Strasbourg, 14 September 2005                                                           

P-PG/Ethics (2005) 7 rev

EXPERT COMMITTEE ON

ETHICAL ISSUES AND PROFESSIONAL STANDARDS

Recommendations on ethical problems

linked to drug testing in schools

Experts Committee on ethical issues and professional standards: introduction to the work of the Committee

The Pompidou Group’s Platform on ethical issues and professional standards, in line with the other Group’s platforms, is made up of experts delegated by member States. Its work is done under the Group’s programme of activities adopted every four years during a Ministerial Conference. 

The majority of this work is made up of experts’ opinions and positions on given subjects and, as such, to be used by decision makers, where appropriate, when drawing up national policies. They are submitted to Permanent Correspondents during their regular meetings but are not meant to be formally adopted or to become formal recommendations to the member states.

During the ministerial conference of November 2006, the work on drug testing at school and at the workplace undertaken by the Committee since the adoption in 2003 of the latest programme of activities, has been presented to the Ministers. The reports and studies written by different experts have also been distributed in the form of a CD-Rom. Since then, the Committee has finalised this work (March 2008) by adopting an Opinion.

These documents are now available on the Group’s website (www.coe.int/pompidou). They will also be published by the end of 2008.

For further information, please contact: [email protected]

Preamble

1. Attentive to a wide range of ethical issues associated with policies to combat drug abuse, and concerned in particular about drug users' access to medical care and health services, treatment arrangements, the role of the judicial institutions, economic aspects and the lack of financial resources, protecting data arising from epidemiological and other forms of research and drug testing, particularly at school and in the work place, in February 2003 the Pompidou Group organised a European seminar on "ethics, professional standards and drug addiction". 

Following the seminar and as part of its 2004-2006 work programme, the Pompidou Group set up an Expert Committee on Ethics to consider the ethical and human rights aspects of these issues from the specific standpoints of research, practice and policies, drawing on the experience of the different countries concerned.  The aim was to produce agreed documentation and codes of conduct that could serve as a basis for national regulations.

In fact, national practice in the Council of Europe member states varies widely.  The absence of detailed studies is particularly noticeable and in many cases there is something of a legal vacuum to accompany the multiplicity of initiatives and activities in this field.

There are also commercial interests at issue in drug testing which must be borne in mind.

One issue that has particular ethical implications is the collection of information on drug use - in schools, at work, among drivers and in prisons and other locations and circumstances – particularly through the use of tests over which the courts and judicial authorities exercise no supervision.  The expert committee was therefore asked to examine the practice of drug testing in schools.

2. Ethics and morality both have their origin in the notion of "mores", a way of behaving based on repeated usage. To differentiate slightly between them, ethics can be said to "deconstruct" the rules of conduct that constitute morality and thus goes beyond the latter to consider its rational justification.

There are several approaches to identifying an ethically based ideal of life.  For Aristotle, it involved the search for happiness within concrete forms of government in which man evolved. John Stuart Mill was concerned with the search for the greatest happiness for the greatest number, not excluding the author of the action. In Kantian philosophy, it entailed a duty, in the form of the categorical imperative, to ensure that the maxim governing each individual's conduct had the value of a universal principle.

This last approach, in which humanity is viewed as an end in itself and not as a means, embodies the ethic of respect for both the individual human being and humanity in general. Happiness is to be found not in simple pleasure but in awareness of duty accomplished, in the tranquillity of a good conscience.

Nevertheless, ethics is currently less concerned with the theoretical discovery of the art of living than with the rational goal of establishing how one can live better in clearly defined situations.

3. Ethics, morality and deontology, or moral obligations, are thus related but not identical concepts. They may be viewed as concentric circles. Ethics occupies the outer circle, as the study of values and virtues, with the focus on human beings' ideal conduct in their search for happiness.  In the middle circle, morality lays down rules that human beings must respect, thus imbuing their human and social behaviour with ethical principles[1].  In the inner circle, deontology translates certain moral rules into rules of professional conduct.

4. In considering the role of law, we have found certain points of convergence with the notions of ethics and morality, particularly when the law is seen as the minimum level of morality compatible with men and women living in society.

Law is more concerned with external behaviour than with intention, the principal focus of morality, and establishes a practical link between rights and obligations.  When the rules it lays down are violated, this then triggers off the coercive power of the state.

The values of human freedom and dignity are increasingly evident in modern, so-called developed and pluralist societies, in both moral and legal rules. One good example is the 1948 Universal Declaration of Human Rights, the source and inspiration of many rules of international and national law.

4.1. In the context of this discussion, Article 26.2 of the Declaration states that education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms, and shall promote understanding, tolerance and friendship among all nations, racial or religious groups.

Similarly, under Article 16 of the 1989 Convention on the Rights of the Child[2], "no child shall be subjected to arbitrary or unlawful interference with his or her privacy", while Article 29.1.b states that the education of the child shall be directed to the "development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations".

In considering this range of values, different aspects of which are gradually securing acceptance by the community, the 1997 Convention on Human Rights and Biomedicine is especially relevant, particularly its emphasis in Article 5 on free and informed consent for any intervention in the health field, which may be freely withdrawn at any time.  It also establishes the principle that where a person lacks the capacity to consent, this must be replaced by the authorisation of his or her representative or an authority or a person or body provided for by law.

Given its leading role, however, ethics as a discipline must continue to reflect on our understanding of all human values, particularly those of human dignity and freedom, and their extension, whether or not they are enshrined in international legal instruments or individual national constitutions. 

5. We should now turn to those ethical values of most relevance to drugs testing and screening, particularly in schools.

5.1. The value of "justice" is the executor of the principle of equality, offering equal treatment to those in similar circumstances and unequal, or different, treatment to those whose circumstances vary, determined according to non-arbitrary criteria, so that each receives his or her due.

In the allocation of responsibilities or constraints pupils within a particular school must not be treated unequally, nor must there be unjustified differences of treatment between schools[3].

Nevertheless, far from violating the principle of justice, offering vulnerable groups favourable treatment, in other words positive discrimination, is a means to achieving it.

5.2. The concept of individual autonomy implies the non-exploitation of others and the right to non-interference by the state or fellow citizens, on condition that this does not cause harm to others and that information is available to allow the right choices to be made. However, this does not exempt individuals from contributing to the common good, starting with certain minor restrictions, so long as these do not affect any fundamental values and are necessary to secure beneficial results for the community that cannot be achieved by less coercive means.

Respecting individuals' autonomy means not interfering in actions that are part of the normal process of fulfilling their personality – everyone can make of his life what he wishes – so long as this does not result in unjustified harm to others.  Specific infringements of individual autonomy can only be justified as a means of re-establishing this same autonomy.

5.3. Respect for privacy is an evolving concept, which at the very least means that third parties should be prevented from gaining access to information on persons' private and family lives and that no one should be allowed to disclose such information without the authority of the individual concerned.

Because peace and tranquillity are preconditions for their happiness, the confidential nature of citizens' private lives is a prerequisite for enjoyment of the freedom of private live itself.

When the interests of society dictate that data should be collected on individuals' private lives, this must remain confidential.

If such data reveals a possible link with criminal or related activity, special precautions must be taken to ensure that the data subject does not suffer any unwonted side-effects.

However, the leading role granted to defending privacy may not be taken to the point of inducing individuals – and in particular children – to withdraw from the human community by generating forms of self-exclusion that the modern state can neither encourage or maintain.

5.4. Nevertheless, when it is decided to conduct screening tests the important issue remains of how to obtain the consent of persons under 18 years of age.

Whenever persons are required to give their consent, this must be free and informed and may be withdrawn at any time. In the case of those aged under 18, it must be obtained through their representatives or guardians, and from the young persons themselves, if they have the relevant degree of understanding. Ideally, an independent third party should be used to obtain the consent, to ensure that it is genuine[4].

Apart from capacity for understanding and lack of pressure, informed consent implies the provision of all necessary information for a good decision.

Even though it does not happen often in schools, the capacity for understanding of children or young persons may be affected by drug abuse.

5.5. Other ethical values to be included in this discussion are those of beneficence, or doing good to others, and non-maleficence - doing them no harm, or reducing their suffering to a minimum.

Although it is more closely linked to other factors, such as availability of resources for treatment or automatic treatment, there is also the issue of paternalism, where the state or some other authority takes action that it considers to be clearly in “patients” own interest but fails to take account of what the latter think or want, or alternatively because it does not consider the latter capable of deciding for themselves.

6.  There are, of course, arguments in favour of testing in schools: the threat of exposure due to testing should make transgressions less frequent; identification and action at an early stage can help to nip drug abuse in the bud; action can strengthen young people's ability to resist taking illegal drugs. Psychologically these arguments are based on the power and the threat of surveillance and on the young people's perception of the risk of being caught.

Thus far, however, regardless of what other values are taken into account, the plausibility of the theory has not been backed up by any hard evidence.

7. As the United Nations has recently emphasised, the role of ethical principles is to offer warnings and guidance in response to practical situations, rather than provide comprehensive solutions. Correct solutions have to be identified and tested separately for each individual case, on the basis of wide-ranging debate in which all participate.

Recommendation

1. To avoid drug abuse by young people in school it is essential to help them forge prospects of a worthwhile future. Governments must offer young people an education that enables them to find other means of achieving fulfilment in a society that must be open to all.

2. Also at the school level:

§  even the best information and training to combat drug abuse can only be understood by young people who have been educationally prepared to grasp the implications in terms of their own experience;

§  recognition of human dignity in all circumstances and human rights, as enshrined in the main international instruments, must be included in syllabuses and curricula, as a basis for building this dialogue between the generations;

§  according to the Convention on the Rights of the Child, schools must assume their responsibility to protect children from the illicit use of narcotic drugs and psychotropic substances.  

3. At school it is necessary that teachers and educators develop, maintain or restore an open dialogue with their pupils and the pupils' parents. This makes it easier to detect when pupils are at risk or in trouble, and to help them overcome the problem.[5]

4. All teaching establishments should have a multidisciplinary team, comprising, for example, a doctor, nurse, psychologist and social worker, to whom pupils in difficulty can turn, or to whom they can be referred. It is not advisable for teachers to play the part of both teacher and social worker.

5. If we want to teach young people self-respect and respect for others, it is important that the various players involved treat them with respect from an early age, which rules out all forms of violence, whether physical, psychological or emotional.

We should give them access to objective information about illegal drugs, which means understanding the risks associated with each drug. This also means informing them of the risks associated with the consumption of legal drugs.

6. There is currently no pedagogic evidence of the effectiveness of drug testing in schools as a means of preventing drug use and abuse.

7. The use of such tests in school may undermine the confidence necessary for a good pedagogic and educational relationship between teachers, parents and pupils.

8. Testing in schools may conflict with ethical principles such as individual autonomy and respect for privacy, to the extent that they are unjustified intrusions by the state or other authorities into young citizens' private lives that expose them to humiliating or ambiguous situations.

9. Such tests may also infringe the beneficence – or doing good – principle, since it is doubtful whether the benefit of carrying out tests in schools for preventive purposes outweighs the disbenefits for the young persons concerned, and the non-maleficence – or not doing harm – principle, since the young persons would always suffer unnecessary inconvenience from being subjected to such tests.

10. Authorities responsible for drug policies in schools, including parents’ representatives, at all levels, should be given the facts on and arguments for and against drug testing in schools and strategies for effective drug prevention. They must also be offered reliable, documented information about how preventive activities are organised and conducted, the results obtained and how effective they are.

11. The Pompidou Group must make publications on screening tests in schools available to political decision makers and education and school authorities, together with any material it has produced on the subject that it considers relevant.

12. In view of the questions surrounding the problems of drug use by young people at school, more information is needed about the conditions in which drug use is developing and how the various authorities responsible for the pupils' protection and education – teachers, parents, public authorities and international human rights organisations – are involved in combating drug use. A European research project should be organised in order to cater for this need.