Balancing the rights and responsibilities of the individual and the State

Here is a philosophical puzzle especially pertinent to public health: if an individual decides to harm themselves–perhaps smoking, drinking or taking illegal drugs–but it does not affect the lives of others, should the State interfere? Over many centuries thinkers have explored this question, but today policy-makers are increasingly relying on rational analysis. Science offers new insights on the most effective ways to balance the rights and responsibilities of the individual and the State.

Like it or not, our lives are interwoven complex ways. If a girl chooses to end her life, other people are affected. If a boy smokes cigarettes, science shows that it can damage the health of people nearby; and cost the taxpayer significant sums in health care. We are all members of society and most of our choices have an impact for others. But while we talk up the rights and responsibilities of citizens and the importance of the individual, the balance of power often seems in favour of the State.

We shy away from legislation which prevents physicians prescribing potentially harmful drugs, for instance, even though doctors have a responsibility to do no harm! Misuse of prescription drugs in most countries accounts for more deaths per annum than the use of ‘banned’ or illegal narcotics. In 2013, nearly 700,000 Americans dosed themselves with heroin. It is thought this is a result of the higher cost of prescription opiates and other drugs that are abused by as many as 11 million Americans annually!

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In Western societies, many drugs are seen as dangerous and their use intolerable. Some banned drugs may have medicinal use but they cannot be prescribed. Other ‘drugs’ that may have more harmful effects are accepted as not only normal, but individuals who choose not to partake are often treated with scorn.

Am I normal?

The Universal Declaration of Human Rights and more recently the Charter of Fundamental Rights of the European Union embrace the fundamental principles of human dignity, freedom, equality and solidarity. To have dignity we need to be treated with respect. We should have the freedom to choose our own actions, but to act responsibly. In other words, we should be left to look after ourselves without interference from an overbearing state, provided our actions do not interfere with the rights of others to do exactly the same.

So can we justify laws which dictate which mind- or mood-altering chemicals we may use and the manner in which we choose to express our individuality? Many countries, including the USA, have attempted to introduce laws restricting the use of alcohol, but in most cases this was counterproductive as illegality and criminality increased.

The USA also introduced legislation in 1906 by which products containing dangerous substances had to be labelled; alcohol, morphine, opium and cannabis were on the list. Later, in 1914, the Harrison Narcotics Tax Act regulated and taxed imports and the production and sale of coca and opiate products. Yet, a damning editorial in Illinois Medical Journal for June 1926 stated that “as is the case with most prohibitive laws, however, this one fell far short of the mark. So far, in fact, that instead of stopping the traffic, those who deal in dope now make double their money from the poor unfortunates upon whom they prey.”

With the rise of drug-taking as a sign of dissent in the 1960s, in June 1971 President Nixon declared a “war on drugs”. He dramatically increased the size and presence of federal drug control agencies. And he pushed through measures such as mandatory sentencing and no-knock warrants. He temporarily placed marijuana in Schedule One, the most restrictive category of drugs, pending review by a commission.

In 1972, the commission unanimously recommended decriminalising the possession and distribution of marijuana for personal use. Nixon ignored the report and rejected its recommendations. When Reagan took office, the number of people behind bars for non-violent drug law offences increased from 50,000 in 1980 to over 400,000 by 1997.

Penalties make no sense

Western countries have inherited a system which penalises those who use drugs deemed by politicians as detrimental to society. But as we have seen, the law is inconsistent. History shows that prohibition achieves little more than fostering criminality and increasing harm.

Fortunately, politicians and policy-makers are starting to see sense, thanks, in part, to robust evidence from scientific studies. We are slowly seeing more balanced policies. For example, smoking and sometimes alcohol are not criminalised, but have been banned in public spaces where use could affect other people. Belgium and the Netherlands allow the cultivation of cannabis for personal use. The EU has a blanket sale ban–but no usage ban–of snus oral pouch tobacco outside Sweden.

The UK Commission, which looks only at illegal drug use, suggests that we need to look at “how society and government can enable and support individuals to behave responsibly. This means tackling underlying causes of drug use, providing the information and skills necessary for people to make sensible choices about drug use, and ensuring that where drug use does occur, it is undertaken in a way that minimises the harm to the user and others.”

This does not open the way for a free-for-all. After all, freedom to overdose is not freedom at all. We have to recognise that drugs do cause harm. But we must also give people options to opt out of reality; at least for a short time, provided they do not harm others. Scientists and ethicists must step in to inform a balanced debate and ensure that our new laws are not held in contempt.

Julian Kinderlerer

Julien is president of the European Group on Ethics in Science and New Technologies (EGE). He reports to the European Commission President Juncker and the European Parliament. He is professor of intellectual property Law at Cape Town University, South Africa. He is also an adviser the South African government, the United Nations and other international organisations. Previous to his current role Julien was director of institutes on biotech law, ethics and societies at in the universities of Delft and Sheffield, UK.

This article is the edited version of a piece that was first published in Science in the Public Interest vol. 3: Addictions: Ethics, Integrity and the Policy-Maker, published by SciCom– Making Sense of Science.

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