paruresis and substance abuse testing (drug and alcohol)
The purpose of this document is to explain to all parties concerned - the testers, the individual giving a sample, and legal representatives - the issues around drug testing and paruresis (aka shy bladder); to summarise the procedures followed; and to explain to individuals with shy bladder what options exist for them to comply with the testing requirements.
The sections below comprise:
2. Testing urine
6. What else can people with paruresis do?
7. Note for solicitors
8. Note for prison staff, the police, employers, and testing sub-contractors
Shy bladder is not a condition that you either have or do not have. Anecdotal evidence exists that individuals who have never experienced urinary retention have "locked-up" when faced with the proximity and observational conditions used in drug testing. Evidence provided by an officer in the USA military responsible for MDT, where all personnel had to be tested, was that: 30% of men had no problem at all with observed testing; 50% struggled to varying degrees but managed; 20% were unable to provide a sample and were told to sit on a bench and to drink. No figures were available for what percentage were totally unable to give a sample in those conditions. However it does show that even the "normal" population struggles, and that a minority "fails".
Ignorance of the body's neural mechanism for urination i.e. that a threat causes the autonomic nervous system to disable the urinary process, means testers assume that time and/or fluid loading will inevitably result in a sample being produced. Unfortunately this is not the case: however much the individual wishes to void, the nervous system has literally "closed the tap", and has relaxed the bladder muscles removing the voiding pressure.
2. Testing Urine
There are rules of procedure laid down that the prison staff and police must follow; the reason being to ensure that the charged person does in fact provide a valid personal sample of urine unadulterated in any way. This means that two officers must observe the urine being produced and delivered into the sample cup. However there are options available to deal with shy bladder if the staff responsible are aware and attend to the Home Office guidelines.
In prison, the reasons for taking a sample are related to Mandatory Drug testing (MDT) or Voluntary Drug Testing (VDT). In VDT the prisoner offers to provide a specimen; often the prison officers are more relaxed about the observation and the prisoner is sometimes given some measure of privacy.
Note: the minimum volume of urine requested to enable full analysis is 35 millilitres, which must be split equally between two sample containers to provide a minimum of 15 millilitres in each container
In MDT the rules are strictly adhered to. A prisoner may be summoned for a MDT test if the prison staff are suspicious, or if the testing is being done on a random basis.
The law as it stands at present means that a failure to provide a specimen is taken to be a refusal to obey a lawful order. This is based on the misconception that urination is fully voluntary and fully under conscious control. However the Prison Service does provide a viable option.
In 2002, the Home Office replied to the UKPT's request for information on its procedures as follows:
"The Prison service has long been aware of and sensitive to this condition and guidance on how to deal with paruresis sufferers who are selected for MDT is contained within the working manual used by MDT staff.
The following guidance is provided to all MDT staff:
"Some prisoners have a psychological condition called shy bladder syndrome which prevents them passing urine if they are observed or pressurised. The problem may or may not be linked to other, more serious, psychological problems; it may be more common among young offenders than among adult prisoners. If a prison officer suspects a prisoner cannot provide a sample because of this problem, there are two possible approaches:
a) the prisoner must be allowed more time at the toilet without the time pressure to provide an immediate sample and a reduced level of observation; and
b) if this fails, the prisoner, after a full strip search, may be provided with a sample collection cup and allowed to provide a sample in compete privacy in a cell with internal sanitation (water must be blued and the flush must not be accessible from inside the cell).""
So this does provide the individual with shy bladder a means to comply with the testing requirements. However anecdotal evidence indicates that not all prison staff are aware of this procedure. This means that the individual needs to be assertive (not aggressive) about the existence of shy bladder as a condition, and about his or her personal condition, and about the procedural options above.
If a urine sample is not produced, and a charge results, it is imperative that the solicitor representing the driver be informed about paruresis, and the existence of the charities that deal with the condition, such as the UKPT, so that an expert medical or psychological witness can be brought in.
The task of that person being to establish beyond reasonable doubt that the individual does have a degree of paruresis / shy bladder, meaning that:
(a) the failure to provide urine was not a refusal but an inability to comply OR
(b) that those procedures laid down by the Home Office have not been followed.
In all this one should be open-eyed about the possibility of a fraudulent claim of shy bladder, and accept the fact that the prison staff's initial reaction may be conditioned by that belief.
The police follow similar procedures. If a driver is found to be over the legal limit on roadside testing (using a portable breath tester), the procedure is that the driver is taken to the police station and tested with an Intoxilyzer machine such as the Lion Intoximeter 3000 (i.e. another breath tester) which gives a much more accurate reading for the chain of evidence. Failure to comply means a charge of REFUSING TO PROVIDE.
If for any reason the police require further evidence, then they have the discretion to request a blood or urine test sample. If urine is chosen then, in line with prison procedures and in the view of this charity's Honorary Advisor, you should be allowed four hours to provide this.
In practice it is often one hour or two at the most. If the suspect tells the arresting officer at the time of arrest, or the desk sergeant on arrival at the police station, that he has a problem with urine sampling, the police should exercise that discretion and get a medical practitioner to take a blood sample. Failure to comply with this request to provide a blood sample means being charged.
So this should provide the individual with shy bladder problems a means to comply with the testing requirements. However anecdotal evidence indicates that not all police officers are aware of this procedure. This means that the individual needs to be assertive (not aggressive) about the existence of shy bladder as a condition, about his or her personal condition, and about the procedural options above.
It is suggested that the person's health clinic should have a record of this problem so that, if need be, the claim to have shy bladder can been seen to have a recorded prior history.
As already stated above, if stopped by the police and likely to be charged, very clearly tell the police that you have this problem and ask him to write it down in his book. If taken to the police station, also tell the desk sergeant about your problem and make sure he writes it down as well.
If a urine sample is not produced, and a charge of "refusal to provide" results, it is imperative that the solicitor representing the driver be informed about paruresis, and the existence of the charities that deal with the condition, such as the UKPT, be contacted, so that an expert medical or psychological witness can be brought in.
The task of that expert person being to establish beyond reasonable doubt that the individual does have a degree of paruresis or shy bladder, meaning that:
(a) the failure to provide urine event was not a refusal but an inability to comply
(b) that those procedures laid down by the Home Office have not been followed
In all this one should be open-eyed about the possibility of a fraudulent claim of shy bladder, and accept the fact that the initial reaction of the police may be conditioned by that belief.
Some categories of work require MDT e.g. transport. In recent years, the finance houses have also introduced MDT. Two factors are specific to the workplace. Individuals are often reluctant to admit to this problem, for fear that that it would not be treated in confidence, leading to the second fear of ridicule. The second factor is the failure to provide a sample is still treated as refusal, with a very real possibility of loss of job.
Workplace MDT is often sub-contracted: sub-contractors are not always aware of the condition, nor of the procedures used by the prison service and the police for dealing with it. Hence we do know of cases where no alternative procedures were offered. In one case, even the GP on the company's disciplinary tribunal did not know of paruresis, and asserted that the subject would be forced to void by the passage of time alone.
Inform the tester of the existence of shy bladder as a condition, about your personal condition, and about the procedural options available to the prison service and the police. Indicate that either the tester is not following procedures in catering for the condition, or that the procedures conflict with the Disability Discrimination Act. Emphasise that your human rights entitle you to total discretion about this matter vis-à-vis your employer.
If a urine sample is not produced, and a disciplinary procedure is invoked, it is imperative that the solicitor representing the employee be informed about paruresis, and the existence of the charities that deal with the condition, such as the UKPT, so that an expert medical or psychological witness can be brought in.
The task of that person being to establish beyond reasonable doubt that the individual does have a degree of paruresis or shy bladder, meaning that the failure to provide urine was not a refusal but an inability to comply. Furthermore: had proper rules of procedure been laid down by the employer or his agent; were they fully explained to the tester and, were those procedures properly followed or not.
In all this one should be open-eyed about the possibility of a fraudulent claim of shy bladder, and accept the fact that the employer's initial reaction may be conditioned by that belief.
6. What else can people with paruresis do?
1. Ensure that as far as possible they have seen their GP or specialist and been diagnosed with some degree of paruresis or other
2. Obtain literature from the UKPT or from the UKPT website to offer as evidence of the existence of the condition
3. Politely inform the prison staff or police testers that they are not following procedures; inform MDT subcontractors that either they are not following procedures, or that their procedures are contrary to the requirements of the Disability Discrimination Act
4. Ask why they are not making use of saliva testing, which is less intrusive, as has been adopted by some employers
5. If later charged under any condition relaying to failure to provide urine, immediately get legal advice. Your solicitor should be told about the UKPT and the information available at this web site.
6. If you use a catheter, showing the testing staff the catheter should be enough to convince them of the need to follow the options available to them.
7. Note for solicitors
In the experience of our Hon Advisor Prof Alex Gardner, working for defence solicitors, the psychological assessment of individuals charged for "refusal" to provide a sample has usually shown them to be unable to provide a sample due the likely presence of paruresis. The disposition of the case being:
(a) that the resulting charge has been thrown out of court as being unreasonable
(b) alternatively applying the law as it stands which strictly speaking does not allow other options but to find a person guilty. However judges will use their discretion and not award any penalty. This, in the prison service, means no award of any extra days detention.
8. Note for prison staff, the police, and testing sub-contractors
Please take the time to inform yourselves about this distressing condition, and the procedures in place to cater for it.