft and others, above n 225, at 66.
227 R v Williams [1959] NZPoliceLawRp 1; [1959] NZLR 502 at 506.
228 Code of Health and Disability Consumers’ Rights, rights 7 and 7.7.
229 Smith and Sisti, above n 204, at 810.
230 Smith and Appelbaum, above n 14, at 2.
withdraw consent and leave part-way through the experience.231 Aborting or reversing thepsychedelic experience is difficult. Clinicians can try to alleviate potentially disturbing effects through redirection and calming procedures or even administration of antipsychotic medications,
but the effects may persist.232 Accordingly, the possibility of a distressing session, and the
potentially irreversible effects of psychedelic therapy, need to be clearly communicated to participants before consent is obtained.
Previously established patient preferences may shift during the session, creating challenging issues
for both patients and clinicians.233 A prominent example is prior consent (or lack thereof) to
therapeutic touch.234 To illustrate this dilemma are two scenarios identified by Smith and Sisti.235
In the first, the patient consents to therapeutic touch during the preparatory stages but later, when distressed during the psychedelic experience, rejects it. In this situation, it is likely the clinician would not touch the patient, as the clinician would prioritise the best interests of the patient by not touching them against their will.
In the second scenario, the patient initially declines therapeutic touch but, when confronted with anxiety in the psychedelic state, they change their mind and ask to be touched. This situation presents a more contentious debate. While it may be in the best interests of the patient to receive touch, doing so may subject the clinician to liability in the form of assault, especially where the patient has previously been opposed to touch. Here, extensive prior discussion about the possibility of changing consent should take place prior to the session. If there is any doubt during the session, the default position should be to refrain from touching the patient.
A potential solution could lie in the drafting of psychiatric advance directives (PADs), which enable patients to express their treatment choices for future periods of incompetence.236 The Code refers to
231 Johnson, Richards and Griffiths, above n 14, at 610.
232 Smith and Appelbaum, above n 14, at 2.
233 Smith and Sisti, above n 204, at 810. 234 For example, holding a patient’s hand. 235 Smith and Sisti, above n 204, at 810.
236 Yasser Khazaal, Anne Chatton, Natalia Pasandin, Daniele Zullino and Martin Preisig “Advance directives based on cognitive therapy: A way to overcome coercion related problems” (2009) 74 Patient Educ Couns 35 at 35.
the right of all consumers to have an advance directive (even if a PAD can be overridden, under powers conferred by the Mental Health Act, if the treating psychiatrist of a compulsory patient deems the PAD’s provisions not to be in their best interests).237
PADs should ultimately lead to therapeutic benefit.238 The process of writing down PADs may result in more active participation for the patient as it involves analysis of their values and emotional
responses, helping the offender feel involved in the treatment process.239 Hachtel and others
theorised this might “assuage possible experiences of coercion, resulting in a better quality of therapeutic relationship, more treatment satisfaction, and less experience of stigmatization”.240
Overall, PAP poses certain unique issues around the requirement of sufficient understanding. Appropriate use of preparatory sessions should allow for sufficient education, so the patient can be adequately informed of the potential effects from the intervention. In doing so, proper consent may be acquired.
III Voluntary Authorisation
To be legally effective, consent must be freely given.241 In general, this would mean that consent is given free from coercion. Coercion is generally understood as using force or threats to persuade someone to do something they would not usually do. While almost all decisions are made with some level of external influence, whether from friends, family, employers or others, this is distinguished from intentional coercion designed to intimidate another into making a specific choice.242 The possibility of coercion in a correctional setting is heightened. Prisoners are regarded as a particularly vulnerable population in terms of susceptibility to coercion and courts have drawn
237 Right 7(5); Jessie Lenagh-Glue, Johnnie Potiki, Anthony O’Brien, John Dawson, Katey Thom, Heather Casey, and Paul Glue “Help and Hindrances to Completion of Psychiatric Advance Directives” (2021) 72(2) Psychiatr Serv 216 at 216.
238 Khazaal and others, above n 236, at 35.
239 Khazaal and others, above n 236, at 36.
240 Henning Hachtel, Tobias Vogel and Christian Huber "Mandated Treatment and Its Impact on Therapeutic Process and Outcome Factors" (2019) 10(219) Front Psychi 1 at 6.
241 Health and Disability Commissioner Act, s 2(1); R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 at [326].
242 Toby Seddon "Coerced drug treatment in the criminal justice system: Conceptual, ethical and criminological issues" (2007) 7(3) Criminol Crim Justice 269 at 227; Tom Beauchamp “Methods and principles in biomedical ethics” (2003) 29 J Med Ethics 269 at 273.
particular attention to the quality of their consent.243 An offender could feel he must “barter his body for his freedom”, to avoid the threat if he refuses to engage in treatment.244 An example of this can be seen where in 2009 a report found that nearly all prisoners detained in a psychiatric hospital who accepted surgical castration did so, at least in part, due to fear of long-term detention.245
Toby Seddon asserts that the “mere fact that legal pressure is applied to direct a person into treatment does not necessarily mean they were actually coerced into it in the sense of being forced against their will.”246 In Freeman v Home Office (No 2), the English Court of Appeal heard the case of a prisoner who had received a course of injections from a prison doctor during his incarceration.247 He sued for battery, alleging he had been coerced into accepting the treatment. The trial judge acknowledged that what appears to be real consent may not be, as a prison doctor has the power to influence a prisoner’s situation and prospects. At the same time, the Court recognised a prisoner is not rendered incapable of consenting to medical treatment simply because he is imprisoned.248 The Court concluded that coercion had not been proved. Unfortunately, no test or criteria was formulated to identify when real consent in a prison context is achieved.249 Literature on the subject highlights the highly uncertain and controversial threshold for this consideration.
In determining the validity of consent, it is useful to ascertain the circumstances in which the treatment is not considered coercive.
243 Paul Appelbaum, Charles Lidz and Robert Klitzman “Voluntariness of consent to research: A conceptual model” (2009) 39 Hasting Cent Rep 30 at 30; Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3.
244 William Green “Depo-Provera, castration, and the probation of rape offenders: Statutory and constitutional issues” (1986) 12 U Dayton Law Rev 1 at 17.
245 Report to the Czech Government on the Visit to the Czech Republic Carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment CPT/Inf 2009 8 (5 February 2009), at [35].
246 Seddon, above n 242, at 271.
247 Freeman v Home Office (No 2), above n 127.
248 At 543.
249 At 557C Sir John Donaldson MR simply advised that in determining whether a prisoner has given true consent, the “sole question is... whether, on the evidence, there was a real consent.”
Robert Nozick theorised that coerced treatment takes the form of a conditional threat: the person accepts treatment, as they are being threatened with an undesirable consequence if they do not comply.250
John McMillan asserts that options are viewed as threats when they attempt to restrict choice or violate rights. These naturally sit alongside the idea of coercion where true consent is absent.251 Offers, in contrast, tend to create choices that otherwise would not exist. A coercive offer both creates a choice and removes one at the same time.252 McMillan differentiates between an offer made by someone who is responsible for the subject’s vulnerable state and one made by an
independent person.253 He gives the example of an offer given by the governor to commute a
sentence down from a death penalty while the prisoner is on death row contrasted with an offer given by a millionaire to perform experimental surgery on a child for free. He argues that the latter option is an offer not parasitic on a threat, as opposed to the former.254
Thomas Douglas and others posit that through expanding the potential options available to an offender (i.e., completing a sentence or having it reduced by engaging in an intervention) the offender is made immediately more autonomous and thus the offer is not immorally coercive.255 He acknowledges that irrational or inauthentic desires may lead to the acceptance of treatment. For example, an offender with an irrational fear of imprisonment resulting from claustrophobia will almost always choose the alternative option. But this cannot be assumed for every offender. Douglas and others are of the opinion that, while a small number of offenders may feel that way, with their choices heavily constrained, offenders as a whole would remain less constrained than if they had not been offered the alternative option.
250 Robert Nozick “Coercion” in Sidney Morgenbesser, Patrick Suppes and Morton Gabriel White (eds) Philosophy, Science, and Method: Essays in Honor of Ernest Nagel (St Martin’s Press, New York, 1969) 440 at 458.
251 John McMillan “Coercive offers and research participation: a comment on Wertheimer and Miller” (2010) 36(7) J Med Ethics 383 at 383.
252 McMillan, above n 251, at 383.
253 At 384.
254 At 384.
255 Thomas Douglas, Pieter Bonte, Farah Focquaert, Katrien Devolder and Sigrid Sterckx “Coercion, Incarceration, and Chemical Castration: An Argument From Autonomy” (2013) 10 JBI 393 at 401-402.
In application of these theories, R (on the application of H) v Mental Health Review Tribunal held that the crucial consideration is “whether the conditions imposed will inevitably result in a deprivation of liberty within the meaning of the Convention jurisprudence.”256 There, the conditions imposed were justified, as they were “practical and realistic requirements” which not only promoted safety but were “imposed for the purpose of promoting [the patient’s] freedom” and thus were not considered unjustly coercive.257 In contrast, in 1998 the British Drug Treatment and Testing Order was introduced. It was intended as a community-based alternative to imprisonment. The consequence of refusing the intervention, or failing to complete it, automatically led to imprisonment.258 Critics described this as a coercive practice, arguing that the apparent requirementof consent from offenders was a “sham”.259 That situation may be differentiated from an
incentivised option, where the consequence of refusing treatment would be to remain in prison for the full, expected sentence and accepting treatment would result in early release.
This was confirmed by the High Court in New Zealand in the case of Genge, where the court conceded “a prisoner’s refusal to engage in appropriate rehabilitative activities significantly
contributes to delayed release.”260 Similarly, the Human Rights Council Working Group on
Arbitrary Detention noted that, while the Government has a responsibility to provide rehabilitative activities, it is the offender’s responsibility to take those opportunities.261 Though he cannot be forced to participate, he must accept that in refusing to take part he has limited his chance to reduce the risk of reoffending and thus early release would be less likely. These cases indicate that New Zealand does not consider an incentivised option to be an unjustified coercion of treatment.
There are a number of treatments which might be imposed as a sentencing condition. An offender might be required to take part in a medical or psychological programme, or to take prescription medication.262 On a “voluntary basis”, chemical and surgical castration, surgical sterilisation and
256 R (on the application of H) v Mental Health Review Tribunal, above n 25, at [48]. 257 R (on the application of H) v Mental Health Review Tribunal, above n 25, at [46]. 258 Seddon, above n 242, at 272.
259 Seddon, above n 242, at 272.
260 Genge v Chief Executive, Department of Corrections [2018] NZHC 1447 at [70].
261 Isherwood v New Zealand A/HRC/WGAD/2016/32, 7 September 2016 at [59].
262 Sentencing Act, ss 51 and 52.
long-acting contraceptive implants have all been considered a medical “fix” for criminality.263 This type of treatment is appealing to courts, as it appears to achieve both rehabilitation and protection of society. Thus, it is possible that, if PAP is confirmed to be as effective and safe as research suggests, it could potentially be used for a broad spectrum of offenders as a means of reducing time spent incarcerated.
It is also possible that failure to engage with PAP, where imposed as a condition of a sentence, could result in delayed release. The purpose of New Zealand’s corrections system is to improve public safety and contribute to the maintenance of a just society.264 Where necessary, special conditions may be imposed in sentencing to achieve this. Special conditions involving treatment must be designed to reduce the risk of reoffending or to facilitate the rehabilitation of the offender.265 Similarly, parole may be granted to eligible prisoners “only if [the Parole Board] is satisfied on reasonable grounds that the offender, if released on parole, will not pose an undue risk to the safety of the community”.266 Thus, prisoners’ sentences must be administered in a manner consistent with the maintenance of public safety.267
Medical treatment can hardly be offered free of all coercion if a person’s very release depends on their cooperation.268 However, offering the treatment at the time the sentence is being imposed may create options for the person that otherwise would not exist.269 As it is reasonable or just for the offender to be detained, an option which offers an early release does not necessarily unjustifiably
263 Department of Corrections, above n 41; New Zealand Government Sex Offender Treatment for Adults: Evidence Brief (Wellington, 2016) at 2.
Note that in New Zealand, hormonal treatment of physical castration is strictly voluntary.
264 Corrections Act, s 5(1).
265 Sentencing Act, ss 50 and 52(1).
266 Parole Act, s 28(2).
267 Parole Act, s 7(1); Genge, above n 260, at [12].
268 Kaimowitz v Department of Mental Health, above n 25, at 151.
269 John McMillan “The kindest cut? Surgical castration, sex offenders and coercive offers” (2013) J Med Ethics 1 at 3.
constrain liberty.270 Consequently, it may not be seen as involuntary, despite some coercion.271Offenders are simply being offered a new option – increasing the choices available to them.
The Sentencing Act sets certain limits on treatment being imposed as a condition of a sentence. The offender can be ordered to participate in a “programme”, which means: “(a) any psychiatric or other counselling or assessment; or (b) attendance at any medical, psychological [...] programme”.272 Nevertheless, importantly, s 146 of the Sentencing Act dictates that “no sentence or condition imposed or order made under this Act limits or affects in any way any enactment or rule of law relating to consent to any medical or psychiatric treatment”. Thus, the general legal rules about consent to treatment still apply, and this means the offender retains their full rights of consent even when such an order has been imposed. They are therefore entitled to refuse treatment. That could contribute to a delayed release, but this would not be considered coercive. This was confirmed in Isherwood and Genge, as set out above.273
An important consideration for the present context is whether PAP could constitute treatment that can be imposed, under those provisions, as a condition of a sentence. Both legislation and case law take a broad approach to defining what exactly may constitute treatment. In Part I, I concluded that PAP could fall within the definition of rehabilitative programme. In this Part, an important consideration is whether attendance in the programme can be imposed as an incentivised option.
General therapeutic programmes currently in use can of course be differentiated from psychedelic medicated psychotherapy. Participation in the latter may require an offender to “attend” or “participate” in a programme, which can be ordered under the Act, but it is special thing for a person to be medically induced while attending therapy, potentially resulting in permanent cognitive changes. This kind of distinction was made in Wilson v New Zealand Parole Board.274 The High Court held that a requirement to attend counselling did not amount to being required to undergo medical treatment, as it distinguished between having to simply attend treatment and having to
270 Alan Wertheimer and Franklin Miller “There are (still) no coercive offers” (2014) 40 J Med Ethics 592 at 593.
271 McMillan, above n 269, at 3.
272 Sentencing Act, s 51; Parole Act, s 16.
273 The Human Rights Council Working Group on Arbitrary Detention as noted in Isherwood v New Zealand, above n 261, at [59]; Genge, above n 260, at [70].
274 Wilson v New Zealand Parole Board [2012] NZHC 2247.
actively participate in it.275 Provided such active participation was not enforced, the court held s 11 of NZBORA was not breached.
There is no doubt PAP would amount to medical treatment, as it involves ingestion of drugs. However, it is different from classic medication, as its therapeutic success relies on the offender’s active participation in the therapeutic process.276 Allowing the patient to decide whether to actively participate or not allows for greater patient autonomy. It better protects human dignity and the right
to self-determination.277 Under s 23(5) NZBORA, prisoners have the right to be treated “with
humanity and with respect for the inherent dignity of the person”.278 And Bublitz equates these rights with the concept of “a human right to mental self-determination”, which, he argues, provides protection against coercive neuro-interventions.279 Without actively participating, change is unlikely to be as noticeable, or permanent.
That PAP, in contrast to traditional models of neuro-interventions, relies on patient self- determination and active participation, therefore alleviates a number of self-determination and autonomy-based objections. For example, the concern that the enhanced abilities, insights and achievements are worth less because of the direct role of enhancement is mitigated, as the offender would have to be actively involved in the enhancement process to obtain these benefits.280 The requirement of active participation therefore indicates PAP could be safely included within the definition of a “rehabilitative programme” which may be imposed.
This indicates that PAP could be offered as an incentivised option without vitiating consent.
275 At [43].
276 Bouso and others, above n 213, at 130-131.
277 Koi, Uusitalo and Tuominen, above n 33, at 229.
278 New Zealand Bill of Rights Act, ss 9, 11 and 23.
279 Christoph Bublitz “‘The Soul is the Prison of the Body' – Mandatory Moral Enhancement, Punishment & Rights Against Neuro-Rehabilitation” in David Birks and Thomas Douglas (eds) Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice (Oxford University Press, Oxford, 2018) at 303.
280 Gordon, above n 13, at 4.
There is still the possibility that some offenders may lack the capacity to give such consent. Generally, a person’s capacity to consent is judged in relation to the nature and gravity of the decision to be made.281 In some circumstances, a prisoner may therefore be considered incapable of giving valid consent to a high risk or extremely intrusive treatment.282 These treatments are likely tobe considered experimental, invasive, or permanent, and thus impermissible.283 As medical
knowledge and technology develop, there is the potential for new innovative interventions to be aimed at deterring specific criminogenic needs.284 However, for these treatments to be offered as a condition of early release in the least coercive way possible, any risks must be minimised.
In general, “the more invasive the intrusion... the more likely a court is to rule that a confined or incarcerated individual cannot give voluntary consent.”285 In Kaimowitz v Department of Mental Health, the Michigan Circuit Court considered whether an involuntary inpatient could give effective
legal consent to experimental psychosurgery.286 It distinguished between experimental
psychosurgery and normal medical treatment, taking the view that, given that it is “dangerous, intensive, irreversible, and of uncertain benefit to patient and society”, an involuntary patient could never consent to experimental psychosurgery.287 Thus, where the medical treatment is high risk, results in permanent change or confers low expectations for potential benefit, the consent may be considered invalid. This may have the consequence, however, that such treatment could never proceed with an involuntary inpatient.
In New Zealand, the legal standard governing consent to psychosurgery on compulsory patients is lower. Under the Mental Health Act, a compulsory patient is viewed as able to consent to surgery or treatment that may destroy part of the brain or its function.288 They are not necessarily deemed to lack this capacity. However, the possibility of coercion is still recognised. To manage this problem,
281 Brookbanks, above n 23, at 226.
282 Kaimowitz v Department of Mental Health, above n 25, at 20.
283 Corey Marco and Joni Marco “Antabuse: Medication in exchange for a limited freedom – is it legal?” (1980) 5 Am J Law Med 295 at 315.
284 Koi, Uusitalo and Tuominen, above n 33, at 228 and 230.
285 Marco and Marco, above n 283, at 315; Kaimowitz v Department of Mental Health, above n 25.
286 Kaimowitz v Department of Mental Health, above n 25.
287 Kaimowitz v Department of Mental Health, above n 25.
288 Mental Health (Compulsory Assessment and Treatment) Act, s 61.
the statute requires a second psychiatrist to recognise that the treatment is in the interests of the patient. Further, the Mental Health Review Tribunal must be satisfied that the patient’s consent was freely given and that the patient fully understood the nature, purpose and likely effect of that treatment.289 No equivalent legal protections surround the treatment of, prisoners, however. So, to consider them capable of consenting to PAP, the potential risks must be minimal.
Fortunately, the physiological safety of psychedelics is by now well established. This was discussed extensively in Part I. Much of the research on psychedelic use is from studies that screen participants for a history of psychiatric problems, regulate the dosage of the drug and administer the drug in a controlled setting.290 In uncontrolled community settings, self-reports illustrate a more dangerous side of hallucinogens. These risks would be minimised in prison if strict referral guidelines are implemented.291
PAP is currently experimental, but this may change in the coming years. Based on current research, the potential benefits are extensive. Many of these were discussed earlier in this dissertation.
PAP is somewhat invasive and the effects of PAP are potentially permanent, at times creating unpredictable changes in personality.292 Psychedelic therapy requires intensive introspection, where the patient will likely disclose intimate personal information, including thoughts, emotions and personal histories, similar to other rehabilitation programmes.293 However, the intrusive nature of this is heightened, as this introspection may take place while the patient is under the influence of the drugs, or during or after treatment sessions, where the effect of the drug influences the patient’s openness. The effect of this treatment could potentially be irreversible. An argument against coerced psychedelic therapy, then, is that such treatments are psychologically intrusive in a way that other forms of coercive management are not.294
289 Section 61.
290 Collin Reiff, Elon Richman, Charles Nemeroff, Linda Carpenter, Alik Widge, Carolyn Rodriguez, Ned Kalin and William McDonald “Psychedelics and Psychedelic-Assisted Psychotherapy” (2020) 177(5) Am J Psychiatry 391 at 395.
291 Reiff and others, above n 290, at 395.
292 Smith and Sisti, above n 204, at 809.
293 Andrew Day, Kylie Tucker and Kevin Howells “Coerced offender rehabilitation – a defensible practice?” (2004) 10(3) Psych Crim & Law 259 at 262.
294 Day, Tucker and Howells, above n 293, at 262.
While there is some weight to the personal intrusiveness argument, it may be overstated. Other forms of accepted and highly coercive interventions have been described as “inherently aversive or distressing” for participants.295 Douglas Bell, for example, has discussed the ethical aspect of ‘‘wet cells’’ in prisons as a method for preventing suicide.296 These cells isolate the prisoner at a time of considerable distress. He cites numerous references indicating these observation cells are likely to substantially contribute to prisoner “turmoil and despair”.297 Arguably, any potential distress in PAP is likely to only last during the psychedelic session and is not damaging in comparable ways.
PAP is not on the level of risk anticipated by s 61 of the Mental Health Act concerning psychosurgery, or by Kaimowitz. Its risk profile is incredibly low. The level of invasiveness is comparable to, if not less than, current psychotherapy coupled with administration of psychotropic medication. While it can create permanent change, this is largely considered positive and beneficial. At any rate, it is improbable that the effects can be likened to destruction of part of the brain or its function. Thus, PAP is a treatment for which a prisoner could potentially give viable consent, even if offered as a condition of early release.
IV Implications of Coercion in Treatment
Incentivising PAP could result in benefits for a greater proportion of the prison population. It has been suggested that minimally coercive treatments improve offenders’ future autonomy and provide greater respect for their present autonomy. However, the level of perceived coercion must be managed to secure the greatest benefits of the intervention.
Minimal levels of coercion may be justified where it reinstates “true” present autonomy or increases future autonomy.298 A treatment offer may enhance autonomy in two ways. Firstly, agreeing to undergo the treatment ensures earlier removal of constraints on free movement, as the offender’s
295 Day, Tucker and Howells, above n 293, at 262.
296 Douglas Bell “Ethical issues in the prevention of suicide in prison” (1999) 33 Aus N Z J Psychiatry 723 at 274-275.
297 Bell, above n 296, at 275.
298 Arthur Caplan “Denying autonomy in order to create it: the paradox of forcing treatment upon addicts” (2008) 103 J Addict 1919 at 1920; Wertheimer and Miller, above n 268, at 593.
time in custody will be reduced.299 Perhaps controversially, it is also argued that as some desires are in themselves impediments to autonomy, their removal is autonomy enhancing. For example, some prolific sex offenders may feel that chemical castration, in reducing sexual desires, enables them greater autonomy as they are not consumed with sexual thoughts.300 If an intervention is able to reduce irrational desires offenders themselves feel constrained by, it could be said to enhance future autonomy.301
In a comparable way, PAP can be said to reduce internal barriers to autonomy, for example, by allowing for a reset in neural pathways so that addiction may be broken, or anti-social behavioural patterns altered. Metaphorically, the effects have been likened to a ski slope.302 Every ski slope develops grooves as people make their way down the hill. As those grooves deepen over time, it becomes harder to ski around them. In the same way, our minds form patterns over time which condition how we respond to specific situations. Psychedelics disrupt these patterns, allowing for the default-mode network in the brain to be rewired, breaking from the constraint of negative desires or motivations. In this way, offering treatment can be conducive to enhancing autonomy.
Douglas and others argue that the desires driving offending already severely impede present
autonomy.303 In treating severe addiction, it is often acceptable to tolerate active reduction in
present autonomy for the enhancement of future autonomy.304 Psychedelic medication is simply
another substance used to help people regain their sense of autonomy, whether in removing addiction or changing learned behavioural patterns that are impediments to full autonomy. In this way, the enhancement to autonomy may justify some coercion for PAP.
299 Douglas and others, above n 255, at 399.
300 Douglas and others, above n 255, at 399.
301 Douglas and others, above n 255, at 399.
302 Watts and Luoma, above n 17, at 97 referencing Mendel Kaelen “The psychedelic future of mental health care: Mendel kaelen: TEDxCambridgeUniversity” (Video file, July 2017) Youtube <www.youtube.com>.
303 Douglas and others, above n 255, at 401.
304 Caplan, above n 298, at 1919.
There is practical importance in obtaining consent, as subjective perception of coercion alone can impact treatment efficacy. Perceived coercion in treatment is believed to be linked to an impaired therapeutic process and outcome when compared with voluntary treatment.305 Offenders who feel coerced into treatment may lack internal motivation to change, which has been found to be associated with reduced treatment efficacy.306 Deci and Ryan’s self-determination theory suggests all people are motivated by a desire to meet basic needs for autonomy, competence and relatedness.307 They suggest that people who view their participance in treatment as controlled by external contingencies, such as familial obligations, social appearances, or to gain parole, are more likely to feel they are being coerced into treatment.
Some studies indicate that perceived coercion does not automatically result from mandated treatment. The feeling of coercion seems to depend on many variables, including viewing the service institution as ineffective and other treatments as more appropriate, not participating actively in the admission or therapy, and missing the feeling of respect.308 This is in line with research indicating perceived coercion is also seen in self-admitted clients, who often feel it exerted informally by family or employers, and research that court-ordered treatment does not always result in perceived coercion.309 Day and others suggested five factors which influence the extent to which legal pressure is perceived as coercive:310
(a) an offender’s agreement on the need to be treated;
(b) reducing the aversiveness of the treatment;
(c) providing sufficient information about the treatment;
(d) improving the relationship between the patient and the source of the pressure (i.e., the clinician, therapist, and so on); and
(e) personality factors attributed to the individual.
305 Hachtel, Vogel and Huber, above n 240, at 5.
306 Dwayne Simpson, George Joe and Grace Rowan-Szal “Drug abuse treatment retention and process effects on follow-up outcomes” (1997) 47 Drug Alcohol Depend 227 at 234.
307 Day, Tucker and Howells, above n 240, at 262 citing Edward Deci and Richard Ryan “The ‘what’ and ‘why’ of goal pursuits: human needs and the self-determination of behavior” (2000) 11 Psychol Inq 227.
308 See Hachtel, Vogel and Huber, above n 240, citing Christina Katsakou, Stamatina Marougka, Jonathan Garabette, Felicitas Rost, Ksenij Yeeles and Stefan Priebe “Why do some voluntary patients feel coerced into hospitalisation? A mixedmethods study” (2011) 187(1–2) Psychiatry Res 275.
309 Hachtel, Vogel and Huber, above n 240, at 2 and 5.
310 Day, Tucker and Howells, above n 293, at 264.
Serious consideration of each of these factors may reduce levels of perceived coercion.
Empirical research indicates that better results occur when the coerced treatment requires some
“voluntary interest” from the offender.311 Ideally, treatment offers should provide choices: (1) a
choice of whether or not they participate in treatment, with those who decline being processed in the usual way by the criminal justice system; and (2) a choice as to the type of treatment, if they agree to be treated.312 For PAP specifically, willingness to participate in treatment may be essential to realising the full benefits of the intervention, illustrating the need for some level of voluntary interest. A person’s openness to both engage in, and embrace, the potential effects of psychedelic treatment can impact on efficacy of treatment. As this may be affected by their perception of coercion, failure to fully communicate and obtain true consent may limit the success of the intervention, undermining the justification for any minor level of coercion involved.
Limiting any factors which result in the prisoner feeling some level of coercion would benefit the efficacy of the intervention. In this way, PAP would be best positioned to achieve its stated goal.
V Summary
Generally, in our law, a patient has the right to make an informed choice about their care and, in most instances, must give permission to proceed with treatment. This is the process of obtaining valid informed consent. There are three general elements for its validity: capacity, understanding and voluntary authorisation. These general rules apply equally to prisoners.
Prisoners looking to receive PAP would usually be considered competent to make the decision as to whether to receive this treatment. However, it is integral patients have complete understanding of the intervention and all material risks involved. PAP may elicit some unique concerns. There should be sessions where any of their concerns, no matter how unreasonable, are discussed so that there is minimal uncertainty before the procedure.
311 Wayne Hall and Jayne Lucke “Legally coerced treatment for drug using offenders: ethical and policy issues” (2010) 144 J Crime Justice 1 at 2 referencing Dean Gerstein and Henrick Harwood Treating drug problems (Washington, D.C., National Academy Press, 1990).
312 Hall and Lucke, above n 311, at 2.
The most contentious requirement is voluntary authorisation. Consent must be given free from undue coercion, however, there is debate as to what exactly constitutes coercion. I have concluded an offer, incentivised by early release (where the offender does not pose an unacceptable risk to public safety) is not unjustifiably coercive. The risk profile of PAP is sufficiently low that prisoners should be viewed as capable of consenting to it, despite the minor elements of coercion involved. In any case, the presence of some coercion in offering treatment in these circumstances may be justified on the basis of enhancing prisoners’ autonomy, through expansion of their options, potential reduction in the length of their imprisonment, and enhancing their cognitive ability.
There are also practical advantages to obtaining consent, as this is likely to increase the efficacy of the treatment. Corrections should therefore take care to reduce any perceived coercion to a minimum. This can be achieved in large part by increasing voluntary interest in the treatment.
Overall, I conclude PAP could be offered safely and lawfully to prisoners as a condition of their release.
Conclusion
We are currently experiencing a renaissance in human psychedelic research. With extensive evidence of the benefits of PAP on mental health and cognitive functioning, its potential applications are seemingly endless. Early researchers appreciated that hallucinogen-based therapy could have a place in a correctional setting. Now that interest in PAP is again gaining momentum, the legal and ethical issues around PAP as a rehabilitation programme for prisoners are ripe for examination.
This dissertation has proposed that the use of PAP, as a means of therapy and moral bioenhancement, could be a compelling mechanism to rehabilitate offenders and in doing so reduce reoffending. The starting point was to determine if this would be at all feasible, with Part I concluding that instating PAP as a rehabilitative programme is possible, should the medication become licensed for therapeutic use. Part II established there is no justification for compulsory administration of PAP. Not only would it set an uncomfortable precedent, but the efficacy and safety of the treatment would be diminished. Part III was an extensive examination of the validity of consent to medical treatment in a potentially coercive environment. Overall, I concluded that PAP could be offered lawfully and safely to prisoners as a condition of their release. This was established on the basis that an incentivised offer of treatment with a sufficiently low risk profile would not be unjustifiably coercive. The presence of some coercion in these circumstances can be considered autonomy enhancing for offenders, contributing to the overall aim of the intervention: rehabilitation.
This intervention would be a notable exception to the link between substance use and criminal behaviour. Introducing PAP as a means of rehabilitation could have a remarkable impact on our justice system. Perhaps one day, a trip or two in prison could just secure offenders an early trip out.
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Jerome Jaffe “Drug addiction and drug abuse” in Alfred Goodman and others (eds) Goodman & Gilman’s: Pharmacological Basis of Therapeutics (8th ed, McGraw Hill, New York, 1990).
Robert Nozick “Coercion” in Sidney Morgenbesser, Patrick Suppes and Morton Gabriel White (eds) Philosophy, Science, and Method: Essays in Honor of Ernest Nagel (St Martin’s Press, New York, 1969).
Ingmar Persson and Julian Savulescu Unfit for the Future: The Need for Moral Enhancement (Online ed, Oxford University Press, 2012).
Michael Pollen How to Change Your Mind: The New Science of Psychedelics (Penguin Random House, Britain, 2018).
Iris Reuvecamp and John Dawson “Healthcare in the Absence of Consent” in Iris Reuvecamp and John Dawson (eds)
Mental Capacity Law in New Zealand (Thomson Reuters, Wellington, 2019).
Iris Reuvecamp “The Role of Capacity in Other Legislation” in Iris Reuvecamp and John Dawson Mental Capacity Law in New Zealand (Thomson Reuters, Wellington, 2019).
Peter Skegg “The duty to inform and legally effective consent” in Peter Skegg and Ron Paterson (eds) Medical Law in New Zealand (Brookers Ltd, Wellington, 2006).
John Tierney Criminology: Theory and Context (3rd ed, Harlow: Pearson Longman, United Kingdom, 2010).
Stephen Todd “Defences” in Stephen Todd The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016).
Stephen Todd “Trespass to the Person” in Stephen Todd The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016).
D Journal Articles
Gabrielle Agin-Liebes, Tara Malone, Matthew Yalch, Sarah Mennenga, K Linnae Ponté, Jeffrey Guss, Antony Bossis, Jim Grigsby, Stacy Fischer and Stephen Ross “Long-term follow-up of psilocybin-assisted psychotherapy for psychiatric and existential distress in patients with life threatening cancer” (2020) 34(2) J Psychopharmacol 155.
Rafael Ahlskog “Moral Enhancement Should Target Self-Interest and Cognitive Capacity’ (2017) 10 Neuroethics 363.
Paul Appelbaum, Charles Lidz and Robert Klitzman “Voluntariness of consent to research: A conceptual model” (2009) 39 Hasting Cent Rep 30.
Gulzaar Barn “Can Medical Interventions Serve as ‘Criminal Rehabilitation’?” (2019) 12 Neuroethics 85.
Gabrielle Beaudry, Rongqin Yu, Amanda Perry and Seena Fazel “Effectiveness of psychological interventions in prison to reduce recidivism: a systematic review and meta-analysis of randomised controlled trials” (2021) 8 Lancet Psychiatry 759.
Tom Beauchamp “Methods and principles in biomedical ethics” (2003) 29 J Med Ethics 269.
Douglas Bell “Ethical issues in the prevention of suicide in prison” (1999) 33 Aus N Z J Psychiatry 723.
Trevor Bennett, Katy Holloway, and David Farrington “The statistical association between drug misuse and crime: A meta-analysis” (2008) 13 Aggress Violent Behav 107.
Keith Berge, Kevin Dillon, Karen Sikkink, Timothy Taylor and William Lanier “Diversion of Drugs Within Health Care Facilities, a Multiple-Victim Crime: Patters of Diversion, Scope, Consequences, Detection, and Prevention” (2012) 87(7) Mayo Clin Proc 674.
Marcus Boomen “Where New Zealand stands internationally: A comparison of offence profiles and recidivism rates” (2018) 6(1) New Zealand Corrections Journal 87.
José Bouso, Rafael dos Santosa, Miguel Alcázar-Córcoles and Jaime Hallak “Serotonergic psychedelics and personality: A systematic review of contemporary research” (2018) 87 Neurosci Biobehav Rev 118.
Jill Bowman, “Comorbid substance use disorders and mental health disorders among New Zealand prisoners” (2016) 4(1) New Zealand Corrections Journal 15.
Willian Brennan and Alexander Belser “Models of Psychedelic-Assisted Psychotherapy: A Contemporary Assessment and an Introduction to EMBARK, a Transdiagnostic, Trans-Drug Model” (2022) 13 Front Psychol 1.
Marina Budić, Marko Galjak and Vojin Rakić “What drives public attitudes towards moral bioenhancement and why it matters: an exploratory study” (2021) 22 BMC Med Ethics 163.
Laura Cabrera and Bernice Elger "Memory Interventions in the Criminal Justice System: Some Practical Ethical Considerations" (2016) 13 JBI 95.
Arthur Caplan “Denying autonomy in order to create it: the paradox of forcing treatment upon addicts” (2008) 103 J Addict 1919.
Robin Carhart-Harris and David Nutt “Experienced drug users assess the relative harms and benefits of drugs: A web- based survey” (2013) 45 J Psychoactive Drugs 322.
Robin Carhart-Harris, Mendel Kaelen, Matthew Whalley, Mark Bolstridge, Amanda Fielding and David Nutt "LSD enhances suggestibility in healthy volunteers" (2015) 232 Psychopharmacol 785.
Robin Carhart-Harris, David Erritzoe, Eline Haijen, Mendel Kaelen and Rosalind Watts “Psychedelics and connectedness” (2018) 235(2) Psychopharmacol 547.
Robin Carhart-Harris and Guy Goodwin “The Therapeutic Potential of Psychedelic Drugs: Past, Present, and Future” (2017) 42 Neuropsychopharmacol Rep 2105.
Zheng Chang, Paul Lichtenstein, Niklas Långström, Henrik Larsson and Seena Fazel “Association Between Prescription of Major Psychotropic Medications and Violent Reoffending After Prison Release” (2016) 316(17) JAMA 1798.
Victor Chiruta, Paulina Zemla, Pixie Miller, Nicola Santarossa and John Hannan “Critique of the Royal Australian and New Zealand College of Psychiatrists Psychedelic Therapy Clinical Memorandum, Dated May 2020” (2021) JMHS 145.
Sidney Cohen “Lysergic acid diethylamide: Side effects and complications” (1960) 130 J Nerv Ment Dis 30. Molly Crockett “Moral Bioenhancement: A Neuroscientific Perspective” (2014) 40(6) JME 370.
Andrew Day, Kylie Tucker and Kevin Howells “Coerced offender rehabilitation – a defensible practice?” (2004) 10(3) Psych Crim & Law 259.
Thomas Douglas, Pieter Bonte, Farah Focquaert, Katrien Devolder and Sigrid Sterckx “Coercion, Incarceration, and Chemical Castration: An Argument From Autonomy” (2013) 10 JBI 393.
Antoine Douaihy, Thomas Kelly and Carl Sullivan “Medications for Substance Use Disorders” (2013) 28(3-4) Soc Work Public Health 264.
David Dupuis “Psychedelics as Tools for Belief Transmission. Set, Setting, Suggestibility, and Persuasion in the Ritual Use of Hallucinogens” (2021) 12(730031) Front Psychol 1.
Brian Earp "Psychedelic Moral Enhancement" (2018) 83 R Inst Philos suppl 415.
Seena Fazel and Martin Grann “The population impact of severe mental illness on violent crime” (2006) 163 Am J Psychiatry 1397.
Seena Fazel, Johan Zetterqvist, Henrik Larsson, Niklas Långström and Paul Lichtenstein “Antipsychotics, mood stabilisers, and risk of violent crime” (2014) 384 Lancet 1206.
David Finkelhor and Melanie Johnson “Has Psychiatric Medication Reduced Crime and Delinquency?” (2015) 18(3) TVA 339.
Jami Floyd “The administration of psychotropic drugs to prisoners: State of the law and beyond” (1990) 78(5) Cal L Rev 1243.
Heather Foran and Daniel O’Leary “Alcohol and intimate partner violence: a meta-analytic review” (2008) 28(7) Clin Psychol Rev 1222.
Robert Gable “Toward a comparative overview of dependence potential and acute toxicity of psychoactive substances used nonmedically” (1993) 19(3) Am J Drug Alcohol Abuse 263.
Albert Garcia-Romeu, Brennan Kersgaard and Peter Addy “Clinical Applications of Hallucinogens: A Review” (2016) 24(4) Exp Clin Psychopharmacol 229.
Albert Garcia-Romeu, Roland Griffiths and Matthew Johnson “Psilocybin occasioned mystical experiences in the treatment of tobacco addiction” (2014) 7(3) Curr Drug Abuse Rev 157.
Peter Gasser, Dominique Holstein, Yvonne Michel, Rick Doblin, Berra Yazar-Klosinski, Torsten Passie and Rudolf Brenneisen “Safety and efficacy of LSD-assisted psychotherapy in subjects with anxiety associated with life-threatening diseases: a randomized active placebocontrolled phase 2 pilot study” (2014) 202(7) J Nerv Ment Dis 513.
Emma Gordon “Trust and Psychedelic Moral Enhancement” (2022) 15(19) Neuroethics 1.
William Green “Depo-Provera, castration, and the probation of rape offenders: Statutory and constitutional issues” (1986) 12 U Dayton Law Rev 1.
Roland Griffiths, William Richards, Matthew Johnson, Una McCann and Robert Jesse “Mystical-type experiences occasioned by psilocybin mediate the attribution of personal meaning and spiritual significance 14 months later” (2008) 22(6) J Psychopharmacol 621.
Roland Griffiths, William Richards, Una McCann and Robert Jesse “Psilocybin can occasion mystical-type experiences having substantial and sustained personal meaning and spiritual significance” (2006) 187(3) Psychopharmacology 268.
Roland Griffiths, Matthew Johnson, William Richards, Brian Richards, Una McCann and Robert Jesse “Psilocybin occasioned mystical-type experiences: immediate and persisting dose-related effects” (2011) 218(4) Psychopharmacol 649.
Roland Griffiths, Matthew Johnson, William Richards, Brian Richards, Robert Jesse, Katherine MacLean, Frederick Barrett, Mary Cosimano, and Maggie Klinedinst “Psilocybin-occasioned mystical-type experience in combination with meditation and other spiritual practices produces enduring positive changes in psychological functioning and in trait measures of prosocial attitudes and behaviors” (2018) 32(1) J Psychopharmacol 49.
Charles Grob, Alicia Danforth, Gurpreet Chopra, Marycie Hagerty, Charles McKay, Adam Halberstadt and George Greer “Pilot study of psilocybin treatment for anxiety in patients with advanced-stage cancer” (2011) 68(1) Arch Gen Psychiatry 71.
Henning Hachtel, Tobias Vogel and Christian Huber "Mandated Treatment and Its Impact on Therapeutic Process and Outcome Factors" (2019) 10(219) Front Psychi 1.
Adam Halberstadt “Recent advances in the neuropsychopharmacology of serotonergic hallucinogens” (2015) 277 Behav Brain Res 99.
Wayne Hall and Jayne Lucke “Legally coerced treatment for drug using offenders: ethical and policy issues” (2010) 144 J Crime Justice 1.
Lamiece Hassan, Jane Senior, Roger Webb, Martin Frisher, Mary Tully, David While and Jenny Shaw “Prevalence and appropriateness of psychotropic medication prescribing in a nationally representative cross-sectional survey of male and female prisoners in England” (2016) 16 BMC Psychiatry 346.
Peter Hendricks, Brendan Clark, Matthew Johnson, Kevin Fontaine and Karen Cropsey “Hallucinogen use predicts reduced recidivism among substance-involved offenders under community corrections supervision” (2014) 28(1) J Psychopharmacol 62.
Peter Hendricks, Michael Crawford, Karen Cropsey, Heith Copes, N Wiles Sweat, Zach Walsh and Gregory Pavela “The relationships of classic psychedelic use with criminal behavior in the United States adult population” (2018) 32(1) J psychopharmacol 37.
Emma Honyiglo, Angélique Franchi, Nathalie Cartiser, Charline Bottinelli, Anne-Sophie Advenier, Fabien Bévalot and Laurent Fanton “Unpredictable behavior under the influence of ‘magic mushrooms’: A case report and review of the literature” (2019) 64(4) J Forensic Sci 1266.
Nils Holtug “The Harm Principle” (2002) 5 Ethical Theory Moral Pract 357.
Shannon Hughes and David Cohen “A systematic review of long-term studies of drug treated and non-drug treated depression” (2009) 118 Journal of Affective Disorders 9.
James Hughes “Using Neurotechnologies to Develop Virtues: A Buddhist Approach to Cognitive Enhancement” (2013) 20(1) Account Res 27.
Pål-Ørjan Johansen and Teri Krebs “Psychedelics not linked to mental health problems or suicidal behavior: A population study” (2015) 29(3) J Psychopharmacol 270.
Matthew Johnson, William Richards and Roland Griffiths “Human hallucinogen research: for safety” (2008) 22(6) J Psychopharm 603.
Matthew Johnson, Roland Griffiths, Peter Hendricks and Jack Henningfield “The abuse potential of medical psilocybin according to the 8 factors of the Controlled Substances Act” (2018) 142 Neuropharmacology 143.
Hannes Kettner, Fernando Rosas, Christopher Timmermann, Laura Kärtner, Robin Carhart-Harris and Leor Roseman “Psychedelic Communitas: Intersubjective Experience During Psychedelic Group Sessions Predicts Enduring Changes in Psychological Wellbeing and Social Connectedness” (2021) Front Pharmacol 12.
Omer Khan, Michael Ferriter, Nick Huband, Melanie Powney, Jane Dennis and Conor Duggan “Pharmacological interventions for those who have sexually offended or are at risk of offending (Review)” (2015) 2 CDSR 1.
Yasser Khazaal, Anne Chatton, Natalia Pasandin, Daniele Zullino and Martin Preisig “Advance directives based on cognitive therapy: A way to overcome coercion related problems” (2009) 74 Patient Educ Couns 35.
Lilian Kloft, Henry Otgaar, Arjan Blokland, Stefan Toennes and Johannes Ramaekers “Remembering Molly: Immediate and delayed false memory formation after acute MDMA exposure” (2022) 57 Eur Neuropsychopharmacol 59.
Polaris Koi, Susanne Uusitalo and Jarno Tuominen "Self-Control in Responsibility Enhancement and Criminal Rehabilitation" (2018) 12 Crim Law and Philos 227.
Albert Kopak, Lisa Vartanian, Norman Hoffmann and Dana Hunt, “The connections between substance dependence, offense type, and offense severity” (2013) 44(3) J Drug Issues 219.
Teri Krebs and Pål-Ørjan Johansen “Lysergic acid diethylamide (LSD) for alcoholism: meta-analysis of randomized controlled trials” (2012) 26(7) J Psychopharmacol 994.
Victor Lange and Sidsel Marie “Exploring Moral Bio-enhancement through Psilocybin-Facilitated Prosocial Effects” (2021) 8(1) J Cogn Neurosci 23.
Timothy Leary “The effects of consciousness-expanding drugs on prisoner rehabilitation” (1969) 10 Psychedelic Rev 45.
Jessie Lenagh-Glue, Johnnie Potiki, Anthony O’Brien, John Dawson, Katey Thom, Heather Casey, and Paul Glue “Help and Hindrances to Completion of Psychiatric Advance Directives” (2021) 72(2) Psychiatr Serv 216.
Jeffrey Lieberman, Scott Stroup, Joseph McEvoy, Marvin Swartz, Robert Rosenheck, Diana Perkins, Richard Keefe, Sonia Davis, Clarence Davis, Barry Lebowitz, Joanne Severe and John Hsiao “Effectiveness of antipsychotic drugs in patients with chronic schizophrenia” (2005) 353 New England Journal of Medicine 1209.
April Lin, Gabriel Ong, Carl Yeo, Eng Hao, Loh, Doris Chia and Jasmin Kaur “Effective rehabilitation through evidence-based corrections” (2018) 6(1) New Zealand Corrections Journal 73.
Joanna Manning “Informed Consent to Medical Treatment: The Code of Patients' Rights” (2004) 12 Med L Rev 181.
Corey Marco and Joni Marco “Antabuse: Medication in exchange for a limited freedom – is it legal?” (1980) 5 Am J Law Med 295.
Elliot Marseille, Jennifer Mitchell and James Kahn “Updated cost-effectiveness of MDMA-assisted therapy for the treatment of posttraumatic stress disorder in the United States: Findings from a phase 3 trial” (2022) 17(2) Plos One 1.
Natasha Mason, Elisabeth Mischler, Malin Uthaug and Kim Kuypers “Sub-acute effects of psilocybin on empathy, creative thinking, and subjective well-being” (2019) 51(2) J Psychoact Drugs 123.
William McGlothlin and David Arnold “LSD revisited: A ten-year follow-up of medical LSD use” (1971) 24 Arch Gen Psychiatry 35.
John McMillan “Coercive offers and research participation: a comment on Wertheimer and Miller” (2010) 36(7) J Med Ethics 383.
John McMillan “The kindest cut? Surgical castration, sex offenders and coercive offers” (2013) J Med Ethics 1.
Michael Mithoefer, Mark Wagner, Ann Mithoefer, Lisa Jerome, Scott Martin, Berra Yazar-Klosinski, Yvonne Michel, Timothy Brewerton and Rick Doblin “Durability of improvement in post-traumatic stress disorder symptoms and absence of harmful effects or drug dependency after 3,4-methylenedioxymethamphetamine-assisted psychotherapy: a prospective long-term follow-up study” (2013) 27(1) J Psychopharmacol 28.
Robert Morgan, David Flora, Daryl Kroner, Jeremy Mills, Femina Varghese and Jarrod Steffan “Treating Offenders with Mental Illness: A Research Synthesis” (2012) 36(1) Law Hum Behav 37.
Felix Müller, Elias Kraus, Friederike Holze, Anna Becker, Laura Ley, Yasmin Schmid, Patrick Vizeli, Matthias Liechti and Stefan Borgwardt “Flashback phenomena after administration of LSD and psilocybin in controlled studies with healthy participants” (2022) 239(6) Psychopharmacology (Berl.) 1933.
David Nichols “Psychedelics” (2016) 68(2) Pharmacol Rev 264.
Benjamin Nordstrom and Charles Dackis “Drugs and crime” (2011) 39 J Psych Law 663.
Norbert Paulo and Jan Christoph Bublitz "How (not) to Argue For Moral Enhancement: Reflections on a Decade of Debate" (2019) 38 Topoi 95.
Roy Perlis, Michael Ostacher, Jayendra Patel, Lauren Marangell, Hongwei Zhang, Stephen Wisniewski, Terence Ketter, David Miklowitz, Michael Otto, Laszlo Gyulai, Noreen Reilly-Harrington, Andrew Nierenberg, Gary Sachs and Michael Thase “Predictors of recurrence in bipolar disorder: Primary outcomes from the Systematic Treatment Enhancement Program for Bipolar Disorder (STEP-BD)” (2006) 163 Am J of Psychiatry 217.
Patricia Pilkington and James Pilkington, “Prescribing in Prison: Minimising Psychotropic Drug Diversion in Correctional Practice” (2014) 20(2) J Correctional Health Care 95.
Travis Pratt, Francis Cullen, Kristie Blevins, Leah Daigle and James Unnever “The relationship of attention deficit hyperactivity disorder to crime and delinquency: A meta-analysis” (2002) 4 Int J Police Sci 344.
Collin Reiff, Elon Richman, Charles Nemeroff, Linda Carpenter, Alik Widge, Carolyn Rodriguez, Ned Kalin and William McDonald “Psychedelics and Psychedelic-Assisted Psychotherapy” (2020) 177(5) Am J Psychiatry 391.
William Richards “Psychedelic psychotherapy: insights from 25 years of research” (2017) 57(4) J Humanist Psychol 323.
James Rucker, Jonathan Iliff and David Nutt “Psychiatry & the psychedelic drugs. Past, present & future” (2018) 142 Neuropharmacology 200.
Gillian Sanders, Peter Neumann, Anirban Basu, Dan Brock, David Feeny, Murray Krahn, Karen Kuntz, David Meltzer, Douglas Owens, Lisa Prosser, Joshua Salomon, Mark Sculpher, Thomas Trikalinos, Louise Russell, Joanna Siegel and Theodore Ganiats “Recommendations for Conduct, Methodological Practices, and Reporting of Cost- effectiveness Analyses: Second Panel on Cost-Effectiveness in Health and Medicine” (2016) 316(10) JAMA 1093.
Gerald Schaefer “Direct vs. Indirect Moral Enhancement” (2015) 25(3) KIEJ 261.
Eduardo Schenberg “Psychedelic-Assisted Psychotherapy: A Paradigm Shift in Psychiatric Research and Development” (2018) 9(733) Front Pharmacol 1.
Anne Schlag, Jacob Adam, Iram Salam, Jo Neill and David Nutt “Adverse effects of psychedelics: From anecdotes and misinformation to systematic science” (2022) 36(3) J Pharmacol 258.
Toby Seddon "Coerced drug treatment in the criminal justice system: Conceptual, ethical and criminological issues" (2007) 7(3) Criminol Crim Justice 269.
Ben Sessa, Laurie Higbed and David Nutt “A review of 3, 4-methylenedioxymethamphetamine (MDMA)-assisted psychotherapy” (2019) 10(138) Front Psychiatry 1.
Ben Sessa "Shaping the renaissance of psychedelic research” (2012) 380(9838) Lancet 200.
Elizabeth Shaw “Direct brain interventions and responsibility enhancement” (2014) 8(1) Crim Law Philos 1.
Dwayne Simpson, George Joe and Grace Rowan-Szal “Drug abuse treatment retention and process effects on follow-up outcomes” (1997) 47 Drug Alcohol Depend 227.
Huston Smith “Do Drugs Have Religious Import?” (1964) 61(18) J Philos 517.
William Smith and Dominic Sisti “Ethics and ego dissolution: the case of psilocybin” (2021) 47 J Med Ethics 807.
William Smith and Paul Appelbaum “Novel ethical and policy issues in psychiatric uses of psychedelic substances” (2022) 216(109165) Neuropharmacol 1.
Robert Sparrow “Commentary: Moral Bioenhancement Worthy of the Name” (2017) 26(3) Camb Q Healthc Ethics 411. Bertrand Tenenbaum “Group therapy with LSD-25. (A preliminary report)” (1961) 22 Dis Nerv Syst 462.
Michelle Thiessen, Zach Walsh, Brian Bird and Adele Lafrance “Psychedelic use and intimate partner violence: The role of emotion regulation” (2018) 32(7) J Psychopharmacol 49.
Christopher Timmermann, Rosalind Watts and David Dupuis “Towards psychedelic apprenticeship: developing a gentle touch for the mediation and validation of psychedelic-induced insights and revelations” (2022) Transcult Psychiatry 1.
Zach Walsh, Peter Hendricks, Stephanie Smith, David Kosson, Michelle Thiessen, Philippe Lucas and Marc Swogger “Hallucinogen use and intimate partner violence: Prospective evidence consistent with protective effects among men with histories of problematic substance use” (2016) 30(7) J Pharmacol 602.
Rosalind Watts and Jason Luoma “The use of the psychological flexibility model to support psychedelic assisted therapy” (2020) 15 J Contextual Behav Sci 92.
Alan Wertheimer and Franklin Miller “There are (still) no coercive offers” (2014) 40 J Med Ethics 592.
Susan Young, June Wells and Gisli Gudjonsson “Predictors of offending among prisoners: the role of attention-deficit hyperactivity disorder and substance use” (2011) 25(11) J Pharma 1524.
Samuel Young “Single treatments that have lasting effects: some thoughts on the antidepressant effects of ketamine and botulinum toxin and the anxiolytic effect of psilocybin” (2013) 38(2) JPN 1.
E Parliamentary and Government Materials
Brian McKenna and L Sweetman Models of Care in Forensic Mental Health Services: A Review of the International and National Literature (Ministry of Health, 2021).
Ministry of Health Human Rights and the Mental Health (Compulsory Assessment and Treatment) Act 1992 (September 2020).
New Zealand Government Sex Offender Treatment for Adults: Evidence Brief (Wellington, 2016).
Ray Smith Annual Report 2014/15 (Chief Executive Annual Report, Department of Corrections, 2015).
Therapeutic Goods Administration Delegate’s final decision and reasons for decision – Psilocybin and MDMA (ACMS#32) (Australian Government, November 2020).
F Online Commentary
Rosslyn Noonan Brookers Human Rights Law (online ed, Thomson Reuters).
G Dissertations
Kate Kensington “Treatment of Offenders Within the Community: the Issue of Consent” (LLB(Hons), University of Otago, 2015).
Shivana Ramanjam “The imprisoned prisoner: Interpreting ways to facilitate recovery and growth for prisoners. How do rehabilitative services in prisons support prisoner well-being?” (MPsych, AUT University, 2022).
H Internet Resources
Brendan Anstiss “The Effectiveness of Correctional Treatment: New Zealand Correctional Programming” Department of Corrections <www.corrections.govt.nz>.
Naomi Arnold “Not enough support for mentally ill shunted between prison and care” (19 June 2022) The New Zealand Herald <www.nzherald.co.nz>.
David Carpenter “Israel makes a big move towards the acceptance of MDMA-assisted psychotherapy for PTSD” (7 February 2020) Forbes <www.forbes.com>.
Zoe Cormier “Psilocybin Treatment for Mental Health Gets Legal Framework” (1 December 2020) Scientific American
Department of Corrections “In prison: Employment and support programmes: Rehabilitation programmes”
Department of Corrections “Our Approach to Rehabilitation Brochure” (June 2014) <www.corrections.govt.nz>.
Malini Ghoshal “What is a psychotropic drug?” (2019) Healthline <www.healthline.com>.
Kai Kupferschmidt “All clear for the decisive trial of ecstasy in PTSD patients” (26 August 2017) Science
Harry Love “Best use of Psychological Service treatment resources: Psychological treatment effectiveness” (1999) Department of Corrections <www.corrections.govt.nz>.
Mind Medicine Australia “What is Psychedelic-assisted therapy” <www.mindmedicineaustralia.org.au>. Ministry of Health “How COVID-19 vaccines work” <www.health.govt.nz>.
Ministry of Justice “Hāpaitia te Oranga Tangata” (16 July 2021) <www.justice.govt.nz>.
The National Ethics Advisory Committee “National Ethical Standards: Informed Consent” (27 April 2021)
“Psychedelics” (10 November 2021) The Alcohol and Drug Foundation <www.adf.org>.
Simon Romero “In Brazil, Some Inmates Get Therapy With Hallucinogenic Tea” (28 March 2015) The New York Times <www.nytimes.com>.
I Other Resources
Alan Shirley Policy: Informed Consent (Wairarapa District Health Board, February 2012).
Report to the Czech Government on the Visit to the Czech Republic Carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment CPT/Inf 2009 8 (5 February 2009).
Multidisciplinary Association for Psychedelic Studies (MAPS) Investigator’s Brochure (11th ed, 2019).
Code of Ethics Review Group The Code of Ethics For Psychologists Working in Aotearoa/New Zealand, 2002
(Wellington, December 2002).
The Royal Australian and New Zealand College of Psychiatrists Clinical Memorandum: Therapeutic use of psychedelic substances, May 2020 (Melbourne, May 2020).
The Royal Australian and New Zealand College of Psychiatrists Clinical Memorandum: Therapeutic use of psychedelic substances, June 2022 (Melbourne, June 2022).
The Royal Australian and New Zealand College of Psychiatrists Code of Ethics (5th ed, Melbourne, 2018).
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