Introduction
Approximately 50,000 – 60,000 people in the UK are estimated to have a prescription for medicinal cannabis, a number that has continued to grow since the introduction of legislation allowing Cannabis-Based Products for Medicinal use in Humans (CBPMs) under the Misuse of Drugs Regulations 2001 that was amended in 2018. While this change has enabled patients with certain medical conditions to access treatment that may significantly improve their quality of life, it has also introduced new complexities for practitioners responding to reports of anti-social behaviour (ASB).
In particular, practitioners are increasingly encountering cases where neighbours report strong, persistent cannabis fumes entering their homes from a property where the occupant holds a prescription for medical cannabis. These situations can be difficult to navigate. Practitioners may need to determine whether the cannabis is being used in line with the prescription (typically through vaporisation) or whether it is being smoked, which is not how prescribed cannabis is intended to be consumed. In some cases, there may also be concerns that illicit cannabis is being used alongside the prescription as a “top-up.”
Establishing this distinction can be challenging in practice, creating uncertainty around what enforcement options may be appropriate and what evidence is required. To help explore these complexities, we have spoken with experts in the field to provide our readers with some useful insight and approaches to manoeuvring these complex cases as practitioners.
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Understanding prescribed cannabis
But first, we need to understand medical cannabis.
It’s important to know – smoking cannabis is illegal, regardless of prescription.
Medical cannabis is classified as a Controlled Drug and can be prescribed in multiple forms, including:
- Flower/bud (for use with herbal vaporisers)
- Oil
- Capsule
- Vape cartridge/disposable pen
We find that complexities with evidencing illegal use comes from cases where the prescribed cannabis is in flower/bud form. So, it’s important to understand flower/bud prescriptions in more detail.
Unlike vaping as we might know it, herbal vaporisers work by using a non-combustible method of administration. This method minimises the release of potentially harmful by-product, and perhaps more interestingly in this case, it significantly reduces any potential lingering smell. The smell produced by herbal vaporisers tends to be closer to the raw, ‘herby’ smell of the cannabis plant, rather than smoking cannabis which produces the distinct ‘skunky’ smell we might be used to. So, if a very potent cannabis smell is coming from an adjoining property – this may indicate illegal use.
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It’s also important to note that whilst the smell of cannabis can be unpleasant, unless you are in an unventilated room with direct exposure to the smoke, you are unlikely to experience any health complications as a direct result.
Likewise, cannabis vapour (from vapour devices) has been shown to have little to no impact on nearby individuals. A 2018 study on second-hand exposure of hospital staff administering vaporised cannabinoids found no detection of cannabinoids in staff blood levels.
Case study
In order to demonstrate the complexities of these cases, we wanted to share a real practitioner case study with you. We are grateful to have had a chat with Paula Williams regarding one of her previous cases in Plymouth involving medical cannabis:
Overview of the case
In this case, a victim was reporting a very strong cannabis smell coming from their neighbour’s property. This neighbour had an active cannabis prescription, but it was theorised that the neighbour was potentially ‘topping up’ their prescription with illegal cannabis use.
Impact on the victim
As with many of these types of cases, we find the impact is wide reaching, speaking to Paula about this case she said the impact was:
“Awful because it was a two-bed property, the second bedroom was made-up as a nursery for their granddaughter so there was a cot in there. I could smell cannabis in the hallway, the minute I walked in, in the granddaughter’s room and then randomly it was also smelt by other colleagues in the kitchen. The impact on the residents was that they could not have their granddaughter in their home.”
“And not only was it affecting their relationship and ability to kind of enjoy family time, but when they were coming home from work, the minute they opened the door and smelled that, they were having to wait outside and ventilate their home. I clearly remember it was freezing at that time of year – so all their heating was flying out which was costing them.”
As with many cases of neighbour-related anti-social behaviour, we find that where a case begins with one form of ASB, it can often evolve into other types of behaviours. In this case study, the impact reached the wider community, Paula states:
“It became a street war. The reporting neighbour was highly regarded in the community, so other residents got involved and began to intimidate the alleged perpetrators family.”
What did the housing association do to address the situation?
Paula explained that local agencies such as police and environmental health were limited in how involved they could get as there was ‘no way to prove if the cannabis was being illegally smoked’. Paula states it left the housing association in a predicament:
“It felt like an impossible situation.”
When discussing what the housing association did to try and address the situation, Paula states they tried the following:
- Hired a surveyor to provide a list of recommendations for sealing/securing the neighbouring property. All recommendations were actioned by the housing association.
- Tried mediation between the neighbours but neither neighbour wanted to engage in the end.
When asked if they tried pursuing legal action, Paula states this didn’t seem appropriate:
“I think it wasn’t proportionate to enter into the legal arena with the disability of the alleged perpetrator and being unable to prove illegal use.”
Ultimately, the smell persisted. Eventually the neighbour was served a Notice of Seeking Possession (NOSP) and a management move was proposed but the alleged perpetrator was not willing to move without a financial incentive which was not offered because providing a financial incentive in these circumstances would not have been appropriate, proportionate, or morally justified. Both residents still live in their properties and no recent reports have been made regarding this issue.
How was the victim supported during this process?
We asked Paula how the housing association supported the reporter during this case, Paula states:
“Regular contact and trying to manage expectations, which is difficult when there isn’t an easy fix. But when they would call, we would go around straight away and validate what they were saying about the smell.”
What advice would you give to other housing providers who might face similar situations?
“I think you just have to follow your policies and procedures, if it’s causing an impact, explore your resolution options.”
We believe this case demonstrates the obstacles that practitioners face when addressing these complex situations regarding prescription cannabis and evidencing potential illegal use.
What can practitioners do?
In order to clarify what practitioners can do in these cases, and the relevant legislation, we linked in with the College of Policing and Jo Grimshaw, Head of Anti-social Behaviour at Surrey Police. Jo was kind enough to share Surrey’s framework for dealing with obnoxious smell cases.
First and foremost – if you are unsure about anything – link in with health providers to learn more about medical cannabis and the alleged perpetrators’ prescription in particular.
Some useful points from this framework include:
- Cannabis which has been provided via prescription may be legally vaped (not smoked). However, it can/will still produce an odour when used. In the first instance, a relevant prescription should be sought to evidence legality.
- Cannabis which is not prescribed is classified as a Class B drug under the Misuse of Drugs Act. However, a person may have a valid ‘CanCard’ due to a medical issue. This does not make the use of cannabis legal; however, it does have to be signed off by a doctor which means that the person does have a medical issue for which they are self-medicating with cannabis.
Circumstances such as the above should always be taken into consideration. Education as to the legal status of cannabis and the facts surrounding CanCard vs prescription, and signposting and advice to relevant support services should be provided wherever possible. However, the existence of a medical issue does not negate the need to deal with the smell if it is having an impact on others.
Any medical information provided while investigating the smell should be protected and the reason for the smell/odour in these circumstances cannot be shared when updating neighbours/ complainants as to the action taken unless permission has been provided by the subject.
Likewise, G&B ASB Associates have provided some insight previously on medicinal cannabis and how to address these cases.
G&B ASB Associates previously held a webinar, which brought together experts in the field, including our very own Deputy CEO, Charlie, to discuss how practitioners can address these cases. You can watch the webinar here: Prescription Cannabis & ASB Webinar – G&B ASB Associates
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On the back of this webinar, G&B ASB Associates published an article on the main points raised and discussed as part of the webinar: ASB Linked to Medical Cannabis Use – CP Data Protection
Within this article, G&B ASB Associates touch on some important points, including:
“A cannabis user with a prescription may have a disability under the Equality Act, and as the CIC document points out, this means they have a right to “reasonable adjustments”. The adjustments may include allowing them to use a vapouriser or vape pen indoors, but – crucially – it doesn’t override their neighbours’ right to enjoy their own homes.
Even with a prescription and/or a disability, if prescribed cannabis use is causing problems for neighbours, this can be handled as anti-social behaviour.
If a tenant is causing anti-social behaviour, to the extent that their landlord wants to evict them, the burden of proof on the landlord isn’t as high as it is in a criminal case; the case is decided on the balance of probability.”
Non-legal interventions
It’s important for practitioners to know what tools they have available to them to address these cases. Below are some non-legal interventions we have seen being used to try and resolve these issues:
Mediation
Mediation can be a valuable tool where tensions have developed between neighbours as a result of persistent odours. An independent mediator can help both parties discuss the issue in a structured and neutral environment, allowing the complainant to explain the impact the fumes are having on their well-being, while giving the other resident the opportunity to explain their circumstances.
Mediation can also help establish practical compromises, such as agreeing on specific times of use, adjusting ventilation, or identifying locations within the property where the impact on neighbours is reduced.
Good Neighbour Agreements (GNA)
A Good Neighbour Agreement can be used as an informal written agreement between residents to set clear expectations around behaviour. While not legally enforceable, these agreements can be helpful in setting boundaries and demonstrating that both parties have committed to practical steps to reduce the issue.
For cases involving cannabis fumes, agreements might include steps such as:
- Ensuring adequate ventilation when using a vaporiser to help disperse vapour and reduce build-up.
- Using cannabis in private areas of the property, away from shared walls, windows, balconies or communal spaces where fumes may travel more easily.
- Taking reasonable steps to minimise odour, such as cleaning the area regularly or using air filtration systems.
- Being mindful of times of use, particularly late at night when neighbours may be trying to sleep.
These agreements can provide a constructive starting point and demonstrate willingness to resolve the issue.
Community Protection Warnings (CPW)
Although a Community Protection Warning is a formal step within the anti-social behaviour framework, it is often used as a preventative tool before legal enforcement. A CPW allows practitioners to clearly set out the concerns raised and the behaviour that needs to change.
In cases involving cannabis fumes, a CPW could outline expectations such as ensuring the substance is used in accordance with the prescription (for example, vaporised rather than smoked) and taking reasonable steps to prevent fumes from affecting neighbouring properties.
In some areas, the standard CPW is adapted into an ‘official warning letter’, setting out the concerns and advising that a Community Protection Notice (CPN) may be issued if the behaviour continues. If the behaviour persists, a CPN is then issued with either prohibitive or positive requirements.
ASB Case Review
Given the case meets the threshold for an ASB Case Review, this tool can be incredibly valuable in these cases. The process brings relevant agencies (including healthcare professionals) together to review how the case has been handled and to consider whether further action is needed. Importantly, this tool can strike an important balance of respecting the neighbour’s right to prescribed medical cannabis but also addresses the reporter’s concerns and the impact the situation is having on them.
Legal interventions and evidencing illegal use
As we can see, evidencing illegal use in these cases can be an obstacle for practitioners. Practitioners may rely on a range of information when assessing these cases, including:
- Witness accounts – witness accounts alone may not prove the method of use, but they can help establish patterns and impact.
- Professional witness accounts – during visits, practitioners may see cannabis smoking paraphernalia e.g. grinders, or smell strong cannabis odours.
- Admissions – in some cases, individuals may admit to smoking cannabis rather than vaping it, particularly where they were unaware this was not permitted under their prescription.
Because many ASB powers operate on the civil standard of proof, practitioners do not necessarily need the same level of evidence required for a criminal prosecution. Instead, they must demonstrate that it is more likely than not that the behaviour is occurring and causing nuisance.
So, under the Anti-social, Crime and Policing Act 2014, practitioners can use the following powers in relation to these obnoxious smell cases:
- Civil injunction
- Criminal behaviour order
- Possession proceedings for ASB (in social housing)
- Closure orders
It’s important to note that non-legal and legal interventions can be used in conjunction with each other as part of an action plan.
Conclusion
Cases involving prescribed cannabis and neighbour nuisance can be complex. While some individuals may have a legitimate medical prescription, neighbours also have the right to enjoy their homes without being exposed to persistent fumes that affect their well-being.
Although evidencing whether cannabis is being smoked rather than vapourised can be challenging, these cases should still be addressed by focusing on the impact of the behaviour and the steps being taken to prevent nuisance. Through early intervention and, where necessary, the use of ASB tools, practitioners can work towards balanced solutions that respect medical needs while ensuring neighbours are not left to suffer in silence.
Useful resources
Below are some resources we found particularly useful during the creation of this blog:
ASB Linked to Medical Cannabis Use – CP Data Protection
Prescription Cannabis & ASB Webinar – G&B ASB Associates
The Use of Prescription Cannabis in Buildings – Cannabis Industry Council