CHAPTER 1: Voluntary Drug Testing In Context



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|Compact Based Drug TestinG |

|This instruction applies to: - |Reference: - |

|Prisons | PSI 31/2009 |

| Re-Issue Date |Effective Date |Expiry Date |

|27 January 2020 – Revision |23 November 2009 |23 November 2012 |

|Issued on the authority of |NOMS Agency Board |

|For action by |Governing Governors and Directors of Contracted Prisons |

|For information |All prison staff dealing with drug related issues |

|Provide a summary of the policy aim and the reason |January 2020 – References to IEP have been changed to the Incentives Policy Framework (IPF),|

|for its development / revision |which came into force on 13 January 2020 |

|Contact |See contact list on page 3 |

|Associated documents |Compact Based Drug Testing Good Practice Guide, |

| |PSO 3601 Mandatory Drug Testing |

|Replaces the following documents which are hereby cancelled: - |

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|PSO 3620 Voluntary Drug Testing |

|Audit/monitoring: |

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|Governing Governors |

|Introduces amendments to the following documents: - |

CONTENTS

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|Executive Summary | |

|1. Compact Based Drug Testing In Context | |

|2. Voluntary Drug Testing Programme | |

|3. Voluntary Drug Testing Units | |

|4. Incentive Based Drug Testing Programme | |

|5. Needs Analysis | |

|6. Selection Criteria | |

|7. The Compact | |

|8. Sample Collection | |

|9. Staffing Levels | |

|10. Refusal and Non Co-operation | |

|11. Conducting the Test | |

|12. Responding to a Positive Test Result | |

|13. Responding to a Negative Test Result | |

|14. Appeals | |

|15. Equality and Diversity in Compact Based Drug Testing | |

COMPACT BASED DRUG TESTING

EXECUTIVE SUMMARY

STATEMENT OF PURPOSE

1. This revised PSO (now PSI 31/2009), provides mandatory actions on the management of Compact Based Drug Testing programmes (CBDT), including Voluntary Drug Testing (VDT), Incentive Based Drug Testing (IBDT) and Voluntary Testing Units (VTU’s) also referred to as drug free wings.

2. The PSI is further supported by the Compact Based Drug Testing Good Practice Guide which provides detailed guidance on how prisons might develop drug testing programmes and initiatives based on an assessment of local needs and available resources.

3. Used in conjunction they provide mandatory requirements and good practice on two distinct types of testing that have developed in recent years; Voluntary and Incentive Based Drug Testing. The documents form the basis for the delivery of the programmes and can be used together to inform and enhance local policy and procedures.

4. References to Governors should be taken to include Directors of Contracted- out Prisons.

DESIRED OUTCOME

5. To ensure that all staff are fully aware and understand the protocols for managing Compact Based Drug Testing Programmes in prisons.

MANDATORY ACTIONS

6. Compact Based Drug Testing (CBDT) must form part of Establishment Drug Strategy meetings.

7. There must be a clear separation between mandatory and compact based drug testing procedures. A positive compact based drug test must not be used to target MDT.

8. All establishments must have in place a “needs analysis” to estimate the number of prisoners wishing to participate in CBDT which must be reviewed annually.

9. Prisons must implement a screening process to ensure the suitability of prisoners entering into CBDT. The selection criteria must be clearly stated and consistently applied with a clear audit trail in support of all decisions.

10. Transfer to a VTU is entirely voluntary and any refusal to do so must not result in any disciplinary or quasi-disciplinary action.

11. Establishments must devise a compact which conforms to procedures set out in PSO4000 and must clearly set out the consequences of providing a positive drug test. Entry into all CBDT programmes is conditional on the prisoner signing the compact.

12. Incentive Based Drug Testing must not be equated with Voluntary Drug Testing.

13. Only a nominated staff member of the same gender may request and indirectly observe the provision of a urine sample.

14. A risk assessment and safe system of work must be in place if conducting testing with one officer or mobile testing.

15. Blatant refusal and non co-operation must be treated with the equivalence of a test failure unless there are medical reasons or mitigating circumstances which allow for a defence, this must be clearly stated in the compact

16. Tests must be conducted using only approved kits from the contracted supplier

17. Positive tests must be dealt with fairly and reasonably allowing for a defence to be put forward.

18. It is important that a formal infrastructure is in place, with a clear auditable decision making process and with the criteria for removal clearly stated. They must not lead automatically to administrative measures, including removal from the programme, but must trigger a review of the prisoner’s circumstances, taking into account wider factors of behaviour, and a referral to CARATs or YPSMS. It must be made clear to prisoners what administrative measures might be taken and there must be an open, fair and consistent approach in order to minimise risk of legal challenge.

19. Medical disclosure can only be obtained with the prisoners signed consent.

20. Certificates, Passports or any such documentation issued to prisoners for providing a negative drug test must conform to procedures set out in this PSI.

21. A prisoner has the right of appeal through the requests and complaints procedure outlined in PSO 2510.

22. In order to maintain the integrity of CBDT, positive tests must not be used to target MDT

23. Prisons must ensure programmes conform to Equality and Diversity procedures.

Further advice or information on this PSO can be sought from:

Carlo Azzopardi, Interventions & Substance Misuse Group, 020 7035 6139

Graham Hickman, Interventions & Substance Misuse Group, 01902 703207

(signed)

Michael Spurr

Chief Operating Officer, NOMS

Compact Based Drug Testing In Context

1. VDT was introduced in 2000 following the Public Service Agreement (PSA) to provide access to voluntary drug testing (VDT) to all prisoners by April 2001. The primary purpose of VDT remains therapeutically based and is intended to provide a supportive environment for those prisoners requiring the motivation to remain drug free. This in-turn helps reduce the demand for drugs in prisons and helps provide drug free environments within prisons.

2. The use of Incentive Based Drug Testing (IBDT), previously referred to as compliance testing, has grown considerably in recent years. IBDT uses drug testing as a condition of continued access to privileges under the incentives scheme which could include providing enhanced status or various work and accommodation benefits to prisoners on condition that they remain drug free.

3. Compact Based Drug Testing (CBDT) therefore forms an integral part of the NOMS Drugs Strategy and must be included in the Establishment Drug Strategy meetings even if establishments decide that CBDT is not required. This ensures that the drug strategy team regularly revisit the subject matter.

4. There is a clear distinction to be drawn between mandatory and compact based drug testing. Mandatory Drug Testing (MDT) is conducted to a level that provides proof beyond reasonable doubt and more serious sanctions can be imposed for that failure. Compact Based Drug Testing uses indicative drug testing kits which are proportionate to the therapeutic and incentive based aims of CBDT.

5. There must be a clear separation between mandatory and compact based drug testing procedures.

6. The voluntary nature of testing and the therapeutic aim means there is no element of coercion. Wherever the voluntary nature is held to be infringed then, in effect, the testing has become a mandatory requirement. The absence of coercion and the proportionality of sanctions following a positive test are, therefore, critical factors in maintaining the voluntary and therapeutic ethos required in CBDT.

7. Long established mandatory drug testing procedures provide many examples of good practice in the running of drug testing programmes. But MDT procedures need not be applied comprehensively because of the lower level of proof that is required for CBDT. The objectives however remain broadly the same – to detect the misuse of as wide a range of drugs as possible over as long a period of time as possible and to match the type of drugs tested for as closely as possible with the patterns of drug misuse in prisons.

8. Whilst a lower level of proof has been set for CBDT it remains important to apply a robust framework to the testing procedures. All practical steps should be taken to ensure that the testing framework in place does not inadvertently create windows of opportunities for prisoners to take drugs. Prisons should not be lulled into a false sense of security by a high negativity rate from CBDT programmes. Much depends on the nature and frequency of testing and the robustness of procedures to prevent prisoners’ adulteration of samples.

9. Prisons have at their disposal a wide range of drug testing options within the Mandatory, Voluntary, Incentive Based and Health testing categories. This should be sufficient to meet any identifiable testing requirement. It is essential, however, to be clear and open about the particular aims of drug testing and to use a framework most appropriate to meet those aims.

10. The wider sharing of information arising from a compact based drug test should not create a dilemma. Indicative drug test results alone do not provide a sufficient basis on which to take any action that might be judged as punitive. It is, however, entirely legitimate to share the outcome of more detailed assessment triggered by a positive test.

1. Voluntary Drug Testing Programme

1. A voluntary drug testing programme involves a prisoner making a commitment to remain drug free and signing a compact to that effect but with no location specific requirement. It is important to build on every prisoner’s commitment to remain drug free as the greater the number of drug free prisoners, the closer the prison moves to becoming a drug free environment and of benefit to all prisoners. In turn this should reduce the demand for drugs in prison.

2. Voluntary Drug Testing Units

1. A voluntary drug testing unit (VTU) is defined as a separate unit with an infrastructure designed to provide sanctuary and support for those prisoners who make a clear commitment under compact to remain drug-free and who seek a safer and more secure environment.

2. Transfer to a VTU is entirely voluntary and any refusal to do so must not result in any disciplinary or quasi-disciplinary action.

3. Incentive Based Drug Testing Programme

1. A significant growth area has been the use of testing as a condition of continued access to privileges under the incentives scheme with the requirement that prisoners remain drug free.

2. Incentive Based testing can play an important role within a prison’s drug strategy. It provides an infrastructure that offers incentives to prisoners to remain drug free, give encouragement to prisoners to improve self-esteem and provide an opportunity to reward good behaviour.

3. Incentive Based testing must not be equated with voluntary drug testing.

4. Needs Analysis

1. All prisons must have in place a needs analysis that estimates the number of prisoners wanting to participate in a CBDT programme. The needs analysis must be reviewed annually.

2. If a substantial change occurs at the prison e.g. a re-role, a further needs analysis should be undertaken before the twelve month review.

Selection Criteria

3. All prisoners should be considered as eligible for entry to CBDT programmes although support programmes may have to be tailored to meet the needs of specific groups.

4. Prisons must implement a screening process to ensure the suitability of prisoners entering into CBDT programmes. The selection criteria must be clear and consistently applied with a clear audit trail in support of all decisions.

5. The Compact

1. A compact is a voluntary agreement between a prisoner and the prison.

2. Establishments must devise a compact to be signed by all prisoners wishing to participate in CBDT. The compact must conform to procedures set out in PSO 4000 which sets out the requirements for prisoner compacts.

3. The compact must clearly set out the consequences of providing a positive drug test.

4. Entry into all CBDT is conditional on the prisoner signing a compact.

Sample Collection

5. Only a nominated staff member of the same gender may observe indirectly a prisoner providing a urine sample. They may be assisted in the drug testing process and administrative procedures by a nominated member of staff regardless of gender.

6. Staffing Levels

1. The standard of proof of drug misuse required for CBDT is set at a lower level than MDT. It is important to maintain the robustness of indicative testing procedures, however there may be scope to deploy more relaxed procedures where the risk is considered appropriate.

2. CBDT may, therefore, at the discretion of the Governor or nominated manager, be conducted by one staff member. A risk assessment and safe system of work must be in place and the following issues considered if conducting testing with one officer or mobile testing:

• the potential for allegations of improper conduct;

• any requirement to conduct a full search in accordance with National and Local Security Standards;

• the suitability / layout of the collection site;

• the need for a staff member of the same gender when indirectly observing sample provision;

• the availability of sensitively positioned CCTV to provide assurance of evidence of procedural conformity by staff and to protect staff from false accusations; and

• the ability to raise the alarm if required.

7. Refusal and Non Co-operation

1. Blatant refusal and non co-operation must be treated with the equivalence of a test failure unless there are medical reasons or mitigating circumstances which allow for a defence, this must be clearly stated in the compact.

2. If any prisoner refuses to provide a sample when required to do so they should be reminded of the nature of drug testing and advised that there is no point in agreeing to participate in the programme if they are not prepared to provide a urine sample. A refusal can constitute grounds, therefore, for removal from the programme but should still be considered as part of a wider assessment of behaviour.

3. A prisoner may stop short of refusing to provide a sample, but may still be blatantly uncooperative, for example refusing to be placed in confinement or refusing water. A prisoner who remains blatantly uncooperative should be advised that participation in the programme is not compulsory and that unless they are prepared to co-operate then consideration should be given to their removal from the programme

8. Conducting the Test

1. The test must be conducted using only approved kits from the contracted supplier. A detailed list of the authorised kits and associated equipment is available from Procurement Directorate.

2. The kits must be used in accordance with the manufacturer’s instructions.

9. Responding to a Positive Test Result

1. When deciding how to respond to positive test results it is important that a formal infrastructure is in place with a clear auditable decision making process and with the criteria for removal clearly stated. There must be an open, fair and consistent approach in order to minimise risk of legal challenge.

2. When a prisoner provides a positive screen, the prison must establish if any legitimately prescribed medication has been used. Medical disclosure can only be obtained with the prisoners consent.

3. Any decision to remove a prisoner from the programme must be preceded by a formal review conducted by testing staff, treatment workers and residential staff. A single positive or wider lapse of behaviour is sufficient to trigger a review, but unless deemed serious enough in nature, a single positive result is insufficient to justify removal from the programme.

4. Administrative decisions must not be taken on the basis of test results alone but must take into account wider factors of behaviour. It must be made clear to prisoners what administrative measures might be taken.

5. All prisoners providing a positive test must be referred to and encouraged to engage with the CARATs/YPSMS service.

6. A positive compact based drug test must not be used to target MDT.

10. Responding to a Negative Test Result

1. The ethos of VDT is to provide recognition, as opposed to reward, to prisoners that manage to continually provide negative samples and clearly demonstrate their commitment to the programme and remaining drug free in principle. The more rewards are offered in a voluntary testing context the closer the testing becomes to being Incentive Based Testing. But provided rewards are not limited in any way to behaviour then they can be appropriate and can be offered. This approach needs to be made clear in the compact.

2. It must be understood that the issue of a certificate or passport to a prisoner does not necessarily mean that the prisoner is drug-free; the only guarantee of a drug-free state is through testing at four day intervals for as wide a range of drugs as possible. The terms negative and positive should not be used without making reference to the types of drugs tested for.

3. Any certificates or passports issued to prisoners must include the nature of testing, the number of tests and some indication of progress within the programme. The following summary, designed to bring perspective to CBDT, must appear on the reverse of any certificate or testing passport that is issued to prisoners and indicate a drug fee state or provide details of negative drugs tests.

4. “Voluntary drug testing (VDT) provides support and assistance to prisoners who are dedicated to remaining drug free. It involves them agreeing to a compact that sets out this commitment and obtains their agreement to be tested on a regular basis. Incentive Based testing, a distinct category of drug testing is also widely used. The programmes are similar however a failed VDT test must only lead to a review of the prisoner’s circumstances but failed Incentive Based tests almost inevitably lead to a curtailment of activity or loss of privileges.

5. Both schemes use an identical technical process which provides drug screening results of an indicative nature and are neither proof beyond reasonable doubt of drug use nor abstinence. Prisoners are tested generally between 12-18 times per year and up to nine drug types or groups of drugs can be tested for: Amphetamines, Barbiturates, Benzodiazepines, Buprenorphine, Cannabis, Cocaine, Methadone, Methamphetamine and Opiates. However, a significant majority of samples may be tested for a smaller number (typically one or two) of these drug types. Prison Service Order (PSO) 3620 provides the framework within which Compact Based Drug Testing should be operated.”

11. Appeals

1. A prisoner has the right of appeal through the requests and complaints procedure outlined in PSO 2510.

12. Equality and Diversity in Compact Based Drug Testing

1. Prisons must ensure programmes conform to Equality and Diversity procedures.

2. Equality relates to the creation of a society where everyone can participate and has the opportunity to fulfil their potential.

3. Diversity relates to the concept of recognising that people are different and of respecting and encouraging differences for mutual benefit.

4. NOMS and the Prison Service are committed to ensuring that all its policies and operational procedures are developed and delivered with due regard to equality and diversity and must not tolerate harassment or unfair discrimination on the grounds of gender, marital status, race, colour, nationality, ethnic or national origin, disability, religion, sexual orientation, age or any other irrelevant factor.

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