Pompidou Group
Co-operation Group to Combat Drug Abuse and Illicit Trafficking in Drugs

Strasbourg, 10 May 2005                                                                           P-PG/Ethics(2005)3rev2

EXPERT COMMITTEE ON

ETHICAL ISSUES AND PROFESSIONAL STANDARDS

General introduction (Mr. René PADIEU)

Chapter 1 :        Conceptual and legal framework (Mr Lourenço Martins)

Chapter 2:         The education crisis in schools in relation to drug use (Ms Claire Ambroselli)

Chapter 3:         Ethics and drug testing in schools (Ms Micheline Roelandt)

                                                http://www.coe.int/pompidou

Introduction: Ethical problems connected with drug testing, particularly in schools

Mr Renė Padieu (France)

The reflections presented here are focused on the screening in school environment: they are specific to this field, but they are worth more widely and prepare the general conclusions of the Committee.

The many concerns about drug use have led to widely varying provisions and actions. Very naturally, certain people propose to avoid that the persons do not consume drugs or, if they do, that they stop doing so or, at least, that the harmful effects for themselves and others are kept to a minimum. Clearly, in order to be able to do this, it is necessary to know who takes drugs, meaning people who say they do when they request treatment or who are simply identified as drug users. This is why drug testing has sometimes been suggested, in particular for certain occupations, in connection with driving or in schools.

In principle, it is helpful to try to know that pupils are taking drugs. It not only enables the police to question them about their suppliers and therefore combat trafficking, but also means that steps can be taken to treat them and help them to break the habit. For schools, this means taking part in the fight against drug abuse, and it also assists their educational role by ensuring that pupils are not in a mental state that prevents them from attending classes. At another level, it enables schools either to put a stop to drug use or to exclude pupils who use drugs: when they have no such pupils, schools respond to the demand of parents who fear that, if they are in contact with drug abusers, their children will also start taking drugs.

These commendable intentions may be encouraged by the manufacturers of tests, who offer their products and argue that they can contribute to these objectives. This offer also can be validated, indeed promoted by public or private authorities. 

Is this really such a good idea when it is looked at more closely, however? First question: if the test is not completely reliable – and tests are never 100% reliable - what happens to pupils wrongly identified as users? Furthermore, when the test result is accurate, what is to be done with it: what decision or action is to be taken, what consequences need to be avoided and therefore who will have access to the result? Should results be restricted to certain professional categories, such as doctors or nurses? Or should teachers and school managements be able to request and use tests? At last, this request and this implementation are they discretionary or do they have to be authorized and then, by whom: parents, authorities? 

The problem is more fundamental, however. There could be a contradiction between using such tests and the very objective of schools. The role of schools is not only to transmit knowledge and skills, but also to transmit values and help future adults develop their personalities and future citizens to take their place in society. These values include the dignity of the individual, which education in general, particularly when tests are conducted, should not begin by violating. This does not necessarily mean that testing implies a violation of dignity, but the reasons, conditions and consequences must be taken into account. For example, there should be no stigmatisation and the action that results – curative and educative – should be genuinely beneficial to the persons concerned. And if the objectives pursued in pupils' interests begin to be questioned, those of teachers, parents, head teachers, test manufacturers and so on also need to be looked at. For example, is the school really interested in managing its image and looking after its commercial interests at the expense of a few black sheep? Is it not easier for teachers automatically to rely on a chemical criterion instead of directly perceiving pupils' lack of well-being, trying to identify the causes and seeking remedies in their educational practices?

These questions will be examined in one of the three chapters that follow. It was also thought necessary to shed light on these issues in two ways. First, since we are talking about values, the values accepted in our societies must be seen in their historical and philosophical context, because these societies not only affirm the dignity of their members, as mentioned, but also promote their autonomy and responsibility. In the case of schools, this means teaching young people to control their own destiny and while drugs are certainly an obstacle to this, drug countermeasures may have the same effect! We therefore need to review the legacy of human values that has been bequeathed to us by earlier centuries and remodelled by recent history. We also need to see how those values are legally and politically expressed by the institutions that govern contemporary society.

The relevance of relating pupils’ drug abuse to what schools are supposed to inculcate in them cannot be divorced from a broader context summed up in the phrase “crisis of education” - not to point the finger at teachers' methodological shortcomings, but to question the very role of schools in an extremely unsettled society. We are talking about human values whose current expression is the result of the historic upheavals of the twentieth century and that must be seen in the context of a society disrupted by economic recession, globalisation, sexual liberation, the communication and information technology revolution, to name but a few. How are we to deal with children in these circumstances? For what future are we preparing them? What is, could be, should be the function of schools in protecting them against the deleterious effects of these changes and uncertainties? How do the generations that proclaimed the ethical values in the Universal Declaration of Human Rights “as a common standard of achievement for all peoples and all nations” transmit them in schools? Some will say that this is to raise the problem to disproportionate heights of political philosophy, but can the problem and its effects and solutions be reduced to the detection of a few molecules?

Chapter 1: Conceptual and legal framework

Mr Lourenço Martins (Portugal)

At least some preliminary explanation of the concepts that will be used in the discussion is needed in order to facilitate a fruitful outcome. This will be done in relation to the concepts of ethics, morality, deontology and law.

Ethics and morality

The concept ofmorality is not the only one linked to that of ethics – indeed some people do not distinguish between the two at all; deontology is also linked to it. While the term morality refers to the conduct and rules that many (or some) people regard as always valid, guaranteeing a common benchmark, ethics examines the rational justification for moral judgments and why we consider them valid by comparing them to other people's “moral” rules. Ethics should therefore be left to individual judgment, while morality applies to everyone. Ethics is therefore the theory or science of the moral behaviour of people in society, and as such cannot be reduced to a set of standards and prescriptions, though it can explain actual moral behaviour and may influence it.

Etymologically, both ethics, derived from Greek, and morality, derived from Latin, are linked with mores, i.e. a way of behaving fashioned by repeated use.

Nevertheless, ethics seeks to “deconstruct” the rules of behaviour that constitute morality, by looking into morals in order to examine their sources.

While morality may refer to a creative impulse, it is crystallised in prescriptions that are critically questioned by ethics, which may distance itself from them[1].

Ethics is concerned more with thought than rules. Not in the manner of Plato as “contemplation of the beautiful, the good and the true which nourishes the soul to the point of enabling it to conform to its ideal”, nor so much for theoretical discovery seeking the model of “the art of living”, but with the rational aim of finding out how we can live better in practical terms (F. Savater).

Human action - values

To summarise, although this is particularly difficult[2] here, three major philosophical lines of thought on human action can be identified.

The first, which is Aristotelian, takes as its starting-point the individual as a political animal endowed with language, acting logically, developing in a particular society at a particular time within practical forms of “government of the community” in order to be happy. For Aristotle, virtue means a strength and excellence concerning the practical and intellectual values of existence. Ethical behaviour includes, not only specifically “moral” concerns, but also implies, within a certain notion of human nature, a degree of wisdom or prudence with respect to dealing with the world. For Aristotle and all the Greek and Roman Stoics, the virtues are the goal every individual can and should strive to attain.

The second current, known as utilitarian, has English roots and its partisans are less speculative. For them, the greatest good of the greatest number, not excluding those who act, is the ethical value that should be pursued in life. Humanity has more to gain by allowing everyone to live in their own way than by forcing them to live like other people (John Stuart Mill).

Philosophies that take as the basis for deciding between different options the consequences of those options are therefore known as “consequentialist”.

For example, with respect to the allocation of limited financial resources, if a choice had to be made between allocating more resources to children or to people in the terminal phase of AIDS, the ethically appropriate choice would be the children since they have greater life expectancy and more possibilities of happiness.

The practicability of this nonetheless comes up against the problem of knowing what constitutes the ultimate good for human beings, since the concept of utility is relative.

The third current is derived from Kantian philosophy and focuses on the notion of duty, expressed in the well-known categorical imperative, “Act as if the maxim of your action was to become through your will a universal law of nature”.

According to Kant, freedom is a transcendental predicate; practical subjects have an “empirical character” through which their actions are, as phenomena, governed by natural causation; but they also have an “intelligible character” through which they are themselves the causes of their actions – an unconditioned causation in which responsibility finds its roots.

For Kant, an action is not of itself generally either good or bad. What counts is the will of the person who acts and acting according to one’s duty.

Freedom is not simply the rejection of any external determination; it is intrinsic autonomy, awareness of independence from pressures and circumstances. It is the power to establish one’s own law, obedience to the moral law. The only restriction on my freedom of action derives from others, who have the same power/duty.

According to Kantian ethics, the criterion of the ideal is to be found in the universalisation of our own maxims, which are in themselves subjective. In this sense, the individual is a lawmaker – because it is he/she who sees what should be done – and at the same time a member of an ethical society since he/she obeys the duties that are formulated for him/her by his/her own reason.

The second formulation of the categorical imperative – “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but at the same time as an end” – enshrines the ethic of respect for the individual human being and humanity in general.

This theory is said to be modern in that it places trust in the individual and his/her reason and freedom. It has nothing to do with consumerist capitalism since it places no great value on the enjoyment of pleasures and emphasises duties. Here, happiness is found in awareness of duty fulfilled, the tranquillity of a clear conscience. It does not concern happiness at any price, since the aim of the duty to do everything to be happy is universalisability, based on respect for others.

Common ground

What these three ethical conceptions have in common is their intermediate position between religious or traditional morality – which contains heteronomic precepts revealed by a transcendental divinity or the force of historical tradition – and attitudes that might be termed infra-ethical, espoused by people solely and permanently in search of pleasure or power, personal gain or economic and financial benefit.

In ethics, because it is rational, the justification is extremely important in a situation characterised by multiple values and globalisation.

The importance of the topica

We do not need to take a position on the pre-eminence of any one of these conceptions but it is worth emphasising certain important points.

It has been said that the only world in which one can live well is one in which people treat each other as people (F. Savater). As a practical means of fulfilling this axiom, everyone should try to put themselves in the other’s place, which does not always mean deciding in their favour.

Accepting someone as one’s fellow means understanding others from within (their personality), adopting, if only for a moment, their point of view, and taking their rights or, failing that, their reasons into account.

In practical terms, we are approaching the principle of respect for human dignity in all circumstances, even though some like James Rachels  would add that the “merit” gained by each individual has to be taken into account.

From another point of view, all important moral theories include the principle of impartiality, also seen as prohibiting arbitrariness in the treatment of each person. Morality should be based on good reasons. It implies that the interests of each individual should be taken into account impartially.

The Portuguese neuroscientist A. Damásio says that we do not have a moral centre or centres. Good and evil are discovered rather than revealed. Ethical behaviour is the result of certain synergies: biological regulation, memory, decision-making and creativity.

Following Spinoza, he says that the biological reality of self-preservation results in virtue because, in accordance with our inalienable need to survive, we must necessarily help to preserve other selves. We cannot preserve ourselves without society.

Good actions, he argues, are those that, while doing individuals good through their natural appetites and emotions, do not harm others. Our good derives from the friendship and benefit we bring to others. The evolution of the brain has incorporated our natural tendency to seek social agreement through cooperative behaviour.

Deontology

We shall now move on to the concept of deontology – from the Greek deon, duty, and logos, discourse.

For the philosopher Jeremy Bentham, “deontology” had the precise meaning of a set of professional rules and duties in medicine and other liberal professions. For him, deontology was his utilitarian doctrine of duties. Later, the term was used particularly to refer to doctrines on certain classes of duties concerning certain professions or social situations (nowadays, terms such as “business ethics” and “media ethics” are used).

More generally, the term “deontological” is contrasted with “ontological”, in other words the antithesis between what should be and what is.

Deontology is a set of principles and rules governing professional persons in their ethical dimension[3].

Ethics, morality and deontology are therefore related but not synonymous terms, although they may be ordered in concentric circles.

In the outer circle, ethics is concerned with the ideal conduct for an ideal individual, values and virtues, and defines actions as good or bad in terms of living well (happiness). In the middle, morality relates ethics to human and social behaviour, and lays down rules, while in the innermost circle, deontology links morality to individuals' occupational or professional conduct in society.

Ethics, morality and international law

It is also important for our discussion to consider whether ethics and morality are in any way connected with law.

Law is composed of a set of laws and regulations of general validity – although the legislator may amend them – that are enforced by the courts. In interpreting them, the courts lay particular emphasis on certainty of the law and social peace. But while the law is “determined” by the courts, everyone is able to make value judgements on the morality of situations.

According to Perelman, while law regulates external behaviour, morality emphasises intention. The law establishes a correlation between rights and duties, while morality lays down the duties from which subjective rights emerge. The law establishes duties to which government attaches sanctions, while morality falls outside the scope of organised sanctions. It can nonetheless be said that opprobrium is the social sanction for violation of moral rules.

The specific legal roles of legislation and the courts therefore run counter to the autonomy of conscience that characterises morality.

However, the importance of the moral element in the functioning of law still needs to be underlined (hence the importance of notions such as good and bad faith, intent to harm, accepted standards of behaviour and equity), based on the “ethical minimum” requirement. It has been said that law is the moral minimum enabling human beings to live in society.

Better still, together with pluralism, whether religious or ideological, it is the values of freedom and human dignity that triumph in both morality and law. The best expression of this is to be found in the Universal Declaration of Human Rights, 1948 (UDHR)[4].

The importance attached to purely moral aspirations in a spirit of universalist humanism clearly emerges from the UDHR[5].

This last reference leads us to consider the most important international legal instruments.

Some of the main points of interest are as follows:

 “All human beings are born free and equal in dignity and rights.  They are endowed with resaons and conscience and should act towards one another in a spirit of brotherhood” – Article 1 of the UDHR[6] The inviolability of human dignity is also affirmed in Article 1 of the Charter of Fundamental Rights of the European Union (2000).

“No one shall be subjected to arbitrary interference with his privacy” since everyone has the right to the protection of the law – Article 12 of the UDHR. “Everyone has the right to respect for his private and family life,” also appears in Article 8 of the European Convention on Human Rights and Fundamental Freedoms (1950).

“Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups …” – Article 26, paragraph 2, of the UDHR[7].

According to the Declaration of the Rights of the Child – Principle 10 – the child “shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, and in full consciousness that his energy and talents should be devoted to the service of his fellow men”.

In all decisions concerning children – any human being under the age of 18 – “whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” – Article 3 of the Convention on the Rights of the Child (1989)[8].

“No child shall be subjected to arbitrary or unlawful interference with his/her private life”, having the right to the protection of the law against such interference or attacks – Article 16.

Furthermore, the education of the child shall be directed to the development of respect for human rights and fundamental freedoms and the principles enshrined in the United Nations Charter – Article 29, paragraph 1(b).

With particular reference to drugs, Article 33 requires States Parties to “take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances …”.

The Convention on Human Rights and Biomedicine (1997) emphasises the importance of free and informed consent that may be withdrawn at any time with respect to interventions in the health field – Article 5.

As a governing principle, it provides that any intervention on persons unable to give their consent – which may take place with the authorisation of their representative or an authority or a person or a body provided for by law – may only be for their direct benefit.

In this very brief summary it is interesting to note that several provisions of these international law instruments establish moral requirements  – along with, for example, health, public order, protection of the rights and freedoms of others – as limitations on the full exercise of rights.

Consequently, ratification or adhesion to the international treaties by the States oblige themselves to observe these norms to the national Law or, at least, to respect their principles. Besides, the simple declarations of principles, as for example, the UDHR, can be followed to the internal Law as interpretation rules on the “human rights”. Then, the international Law sinks itself in the national Law. 

Ethical values in European societies

We will now consider the essential ethical values of contemporary European societies.

Freedom and human dignity

Freedom, a somewhat protean concept, remains a key notion in modern Europe.

For Plato, true freedom was the freedom that disciplines the passions and flows from reason, since absolute freedom may lead to excess.

There is no such thing as absolute freedom, according to Kant in the metaphor of the “light dove”: “When the light dove parts the air in free flight and feels the air’s resistance, it might come to think that it would do much better still in space devoid of air”.

For Hegel, the freedom to do as one likes taken to the absolute limit becomes totally abstract, avoiding substance as if it were a constraint, until it finally becomes a negative freedom (the freedom of the void), leading to religious or political fanaticism.

If human beings depended on things exterior to themselves, they could not be held responsible for their acts. Taken in conjunction with responsibility, duty and respect, freedom is at the heart of all moral thought.

For natural law theorists, freedom is specific to humanity and the state, as a creation agreed to by everyone, exists to defend it.

At the legal-constitutional level, when we talk of “rights, freedoms and guarantees” we are seeking, with the term “freedoms”, to defend the citizen against the state as a public authority. This is the negative freedom to which the English refer, also known as “individual freedoms”.

These include the right to life and personal integrity, freedom of movement, the right to security, identity, one’s reputation, a fair trial and respect for privacy, freedom of expression and information, freedom of the press, of conscience, religion and worship and, lastly, freedom of assembly and association.

For Benjamin Constant, political freedom is a legacy of the Greco-Roman world, while individual freedom is the product of the modern world.

Freedom changes over time and the change is irreversible.

Associated with the idea of freedom, there is increasing emphasis on the notion of human dignity, a value inherent in the status of human being and combining rights which, irrespective of gender, ethnicity, nationality, religion or economic and social status, are entitled to national and international protection.

This dignity forms part of our being and is the basis of our right not to be physically or psychologically ill-treated or otherwise abused by anyone, including ourselves, from birth to death[9].

For individualist humanism, in the Kantian sense of the human being as a phenomenon that does not repeat itself, human beings are the substance and the organisations to which they belong purely circumstantial. This leads on to the concept of individuals endowed with autonomy and independence, possessing both an internal capacity that permits rational self-determination and a sort of sovereignty that enables them to be agents separate from others, not subordinate to the community as a whole, in other words to be members of human society and citizens of the world.

In a democratic system, liberals will tend to highlight individual rights and freedoms, emphasising differences, while the more socially minded will emphasise equality and participation in the government of the community, thus encouraging homogeneity and forms of union.

It is not surprising that, among the different values on which it is based, the new European Constitution places human dignity and freedom first[10].

After reaffirming in the Preamble to Part II[11] the indivisible universal values of human dignity, freedom and solidarity, placing human beings at the heart of its action, it lays down the inviolability of their dignity and respect for their physical and mental integrity[12].

The Constitution for Europe still has to be ratified by the member states and, like any other national constitution, it is far from being a body of legal rules based on ethical standards.

As we have seen, many important international instruments incorporate ethical principles. However, once again recent global trends and a lack of training on ethical issues relating to rights create a need for further ethical debate[13].

Above all, ethics has a paramount contribution to make to any understanding and extension of human values and the concepts of human dignity and freedom themselves, whether or not they have a constitutional basis.

From an ethical point of view, a maximum of freedom is desirable, but coupled with responsibility for actions and omissions, with restrictions only justified when someone does not respect others as  fellow human beings.

In John Rawls’ fairly consensual version, individual freedoms (basic freedoms) are the ethical and political basis of any well-organised society. Freedom is the first of the two principles of justice and takes precedence over the second, equality of opportunity, since inequalities must be “to everyone’s advantage and attached to positions open to all”.

Justice and equality

Linked to defence of and respect for human dignity is the idea of justice – which is not the same as law – and also that of equality, though bearing in mind that inequalities that allow equality to be achieved are permissible. This also involves the concept of solidarity.

We are not concerned here with what is commonly termed the administration of justice, referring to the legal system which, with all its merits and defects settles disputes and punish crime by applying the law.

Justice is, theoretically, the ideal of the law, “the mother of the law”, as someone has put it, its guiding star, the prime virtue of social institutions, the search for the common good, the quest for equality before the law, the “executive” of the principle of equality (treating the equal equally and the unequal unequally, based on impartial criteria) so that everyone receives his due.

This is the quest for the just, according to principles that the Romans laid down (Ulpian): alterum non laedere (commutative), suum cuique tribuere (distributive), honeste vivere (social).

In modern times this quest has been reflected in the development of the rule of law, which lays down the limits on and boundaries of the exercise of power, in particular executive power, which is constantly being required to give fuller justifications for its decisions in order to avoid arbitrariness and irrationality.

Even at the level of international law, the trend has been away from the rules of good faith and the pacta sunt servanda, towards properly enforceable laws.

In fact, does not suffice that the States take and observe the modifications in the national law– v. by.  37.  It is important that the norms be directly constraining, if necessary with the intervention of a court, as early as the international law, as this the case of the International Criminal Court, instituted in 1998, linked up to the system of the United Nations, « as an institution permanent one that can exercise his competence with regard to the persons for the crimes more serious having an international reach » (Statute CPI, art. 1). That implying even the change of the constitutional rules of the parties. 

Tolerance and pluralism

Tolerance, pluralism and diversity are other ethical values of European societies.

For Strauss, the abandonment of natural law means that we are unable to acquire authentic knowledge of what is good or just in itself, thus obliging us to tolerate all opinions and treat every preference and “civilisation” as equally respectable, a somewhat doubtful proposition.

One American author has raised the problem of tolerance with respect to one aspect of multiculturalism that is currently the subject of lively debate, namely immigration and the treatment of minorities.

He distinguishes three forms of tolerance. The first is concerned with separating individuals from their original group in order to assimilate them into the national culture. A second consists of separating groups so that they can have collective identities, which is achieved through decentralisation and giving particular groups access to autonomy or sovereignty. He calls the third form multiculturalism. Here tolerance exists not between distinct, identified groups, but between individuals as multiple identities belonging to several groups, in other words between free and atomised individuals. He describes the last form as a post-modern project, with diffuse communities where peace (interethnic, intercultural and so on) begins with the spouse and his/her previous family, and the children, something which might encourage nostalgia for greater family cohesion.

According to Danzin, the major objective for Europe in this time of upheaval is to maintain a variety of cultures, plurality of traditions and respect for differences in philosophical and religious approaches and ways of life, as opposed to a levelling down by the instruments of a mass culture based on essentially materialistic criteria.

Gramsci emphasises the aspect of tolerance in discussion when the components of a group try to reach a complex truth as an integral expression of what is right. For a discussion to be exhaustive and sincere, great tolerance is essential. But when the time comes to act, everyone must agree and show solidarity.

Habermas says that discussions are a sort of washing machine that filters what is rationally acceptable to everyone.

There can, however, be no tolerance of error or dereliction, particularly when the person responsible avoids discussion and logical argument and descends into authoritarianism or idolatry.

Strictly speaking, in democracies rights are said to be compatible not with tolerance but with total mutual equivalence and independence.

In a political context pluralism is associated with structures with a range of decision-making bodies, representative authorities and parties. It is not a cause of discord or sedition since it generates emulation and progress in the quest for truth. It implies adversarial and dialectical debate, under the impartial, neutral gaze of the state.

There are those who warn against the tyranny of the majority, a tyranny of dominant opinion and sentiments over the minority, where the majority power is not restrained from excess.

Pluralism should accept not only different opinions but also different ways of life which are entirely a matter for individual choice in the private sphere. The “right to difference” is now being asserted.

Pluralism is therefore based not only on the free play of democratic institutions, but also on public non-interference in the individual sphere, the state’s role being to preserve diversity.

For Bayle, plurality equals polyphony, whose beauty is every bit equal to that of the solo voice.

Individual autonomy

During the discussion of individual dignity the importance of individual autonomy was emphasised, that is not exploiting others and the right to non-interference by the state and fellow citizens, so long as there is no harm to others and the information available enables the best choices to be made. This in no way exempts the individual from contributing to the common good, starting with minor obligations like not interfering with the fundamental values that need to be preserved.

Being autonomous means setting one's own standards for controlling one's destiny. This refers not only to individual types of behaviour but also to individual character and personality.

We should recall here the current debate on the rights of the individual and autonomy of decision-making – particularly in relation to the donation of oocytes, euthanasia, and even prostitution – a debate in which individual autonomy and rights have to be set against the “common good”.

Respect for privacy

With the development of new technologies – from the microphone (1870), instant photography (1880) and the telephone and sound recording (1890) to the growth of sophisticated means of detection and audiovisual reproduction and the intensive use of computers and telecommunications – the right to respect for privacy has become particularly important in Europe. The concept has a number of definitions but as a minimum seeks to prevent access by third parties to information about anyone’s private and family life and the disclosure of such information without the authorisation of the person concerned.

Citizens increasingly want to defend themselves against violations of confidentiality because peace and tranquillity are necessary for contentment, and confidentiality is a prerequisite of freedom to enjoy privacy.

Respect for privacy may concern data on telephone numbers, health, conjugal, sexual and emotional life, events within the home, forgotten past events, one's financial situation, or even movements in and out of one’s home.

However, an excessive emphasis on the defence of privacy could also lead individuals, especially children, to withdraw from the human community. It could become an excuse for the state and society to allow citizens or their children to exclude themselves.

We refer to the ethics of participation in human development, particularly in relation to the speed of technological innovation and the tension generated by control of its applications as a result of the changes it brings to daily life, habits and thought. There are now strong demands for freedom to control information about oneself.

Free and informed consent

120.  The achievement of the consent because of the practice of certain acts that can constitute offends to the personal rights is a requirement to live in society.  Everyone must be informed in an enlightened way on the actions and the events to which ones one be submitted, its objectives, procedure, risks and benefices, and if it there is confidentiality or not on the collected data. In order to have a free and enlightened consent, the person must have the capacity to understand the suggestion that is done for him and be able to decline it without no adverse consequences. 

The consent of persons of age less than 18 years again must be obtained with the participation of their representatives or tutors, as well as of the minor if it has discernment, being able to be revoked at any moment.  The ideal one will be that the achievement process of consent can imply an independent third person to guarantee his integrity.[14]

The secular state

The contemporary value of state secularism is also relevant to the subjects under discussion.

Historically, state secularism meant liberating states and societies from the influence of the churches. Secularism was a political demand for religious plurality in society.

State religious neutrality means that it does not identify with and is not governed by any particular religious confession, for the simple reason that it has to harmonise all confessions in the higher interests of the common good. Religious neutrality does not mean anticlericalism, however, since this would make secularism a sort of creed, leading to an alternative form of confessional state.

Europe’s underlying character is secular and it will remain so with the advent of the new constitution[15].

Nowadays, the whole area of debate has been secularised. From school upwards, the state accepts responsibility for creating channels to enable the different cultures in civil society to emerge from the social system.

Brief conclusion

The background to any ethical discussion is respect for individuals and their human dignity, in particular those who suffer most or are most materially or spiritually deprived or, more concretely, those who do not even know about their “right to rights”. This calls for solidarity and recognition that ethical values are not cast in stone. Individuals' freedom also needs to be set against the weight of responsibility for the choices made (the ethic of responsibility). Finally any incompatibility with the interests of society (the ethical imperative) must not lead to the submersion, or even unnecessary invasion, of each individual’s privacy.

This entails respect for the principles of tolerance and plurality, without subordinating equality and without unnecessary offence to individual autonomy, in an atmosphere of impartiality.

Subject to these conditions we can move on to our practical theme, bearing in mind that, as the United Nations recently stressed, the function of ethical principles is to raise the alarm ant guide, on some situations, rather than provide solutions. The latter have to be tested in each specific case through a process of participatory debate.

Principal sources:

André DANZIN, L’Europe structurée par l’éthique de ses finalités - http://www.arri.fr/index_afeur.html .

Alvaro L. M. Valls, Ética na Contemporaneidade (Dep. Filosofia - UFRGS) – in http://www.bioetica.ufrgs.br/eticacon.htm .

António Damásio, “Ao Encontro de Espinoza”, Europa-América, 2003.

Chaïm Perelman, Éthique et Droit, EUB, 1990, Portuguese translation. Martins Fontes, São Paulo, Brasil, 2000.

Claude Wachtelaer, Intégrer la diversité (Internet).

Enrico Riboni, Introdução à Ética – http://www.christianisme.ch/index.htm.

Esperanza Guisán,  “Más allá de la democracia”, Tecnos, 2000.

Ethical challenges in drug epidemiology: issues, principles and guidelines - Global Assessment Programme on Drug Abuse, Toolkit Module 7, United Nations, New York, 2004.

Fernando Savater, Ética para Amador, Portuguese translation, Editorial Presença, 13^th edition., 2004.

Jacqueline Russ, La pensée éthique contemporaine, 2^nd edition, PUF, Paris, 1994. 

James Rachels,  Elementos de Filosofia Moral, Gradiva, 2004 (translation).

João de Almeida Santos, “A Europa, civilizações, valores e futuro”, Junho 2002, Sintra (SEDES).

José Adelino Maltez -  http://maltez.info .

José Roberto Goldim, Ética, Moral e Direito (Internet).

La Tolérance, Textes choisis & présentés par Julie Saada-Gendron, GF-Flammarion, Paris, 1999.

L’Éthique de la Philosophie, edited by Jean-Pierre Cometti, Éditions KIMÉ, Paris, 2004.

La Liberté, Textes choisis & présentés par Antoine Hatzemberger, GF – Flammarion, Paris, 1999.

Chapter 2: Educational problems raised by drugs testing in schools

“Anything can become a drug for human beings”

Ms Claire Ambroselli (France)

Before deciding to test young people in school for illegal drug use, we need to consider the implications of such screening in a setting whose main purpose is to contribute to their education. It is surely incompatible with parents' and other adults' expectations regarding schools' educational role, which is to transmit human values that will enable them to exercise their own power of choice in accordance with these values. Naturally schools are not the only institutions with the difficult task of educating young persons. Their development is also a function of the interaction between the different environments in which they live: family, social, cultural, religious and political. The precise form of this education is determined by national policies, which vary from country to country but ought to be based on the undertakings made by the peoples of the United Nations after the Second World War in the Universal Declaration of Human Rights. Are they so based?

At first sight, and according to traditional education theory in Europe, screening for drugs in schools cannot be justified since school syllabuses are still based on a humanist approach to education that takes insufficient account of the dual nature of our human condition: body and mind.  This is particularly important for young people, whose bodies and personalities are at the stage of rapid development. Growing drug abuse in schools poses a particular challenge to this educational approach. Far from being compatible with educational theory, using screening tests to prevent such abuse appears to highlight a crisis in which schools are unable to achieve this end by providing a form of education appropriate to young persons' needs. In response to this situation, I propose to examine three issues. First, is testing in schools for drug abuse likely to be effective in preventing this problem among young people? If not how can such abuse be prevented in schools -  is it a health or a school problem or a more general educational problem that concerns everyone? Finally, should not the values transmitted by schools and by the education process in its wider sense not be more open to history and to an understanding of our human condition?

Can screening prevent drug abuse in school?

The use of screening tests in school is based on the assumption that they will discourage drug abuse. This raises the issue of the purpose of schools. Schools are not places where drugs can be allowed to circulate. But what are they to do if their pupils are already drug users? The scale of drug use in European societies and of the problem among the young also affects schools. But how can we prevent abuse in a setting which, together with parents and other social institutions, is concerned with educating our young generations? Schools have a special responsibility for transmitting the essential human values of education: learning to read and write, to express oneself, to respect oneself and others and to be receptive to educational values that change with succeeding generations and the world that these generations transform. How can we prevent drug abuse in school? Is there not a certain ambiguity, or even incompatibility, between this education and a form of prevention which, like testing, implies an initial laissez-faire attitude with respect to drug use in schools?

Before even discussing the problems raised by the legitimate prevention of drug use, the definition of drugs, the reasons they are used and the meaning given to their lawfulness or unlawfulness need to be examined. In 1994 the French CCNE identified three reasons for the use of drugs, that is substances that act on the nervous system: recreational, experimental, and utilitarian. (1) It recognised that the dividing-line between the therapeutic and non-therapeutic use of various substances was increasingly hard to define and that “the legal distinction between legal and illegal drugs did not seem to have any coherent scientific basis”.        It also recognised that drugs that are not prohibited (alcohol, tobacco, painkillers and neuro-psychiatric drugs) were potentially as dangerous as prohibited drugs.  What determined how dangerous they were was the use made of them. “Abuse” arose when someone became dependent on them in doses endangering health. Naturally, the level of dependence varied according to type of drug used. But might any drug use at all by young people amount to abuse? 

These definitions reveal certain problems associated with drug use in schools, coupled with illegal drug use outside school and its repercussions for schools. The use of legal drugs that are banned in schools as far as young persons are concerned but authorised for adults is increasingly tolerated in certain quarters, which casts doubt on the educational principle of setting an example. Steps have been taken to impose universal bans on smoking in schools. Inside schools, the users of certain products may have an occasional or persistent influence on non-users. The reactions of each may vary according to these internal exchanges. Furthermore, senior secondary schools may include young adults,  who are no longer minors and therefore have different  rights.

These are real problems. Is it desirable to focus drug prevention on testing, which is not a preventive action but rather an attempt to detect that is not absolutely reliable and implies a degree of laissez-faire with respect to drug use in schools that is incompatible with the educational mission of schools? Drug prevention in the form of studying substances and understanding their use and the dangers involved in physiological dependence, crime as well as death, is also a possibility. But how to explain these dangers and risks to young people whose age makes it difficult to understand and stand up to them, and who do not yet have the means to understand them?

If schools cannot help them to understand these dangers and risks, and if their families or friends already use abuse legal or illegal drugs in front of them, or even share them with them, how can they resist their influence and understand why schools are taking preventive measures that run counter to this harmful influence. It is as if adults brought children into the world without explaining to them their complex relationships with their parents and with each other, or that these complex relationships have health, and even life or death, implications, and above all that they depend on such human faculties as thought, free will, judgment and imagination – faculties that also determine our ability to act and our level of resilience of lack of it. Given the numerous pressures to use drugs in western societies, from the earliest age, what can schools do to support young people and help them to understand what they can expect from life and from their youth, without the need to resort to such devices as drug abuse, which are substitutes for their desires, their free will, and their respect for themselves and their relations with others?    

When those responsible for schools fail to include in their educational curriculum instruction in the essential values of a shared world through which human beings find meaning and a place with others in the community, and renounce their educational responsibilities in favour of a degree of drug prevention without concerning themselves about the basic message they are supposed to transmit – the risks drugs present when they are abused, which is even more serious in their position – they run the risk of diluting the very content of education. The need to combat drug abuse and its increasing encroachment can seriously impede schools' real purpose, which is not to confront such abuse head on but to prevent its use by transmitting the right values. How can education pass on to the younger generation the essential values to enable them to take part in the construction of our common world by learning to resist everything that might endanger their existence, before they have even learned to reflect upon their lives, deaths, existence and ambitions in the light of these educational values?

Drug use in schools is therefore less important than an education capable of enlightening young people as to the dangers threatening them, not in relation to drugs, but first of all in relation to themselves and their place in their own lives, in their families and with their friends, so that they understand and can take their own place in the world alongside others. If they do not think about their own condition, how will they understand anything that might attract their attention and stimulate their appetites, ideas, judgment, will, personal responsibilities or very new rights? This is also true of health problems, which often remain the only educational context young people at school have for dealing with their personal problems, which are neither biological nor medical, but rather the essential human problems we all experience.

How to prevent drug abuse in schools

It is not the purpose of schools to combat drug abuse, when this becomes harmful to the abusers, or even criminal or pathological.  Their task is to point the pupils concerned towards agencies specialising in those problems: doctors in the case of pathological conditions, the police and courts where offences are committed. They are  They are not a suitable location for drug screening tests, as we have seen. Schools face a much greater challenge than the risks of drug misuse since the presence or absence of appropriate teaching can have a major impact on how young people deal with their problems of growth and maturity, just as their frequent conflicts with their parents can have a substantial effect, positive or negative, on schools' educational role, depending on the sort of dialogue those children and parents can establish.

The risk of drug use is fnot the immediate problem, which is rather that young people will not come to know and accept themselves and will lose themselves in practices that might become inhuman. Teachers must therefore be able to enter into dialogue with the younger generations to help them to take these essential risks. Drug use may at first be imperceptible, or even irrelevant. This is one of the dangers because a pleasant initial experience may lead to drug dependency by young persons who will then gradually lose their own still fragile positive forms of dependence. Preventing such dangers means entering into genuine dialogue with young persons to enable those concerned to identify situations that might push them into choices that could be harmful to them, rather than tackling the real problems they face. Contrasting drug use with the challenges of human existence may seem laughable to children who as yet have no sense of their existence and do not regard the experience of the adults they mix with at school or elsewhere, particularly in their families, as beacons and examples. How can young persons learn to rely on dependency relationships that are liberating, such as positive family influences, rather than ones that are harmful?

Schools are generally ill-adapted to the new problems facing the young people for whom, together with parents, they share responsibility. Pupils are subject to social and media pressures as well as the influence of school and family, and these pressures may have a quite distorting effect on their education. Teachers who are overburdened with curriculum demands may no longer be equipped to deal with the personal problems of their young charges, particularly when – as now – these media and social pressures spill over into the classroom. A number of these problems could be considered further, using the CCNE opinion as a basis.

The moral problem posed by drug use by young people, particularly at school, is simple to formulate but hard to live with. As the CCNE notes, no moral system forbids ‘doing good’, but no moral system authorises self-harm except in exceptional cases (the “suicide of the wise man” among the Stoics; the redemptive value of suffering among some Christians), and none permits the harming of others. The distinction between use and abuse is therefore morally important, above all for personal morality. It is true that the problem is the repetition of this pleasure without being able to judge the transition from “doing good” to “doing harm” to oneself of one's own volition, but this may become a tragic problem for those who lose their own benchmark of good, without understanding why they are doing themselves harm. What is to be done when one realises one is slipping into dependency, the Committee asks.

When use becomes abuse, the problem becomes that of one’s own judgment. How is the immediate good to be distinguished from the evil to come if I am unable to distinguish between a pleasure that masks a problem and the joy of dealing with a problem or overcoming an obstacle that drugs obscure and that brings my judgment into play, since I must be able to think carefully and fully in order not to risk contenting myself only with the pleasure I feel in my solitude, my person and my body? How can I do this if no one has taught me to think about the sensations and feelings I experience and if no one is there when I am young to hear the problems I am unable to express? From a medical standpoint, the danger of drug abuse is long-term dependency, but in moral terms it is the loss of autonomy to act freely.

Drug use is therefore a choice made in relation to oneself; it is also a choice made in relation to the law. When drug use is forbidden, to transgress is to face punishment. But national rights and laws may not be in line with fundamental rights. As the Committee said, “transgressing the law means by definition accepting the risk of punishment. However, a citizen who in all conscience considers the law unjustified or even outdated may seek with others to demonstrate the validity of this criticism and succeed in having the law changed”. This could be one approach for our working group, namely to make a comparative study of the legislation in European countries and the problems it raises with respect to fundamental rights and the educational needs arising from them, in order to combat drug abuse of course, but also to respond to the educational needs these rights imply.

On a number of occasions, the Committee advocates a form of education for all, in view of the fact that we are all affected. It suggests the following educational guideline: “In the same spirit of understanding, society should guard against projecting a degrading self-image onto those who have ‘tried’ a substance.” The CCNE is thinking particularly here of adolescents who, encountering psychotropic substances at an age when they are vulnerable or when the search for a personal identity may lead them to do things in a playful or almost experimental spirit or one that is to some extent self-destructive, need less to be judged negatively than to be invited to think positively about the problems of their physical integrity and the problem of ‘self-esteem’. There is now every reason to believe that the best way of curbing the scourge of drug dependency is to train responsible, well-informed citizens. It continues:  “a policy of enforcement and/or dissuasion is only meaningful if it is linked to one of education and prevention that makes citizens aware of the risks they run and inflict on others when they use, prescribe or in any way promote substances that act on the central nervous system. This means that objective information should be made available on substances, their effects and risks and the precautions that need to be taken. To ensure that such information exists, society should provide the conditions for sound scientific research in psychopharmacology, epidemiology, clinical medicine, anthropology, sociology and education sciences.”

Little is said about fundamental rights, however. These concern public freedoms and the problems of tolerance in democracies and respect for privacy, though subject to certain restrictions. “Respect for freedoms in a democratic society implies that, up to a point, the use of drugs by adult, autonomous, well-informed citizens should be tolerated (like other high-risk behaviours), insofar as such use does not harm others and even if the individual seems to be harming him- or herself through that use. Moral subjects are the judges of the risks they accept. However, the expression ‘do harm only to yourself’ is of questionable value since very few people have no family or friends around them. ‘Tolerance’ comes from the fact that no one has power to control the privacy of a human life. This is yet another reason for developing prevention of high-risk behaviours through information and very seriously conducted education.”

In the Committee’s opinion, another factor is the alienation of people who abuse drugs, which in serious cases, because it is a question not of restraining free human beings who have made their own choices but of our duty to assist people at risk, leads to a right to interfere, albeit one that is difficult to implement. But the use of drugs may conceal more personal problems. In such cases the ethical crisis should be dealt with by friends and family and the relevant institutions. But how can the need for such assistance be anticipated if those surrounding persons at risk are themselves incapable of perceiving the dangers that young people often find it extremely difficult to express? “The duty to assist people at risk applies not only to our family and friends,” the Committee says, “but to the whole community. The community has a duty to put in place a public health policy of genuine help to individuals and therefore one not predicated solely on the question of abstinence. It must take into account all the health and social factors connected with the use of substances that act on the central nervous system.”

What values should schools transmit?

It is not a matter of excluding health from the education curriculum, but of seeing that it is understood as defined by G. Canguilhem: being in good health means feeling responsible, being able to set one’s own norms, go beyond the ordinary norm, introduce new norms when faced with new situations and tolerate violations of the ordinary norms, what philosophers call “biological normativity”, examining the dynamic polarity of life with the positive tendencies towards health and the negative tendencies towards illness and death, learning to think about the tension of living between the normal and the pathological, on the basis of which new normalisations of political power are developed (3). Michel Foucault says in The Birth of the Clinic, that in the management of human existence, medicine takes a normative position which does not allow it simply to dispense wise advice, but gives it a basis on which to dictate the physical and moral relationships of the individual and the society in which he/she lives. The risk is that, without the appropriate education, this excessive medicalisation will make it impossible for us to combat such abuses. (4) 

This implies a form of education that transmits the meaning of the body and knowledge of the vital organs – what it means to have a body – the meaning of the imagination, the benefits of thought, the will, judgment and responsibility, all of which are human qualities that it is difficult to acquire when one is still young and for which schools are essential. It is these human qualities that form the basis of the ethical and moral principles that guide our actions. The development of universal rights in the mid-twentieth century reflected the need for benchmarks so that these qualities can be shared by new generations who first learn through the examples of those that have preceded them. We have the capacity to confront the problems of our existence, but we need to be trained to use it. Drug use ultimately threatens or even eliminates this capacity to set new norms that transform the conditions of existence, partly through dependence but also because of serious educational shortcomings and a tragic lack of human support. Education free of oppressive dependency, which traditionally allowed some people to be “their own doctors”, (5) should enable young people to explore freely and voluntarily the place they should make for themselves, with themselves and with others.

Could we not propose, in addition to a public health policy, an educational policy for Europe that would enable young people to be agents in their own lives without mistaking the objectives they should aim for or the risks they will face? Could young people not be educated in essential ethical values, including universal human rights, “the ordinary law of humanity”, as Mireille Delmas-Marty suggests?  This ordinary law can ensure that human beings, even when they have deep roots in a particular human community, will never lose their individuality – their ‘personality’ as the UN Covenant puts it – and instead be reduced to mere elements of that group, to the exclusion of their other roles as unique beings and, simultaneously, as members of the human community. (6)  Can a public health policy that seeks to prevent legal or illegal drug use by the young, that can place those young people in complex medical and social communities, be effective without such education in the ethics of the ordinary law of humanity appropriate to the contemporary world, to offer them the essential elements of this personality – to learn to think, judge, imagine and act according to the moral principles developed by human reason?

Conclusion

The United Nations Charter, the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Declaration of the Rights of the Child are not just statements of rights but “a means of producing a legal conscience”, a new universal ethical system to confront the new problems presented by human beings. These are no longer abstract, as in previous declarations, but are concerned with living human beings whose bodies and persons are prey to new criminal powers, and therefore with new rights and new powers of human resistance. Mireille Delmas-Marty has said provocatively that in human rights we find neither human beings nor law,  not human beings in the biological sense that is, because human rights are, on the contrary, a protest against nature, a refusal to submit to its laws. Human rights are no longer a matter of law, if that is understood as a set of rules from which a solution or unique truth is deduced by formal reasoning (7).

The ethics of universal rights are contained in the preambles to the relevant declarations. These declarations call on citizens not to be oppressed either by others or by themselves, to incorporate these rights formally into their constitutions and legislation and to bear them constantly in mind  “as a common standard of achievement for all peoples and all nations” (8). How are these challenges to be met if such rights are never studied at school? How are these absolute duties to be acquired, this ethic that determines these "practices of the self”, requiring, as Foucault puts it, the permanent reactivation of an attitude -- a philosophical ethos that can be described as a permanent critique of our historical era”? (9)

These rights must be applied if we are to develop our human capacities. This development is a long term process, with stages according to age. If the schools and education that train the younger generation do not enable them to acquire the qualities needed to understand their human condition without using legal or illegal drugs, which simply mask and exacerbate the problems, it suggests an urgent need for a comparative study in Europe of the forms of education at issue, their positive aspects and shortcomings and the educational links that exist between schools, families and societies, rather than a form of testing that is inappropriate to every element of the situation. The problems raised by drug use in schools are also a consequence of the range of social backgrounds involved in the education process, which are often conflicting and uncoordinated. The danger is that, in response to social pressure, schools will be made responsible for dealing with all the problems that other relevant social and political institutions are unable to handle.

Notes

Comité consultatif national d'éthique pour les sciences de la vie et de la santé,  Rapports sur les toxicomanies. N° 43, 23 November 1994, Réflexions éthiques.

For the problems associated with defining drugs see Chapter 4 by Mrs Roelandt.

1. Special Needs of Children of Drug Misusers, Consultants’ Final Report, by Beate Leopold & Elfriede Steffan, Strasbourg, Pompidou Group, 1997. (Available on the Pompidou Group site)
2. Georges Canguilhem, Essai sur quelques problèmes concernant le normal et le pathologique, in Le normal et le pathologique, Paris, PUF, 1966, ch. 4. (Coll. Quadrige n°65, 1994).
3. Michel Foucault, Naissance de la clinique, une archéologie du regard médical, Paris, 1963,  p. 35 .
4. Evelyne Aziza-Shuster, Le Médecin de soi-même, Paris, PUF, 1972.
5. Mireille Delmas-Marty, Pour un droit commun de l’humanité, Paris, Seuil, 1994, p. 280. See also by the same author Raisonner la raison d’Etat Vers une Europe des droits de l’homme, Paris, PUF, 1989.
6. Mireille Delmas-Marty, in Ethique médicale et droits de l’homme, Prés. P. Lazar, M. Melot, C. Ambroselli, A. Spire, Paris, Actes Sud Inserm, 1988, p. 321. Debates at the Centre G. Pompidou, Paris, 1987. Coll. Fabrique du corps humain et droits de l’homme.
7. Preamble to the Universal Declaration of Human Rights
8. Michel Foucault,  Dits et écrits, vol. 4, n° 339, Qu’est-ce que les Lumières ?  p. 571. Paris, Gallimard, 1994.

Chapter 3: Ethics and drug testing in schools

Ms Micheline Roelandt (Belgium)

Introduction

European opinion is divided on the issue of drug use (1). Some believe that any use of drugs, whether legal (such as alcohol, for example) or illegal (as is the case of narcotics), should be prohibited because they have a deleterious effect on the behaviour, awareness or perception of their users. They proclaim an ideal of abstinence and include a certain number who consider every means for bringing about a drug-free society to be justified. Others draw a distinction between legal drugs, the use of which is part of the culture, and illegal drugs, which they consider intrinsically dangerous, in particular because they are not socially integrated since they are prohibited. They support the fight against certain drugs but tolerate legal drug use.

A third group tends to attribute the presumed danger of prohibited substances more to the fact that they are prohibited than to their chemical structure. They argue for legalisation and regulation of the trade in all drugs and, to avoid abuse, for learning how to use them, rather than banning them.

Finally, a fourth group, while not contesting the validity of international treaties on these matters, favours a risk reduction policy and decriminalising drug use, facilitating substitution treatment for problematic users and better quality control of illegally sold substances in order to minimise health risks.

Within the last three groups, some people distinguish between soft drugs and hard drugs, sometimes arguing that the use of soft drugs by young people is now part of the culture and therefore comparable to alcohol use. Others do not recognise this distinction, either because they are in favour of access to all drugs or, on the contrary, because they believe in the escalation theory.

Advocates of these various positions and/or convictions are to be found among young people as well as teachers and parents, although all agree on the need to  prevent abuse of drugs, particularly among the young.

Schools and the ideal of abstinence

1a. State versus private education.

While it goes without saying that schools and their staff have a right to argue for an ideal of abstinence and that parents who share this moral view have the right to choose such schools for their children, it is not certain that in democratic societies the state, and therefore state schools open to all children, is bound to respect the diversity of its citizens’ opinions on all matters, including drugs. It therefore has to be asked whether legislation that prohibits the use of certain drugs is acceptable from an ethical point of view and whether the imposition of an ideal of abstinence in state schools can be justified.

Legislation in European countries is the product of legislative power and is voted by political majorities. Nevertheless, while all citizens of a country are subject to the law, there is still the question of whether the law can impose “good” conduct on its citizens. For some liberal lawyers, this cannot be the case since people have moral rights vis-à-vis the state (2).  But, as Pierre Bouretz emphasises in his preface to Julie Allard’s book Dworkin et Kant. Réflexions sur le Jugement (3),  Ronald Dworkin’s position, drawing on the case-law tradition, judicial autonomy and a theory of interpretation, has to overcome the obstacle of a continental legal philosophy based on the paradigm of laws and a western legal culture marked by the central role of the state. And while the Canadian Will Kymlicka (4) takes it for granted that his model of a multicultural society can be transposed to Europe, this is nonetheless strongly contested in a country like France. Clearly, the debate on Taking Rights Seriously (5) cannot be discussed fully here, although it may be useful to bear it in mind, particularly as it has repercussions on the question of whether state schools are entitled to impose on their pupils respect for a moral rule that is not shared by the whole population, even though that rule has legal force. For example, no authority can prevent groups of citizens from taking a moral stand against legislation that prohibits abortion and euthanasia. Why therefore, in democratic and pluralistic societies, should state schools, which are par excellence where various moral options are discussed in order to help pupils form their own convictions, become flag-bearers for the abolition of abortion when some of the pupils' parents are probably fervent defenders of the right to terminate pregnancy? And what are we to make of state schools that advocate abstinence with respect to drugs and impose compliance on all their pupils?

Whatever the answer to this question, let us now take an ethical look at the right of state and/or private schools to determine whether their pupils adhere to certain moral principles they impose, possibly in compliance with the legislation of their country. When discussing drug testing in schools, we must bear in mind that some European countries do not condemn drug use but only prohibit possession. In these countries, although it is permitted, drug testing to identify drug use raises a problem in law, particularly as it exclusively targets minors.

While defenders of a drug-free society and therefore drug-free schools may believe that the end justifies the means, this conviction does not necessarily hold from an ethical point of view, which is supposed to take into account the good or protection of the greatest number of children while respecting the principle of non-interference in individual rights. 

1b. Schools as transmitters of values

From an ethical point of view, it is important to examine first whether promoting abstinence authorises a school to present itself as drug-free. Indeed, no one now disputes that schools are far more than places that impart knowledge and award diplomas. They also have a duty to teach moral values and socialise children. Some schools may of course, through the dissemination of knowledge and information and through dialogue, try to inculcate an ideal of abstinence in their pupils in the same way that schools that offer a Catholic education are authorised to promote the Catholic religion and try to convince non-believers among their pupils of its validity.

However, this does not authorise schools to check whether each pupil is a practising Catholic or believer, and even less to introduce detection methods for that purpose. In my view, the role of teachers in Catholic schools is to stimulate pupils’ interest in religion, motivate them to convert, if appropriate, while at the same time presenting them with a positive model with which to identify. Identifying non-believers, possibly by having pupils watched to see whether they go to mass on Sundays, seems to me not only pointless, but also incompatible with the rights of the child, whom some consider to have a right of self-determination with respect to values from the age of 12 to 15. (6)

Going beyond ethical considerations, however, it seems obvious that such an approach is unlikely to achieve positive results since, while it leads to pupils being excluded for want of religious zeal, it has little chance of encouraging them to mend their ways.

Promoting abstinence does not therefore justify forcing every pupil to respect the ideal or describing a school as “drug-free”, since in principle it is impossible to impose pupils’ adherence to this moral rule. This is why some schools have introduced drug testing, thus replacing their original educational mission with a system in which what is important is no longer convincing pupils to resist the temptation to take drugs but using every means to track down those who do not respect this moral prohibition.

While it is therefore indisputable from an ethical standpoint that some school managements, teachers and parents are entitled to promote an ideal of abstinence, this does not mean they have the right to proclaim the school “drug-free”, and even less to introduce drug testing.

2. Drug testing in schools to prevent future drug abuse

2a.Testing and prevention

The avowed aim of testing is often preventive. It is argued that fear of discovery and its consequences will motivate pupils to resist the temptation to take drugs at all. This method of prevention is based on the effectiveness of “fear”, a feeling that has been used for centuries to discourage behaviour considered intrinsically dangerous. (7). Some specialists strongly dispute the effectiveness of preventive methods based on exploitation of (young) citizens’ fear of death. But in addition, positive results may lead to pupils' exclusion from school, harming their educational careers and their possibility of self-fulfilment, and thus producing fertile ground for the further development of drug abuse.

Nor do schools that describe themselves as “drug-free” and use drug testing necessarily base their actions on the moral principle of abstinence. This is particularly arguable when testing focuses on certain substances (such as THC and MDMA) and ignores, for example, tranquillisers and alcohol, so that rather than identifying pupils who present a potential risk of drug abuse the tests in fact identify those who take illegal drugs.

At a time when the use of certain drugs by young people is becoming common and in view of the anxieties this causes among parents, some schools are eager to describe themselves as “drug-free”, essentially for publicity reasons. Very often, both teachers and parents are convinced that drug use explains educational problems. To avoid them, it is therefore enough to keep the school “drug-free”. Clearly in some individual cases abuse of drugs, whether legal or illegal, is a significant factor in pupils’ failure at school, but it is hard to explain problems at school in general in terms of non-abusive use of recreational drugs. Attributing certain pupils’ inability to cope at school to drug use alone is to ignore the findings of educationalists and related disciplines, such as sociology. (8) It also ignores clinical experience of drug dependence treatment, which tends to support the reverse theory that it is inability to cope at school that leads pupils to abuse drugs.

Even when teachers themselves do not subscribe to the “drug abuse is the reason for failure at school” thesis, the wish to project the image of a “drug-free school” which tracks down users can be explained simply by the desire to please parents.

Some adults have gradually become obsessed by the supposed dangers of certain substances, partly as a result of systematic media disinformation. While some of them do not really fear cannabis use as such, the escalation theories – “if you smoke one joint, you run a serious risk of injecting heroine” – have fuelled their anxiety about the use of all illegal drugs.

2b.Can heroin addiction be prevented by screening?

While it is true that most heroin users smoked joints before using opiates, there is no evidence at all that using cannabis produces a taste for opiates. Young people know that heroin is a substance liable to cause rapid dependence that is difficult to overcome. Of course, young people who want to ignore the potential dangers of heroin will by the nature of things have first used substances that are easier to procure on the illegal market  – it is far easier to get “shit” than “H”. But if smoking joints led to heroin use, around 30% of the population would now be heroin dependent, something that seems not to be the case. It should further be pointed out that the type of theory that encourages people to fear the worst may become a self-fulfilling prophecy. As Patricia Seunier notes, "it is here that, because it is often based on legitimate but often febrile anxiety, prevention becomes a lever for adolescents. Adults’ fears and expectations (they already see the young heroin addict in the gutter) become a springboard. The more fearful adults are, the more young people are attracted. This is how this type of prevention fails in its objective and becomes an incentive, precipitating young people towards the danger, rather than giving them the ‘weapons’ to help them keep their distance and think."  (9)

Knowing that schools test for users reassures parents. If they have not noticed themselves that their children are using drugs, the school will find out before it is too late, in other words, before they are in the gutter. Testing also reassures them from a defensive point of view. It is generally agreed that “our child” is “good, healthy and sensible” and that any behaviour that suggests otherwise is simply the result of “the bad influence” of the people he/she mixes with. Sending him/her to a school where drug users will immediately be put in quarantine therefore greatly reduces the risk of contamination.

2c The scourge of drugs

Based on the nineteenth century hygienists model, the “scourge” of drugs is still often presented as a contagious disease. Avoiding their spread therefore implies eradicating the slightest germ. But drug use is a personal choice and in no way contagious, although there is of course no doubt that the use of some drugs is a question of fashion and that youngsters are more likely to smoke a joint if they mix with other smokers.  However, faith in the escalation theory and the fantasy of contagion may well encourage managers and teachers to seek drug-free schools, whether state or private. 

The contagion theory also helps to justify drug testing in schools since what is important is putting all users in quarantine, even if they are never “under the influence” at school. Indeed, from a practical point of view, the presence of metabolites of illegal drugs in the urine does not mean that pupils are under the influence of any substance while at school. Depending on the substance, traces may be found several hours, days or even weeks after use. What is tested therefore is not whether pupils' psychological state is such as to enable them to attend classes, but what they may have taken outside school, which raises many ethical problems.

3. Autonomy, ethics and screening

3a Young persons' rights

The International Convention on the Rights of the Child does not offer clear guidance on the question of testing.  Article 33 authorises parties to take measures "to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties".  However, under Article 16 "no child shall be subjected to arbitrary or unlawful interference with his or her privacy", while Article 14 enshrines "the right of the child to freedom of thought, conscience and religion". A strict interpretation would therefore suggest that once they have reached the age of reason, children can exercise their rights and their decision making autonomy, just like adults. From an ethical standpoint, children’s right to autonomy is increasingly recognised – according to their degree of maturity, from as young as 12 and certainly from the age of 15 – even if their choices run counter to those of their parents.     This has already been referred to. It is of course impossible to determine a definitive "age of reason”, but it is clearly appropriate to recognise that young people who have not yet reached the age of majority have a capacity of discernment that goes with the capacity to make their own choices. For example, many political representatives in Europe argue for the abandonment of a protectionist approach to young offenders, on the grounds that young people are responsible for their acts from the age of 12. (10)

At all events, for more than a century educationalists have emphasised young persons' right to privacy, which has been raised to an ethical principle. In the eighteenth century, their predecessors deployed an impressive range of measures to keep young people under observation, day and night, in a spirited attempt to prevent masturbation.  Since then advances in educational methods have gone beyond the simple discovery that masturbation does not make you deaf. Informed opinion has increasingly turned away from special investigation techniques for uncovering children's misdeeds, whether it be reading their private diaries or letters without their knowledge or rooting out porn magazines from their secret hiding places. There is no reason to think that pornographic pictures will transform teenagers into sexual obsessives or predators in later life, let alone believe that confronting them with the knowledge that their secret store of porn has been uncovered will aid their sexual development – indeed quite the reverse. Forcing them to undergo a urine test that shows that they smoked a joint with their pals the previous weekend is simply to encroach on their privacy, and is ethically ill-advised and educationally of little or no value.

3b. Parents' educational choices

When they choose a school for their children parents are not necessarily aware that drug use has been banned, and schools may decide to do so long after the children first enrol. It is therefore not proven that in all cases parents have given their informed consent to drug testing for their children, or that they advocate an ideal of abstinence. If parents have no objection to recreational drug use by their children, this practice and its consequences, including possible exclusion from school, are a violation of their own right to autonomy. Certain parents who are aware of the presence of drugs in our society and their potential attraction for their children may even prefer the latter to use them in a convivial setting rather than abuse them later. (11)

4. Drugs responsible for failure at school

Teachers in some schools, while not presenting themselves as supporters of the fight against drugs, may consider that drug testing and the sanctions that follow on from a positive result will motivate pupils to resist drugs, thus enabling them to attend classes in full control of their faculties.  Testing is therefore justified from two standpoints, namely  that it creates optimum conditions for teachers to do their job and for pupils to take maximum advantage of the instruction they receive.

This argument is invalid from a purely practical point of view, since it is based on the erroneous assumption that some pupils' inability to concentrate on the subjects being taught is generally attributable to drug-taking. Taking drugs, legal or otherwise, during school hours does of course have a negative effect on pupils’ ability to follow lessons and drug abuse may lead to failure at school.  However, proving through drug testing that pupils have taken drugs and that their dazed state at school is the result tells us nothing about why they are in school in such a state. Do they have serious problems at school?  Are they rebelling against the educational system? Do they have personal and/or family problems that lead them to try to escape reality? The answers to these questions are extremely important but are not to be found in a urine sample.  The danger though is that this assumption could enable teachers to avoid questioning the extent to which schools correspond to pupils’ expectations and to reduce pupils to the label “drug addict”, overlooking the reasons for their revolt or lack of well-being. Furthermore, once pupils' drug use, and perhaps even their resulting incapacity, have been revealed, what are the consequences? They will either be asked to undergo treatment in order to stop taking drugs, since these have been identified as the source of all their problems, or they will be excluded from school.  In both cases they could be stigmatised as drug addicts and end up believing that they are no longer seen as autonomous individuals. In terms of prevention, identifying individual pupils as drug users, by definition problematic, in itself considerably reduces their chances of social and educational reintegration. Even if they are able to remain in the original school, they will have been medically labelled as drug addicts, and if they are excluded, their files will follow them and they will have to bear the burden of stigmatisation and reintegration in another school. They may even welcome this new identity as a drug addict and try to live up to it.

Moreover, if drug use is still to be detected and has not been spontaneously acknowledged by pupils when it genuinely is the cause of their difficulties, this type of approach will be counterproductive. Treatment of drug dependency can only be successful with the co-operation of the person concerned. If alcoholics do not acknowledge their alcoholism and do not want to do anything about it, there is no treatment that will cure them against their will. Even taking Antabuse requires their cooperation. Where a mandatory therapy order is the product of someone else’s will (courts, parents, teacher, school management) young persons' co-operation with treatment will be zero. At best, for fear of reprisals, in particular by the police and the courts, they will change to another substance, but the root causes of their disproportionate appetite for drugs will remain.

So far we have only looked at pupils whose psychological state clearly makes their participation in classes impossible and who have tested “positive”.

But, as we have already seen, the presence of drug metabolites in a pupil’s urine does not allow the actual time when drugs were taken to be determined. Drug testing therefore makes it possible not only to make a presumed diagnosis of pupils’ psychological state when they are at school but also to find evidence that they take drugs when they are not - in other words, to interfere in their private lives.

More than ever we may wonder about the consequences of a positive result for pupils who are clearly “clean” at school. Will the mere discovery that they use drugs result in sanctions, until it is proved that their use is recreational rather than problematic? If it is simply glossed over, what message is to be inferred? If it results in a mandatory therapy order, what is the use of it? If it results in exclusion, how does it help the pupil who has been excluded from school as a result of using drugs outside its walls? In the case both of pupils who arrive at school unable to concentrate fully on their lessons and of perfectly adequate ones who sometimes use drugs during their free time, it is preferable for teachers who are concerned that they should be able to understand the classes they attend to assess their state “clinically” and, when in doubt, send them to someone capable of making a more precise diagnosis and, if necessary, providing appropriate help, which will above all be based on confidential discussion with a professional person. Besides, practical experience shows that most young users are quite willing to talk spontaneously to professionals about the legal and illegal drugs they take, particularly when they are conscious of other problems linked to their drug use.

While in principle the aims pursued by schools that use drug testing may appear laudable, looked at more closely, the technique is inappropriate, both practically and ethically, as a means of achieving them, particularly as questions can be asked about the technique itself and the appropriateness of using it in schools.

While schools are first and foremost places of education and learning in which teachers impart knowledge and skills to pupils, since the eighteenth century and particularly since Jean-Jacques Rousseau’s Emile, they have also been places where “the freedom of future adults is prepared from afar” and therefore places where pupils are trained in autonomy and its limits. Educationalists, and educational psychologists and sociologists increasingly stress the importance of dialogue between teachers and taught and reject the old authoritarian model of the school. But dialogue first means a readiness to listen. Schools must therefore offer pupils the opportunity to talk about their hopes and difficulties and teachers should be capable of listening to them. While we all reject “schools of discord” (12) and believe schools should provide a clear framework of rules to their pupils and have a duty to help pupils respect it, not every means of identifying failure to observe that framework is necessarily justified. Imposing respect for non-violence at school, requiring pupils not to disrupt lessons, being concerned about the reasons that lead them to arrive in class “spaced out”, whether as the result of insomnia, drinking alcohol or taking illegal substances, in no way implies that they can be subjected to testing. While tests are common in medicine, where they are conducted at patients' request or at least with their consent, and are used in judicial contexts to make it possible to establish a person’s undisputed guilt (causing an accident when driving under the influence), there is reason to question whether they are appropriate in schools. Is it a teacher’s role to “detect” and where is the feeling of dignity of a pupil forced to urinate into a little pot in order to be tested?    In the rare or even completely exceptional or hypothetical cases of endemic overuse of drugs in school that make it impossible for teachers to do their job, there is certainly reason to look at the quality of the teaching and how suitable it is for the pupils who go to the school. If it appears that the health of the school makes it essential to curb drug use or even eradicate it and that police methods alone will be sufficient, is it not better to call in the police to deal with a situation that teachers have failed to control, rather than accept that they have a dual role? Police intervention would result in a report being made on offending pupils but would introduce a third party in the shape of either a social worker or a juvenile court judge and would not necessarily result in pupils' exclusion from school and subsequent marginalisation. Moreover, the decision to order a urine test would be made by an authority with official power to do so, which is never the case when it is decided by the management of a school or on a teacher’s initiative.

5. Schools as places for promoting health

In an article in Les Cahiers de Prospective Jeunesse, Line Beauchesne, Professor of Criminology at the University of Ottawa, identifies four types of ‘drug’ prevention programme in schools in Quebec. (13)

The programmes examined range from hard-line social control to health promotion and she calls the first of these programmes “Testing and informing programmes”. The second programme is called “Young people, say no to drugs!”. While the latter seems to differ from the former, the difference is more apparent that real and what is involved is still simply social control. In these programmes former drug abusers are given the floor and have to explain how they reached that point as a result of smoking their first joint. The clear message is: “Young people, if you’re not sufficiently autonomous to say ‘no’ to drugs like marijuana, it’s only a short step from the joint to the syringe. Don’t think you’ll be able to manage your use of illegal drugs. The clear implication being, “Look at me”.

The third category of programmes has a less controlling approach and focuses more on assistance. It is nonetheless based on the assumption that if young people take illegal drugs, as opposed to legal ones, it is because they have personal problems. Irrespective of whether there is evidence of abuse or problematic use of such drugs, it is implied that all users have good reason to see themselves as sick or even behave as though they are. Only the fourth programme, which focuses on pupils’ self-fulfilment, deserves to be regarded as promoting health. It goes without saying that such fulfilment depends not only on quality of education but also, if not more, on a family background and networks capable of helping young people to fulfil themselves and find their way in life.  (14)   

We have known since Skinner that positive reinforcement is far more effective in education than negative reinforcement, in other words that encouragement is far more effective than punishment. We can extrapolate from this that messages of confidence in young people’s ability to control their drug use are far more likely to be effective than all the ones that assure them that they will never be able to do so. Giving them the fullest and most objective information about all the illegal drugs they will one day encounter on the black market, after successfully promoting their optimum development through education appropriate to their needs, is to arm them against any risk of drug abuse. When young people and others are at ease with themselves they have no reason to put themselves in danger and, on the contrary, find within themselves the resources they need to stop deadly behaviour that might harm their welfare at the outset.

Health promotion in schools is therefore best achieved by preventing failure at school and encouraging pupils to do better, which enables them to develop confidence in their abilities. It is not achieved by social control involving witch-hunts. Even when pupils seem to be having temporary problems, a message of confidence in them has far more chance of success than exclusion.

One of the major difficulties schools have had to face in the last three decades is that previously they prepared pupils for trades that guaranteed them a fulfilling future. For the last thirty years or so unemployment has made it impossible for them to claim that they can guarantee their pupils a permanent occupation. They therefore have to help them to be self-confident and develop a positive self-image in the absence of future employment. The changes in the tasks teachers were called upon to perform traumatised many of them and helped to bring about a crisis in education which was speedily attributed to drugs. But the shrinking of the job market also caused a crisis among pupils, some of whom no longer saw the point of going to school if their future only held the prospect of unemployment. Both teachers and pupils have had to work hard to bury schools' old functions and replace them with new ones, such as educating young people to become responsible citizens, happy to be such and happy to make their choices, completely autonomously but respecting the rights of others.

6. Conclusion

Whatever teachers and/or parents may believe about drug use, from an ethical point of view their rights are limited to the transmission of values on the subject. Forcing pupils to comply with the moral principle of abstention from any form of drug use runs counter to respect for their free will in the matter. Under current European drugs legislation, this principle can only be imposed by an officially recognised judicial or prosecuting authority with power to see that the law is enforced and only where national legislation allows.

It is not the role of schools or teachers or parents to subject teenage pupils to testing of any kind. While it is their duty as teachers and parents to identify pupils whose psychological state that does not allow them to follow lessons satisfactorily, this does not authorise them to detect any causes other than the quality of the education they dispense or of the family environment they provide for their children. Depending on the objective, it is the duty of psychologists, doctors or social workers to make a diagnosis that explains pupils' state and in complete confidentiality agree with them on the sort of treatment they should receive or, in exceptional cases, call in the police to identify those who are contravening the law and take any measures that, in their opinion, are necessary.

Justifying drug testing in schools as preventing abuse by some pupils amounts indirectly to stating that every young person who uses drugs runs the risk of losing control of their use. The risk is that this will cause such loss of control.

Testing for drug use means replacing essential dialogue with young people with a police technique that has no place in schools.

Notes:

(1) As Ronald Verbeke very rightly remarks in “Un dictionnaire critique des Drogues”, (Paris, 1978), the concept of “drug”, introduced into the French language almost 500 years ago, has had various meanings over the centuries and is now increasingly rejected in academic circles, which prefer the concept of psychotropic or psychoactive substance. He also says that the term psychotrope, used in French as an adjective and a substantive, qualifies or refers to any substance whose principal action or one of whose principal actions is on the mind. Psychotropic substances include all the drugs commonly prescribed in psychiatry (antidepressants, neuroleptics, tranquilisers, soporifics) as well as most analgesics, great quantities of which are also prescribed. Narcotics also come under this heading. Nonetheless, the popular term “drugs” is used in this article to refer to legal and illegal psychoactive substances, with the exception of those prescribed by a doctor.   ùù

(2) Dworkin, R. "Taking Rights Seriously", New York, 1977, Introduction, p xi.

This option is increasingly invoked in Europe to reject the idea of the state opposing free exercise of its citizens’ individual rights and justifies the campaign started in Belgium by the Centre d’action laïque pour la réglementation du commerce des drogues.

(3) Bouretz, P. in Allard, J. "Dworkin et Kant. Réflexions sur le Jugement”, Brussels, 2001, p. 7.

(4) Dworkin, R, op. cit.

(5) Kymlicka, W. “Multicultural Citizenship: A Liberal Theory of Minority Rights”, Oxford, 1996.

(6) The reader is referred to opinion 16 of 25.3.02 of the Belgian Consultative Committee on Bioethics in which there is an ethical debate on young Jehovah’s Witnesses' refusal to donate blood, which tends to confirm that minors of 12 to 15, and therefore those who are older, have the power of judgment and can exercise their autonomy with respect to philosophical, religious and ethical choices.

(7) See in this connection the article by M.-S. Dupont-Bouchat “Faire peur et avoir peur. Attitudes et comportements face à la maladie et à la mort” in Question Santé “Peur et Prévention”, n° spécial 2003, pp.5-18.

(8) See in this connection Claire Ambroselli’s contribution to the Pompidou Group’s ethical platform.

(9) Seunier, P. “L’information dans le processus de prévention : visées et limites”, in : Cahiers de Prospective jeunesse, Vol. 2, n° 3, 1997, p. 20

(10) See Les annales parlementaires de la Chambre en Belgique, 1989-1990-1991.

In the context of drug abuse by young persons it is interesting to note that WHO appears the think that prevention is a better way of minimising harm from alcohol consumption than out and out abstention ( WHO Review ‘Prevention of Psychoactive Substance Use. A Selected Review of What Works in the Area of Prevention’, p.42).

(13) See LIFE, University of Geneva “L’école entre Autorité et Zizanie”, Lyon, 2003. 

(13) Beauchesne, L. "Les programmes de prévention d’abus des drogues en milieu scolaire" in: Cahiers de Prospective jeunesse, Vol. 2, n° 3, 1997, p. 23

(14) It is difficult to go futher in evaluating drug prevention programmes for young people. A very interesting study by the British Health Development Agency in July 2004 looks at a number of such programmes and tries to assess their effectiveness. The overall conclusion to be drawn in that none of them are really effective, even if some do appear to delay drug abuse among non-users and reduce, at least temporarily, the consumption of regular users. In general, interventions are more likely to be effective with young persons at low risk than with those deemed to be high risk.  Only one American training programme, "Life Skills Training" seemed to be effective beyond five years. (U. Canning, L. Millward, T. Raja, D. Warm).