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ASB Linked to Medical Cannabis Use

From Panel Discussion run by Green & Burton ASB Associates, 2nd April 2025

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Background

Following high demand, Green & Burton ASB Associates were delighted to be able to support practitioners in this complex and topical area of ASB linked to medical cannabis use, through their free webinar, held on 2nd April 2025. (Watch the video here: https://greenandburtonasb.co.uk/prescription-cannabis-asb-webinar/)

Crammed full of solutions and ideas, the roundtable brought together specialists in the field for a practical and engaging debate. 

Chaired by Janine Green, the roundtable included insights provided by:

[Summary of the takeaways at the bottom of the page.]

The Housing Issues

Many providers of social housing are dealing with a rising number of complaints and reports of ASB (anti-social behaviour) linked to the use, or alleged use, of cannabis. Since the law changed in the UK a few years ago, people can be prescribed cannabis for medical use, known as Products for Medicinal use in humans (CBPMs), through the Misuse of Drugs (Amendments) (Cannabis and Licence Fees) (England, Wales, and Scotland) Regulations 2018.

The Cannabis Industry Council (CIC) has published a useful document that outlines the law around medical cannabis use (apart from the – incorrect from a GDPR point of view – advice about getting consent from cannabis users to tell complainants about their prescription or health issues. Please see the Data Protection section below.)

The headline facts:

While the law allows cannabis to be prescribed, it is only specific forms of cannabis, to be used in specific ways. It is never lawful for it to be smoked. Cannabis bud or flower can be vapourised, using a device that can be laptop-sized or a smaller version, or cannabis vape liquid can be used in a vape pen, or cannabis oil can be taken in capsules. Anyone smoking it, in a spliff, bong, etc. is not using prescribed cannabis, and not using it in a prescribed way.

Housing and ASB Officers report that, when they investigate complaints about cannabis use by neighbours, the respondent will sometimes justify their cannabis use, saying it’s for medical purposes and they have a prescription. This leaves the landlord unsure of what steps they can take, if any, to solve the complaint.

The attendees at the webinar had a wide range of experiences – and some seemed to have different aims – regarding dealing with reports of cannabis use. Some housing providers talked of no longer investigating reports of cannabis smells, others said they investigate “noxious odours” rather than naming it as cannabis smells, and other worried about how to prove cannabis is actually prescribed and/or that it is actually being smoked rather than used as prescribed. It is interesting that housing providers are talking about proving something in that way, as landlords are not law enforcement.

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.

Data Protection Considerations

I must admit it was disheartening, but perhaps shouldn’t be surprising, that the part that data protection plays in handling complaints and ASB reports wasn’t understood at all, by at least some of the attendees at the webinar.

Some of the confusion about what steps to take once a respondent has stated their cannabis use is prescribed, is – in my experience – related to a fear of breaching that person’s privacy. Especially if the respondent tells the housing officer that they have a prescription but it’s none of the officer’s business, it’s clear why the officer might feel uncomfortable asking to see the prescription.

However, it is usually going to be lawful to ask to see the prescription, although the lawful basis being relied on will depend on the specific circumstances. If the cannabis user is a tenant, and the landlord suspects they’re breaching their tenancy agreement, which can lead to taking legal action against the tenant, the legal basis is Article 6,1,b (necessary for contract), plus Article 9,2,f (necessary for pursuing or defending legal claims.)

If the cannabis user is not a tenant of the landlord that has received the complaints, it might be trickier to get them to cooperate by showing their prescription, and while a legal basis could likely be found, it is not the landlord’s place to act in a legal enforcement capacity, and should consider if the matter should be raised with the police. It will be context dependent, of course.

Unfortunately, when I mentioned that GDPR will usually allow the housing/ASB officer to ask to see the prescription, but that you can’t tell the complainants about the prescription, I was faced with confusion from some attendees, and was asked “what’s GDPR got to do with seeing a prescription?” Another attendee trying to be helpful said “that’s not what she was saying, GDPR is only related to not telling the complainants about the prescription.” I’m sure you share my frustration!

Of course, as we know, compliance with the (UK)GDPR starts with the collection of personal data and whether it is lawful, such as asking to see someone’s prescription, which contains (very!) personal data.

The point about not telling complainants about the cannabis user’s prescription or health issues, was not popular, to say the least! This is a problem we see fairly often in social housing, though, even perpetrated by a judge in an ASB case where he told the landlord they should have told the ASB complainants that the respondent was suffering from poor mental health, in a bid to make them more understanding of her behaviour and less likely to continue reporting it as ASB. (So frustrating!)

Yes, we often feel sympathy for the complainants, or want to be able to explain the problem to them, so they will stop complaining to us… but that is breaching the respondent’s basic human right to privacy (and breaching the (UK)GDPR) and opening up to complaints, compensation claims, and a breakdown in trust.

The compliant, and safer, way? ASB and Housing Officers can, and should, reassure complainants that they are following their internal ASB policy and procedures appropriately. We don’t have to tell people what we’re doing, just reassure them that we are doing something, and we are doing the right thing.

The CIC’s document leans heavily into getting the cannabis user to give their permission for their health issues to be shared with the complainants, and even says that they are likely to consent as it’s “in their best interests”. But consent is NOT appropriate. It’s not likely to be valid consent, under the (UK)GDPR definition, so not worth the paper it’s written on. It doesn’t make it ok to share the cannabis user’s health information, and potentially make them fearful of their health status being used against them.

Summary

  • Medical prescriptions for cannabis do exist, but they will never be for smoking it.
  • If a tenant is using cannabis and says they have a prescription, we can ask to see it, to prove it.
  • If the user has their prescription because they have a disability under the Equality Act, they have a right to “reasonable adjustments” which may include allowing them to use a vapouriser or vape pen indoors, but it doesn’t override the neighbours’ right to enjoy their own homes.
  • Even with a prescription and/or a disability though, if the use is causing problems for neighbours this can be handled as ASB.
  • The existence of a prescription, or of a disability or other health issue, should never be shared with the complainants as a way to close the complaint. To do so would breach the law, and could cause real harm.
  • Landlords should instead (for cannabis and any other ASB issue) reassure the complainants they are following their internal policies appropriately.

If you have any further questions or or comments, give me a shout! Clare@cpdataprotection.com

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