Following the death of 13-month old Kayleigh Mae Cassel from a drug overdose, the State Senate of New York has approved legislation which introduces hair testing for young children whose parents or guardians have been arrested on a drug use charge. The goal is to establish whether or not the children have been given or exposed to drugs, and hopefully prevent further cases like Kayleigh Mae’s.
As Senator Betty Little (who sponsored the legislative change) explains, many children under the age of three will not be able to explain or understand if a parent is giving them a dangerous drug. Their testimony is not reliable; the evidence from a non-invasive, conclusive hair follicle test is.
At this level the ethical case for hair drug and alcohol testing appears clear-cut, but what about older children, who are capable of understanding, consenting to or self-initiating drug use? The issue is one of reasonable cause to suspect that drug or alcohol abuse is involved. As children grow older, the concept of ‘reasonable cause’ has to evolve and take into account more adult-like behaviours, and testing has to be used more responsibly. Similarly to the stop and search powers of British police, these powers have to be used responsibly.
Where do we draw the line?
Pupils at Trent College in Derbyshire will be asked to take drugs tests as part of a crackdown on drug use in or outside the school. Notification letters to parents suggested that testing would be ‘random’, but the school has since admitted that tests would “only be used if we have reason to believe that an individual pupil may have been exposed to drugs in their personal lives.”
Crucially, parental consent is required, but pupil consent seems taken as read.
This case is more complex and illuminating. Targeted hair testing falls within the school’s remit of safeguarding pupils, and offers a reliable means of confirming teachers’ professional judgement. Furthermore, the very existence of such a policy is often seen as a deterrent to drug use, further fulfilling the duty of care.
Safeguarding guidelines suggest that ‘pupils affected by their own or other's drug misuse should have early access to support through the school and other local services’, but does the school have the right to pry into the private lives of its pupils, with their parents’ consent but not the pupils’ own?
Now factor in adults, and the issues of consent and right to privacy which surround them. In Yakima, teacher Elizabeth Andrews is taking the State of Washington to court over a pre-employment drug test. Her lawsuit claims firstly that she was not notified about the test before she was hired; secondly, that pre-employment drug testing violates her constitutional right to privacy; and thirdly that there is no cause under US law to test teachers for drug use in the first place.
Her case highlights two further ethical questions. Firstly, what harm is her drug use doing? If she is competent to carry out her teaching duties, what cause does the school - which is not, after all, a law enforcement body - have to test her? Secondly, if the test itself is illegal, does it stand as a legitimate proof of drug use - putting it bluntly, do two wrongs make a right?
Pre-emptive hair drug testing - the new norm?
The key factor in deciding whether or not to investigate suspected drug abuse, ultimately, is harm. Who is at risk, and of what? Who would be protected, and from what? Mandatory drug testing can serve to protect those who are unable to consent or explain their situation, as with Kayleigh Mae Cassell - it can also serve to protect the general public.
Such is the spirit behind new regulations in Brazil, which demand hair follicle testing for drug use as a prerequisite for obtaining a professional driver’s licence. According to the World Health Organization, Brazil sees 40,000 deaths due to road crashes every year, the fifth highest in the world. And drug use is a known problem among Brazilian professional drivers.
The goal is to protect other road users and pedestrians from drug-fuelled dangerous driving, and to protect drug users from themselves. Initial reports by police have been highly promising, with a 38% decrease in accidents on federal roads since the tests were rolled out.
Truck stop: Mandatory hair testing for Brazilian truck drivers has been controversial but effective
There are some concerns around implementation: in particular, 33% of licensed drivers avoided testing by switching to categories where hair testing is not mandatory. Drug testing has helped reduce accidents, but it has also potentially moved the problem of drug use into other categories. Addressing the underlying causes of drug use by professional drivers (e.g. by tighter controls over the hours they drive) may help, as might continuous low-level monitoring rather than a test every five years.
In the United States, meanwhile, there is increasing debate over the use of hair tests by employers, pre-emptively or otherwise. In the state of Iowa, Senator Tony Bisignano argues that the “long history” of hair may reveal former drug use, leaving employees to fail tests months or years after they quit the habit. Meanwhile, transportation workers’ unions are asking the Federal Motor Carrier Safety Administration to adopt hair testing instead of the urine sample, on grounds of increased reliability.
Relying on the strict application of US law is of limited help here. Federal laws demand that public institutions, and private companies doing business with them, must drug test their employees - but, as the case of Elizabeth Andrews shows us, pre-emptive testing may still violate constitutional rights.
On top of this, federal laws and guidelines define what can be tested for, and by what medium, and these laws have yet to approve hair testing. For private companies - like the major transportation carriers - the situation is more fluid: they can test for what they like and how they like, if the State legislature establishes guidelines.
The bottom line
The primary argument in favour of hair testing for drug use is its accuracy. Once the law has been invoked and criminal investigations have begun, hair testing offers more reliable evidence than any other form. The responsibility for using that evidence, however, still rests with individuals, who have to establish an ethical sense of each case.
Before implementing a drug testing policy, it is worth consulting your council - and if you are personally concerned about a family member or friend, consult a GP as well. It’s important to understand all the issues around collecting the samples and interpreting the results before deciding how, and if, to implement a testing policy.
Who is being harmed, and who is being protected? Is it worth dismissing a teacher because they dabble in drugs over summer, or criminalising a parent whose drug use has no impact on their capacity to care? Is it worth dismissing a recovering addict who needs methadone to function, but is still a perfectly safe driver?
Without a full awareness of the case, it’s impossible to say.
Ensure your grasp on the facts with our guide to hair testing for drug use.
Judges scales via Wikimedia Commons
Brazilian trucks via Pixabay