Helen Kelly’s Battle for Medical Cannabis Has Exposed the Mess of New Zealand's Drug Policy

Helen Kelly, former president of the Council of Trade Unions, revealed last May that she was terminally ill with lung cancer (she has never smoked). In October, days before stepping down from her post, she went public with the fact that she was treating herself with cannabis oil.

"I was going on [TV current affairs show] The Nation anyway to talk about my health," Kelly explained to VICE. "And it was a really interesting drug that was making a big difference to my health. If I was going to get it illegally and it was all going to be fine for me, I thought, well there's other people it won't be fine for. You've got to put these things out in the open."

Kelly didn't stop at talking about it. A section of the Medicines Act 1981, allows doctors to apply to the responsible minister for permission to import and prescribe "new medicines." That was Associate Minister of Health Peter Dunne. The medicine Kelly and her doctor sought was cannabis oil packaged in a vaporiser from Californian medpot company Bloom Farms.

What happened next had everything to do with the first such bid under the Medicines Act. Last year, doctors for 18-year-old Alex Renton applied under the same section of the act to get a cannabis product called Elixinol. Renton had been placed in an induced coma by doctors trying to protect his brain from status epilepticus—a constant seizure. Elixinol, which contains cannabidiol (CBD) and only negligible quantities of THC, was the last resort.

The application was successful, but shortly after his treatment began, Renton died. Minister Dunne told the press the case had tugged "the nation's heartstrings." Privately, he asked Ministry of Health officials to draft up criteria to guide his consideration of future applications.

It was these new criteria that Kelly had to meet. And the bar was high. Her oncologist, Dr Anthony Falkov, had to show not only that the treatment might work, but also that that all other "reasonably applicable conventional treatments" had been tried and found ineffective.

The medical technocrats had a point about California's crazy-loose medpot regulation. The fact that Bloom Farms can't provide a product assay creates problems in other countries. Falkov submitted the application to use "non-pharmaceutical grade" cannabis medicine anyway. The ministry responded swiftly. Kelly's bid was not declined but "deferred," pending further information from her doctor.

The letter Kelly received informing her of the deferral was extraordinary. Among other things, Dr Falkov was faulted for failing to seek advice from a palliative care specialist on other treatment options. He had also failed to meet the criterion that Kelly be hospitalised, despite her desire to spend her final months at home with her family. Last week, Kelly announced that her application would be discontinued because the criteria were impossible to meet.

VICE applied under New Zealand's Official Information Act for the advice that went into the official criteria. We discovered that the fact they seemed dauntingly difficult to meet was no accident.

In the documents we received, acting director of public health Dr Stewart Jessamine frets about "the challenge of expanding use of CBD and cannabinoid containing products" and proposes that even "compassionate use of a product that has not reached Phase II clinical studies would not be permitted."

The final criteria that Dunne received were not as strict as this. But they had nothing to say about using cannabis products in pain management and end-of-life care, where the issues—and the medicinal products—are very different. The criteria she was expected to meet were, in short, not fit for purpose.

Peter Dunne agrees, more or less, and has requested a review of the criteria, which he prefers to call "guidelines":

"I think there are some things in the guidelines that are pretty good. I think there are some things in the current guidelines that are a bit inflexible, but owe much to the Renton case – the bit about hospitalisation for instance," he told VICE.

Meanwhile, Kelly will continue to use her illicit cannabis oil, which she says helps her manage nausea and pain and stimulates her appetite. But will she and the thousands like her be prosecuted for sourcing their own cannabis products?

"I sincerely hope not," Dunne told VICE. "I see no evidence that they will be. It's a bit of a risk, though, I must say. God knows what the police will do. If some cases become too obvious there might be public pressure to go in and stop this by making an example of someone. I hope that's not the case and I'm not in favour of that at all."

"It reminds me ofDallas Buyers Club," Kelly laughs. "All of us cannabis people saying "What have you got? Oh, you got some of that? You could try this." It's insane. None of us are experts but we're being forced to make these decisions based on what we've read on the internet. We're forced to treat ourselves."

And that's the thing. The difficulty in getting approval under the existing law means patients are on their own, using products with no advice and no idea of quality or purity. Which seems to breach the official principles of harm reduction.

"I take the point entirely about harm reduction," Dunne explains. "Just put yourself in my position if someone gets approval and there's a massive adverse reaction and they die."

So… reform the law? Dunne can't do that. He is a one-man party who serves at the pleasure of the governing National Party, which has branded itself on never changing the law since then-Justice Minister Simon Power rejected a set of cautious, considered proposals for reform from the New Zealand Law Commission in 2010 with the promise that "there is not a single solitary chance that as long as I'm the Minister of Justice that we'll be relaxing drug laws in New Zealand."

While Power has long since gone to a corporate banking job, Prime Minister John Key was asked by high school students about medical cannabis during the 2014 election campaign. His response said it all: "This is the fundamental message. Drugs are bad for you."

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