Maverick Life

CONSTITUTIONAL RIGHTS

High in court — lawyers in bid to have psilocybin decriminalised

High in court — lawyers in bid to have psilocybin decriminalised
(Photo: Unsplash / Matthew Schwartz)

Lawyers for a case in the high court to decriminalise psilocybin, the compound in psychoactive fungi, will argue that the laws that make it illegal are at odds with our right to freedom of thought.

Mandy (not her real name) was looking for God. Yet, after decades of contemplative practice and disciplined meditation, she still hadn’t had a true encounter with the divine. A devout Christian, she hoped that a large dose of psychedelic mushrooms, supervised in the shamanic tradition, would pull back the veil between her and her creator. It had for so many others, so why not give it a try?

When she met journey guide Claudia (not her real name), things didn’t go as planned. Claudia went against her gut when it came to the dose. Mandy was a teetotaller, and didn’t have experience with mind-altering substances such as cannabis or a psychedelic.

“I administered 5g of mushrooms, even though I felt she should probably take 2g or 3g,” Claudia says.

From the moment the psychedelic kicked in, Mandy resisted. She felt as though her body was burning up and became hysterical. It was as if she’d come in search of heaven, Claudia recalls. Instead, she found herself in hell.

“I always say to people that I can’t get them off the roller ­coaster; they have to wait for the ride to finish,” Claudia says, “but she was inconsolable.”

Claudia was drawn to being a psychedelic guide after a therapeutic mushroom experience in 2016, which led to an 18-month apprenticeship of sorts with an established Cape Town journey guide. This draws on the shamanic approach that some indigenous communities have used as part of their spiritual practice for thousands of years.

Now Claudia offers one-on-one sessions with people who find her through the word-of-mouth underground scene. Mandy’s experience was the first time Claudia questioned her calling. The second time was when a journeyer seemed to become psychotic during the four-hour trip.

“It was frightening. The journeyer couldn’t settle. I was worried she might hurt herself.”

While Claudia cushioned the woman from crashing into walls or windows, she considered calling a doctor to administer a sedative.

Lawyers presenting the case will argue that the laws which make psilocybin illegal are at odds with key constitutional rights.

Without medical training or support, and operating in the shadows of criminality – psilocybin mushrooms are illegal in the way heroin or tik are – both guide and journeyers were adrift.

In spite of psychedelics being illegal since the 1970s, there’s been a growing subculture of people using them to seek mystical experiences, boost creativity and self-medicate against depression and existential anxieties. Drug policy experts say that decriminalising psychedelics such as magic mushrooms will make underground use safer, allowing for education, knowledge-sharing and better harm-reduction support. It will also avoid unnecessary criminal cases.

An upcoming high court bid aims to have psilocybin – the hallucinogen in magic mushrooms – decriminalised, much the way cannabis was in 2018. Lawyers presenting the case will argue that the laws which make psilocybin illegal are at odds with key constitutional rights, including the right to bodily integrity, freedom of thought and the right to privacy.

Constitutional right to blow our minds

The 1962 Harvard University “Good Friday” experiment is legendary. A medicine and divinities studies doctoral student gave 20 seminarians a capsule each as they attended a religious service. Half the capsules contained a placebo; half contained psilocybin.

It wasn’t hard to see who got the psilocybin. The ecstatic students became almost ungovernable as they whirled about the campus chapel, singing, weeping and praising God.

An encounter with the numinous is typical of psychedelic experiences, and the substances’ mind-expanding nature is why researchers in psychedelic medicine argue that psychedelics shouldn’t be kept “just for the treatment of sick people, but used for the betterment of well people”, too, as author Michael Pollan writes in his book How to Change Your Mind.

Read more in Daily Maverick: How psychedelics act on the brain to relieve depression

The mind-expanding potential of psilocybin will be at the centre of the argument presented to the North Gauteng High Court soon. The legal team will say that the laws that make psilocybin illegal conflict with citizens’ Section 12 constitutional right to bodily and psychological integrity. Implicit in this is what’s universally considered to be the right to cognitive liberty, explains attorney Paul-Michael Keichel of Cullinan & Associates, the legal firm that will bring the application later this year, or early in 2024.

Psilocybin is a means through which someone can exercise their right to cognitive liberty, writes attorney Sebastian Foster in the South African Journal of Human Rights in May 2023. The Drugs and Drug Trafficking Act and Medicines and Related Substances Act that criminalise psilocybin infringe on that right, he argues.

“We want to set a precedent that you’re allowed to consume a low-harm entheogen in order to change your mind,” Keichel says.

Keichel has a track record in this area: he helped in the case which saw cannabis decriminalisation in 2018, based on the argument that the laws banning cannabis use were in conflict with citizens’ right to privacy. The Constitutional Court ruled that citizens should be allowed to grow, keep and use cannabis in private, without criminal penalty.

Read more in Daily Maverick: Magic mushrooms: Journeying into one’s psyche

“We will argue that the right to privacy is being infringed [in the case of psilocybin], but the key right is the right to bodily and psychological integrity.”

The legal team will ask the court to expand the regulations governing psilocybin in order to allow mushroom cultivation to go beyond own-use growing. Cultivating mushrooms is more technical than cannabis, and the law should allow trade or exchange between growers and users, says Keichel.

We will put up the evidence of the low addiction potential [of psilocybin], which is already used to cure addictions like tobacco and alcohol dependence.

The applicant in the case is a Somerset West-based astrologer Monica Cromhout, and the respondents are likely to include ministers from various state departments, including the minister of health, the minister of justice and constitutional development and the minister of police.

The South African Health Products Regulatory Authority lists psilocybin as a Schedule 7 substance, alongside others such as heroin and crystal meth, which it regards as dangerous habit-forming drugs with no medical potential or scientific value. But Keichel says the regulatory authority’s psilocybin scheduling is not based on evidence, and is built on the historical baggage of the moral panic and political agenda that drove the criminalisation of psychedelics under the 1971 United Nations Convention on Psychotropic Substances.

A substantial body of research supports the medical potential of psychedelics for certain mental health treatments, which the legal team will present in its court submissions.

“We will put up the evidence of the low addiction potential [of psilocybin], which is already used to cure addictions like tobacco and alcohol dependence,” says Keichel.

Meanwhile, the Constitution places the burden on the state to justify any limitations on citizens’ rights when there is a conflict between rights, as in this case.

“It’s not for us to show the absence of harm of psilocybin; it is up to the state to show the presence of harm.”

Decriminalisation: a bridge to medicalisation

The medicalisation of psychedelic-assisted therapy for treating depression, end-of-life anxiety, trauma symptoms and substance dependence is almost inevitable. Until then, decriminalisation can be a bridge, bringing psychedelics use out of the shadows. For the growing number of people who use mushrooms to self-medicate, decriminalisation can allow better access to harm-reduction support from doctors and therapists, drug policy experts say.

“There is no evidence that decriminalisation will increase use or harms,” says Shaun Shelly, a researcher in drug use and rights in the department of family medicine at the University of Pretoria. “There are several benefits, such as better support, harm reduction and open sharing of knowledge about appropriate and safer use.”

The medical community has established protocols for this novel therapy: Harm-­reduction screening from a doctor who can prescribe the treatment (particularly looking for symptoms of psychosis or schizophrenia, conditions a psychedelic experience can worsen); supervised dosing sessions with trained medical experts in a safe, contained environment; and talk therapy with a psychologist or counsellor to prepare for the experience and integrate the insights gleaned during the dream state that a patient enters in the dosing session. Decriminalisation can open the door between this kind of formal support and those operating in the fast-growing underground. 

The South African Society of Psychiatrists is gearing up to make psychedelic-assisted therapy mainstream, and also recognises doctors’ ethical duty to “follow a harm-­reduction approach that is evidence-based and complies with legal and professional practice guidelines” for patients who indicate they plan to use psychedelics to self-medicate or use recreationally. 

For indigenous cultures who have used psychedelics as part of their spiritual practice for generations, these encounters are as common as Sunday mass for Catholics or the Muslim daily call to prayer.

Underground shamanic guides are self-trained, and not answerable to the ethical and best-practice codes that hold clinicians accountable. This reporter has encountered instances of conduct by journey guides which clinicians would regard as unethical or acts of misconduct if they’d taken place in a medical context.

These include breaches in confidentiality in relation to information shared in a counselling context; a disregard for the inherent power imbalance between the journeyer and the guide, who often doubles as a counsellor; guides taking advantage of a person’s vulnerability or heightened suggestibility in their post-dose psychological state; and a grandiose sense of authority by guides who regard themselves as accountable only to “the mushrooms”, having no need for peer accountability.

Finding meaning after a hell-realm experience

After decades of underground psychedelics use and the mounting body of evidence on their therapeutic potential, the genie is out the bottle, regardless of how the high court rules on the decriminalisation of magic mushrooms, and the medical community needs to be on standby, experts say.

Studies show that a psychedelic experience can be among the most spiritually powerful and meaningful of a person’s life. But some also report that a difficult trip can be among the worst. For indigenous cultures who have used psychedelics as part of their spiritual practice for generations, these encounters are as common as Sunday mass for Catholics or the Muslim daily call to prayer. As Western culture taps into the mind-expanding potential and spiritual awakening that comes with the psychedelics experience, it will continue to blend the medical with the shamanic.

Storytelling – through counselling, talk therapy and similar methods – lies at the heart of the meaning-making process for mental well-being, and it’s no different with psychedelics. In the months that followed Claudia’s two difficult guiding sessions, she worked with the traumatised journeyers to make sense of the experiences. She says both were able to find some meaning and benefit, in spite of the experiences being confusing, terrifying and nonsensical at the time.

Decriminalisation would allow someone like Mandy the freedom to search for God without fear of arrest, and give guides like Claudia the chance to connect with medical support when things get dark, as they sometimes do. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R29.

P1. Front page. 28 October 2023

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Comments - Please in order to comment.

  • Fanie Rajesh Ngabiso says:

    Sorry, but this is a very subjective viewpoint. There are many many positions one can take here.

    Also, speaking frankly Mandy is not a great posterchild for this argument – she sounds like a fruitcake.

  • Hari Seldon says:

    Great article – well written. The research coming out on use of psilocybin for treating depression, anxiety, PTSD and eating disorders is expanding rapidly and it is astounding. It is the new frontier in mental health treatment. But using ego dissoluting doses of psilocybin requires skill, experience and good protocols for the practitioner and good preparation and post-journey integration therapy for the person taking the psilocybin. Eating disorders are among the most difficult conditions to treat, and do NOT respond to traditional psych meds. Preliminary results coming out are showing unprecedented positive results that are LONG LASTING

  • Hari Seldon says:

    Continued from last comment- “LONG LASTING” with large dose protocols of psilocybin (equivalent to 4 to 5 grams). Psilocybin is not addictive. Taking a large dose of magic mushroom is such a profound incredibly intense experience that humans simply cannot do this on a regular basis as done with addictive substances like cocaine. It would be great to see an article in the DM summarizing some of the science around this. Psilocybin is profoundly empathogenic.

  • Wendy Dewberry says:

    Looks like the power and economy of wellness could be going back into the hands of the people. And I believe there should be freedom of choice and support this court case.
    Our current health system has been usurped by industry which infiltrated the scientifuc method of healing and turned it the money making machine. So a question about the outcome of this wave of mushroom use- will psychoactive healing be controlled within the economic stream with taxes and availability to the wealthy like marijuana has? Time will tell. It seems to me that monetizing health is a deep ethical problem.

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