Correspondence

Circular: testing police officers for substance misuse

Home Office circular 011/2012 Testing police officers for substance misuse Broad subject: Police service Issue date: Mon Apr 30 00:00…

• From: Home Office
• Published: 30 April 2012

Details

Home Office circular 011/2012

Testing police officers for substance misuse

• Broad subject: Police service
• Issue date: Mon Apr 30 00:00:00 BST 2012
• From:
  Crime and policing group (CPG) - policing directorate, police productivity unit

• Copies sent to:
  Chief Officers of Police (England and Wales), clerks to police authorities

• Sub category: Police officers
• Implementation date: Mon Apr 30 00:00:00 BST 2012
• For more info contact:

Nick Lawrence 020 7035 1888

Email [email protected]

• Addressed to:
  Chief Officers

This circular provides guidance on changes to the provisions governing drug and alcohol testing of police officers and candidates for appointment as police officers.

The Home Secretary has approved a recommendation from the Police Advisory Board for England and Wales (PABEW) that amendments should be made to substance misuse testing determinations and protocol.

The 2003 Police Regulations have been amended and the Police (Amendment No 2) Regulations 2012 are now in force.

Regulation 19(1)(d) of the 2003 Regulations has been amended so that any serving police officer selected in accordance with a regime of routine random testing may be required to provide a sample. This replaces the existing provision for the Secretary of State to specify categories of officers who may be tested.

Where testing is carried out because the Chief Officer has reasonable cause to suspect, on the basis of intelligence, that the officer has used a controlled drug, the determination now allows testing to cover one other controlled drug or drug group in addition to the five categories of controlled drugs currently set out in the determinations.

Further amendments are made in regulations 10, 19 and 19A of the 2003 Regulations to replace references to ‘saliva’ with references to ‘oral fluid’. This is a technical change, made at the recommendation of the PABEW. A copy of the determination is attached at annex A. 

A copy of the amended ‘Substance misuse testing: protocols for testing procedures’ is attached at annex B. 

If you have any queries about this circular, please contact Nicholas Lawrence on 020 7035 1888 or email at [email protected].

Annex A

The Secretary of State, in exercise of the powers conferred by regulations 10(1)(i) and 19A of the Police Regulations 2003 (SI 2003/537), as amended, makes the following determination.

In accordance with the requirements of regulation 46 of the Police Regulations 2003, the Secretary of State has supplied the Police Advisory Board for England and Wales with a draft of this determination and taken into consideration the recommendations of that board. 

The Secretary of State has determined that, with effect from 1 April 2012, for the determination under regulations 10 and 19A of the Police Regulations 2003 (Annex DD - Testing for substance misuse) there shall be substituted the following: 

‘Annex DD

Regulations 10 and 19A 

Testing for substance misuse

1) Subject to paragraph (2), for the purposes of regulations 10(1)(i) and 19A(1)(b)(c)and (d) the controlled drugs which testing shall cover are:

(i) amphetamines (including ecstasy)

(ii) cannabis

(iii) cocaine

(iv) opiates (eg morphine and heroin)

(v) benzodiazepines

2) Where testing is carried out in accordance with 19A(1)(a) because the Chief Officer has reasonable cause to suspect, on the basis of intelligence, that the officer has used a controlled drug, the testing may cover one other controlled drug or drug group in addition to the controlled drugs listed in paragraph (1), provided that the officer is informed prior to testing of the drug(s) or drug group(s) for which he or she is to be tested. 

Testing procedures 

3) For the purposes of regulations 10(1)(i) and 19A(1), the following procedures shall apply in relation to testing for controlled drugs.

4) Testing shall be carried out without advance notice.

5) On-site testing using portable testing kits may be used to screen out members of police forces and candidates for appointment at an early stage of these procedures. Any test that is relied upon in criminal or disciplinary proceedings shall be conducted through laboratory analysis.

6) Collection of samples and initial on-site screening may be undertaken by an independent agency or by suitably trained police staff. There shall be a secure chain of custody through collection, analysis and medical review as set out in protocols issued by the Secretary of State. Laboratory analysis shall be undertaken by an independent agency. 

7) Split samples shall be used in all cases that go forward to laboratory analysis. A member of a police force shall have the right to have one sample tested independently to challenge the result of a test on the other sample.

8) The following procedures shall apply in relation to testing for alcohol. Testing for alcohol shall be carried out without advance notice and using breath testing equipment capable of taking measurements at the 13 microgrammes percentage level.

9) A member of a police force who is off duty shall not be recalled to duty for the purposes of testing for controlled drugs or alcohol. 

Consequences of testing positive 

10) Positive results may be referred to professional standards departments for action. This may lead to criminal action or formal disciplinary proceedings or both.’

Annex B

Substance misuse testing: protocols for testing procedures

Introduction

1. These protocols are promulgated by the Home Office, on the advice of the Police Advisory Board for England and Wales, pursuant to Police Regulations 10 and 19 and associated determination.

Part 1: controlled drugs

Scope of testing

1. The extent of testing by any force should be proportionate to the problem. A testing regime should not be of a scale that implies a lack of trust in the professionalism of the police, or of a nature that might undermine the existing sense of responsibility to alert senior officers to signs that a colleague might have a substance misuse problem.

2. Testing may be carried out in the following circumstances:

• testing with cause (that is, where there is a reasonable suspicion of substance misuse)
• pre-employment screening and testing in the probationary period
• as part of a random routine testing regime
• random screening of officers in posts identified by the chief officer as being vulnerable 

1. The intention of a testing regime should be preventive. Testing regimes should be designed to:

• minimise the chances of substance misusers entering the police service in the first place
• deter officers from substance misuse through the application of a policy that makes detection a real possibility
• encourage those with a substance misuse problem to identify themselves, so that they may be supported in seeking treatment
• screen officers so as to minimise any risk of operations being prejudiced by impaired judgement
• protect officers in posts in which they may be vulnerable to malicious allegations of substance misuse

1. Forces should have due regard to protect privacy during the testing procedures and ensure that testing is conducted in a sensitive manner. Forces should also ensure that test results are handled in a secure and confidential manner. Records of test results should be retained in accordance with data protection principles.

2. Forces have the power to test officers if they have cause to suspect that an officer is misusing controlled drugs. The requirement to take a test should be imposed by an officer of an appropriate senior rank. For ‘cause’ to be established, the test of ‘reasonable suspicion’ must be satisfied. It should be made clear to the officer that testing ‘with cause’ may either prove or disprove intelligence or allegations made. A single and unsubstantiated allegation, particularly if made by a member of the public who may have malicious intent, would not normally amount to cause. It is good practice to record in writing the reasons for suspecting an officer has misused controlled drugs.

3. Officers (of all ranks) should be liable to be tested as part of a random routine testing regime.

Vulnerable posts

1. In the nature of their duties, many police officers, and particularly those working under cover, will have close associations with criminals. Those whose duties bring them into contact with drugs dealers are particularly vulnerable to malicious allegations that they are themselves drug users. A liability for such officers to be tested enables it to be demonstrated that they remain ‘clean’.

2. In some forces it is possible to define the posts concerned - for example drugs squad officers and test purchase officers. However, not all forces have single function crime squads, so it is necessary to define vulnerable posts on a force by force basis. As such, the posts to which the liability to be tested attaches are:

• posts identified by the Chief Officer within each force as being vulnerable because of a specific responsibility for dealing with drugs.

Substances tested for

1. Testing covers the illicit use of the following substances:

• amphetamines (including ecstasy)
• cannabis
• cocaine
• opiates (eg morphine and heroin)
• benzodiazepines

One additional drug or drug group (for ‘with cause’ testing only, where the reason for the test is based on intelligence and the officer has been informed of the drug(s) or drug group(s) for which he or she is being tested)

1. There may be legitimate reasons for a drug being present in a specimen. For example, the presence of morphine may indicate heroin abuse, or the use of a legitimate medicine (eg a painkiller or an anti-diarrhoea preparation). Officers required to take a test should declare all medications they are taking. The content of such declarations is confidential to the occupational health service of the force, and to the medical officer reviewing the result of a test.

Procedures

Recruits and serving officers

1. There are some differences that may apply to the procedures used for testing potential recruits and serving officers. If a potential recruit does not wish to submit to a test, he or she may withdraw from the recruitment process. An officer is obliged to submit to a test, if so required, and may, as a consequence, have to declare information about medications that he or she is taking. These declarations may have the effect of disclosing personal information that the officer is entitled to expect will be treated in confidence by occupational health. By contrast, all aspects of the collection and on-site screening of samples from potential recruits, including the taking of information about medications, may be undertaken as a part of the human resources function.

2. A serving officer may not be recalled to duty for the purposes of testing.

Conducting the test

1. There must be a secure chain of custody through collection, analysis and medical review. Laboratory analysis should be undertaken by an independent agency. Collection of samples, and initial on-site screening, may be undertaken by an independent agency, or by suitably qualified staff of the force.

2. For the purpose of the physical administration of the test, the suitably qualified person may be a member of the staff of the independent agency, a trained officer or member of staff of the force, or a member of the occupational health service of the force. Where completion of the paperwork by an officer involves disclosure of medication being taken, that paperwork should be seen only by occupational health staff. It follows that where the paperwork is not completed by the officer personally (ie it is completed in response to questions put to the officer, and then signed by the officer), that task should be undertaken by occupational health staff only. It is important that information about medications taken prior to the test is recorded at the time of specimen collection, and not at any later stage.

On-site screening and laboratory testing

1. Any test that may be relied upon in disciplinary proceedings should be conducted through laboratory analysis, not on-site testing. On-site testing, using portable testing kits, may be used to screen out persons tested. However, if there is a positive indication at any screening stage, the residual specimen of hair, urine or oral fluid (saliva) (remaining after the screening test) should go forward to full laboratory analysis and medical review. Where testing is carried out with cause, the specimen may be submitted directly to the laboratory, without conducting a screening test. The cost of an independent analysis will be met by the member and may be reimbursed by the force in the event that the first analysis is found to be inaccurate.

Split samples

1. Provision should always be made to allow the donor of the hair, urine or oral fluid (saliva) an opportunity to have an independent analysis of the specimen to challenge the outcome of a laboratory analysis. A split sample (at the time of collection) provides an effective means of providing this opportunity.

Material to be tested

1. In the case of serving police officers and police officers transferring between forces either oral fluid (saliva) or urine  may be tested.

In the case of new recruits to the police service an oral fluid (saliva), urine or hair sample may be tested.

Oral fluid (saliva) testing may be regarded as the least personally intrusive option. The testing of blood samples should not form a part of routine testing, where there is no necessary ground for suspecting misuse, as the procedures are disproportionately intrusive.

Testing procedures

Self-declaration

1. Officers with substance misuse problems should be encouraged to identify themselves, and should be assisted in seeking treatment. However, self-declaration cannot be used to avoid the consequences of a positive test. Any such declaration must be made before an officer is notified of any requirement to take a test. A self-declaration made after an officer is notified of the requirement to take a test cannot be used to frustrate the disciplinary proceedings that might result from a positive test result.

Random routine testing regime

1. The scale of testing should be risk based. Any sample of officers selected for testing in an individual area or department within a force should be chosen on a random basis.  A routine testing regime may involve selecting a higher proportion of officers for testing in an area or department where the risk is assessed as high.

2. Scale of testing should be determined at force level, having regard to perceived risk and cost. ‘Scale’ encompasses size of sample and frequency of testing. If initial testing produces a nil or low number of positive results, then the scale of testing need not be large. On the other hand, a higher proportion of positive results would indicate a larger scale of future testing. ‘Risk’ encompasses the risk inherent in the consequences of impairment of judgement or performance, and the risk of incidence of misuse. 

Vulnerable posts

1. Testing should be routine. If a high degree of risk is assessed, universal testing covering all officers in the vulnerable category might be appropriate. If the assessment of risk is low, then a sample of officers to be tested should be selected at random. For the avoidance of doubt, the liability to be tested applies to vulnerable posts in national agencies  as well as to posts in local forces.

‘With cause’ - extended sampling

1. An officer of at least the rank of Assistant Chief Constable (Commander in the MPS) may authorise a maximum of three samples of urine or oral fluid (saliva) to be required from a police officer in their force (or on secondment to or from their force) where there is corroborative intelligence which gives reasonable cause to suspect that the officer has used a controlled drug over an extended period (ie on more than one occasion).

2. The three samples can be required over a maximum period of 90 days, with day one being the day on which the first sample is required and the period finishing at midnight on day 90. When calculating the 90-day period, no account should be taken of any periods of sick leave.

3. The officer will not be given any advance notice of the requirement to provide each sample.

4. The  officer will be informed at the time that the first sample is required that two further samples may be required within the designated time period. On each occasion a sample is taken the officer will be informed of the drug(s) or drug group(s)  against which his or her samples will be tested.

5. The officer will be entitled to have a ‘police friend’ as defined in the Police (Conduct) Regulations 2008 present when the samples are being taken. However, a delay in a police friend attending will not delay the testing procedure provided that the officer has been able to consult a police friend.

Consultation and monitoring

1. The scale of testing adopted, and the identification of vulnerable posts, should be the subject of consultation with the local staff associations. All random samples should be monitored by ethnicity, faith, gender, disability and sexual orientation to ensure that no unintended bias arises from the sampling technique.

Immediate consequences of positive test results on serving police officers at the on-site screening stage

1. On-site drug screening tests should be carried out only by a suitably qualified person. The person being tested should be advised that any positive screening test results provide a provisional indication only, and are subject to further laboratory analysis and medical review, either of which could result in the final result being negative.

2. An officer’s manager should be informed immediately of a positive on-site screening test result, as there may be a risk in continuing to deploy the officer on the full range of police duties. At this stage there is no final result, as this can only be provided by laboratory analysis, so the language used to describe the outcome of an on-site test is very important. In particular, the manager should not be told that ‘a test has been failed’ as this is not the case.

3. It is for the manager to assess the risk in relation to the duties due to be undertaken by the officer, but there would be a presumption of removal from duties involving contact with the public. Formal suspension would be appropriate only if a positive result was confirmed following laboratory test and medical review.

4. Difficulties arise, inevitably, for both the officer and management from a positive result at the screening stage. A confirmed result, either positive or negative, will not be available until the completion of laboratory analysis and medical review, a process that is likely to take two or three days. However, any difficulties arising from this delay are outweighed by the benefit that screening enables there to be an instant confirmation of a negative result.

Handling confirmed positive results

1. A positive laboratory analysis will be subject to medical review, as explained more fully in the annex. Medical review involves a medical practitioner reviewing the test result and the medical history of the individual to determine if there is a legitimate explanation for the presence of a drug in the sample.

2. Test results following laboratory analysis and medical review should be returned to the occupational health service of the force concerned. Where the result is negative the officer and his or her manager should be informed without delay. It is particularly important that a confirmed negative result after an initial on-site positive screening result is communicated to the officer and management without delay.

3. A positive result from a test administered as a part of the pre-employment process should be notified to human resources, so that the candidate may be rejected.

4. A positive result from a person who had self-declared a substance misuse problem prior to being tested should be reviewed by occupational health to assess whether the result was consistent with rehabilitation treatment being undertaken. If the result suggested that an agreed programme of rehabilitation was not being followed, then reference to professional standards should be considered.

5. All other positive results should be referred to professional standards for action. It is for professional standards to notify both the officer and the line manager of the result, and of any immediate action, including suspension from duty where appropriate.

6. Any claim by the officer or probationer concerned that there was a reason (other than a medical reason) for the positive result should be referred to professional standards and disciplinary action may follow. Such claims would include any claim that a positive test was a result of the officer having consumed unknowingly a ‘spiked’ drink.

Liability

1. An officer who has misused controlled drugs suffers a double jeopardy. He or she is at risk of disciplinary proceedings that might lead to dismissal, and may also be at risk of criminal prosecution. Because of this double jeopardy, and whether or not criminal proceedings are contemplated, cautioning and interviewing should be to the standards required under the Police and Criminal Evidence Act (PACE).

2. The penalty for refusal to take a test is no less than the penalty for failing a test. The liability to take a test is established in Police Regulations, thus a failure to take a test when required to do so is a failure to obey a lawful order. There is no substantive criminal offence of having an unlawful substance in the body, only a presumption that the offence of ‘possession’ must have been committed beforehand. Such a presumption may be rebuttable by medical evidence that the positive test resulted from use of a lawful medication. The presumption of possession that would arise from a positive, medically confirmed test result should be treated as discreditable conduct. The maximum penalty for both failure to obey a lawful order and discreditable conduct is the same.

Occupational health support

1. The introduction of testing must be accompanied by a commitment, from the occupational health service for each force, to provide support to any officers who may approach them to declare, in confidence, a substance misuse problem.

2. There are, however, some circumstances in which the interests of the proper administration of justice may over-ride an absolute confidentiality. In particular, the joint operating instructions (JOPI) agreed between ACPO and the Crown Prosecution Service (CPS) place on the individual officer a personal responsibility to declare any matter that may affect their credibility as a witness in a court case. In some circumstances substance misuse on the part of an officer acting as a witness may have to be revealed to the Crown Prosecution Service (CPS), as the damage to the credibility of the officer as a witness may be a factor to be considered in a decision whether to proceed with a prosecution.

3. The personal responsibility under JOPI should be drawn to the attention of an officer, by the occupational health service, at the time at which any self-declaration of a substance misuse problem is made. The need to make a declaration to CPS will not arise in every case; each should be considered on its own facts and merits. Any declaration to CPS should be properly managed, with appropriate support provided to the officer.

Part 2: alcohol

1. Alcohol is a substance that can be misused, and which can impair judgement. However, it is in a different category from controlled drugs, in that its use is not illegal. Some misuse of alcohol can be an offence. An officer who is drunk and disorderly in a public place commits an offence. An officer who attempts to drive a vehicle whilst over the prescribed limit commits an offence.

2. Officers have a general responsibility to present themselves fit for duty. If their judgement is impaired by the consumption of alcohol, they are unlikely to be fit for duty. It is for a senior officer to determine whether an officer is unfit for general duties, due to consumption of alcohol. However, reporting for duty whilst having previously consumed alcohol (for example, on the previous evening) does not equate with the criminal offence of using drugs. Managerial action needs to reflect this.

3. As with drugs, self-declaration of a drink problem is a matter that should be managed through the occupational health service, rather than being regarded as a disciplinary matter.

4. There is a power to conduct tests with cause, if it appears that an officer is under the influence of alcohol. Officers should be liable also to random testing should risk of impairment appear to warrant this, on a scale to be agreed with the local staff associations.

5. There is a presumption that a person is unfit to work if they have more than 29 mg per cent in blood (39 mg per cent in urine, 13 micrograms per cent in breath). This compares with a limit of 80 mg per cent in blood for driving.

6. Where testing is carried out, it should be conducted using breath testing equipment capable of making measurements at the 13 micrograms per cent level (equivalent to the 29 mg per cent blood level). Officers should never be tested on apparatus held in a custody suite, unless the suite is cleared of all other users.

7. Each ‘breath test’ should consist of two consecutive breath specimen tests from the officer, with the final result being declared as the lower of the two results.

8. If a supervising officer smells alcohol on the breath of an officer liable to alcohol testing, a breath alcohol test can be administered after a wait of 15 minutes. (This is to deal with the eventuality that at the time the suspicion of excess drinking is aroused, a proportion of the alcohol consumed may still be in the officer’s stomach. Alcohol must be absorbed into the body to register in a breath alcohol test.)

9. It should always be open to an officer to declare that they suspect they might have inadvertently exceeded the limit. Any such declaration should be made before the officer is notified of any requirement to take a test. Such declarations should not result in the officer being penalised, provided there is no pattern of continuing excess. A declaration may be particularly appropriate in circumstances of an unexpected change of duty, for example being allocated to driving duties involving possible use of the police exemptions under the Road Traffic Act, due to a staff shortage.

Published 30 April 2012