OP-ED: Ireland's New Drugs Possession Health Referral Scheme: No Admission Of Guilt, No Health Referral

"The wider debate about decriminalisation is not going away, and nor should it."

From 1st September, a person found by Gardaí in possession of drugs for personal use, for the first time, may be referred for a brief health intervention rather than sent towards a courtroom. This is the Health Referral Scheme, announced in July by Minister Jennifer Murnane O'Connor, who described it as "an important milestone in the health led response to drugs use" that would "provide compassion and support." It is a shift in how this State responds to drug use. Section 3 of the Misuse of Drugs Act remains fully in force, although this could change should this, or a future, Government implement the Joint Oireachtas Committee on Drugs' recommendation to repeal Section 3. Time will tell, but there is a narrower, more immediate design question that deserves more attention than it has had: the new Health Referral Scheme will still require the person to admit the offence.

The Health Referral Scheme isn't a standalone system, it's built into the existing Adult Caution Scheme. Officials have told the Oireachtas committee that referral under the scheme 'will be automatic' where a person accepts they were in possession. That mirrors exactly how the Adult Caution Scheme has worked since 2006, under An Garda Síochána's own policy, a caution can only be administered where "the offender must admit the offence" as one of four conditions that "must be met before a caution can be administered." No admission, no health referral. Two years ago, a group I chaired under the National Drugs Strategy commissioned and published a mapping of alternatives to coercive sanctions in Ireland, that mapping report noted that Adult Caution Scheme which had been extended to cannabis possession had cautioned 5,139 people for cannabis possession between December 2020 and February 2024, against 17,125 people who were issued with a charge/summons in the same period. I do not think that gap is only about awareness of the scheme, although lack of awareness was certainly part of it. Some of it, I suspect, is about people who were unwilling to formally admit guilt to a Garda when they were arrested.

This matters more than it might sound. An admission requirement does not simply filter out the guilty from the innocent. It filters out the trusting from the wary. Someone who has had a good experience with the police, who has their solicitor on hand, who understands their rights and feels safe exercising them, is in a very different position from someone who does not. Evidence from the diversion system in England and Wales makes this concrete rather than theoretical. The Lammy Review into the treatment of Black, Asian and minority ethnic people in the criminal justice system found that mistrust of police made people from those communities less likely to admit guilt, and admission was, and largely remains, a prerequisite for most out-of-court disposals there. If the same dynamic holds here even partially, an admission-based scheme risks reproducing exactly the kind of unequal access to diversion that a Health Referral Scheme should avoid.

England and Wales did not solve this. But they built something worth studying: a disposal called Outcome 22. It allows a case to be closed once a person has positively engaged with a diversionary or educational intervention; no formal admission of guilt is required, only an acknowledgement of what was found and a willingness to engage. The case can be resolved, the person diverted, the file closed as "not in the public interest to take further action", all without the moment of formal self-incrimination that a caution demands. As its architects describe it, the aim is to turn what would otherwise be an incriminating encounter into a positive health outcome. Outcome 22 exists precisely because a formal admission turned out to be a barrier for exactly the people the system was supposed to be reaching.
What Outcome 22 shows is that a no-admission diversion route is not a legal fantasy. It exists today, inside a legal system that still criminalises possession, exactly as ours will from next week. It required no change to primary legislation, only a change in how police close a file. That is a genuinely useful fact for Ireland, because it means the debate about the Health Referral Scheme's admission requirement is not a debate about decriminalisation by the back door. It is a narrower, more practical question: does a person have to formally admit an offence to Gardaí, in the moment, in order to be diverted towards health support rather than prosecution? England and Wales have shown that the answer does not have to be yes, even where the underlying law hasn't changed at all.

I am not arguing Ireland should copy Outcome 22 wholesale, its own architects would tell you it is inconsistently applied and imperfectly monitored. Part of that is structural, Outcome 22 still isn't formally recorded as a "positive outcome" in UK police performance data, which has quietly discouraged some forces from using it, though reform to change that recognition has been called for by police leaders, and work on it is understood to be ongoing. But as Ireland’s Health Referral Scheme goes live and is evaluated over its first year, as the Government has committed to doing, the admission requirement should be one of the specific things examined, not treated as an unavoidable fixed point. If a proportion of first-time contacts are declining diversion, or being excluded from it, because they will not or cannot formally admit the offence on the spot, that is worth knowing. And if we find, as England and Wales appear to have found, that certain groups are disproportionately represented among those who don't get diverted for that reason, that is a fairness question the scheme's first-year evaluation needs to actually ask, not something we discover five years from now once a pattern has hardened.

The UK's recent experience shows there is another way to work within the current law. The wider debate about decriminalisation is not going away, and nor should it.

Tony Duffin was Independent Chair of Strategic Implementation Group 5 (Alternatives to Coercive Sanctions) under the National Drugs Strategy until it concluded its work at the end of 2024. He leads Progressify, an independent international social policy and public health consultancy practice, and is Contributing Editor to the Hot Press podcast Dealing With Drugs.