Yes

Under the Government’s proposal, medicinal cannabis patients will continue to be subject to roadside drug testing in exactly the same way as other drivers.

However, a positive roadside drug test will trigger an immediate 24 hour driving suspension.

Not necessarily

The Government has made clear that medicinal cannabis patients will still face consequences if THC is detected at a roadside drug test.

Patients will have their ability to drive suspended for 24 hours on the spot if THC is detected regardless of the amount, and will face penalties if a lab test determines it is above the 50 nanograms per millilitre threshold, subject to a three-strike system.

Most medicinal cannabis patients use their medication responsibly and are not impaired while driving. It is unclear what advice the Government is relying on to suggest the 50 nanograms per millilitre threshold indicates impairment.

We are concerned about the breach of a person’s right to medical privacy and the potential for information recorded on a patient’s drivers licence to be misused.

The Government’s proposal requires medicinal cannabis patients to register their status with Transport for NSW before they are allowed to drive. A person’s status will then also be recorded on their digital licence.

Medical information is highly personal, and, in most circumstances, this information should be between a person and their doctor. People should not have to disclose either their medical condition or medication use when they are required to present identification.

A driver’s licence is commonly used when: 

• Entering a licensed venue such as a pub 
• Attending music festivals or other major events 
• Collecting parcels 
• Opening bank accounts 
• Applying for rental properties 

We are concerned that this will create an unnecessary risk of discrimination against a person who is using their legally prescribed medication.

This is one of our most significant concerns.

Police vehicles have technology that is constantly scanning the registration plates of vehicles in their vicinity, and then linking to registered vehicle owners and drivers licences.

If medicinal cannabis status is linked to a driver’s licence record, there is a risk that some drivers could be disproportionately targeted for roadside stops and roadside drug testing, particularly if they have already received one or two warnings from previous roadside drug tests.

It has long been reported that particular communities in NSW are disproportionately targeted by police. Any system that creates a readily accessible marker identifying someone as a medicinal cannabis patient must be treated with the utmost caution.

The government has not explained what safeguards would exist to prevent inappropriate use of this information.

Under the Government’s proposal: 

1. The driver will be suspended from driving, on the spot, for 24 hours 
2. A sample will be sent to a laboratory for testing 
3. If THC is below the 50 nanograms per millilitre threshold, no further action will be taken 
4. If THC is above the 50 nanograms per millilitre threshold, the driver may receive a warning
5. A third detection above the 50 nanograms per millilitre threshold in a two year period could result in a fine and licence suspension

Because it continues to punish people based on the presence of THC rather than impairment - and disproportionately hurts people in regional and remote areas

Under the government’s proposal, somebody who uses their medicine exactly as prescribed and is roadside drug tested will have their ability to drive based on the detection of THC despite no impairment and regardless of being below the government’s 50 nanograms per millilitre threshold. 

The temporary loss of the ability to drive may not be as big an issue in the heart of Sydney where frequent public transport is often an option, but for many people without access to reliable public transport such as Western Sydney, or without any access at all in regional and remote areas, this could have serious consequences.

Only partially 

The current system can penalise medicinal cannabis patients for the mere presence of trace amounts of THC, regardless of impairments. The proposed reforms at least acknowledge that this approach is unfair in many circumstances. 

Unfortunately, the Government is still proposing: 

• Mandatory registration for medicinal cannabis patients 
• Potential forced disclosure of medical information 
• Ongoing roadside drug testing for presence instead of impairment
• Immediate 24 hour driving suspension after positive roadside tests, even if a person has a valid prescription and
• A three strike penalty system for anyone over the 50 50 nanograms per millilitre threshold in a two year period
• Treating medicinal cannabis different to all other prescription drugs by making it a crime if you test positive for any amount of alcohol along with THC

As a result, medicinal cannabis users will still face discrimination simply for using their legally prescribed medicine. 

Under this proposal, medicinal cannabis patients will be treated unfairly when alcohol is involved. 

A driver registered in the scheme who has any THC detected alongside any alcohol in their system will still face the standard drug driving offence, even if the blood alcohol concentration is below the legal limit and there is no impairment. 

This means a medicinal cannabis patient could use their medication exactly as prescribed, and, after any possible impairment has worn off, have a single  beer or wine and be charged if they return a positive test for any trace of THC despite their blood alcohol reading being below .05. 

All other drivers are permitted to consume alcohol up to the legal limit, despite what medications they are on. Of course people are cautioned about driving and/or consuming alcohol by their doctor or pharmacist after taking some medications including benzodiazepines and opioids, including for a particular period of time until the effects have worn off. This is the same with medicinal cannabis.