Anonymity and Privacy in Drug/Alcohol Testing

Daniel Patterson - Director Northern Rivers Workplace Health and Safety

26 August 2023

This afternoon we had a potential customer make some enquiries about privacy regarding testing and whether or not testing could be anonymous. This was for a court matter and that really does determine the answer to the question.

I would put it best that NRWHS performs three types of testing;

• Voluntary testing (i.e. self-rehabilitating individuals, not managed by public or private rehabs who want to know when enough time has passed since their last drug use to ensure they would pass various drug tests).

• Employment testing (either pre-employment testing or testing in the workplace. In either case the employer gets the results).

• Court ordered testing (you have been ordered by a Criminal or Civil court to undertake hair testing. This is common in criminal matters at the District Court level as part of sentence mitigation, it is also very common in the Federal Court during divorce and child custody disputes).

As these tests have different dynamics, how a reputable testing provider stores and distributes your information is completely different. No reputable provider can offer "anonymous" testing as we always need to know who's information we have processed so it can be stored and catalogued appropriately. This can either be good or bad depending on your situation. If you are accused of driving on Methamphetamine and we do a urine test that shows you had Methamphetamine in your system, this is 'discoverable' (police/transport prosecutors can subpoena the record if you enter a plea of not-guilty). However if you did a test and it showed you had no methamphetamine in your urine, it comes down to who's lab is more credible, Police or Healius (our partner urine lab).

So, you can't ever have a truly 'anonymous' test otherwise there is no point doing the test. But let's look at who can get access to your information.

Voluntary Testing

In the seven (7) years I personally have been operating in this field, I have never been served a subpoena/search warrant/notice to produce for a persons 'voluntary' test. So it is very unlikely someone would gain access to such a record unless you gave it to them. They would need to know that the record exists and that we were the provider. Additionally, it would need to be relevant to an ongoing criminal investigation run by an appropriate body (i.e. SafeWork NSW, NSW Police, AFP etc.) or there would need to be merit for a court to authorise a subpoena for it (i.e. during divorce a partners drug use may be relevant.)

So whilst I and my company have never had a request for a voluntary one, hypothetically it is still possible to get to but it would be very complex.

Workplace Testing

This one is a lot easier. Outside of the collector/laboratory and donor, the only person who receives the test records/results is the PCBU (usually the director of the company) or their representative (i.e. a Manager, HR person etc.)

Attempts are made to protect donors private information. For instance only prescribed medications are documented, not recreational drug use. So if you tell us you take Effexor (Venlafaxine) for a mental health disorder and use Cannabis recreationally to manage sleep, we only document your prescribed medication so as to not 'out' your personal use to employers. If the personal use results in you failing a drug test, it will come out anyway in the laboratory report, but if it is under the cut-off limit - there is no need to record it.

These records are very discoverable and are often requested by organisations like SafeWork NSW, Fair Work Commission and/or Industrial Relations Commissions.

Without a court order or signed consent from the donor, these records are not disclosed to third parties.

Court Ordered Testing

This one is basically a 'say goodbye to normal privacy practices' in my opinion. Depending on whether your matter is heard in closed court or open court depends on whether or not it is legal to make the information public which is why most FCFCA orders for drug testing we received are for 'sealed' matters.

If you have an open court matter, there is really nothing stopping everyone in the gallery (or on the phone/computer for FCFCA matters these days) telling everyone in town "Joe Bloggs failed his hair test for Cocaine".

Usually we receive the court order from the donor or their legal representative (including legal aid) directly and organise a date/time. The turn around for this is usually 10 days.

Results are usually sent to both parties legal counsel unless the orders specify otherwise (i.e. in rare cases the order has been to provide it directly to a court registrar who then provides it to the judge, but this is VERY rare, usually the order is just that both parties receive results).

Even if your matter is heard in open court, it would be completely illegal for us, your solicitor or the other party to release the document or comment on the results without your express consent. Whilst parts of the order may be transcribed on judgements, usually exhibits are not made public.

It is very important you have your solicitor request closed court or supression of sensitive records if you are providing a drug test to court, or you may want it made public. This is an individual choice and one that must be made by the individual it affects.

For instance, as I've never used a recreational drug, I'd have no issues with my drug test results being publicised as it will just show negative for all drug classes. But if I had used cocaine at a bucks night, I may not want the internet to know that forever.

So, that is hopefully the long and short. The more people we disclose results to obviously means the higher the chances the results becoming public are but in cases like court matters, it is almost unavoidable.

If you have any specific questions, please email lismore@northernriverswhs.com.au