Brief Assessment of Current and Proposed Regulation
To conclude, let us briefly evaluate one example of current regulation, as well as Veljko Dubljevic’s recent proposals for a reform of the regulation of meth- ylphenidate in light of these ten points. First, the strict control of one class of neurotools stands out as particularly questionable: psychedelics (e.g., LSD, psilocybin). Following the strict and partly politically motivated scheduling of psychedelics in the 1970s, research and psychotherapeutic use of psychedelics halted for decades. A couple of pilot studies in the past decade have renewed the clinical interest in psychedelics.56,57 According to users and experts, these substances afford intriguing experiences, profound and yet illuminative transformations of consciousness with sometimes long-lasting positive effects.xvul Users report that they were able to gain insight into subconscious thoughts and emotions, a clearer view on themselves, dissolution of ego boundaries, and an understanding of the working mechanisms of cognitive processes such as perception. In a recent study on psilocybin, more than half of the participants considered the psychedelic trip as one of the five most meaningful experiences of their lives.57,58 Provided these reports are correct, the legally interesting point is that these effects are not recognized in regulation (apart from their potential value for therapy). But how can a regulatory regime deny persons such “profound and meaningful experiences” and outlaw tools that appear valuable for self-development under most conceptions of a good life that incorporate the ancient Greek imperative to “know yourself?” And without even acknowledging a need to justify such a deprivation? Although not free from dangers, the risk profile of psychedelics appears comparably low. They are not dependence- producing, and side effects mainly involve short-lived negative experience while under the influence (“bad trip”).59 A recent population study in the United States concluded that psychedelics do not seem to be “an independent risk factor for mental health problems.”60 However, case and anecdotal reports indicate that vulnerable persons might develop psychiatric symptoms such as psychosis or anxiety disorders, so more research is necessary. To err on the side of caution, measures to minimize risks such as instruction classes, psychiatric screening, and supervision by a trained “trip-sitter” could be developed. Because they are not performance-enhancing, psychedelics are unsuitable to generate competitive pressure on nonusers. A strict ban of psychedelics can thus hardly be justified in light of the idea of cognitive liberty (again, assuming the empirical effects can be validated).
Second, Dubljevic has recently forwarded a proposal for reforming the regulation of methylphenidate (Ritalin) and amphetamines (Adderall).61 He recommends lifting the strict control of methylphenidate in extended, slow-release (SR) form but disincentivising its use through taxation and safety requirements. The prohibition of amphetamines should be upheld. Dubljevic argues that the risks of Ritalin-SR are comparably low, whereas amphetamines are the most widely abused drug in Europe. His proposal deserves credit for being among the first to explicitly address the enhancement use of controlled substances, and I concur with large parts of his argument. However, it does not explain why states should discourage the use of methylphenidate. The basic objective of regulation remains unspecified or unsupported by argument.
Nor does it suggest a standard of permissible paternalism, and it relies on a comparison among the risk profiles of Ritalin, Adderall, and other drugs. This approach is understandable but bypasses the crucial question about permissible degrees of self-harm that no regulatory model can leave unanswered. Moreover, because methylphenidate is the paradigmatic candidate of a performance enhancer in competitive contexts, it remains to be shown that its negative mental effects are of a kind that everyone can be reasonably expected to accept. Reports of detrimental effects on emotion, if correct, might suggest the contrary, particularly because enhancement effects in healthy adults are not (yet) proved.62-63 At the moment, taking methylphenidate for enhancement purposes is experimental. Amphetamines, by contrast, are often used recreationally (outside of competitive contexts), so a blanket prohibition comprising nonrisk users and consumption patterns needs to be justified. A less restrictive prescription model might avert imminent health dangers through medical supervision and quality control of substances without unreasonably impinging on the right to cognitive liberty.