MDT and medication

Being put on report for something in prison is never a welcome experience. But being put on report because your prescribed medication has triggered a positive result in a Mandatory Drug Test is especially frustrating. Despite this you may still be charged and go through the anxiety of attending an adjudication hearing, causing disruption to planned activities and possibly having to endure a couple of hours in segregation whilst waiting. When this was described to me recently by a currently serving prisoner it was clear that the experience had been incredibly stressful even though he knew he would not be found guilty.

PSO 3601 contains the relevant information on how MDTs should be conducted and includes information on this issue. There are a number of points in the process where the effects of prescribed medication should be considered. 

The first is before the collection of the sample, when you should be asked to complete a medical disclosure form. This includes indicating whether you have taken medication prescribed in the last 30 days and giving your consent for this information to be disclosed by Healthcare. It is important to complete this as refusal to allow disclosure means that a positive result can lead to a finding of guilt without considering these factors. 

If the screening returns a positive result, the prison must decide if it is appropriate to lay a charge , which must be done within 48 hours of receipt of the results. During this time the prison should consider the information provided by the prisoner and make checks with healthcare using the previously signed consent, to see if the positive result may have been caused by prescribed medication. However, these checks are only necessary for those tests which are also likely to produce positive results for prescribed medication. Staff are also not required to do checks for medication if you have stated categorically that you have not taken prescribed medication or have refused to give your consent for disclosure.

The PSO states that ‘if the disclosure of medication is clearly consistent with the positive test result and was almost certainly due to prescribed medication then the prisoner should not be charged’.  Unfortunately, it may be difficult for prison staff to be this certain as sometimes prescribed medication is deliberately used to try to cover up other substance misuse. The PSO goes on to give guidance on how disciplinary procedures should progress and whether confirmation tests should be requested, both of which differs depending upon the drugs concerned.

If there is a positive result for cannabis screening, a charge should be laid immediately and confirmation test is only requested in the event of a ‘not guilty’ plead. If a prisoner tests positive for methadone, benzodiazepines, buprenorphine or barbiturates and has been prescribed the drug recently, the PSO states that usually the assumption should be made that the positive screen was due to prescribed medication and therefore no charge should be laid. A confirmation test would not normally be requested in this circumstance.

If there is positive screening result for opiates or amphetamines which could be due to prescribed medication there is the option to delay charging whilst awaiting the results of a confirmation testing, which will always be requested for these substances.  The PSO leaves this to the judgment of the prison but advises that “Laying charges for drug misuse when the screen test is expected to be positive due to prescribed medication is a waste of staff time and an irritant to the prisoners being charged.”

If you are charged with administering a controlled drug it is a recognised defence under the Prison Rules  that ‘the controlled drug had been, prior to its administration, lawfully in his possession for his use or was administered to him in the course of a lawful supply of the drug to him by another person’. When the results of the confirmation test fail to prove beyond reasonable doubt that you had taken any substance other than the prescribed medication than this charge should be amended or dismissed. If you want to appeal the result of a governors’ adjudication you can do so by submitting the DIS8 form within six weeks of completion of the hearing.

You can contact the Prison Reform Trust’s advice team at FREEPOST ND6125 London EC1B 1PN. Our free information line is open Monday, Tuesday and Thursday 3.30-5.30. The number is 0808 802 0060 and does not need to be put on your pin.