Pill Testing – The Legal Issues

01 APR 2019


Is pill testing a viable option to reduce the number of deaths at music festivals?

Pill testing has become a very prominent issue in NSW recently, due to the deaths of several festival-goers in late 2018 and the start of 2019.

Many organisations are lobbying the NSW Government to introduce pill testing at music festivals. These groups argue that the identification of unexpected and potentially lethal ingredients in drugs, and education of drug takers about the risks of drugs, would hopefully cause a fall in the number of drug deaths. Currently, the ACT is the only place in Australia which has pill testing services at music festivals.

The issue of pill testing raises many legal and ethical issues. Who is legally responsible if a festival-goer agrees to pill testing and because of a clear result (or even despite a negative result), takes the pill, and then later gets sick or dies? Would they or their families be entitled to seek compensation from the festival organisers, the pill testers or the NSW Government?

Festival organisers obviously have a limited ability to protect festival-goers from harming themselves through their own actions. They simply cannot stop everyone at a festival from consuming drugs.

At the “Groovin the Moo” festival in the ACT in 2018, participants were asked to sign a waiver which stated that they waived any potential legal liability on the part of the festival organisers, pill testers or the Government. However, these types of waivers do not extinguish the duty of care which does exist. In circumstances where it is highly possible that a lot of patrons may be under eighteen, drunk, or under the influence of drugs, the legal effect of any waiver could be minimal.

The reliability of the testing equipment also needs to be considered. The proper analysis of a pill takes at least twenty four hours, therefore this level of analysis is not possible in the music festival context. On-site testing kits were used at “Groovin The Moo” and other festivals in Western Europe. These kits are not extremely accurate, as they are unable to detect many new substances which enter the market every year, or the quantity of any given substance in a pill. For example, PMA is a substance which has been linked to several deaths in Melbourne. One one-thousandth of a gram of PMA can be fatal, and on-site testing kits are unable to detect it.

In addition to the legal issues, one also needs to consider the ethical questions. Those who support pill testing argue that it is an educational service intended to save lives. However, is it appropriate for the Government to provide a testing service for illegal substances? Does this condone drug taking, or even encourage the consumption of drugs by providing a false sense of security? The NSW Government has not taken any steps to progress the implementation of pill testing and this situation appears unlikely to change in the near future.

For more information on the above article we recommend that you contact Accredited Specialist Joe Bonura on 02 4626 5077 or jbonura@marsdens.net.au.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication

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