Phorensic assessments and medical legal consultancy

Phorensic psychiatry and medical-legal consulancy - Clinical Toxicoloy - Psychaiatric functional assessment - Responsibility and imputability - Biological psychic damage

Phorensic psychiatry and medical consultancy

The practice deals with civil and criminal matters, providing independent professional consultations, expert reports on behalf of individual parties, and expert assistance within court-appointed expert assessments (CTU). Services include the assessment and certification of decision-making capacity for wills and other legal instruments, psychiatric assessment of parental capacity, and assessment of fitness to drive, work, or perform specific occupational duties.

The practice also provides expert advice to victims of accidents or offences in relation to psychological or psychiatric injury for compensation purposes, including insurance claims and criminal proceedings involving stalking, workplace harassment, bullying, or other forms of harmful conduct.

The practice provides expert assistance to individuals accused or convicted of offences, including assessment of the impact of their mental state on the degree of criminal responsibility, identification of appropriate treatment needs, and evaluation of the most suitable arrangements for detention or alternatives to detention.

The practice also undertakes psychiatric assessment of statements, allegations, and testimony, where appropriate in collaboration with specialists in statement analysis.

Mobbing refers to either deliberate or spontaneous behavior aimed at disturbing, obstructing, and attacking an individual within the workplace and in relation to their occupational role.

In some cases, this may be initiated by a superior, by a colleague of equal rank, or by a group of individuals, either in an organized or an unplanned manner. The usual aim is to induce the individual to relinquish their occupational role or official position, by depriving them of authority or marginalizing them, ultimately leading to complete exclusion or dismissal.

The aims of mobbing are often practical in nature, arising from competition or from the need to allocate positions and roles in ways that disregard contractual rules or previous agreements, and certainly involving the breakdown of a previously established relationship of trust between employer and employee.

Mobbing may also occur competitively between individuals who occupy separate positions within the workplace. It usually takes place from higher to lower levels of the organizational hierarchy, although the opposite pattern is not uncommon.

The behavior of the individual subjected to mobbing follows certain recurrent patterns, as do the behaviors of those engaging in mobbing. These behaviors involve disrupting the established logic, expectations, and anticipated outcomes of workplace activities, with repercussions for the individual’s reputation, career, and personal dignity.

From a psychiatric perspective, the consequences consist of an anxiety-depressive syndrome, with particular involvement of the interpersonal sphere, including distrust, social anxiety, suspiciousness, and pessimism; however, these conditions may progress toward psychotic forms.

In some cases, mobbing is simply a psychotic theme; in such instances, it is usually reported in contexts extending beyond the workplace as well.

Dr Pacini is specialized in General Psychiatry and in the psychiatric aspects of alcohol- and substance-related disorders, including chemical and behavioural addictions. In the latter field, he is involved in research, publishes scientific and professional works and textbooks, and provides CME training and postgraduate university teaching.

His clinical practice includes pharmacological treatment, selected psychotherapeutic approaches, and guidance regarding physical and other biological therapies.

Dr Pacini also undertakes forensic psychiatric work, both as an expert consultant for individual parties and in out-of-court proceedings.

Stalking (atti persecutori, Article 612-bis of the Italian Criminal Code) is a relatively recently defined criminal offense. The offense concerns repeated conduct of a harassing or threatening nature that causes the person subjected to it a persistent and significant state of distress, centered on fear that the harassment itself will recur, or on the distress caused by having experienced it; alternatively, it may give rise to fear of something more serious, such as for one’s own safety or that of a loved one; or it may force the person to change their habits and lifestyle in order to escape the harassment.

There are two types of harm and three types of consequences, to which may be added other forms of harm resulting, for example, from defamation, damage to property, trespassing, etc., which may constitute additional criminal offenses.

The perpetrator is understood to act knowingly, aware that their behavior is unwanted, feared, or being avoided. This may be inferred, for example, from messages or various explicit requests to “stop” communicated directly to the person who continues with the unwanted behavior. Indeed, the perpetrator may act precisely with the aim of provoking these unpleasant feelings in the victim—fear, nervousness, anger. This may be demonstrated both by documented psychological conditions affecting the victim and by messages or threatening conduct in which the perpetrator consciously assumes the role of persecutor, takes satisfaction in it, or expressly declares an intention to obsess, terrorize, or keep the victim in a state of distress, even without making any material demand or request and purely for the purpose of causing harm or discomfort.

The perpetrator’s intent, that is, the intention to cause harm, therefore concerns not only the persistence of the behavior but also the effect that this persistence has on the victim.

When assessing the harm, it is essential to define the conduct in terms of its “capacity to cause harm,” that is, the inherent ability of the harassment to cause harm to any person, or to that particular person because of their specific circumstances. The mere fact that harassment may cause distress that varies greatly from one person to another, and that is not specifically related to the person at whom it is directed, has less evidentiary value in establishing the harm.

Since the capacity to cause harm is the determining factor, it is also possible to conceive of an offense involving “attempted” persecutory acts, where the conduct was directed toward and capable of causing harm but did not in fact succeed in producing its full effect.

The victim’s condition should be documented as thoroughly as possible. A generic description of “psychological distress,” which might be expected in response to relatively nonspecific harassment, is much less clear than a psychiatric diagnosis supported by documentation of examinations, critical episodes of distress, ongoing treatment, and objective signs of impairment in functional abilities related to anxiety, depression, and so forth.

Aggravating circumstances in stalking

The following are considered aggravating circumstances:

The fact that the two people know each other, have previously been in a relationship, or interact regularly because of habit or necessity, for example in a work-related context.

The fact that the harassed person is in some way “vulnerable” because of a physical or mental condition, making them more easily approached or attacked—for example, because they are unable to react effectively or intimidate the persecutor, or because they are unable to proceed with reporting the conduct to the authorities.

The offense is generally prosecutable upon a complaint (querela) filed by the victim, subject to certain exceptions (such as when the victim is a minor or a person with a disability, or when other associated offenses are involved that are automatically prosecutable by the authorities).

The victim therefore cannot assume that they can avoid reporting the matter to the authorities if they want the authorities to intervene. Reporting is also one of the actions that makes the victim’s distress and their intention not to interact with the person insisting on maintaining contact clearly apparent—at least from that point onward.

Conversely, responding to the harasser, speaking with them “to clarify things,” meeting them, agreeing to communicate with them through third parties, or accepting gifts from them could potentially be interpreted in the opposite direction. A person who has continued interacting with the alleged harasser might give the impression that they actually welcomed or accepted the contact and may even have encouraged or reinforced it.

Even when the harassed person responds with provocative behavior, insults, or references to past events—as may occur in the case of former romantic relationships—this can be interpreted as an ambiguous position, suggesting a reciprocal dispute in which the victim may be willing to “play” with the harasser’s feelings, including feelings of anger or resentment.

The capacity to understand and to exercise free will is the most frequent subject of psychiatric expert assessments, together with dangerousness. The development of this concept within forensic psychiatry often does not go beyond a dichotomous identification of the boundary between psychosis and neurosis, between personality traits and major psychiatric disorder, leaving room for discussion concerning the possible “partial” nature of incapacity, often used as a compromise category. The updating of forensic psychiatric categories in line with those derived from psychiatric classification and nosography is therefore unsatisfactory.

The coupling of the two capacities—understanding and volition—which is not necessarily implied in the formulation of the legal concept, is almost invariably taken for granted in the assessment of the offender. This results in an initial failure to discriminate within non-psychotic conditions, in which the capacity to understand is substantially preserved but may potentially be influenced by alterations in other parameters.

The separation of the two capacities is instead a primary focus of medico-legal interest, particularly in cases of selective impairment of the volitional system, as occurs in addiction disorders. The neurobiology and neuroimaging of mental disorders, which have generated a substantial body of literature, have had only a partial impact on the concept of “organicity” underlying criminal behavior, whether spontaneous or induced by drug use.

With regard to dangerousness, the professional is called upon to make predictions—often without the benefit of any established predictive standard—about the individual case. Precisely for this reason, the availability of more refined categories, supported by validated prognostic references for diagnostic categories recognized by the scientific community, constitutes an indispensable tool.

In recent years, there has also been growing psychiatric interest arising from judicial categories, as in the cases of mobbing and stalking. In these instances, situations subject to judicial assessment have provided phenomenological prototypes for describing “new” psychiatric syndromes, distinguished from spontaneous psychiatric disorders by their genesis and development, and underlying causal relationships that have been “consecrated” by new psychiatric categories.

The relationship between psychiatry and forensic issues therefore deserves further investigation, making full use both of the psychiatric categories on which the scientific community conducts research and publishes standardizable data, and of the confirmation of the psychiatric independence of syndromes derived from forensic contexts.

There may be situations in which a person is required to demonstrate their capacity to make decisions concerning financial, healthcare, or other matters, where the person drafting or receiving the legal instrument requests a specialist assessment.

The reasons may vary. In some cases, it may be due to advanced age; in others, to the need to protect the person from potential challenges by heirs or by individuals who may object to their decision, as is frequently the case when a will is amended. In other situations, the decisions themselves may raise concerns because they appear unusual or eccentric, or because they are sudden and unexpected.

In most cases, however, these are decisions with financial or property implications, such as marriages entered into at an advanced age or by individuals with a history of psychiatric illness. In such cases, the assessment of decision-making capacity must take into account the reasons for the assessment and any challenges or objections that may already have been raised by others. The assessment is carried out using clinical methods and often standardized assessment instruments or tests, both in the context of an independent expert assessment and in court-appointed proceedings.

The assessment should always be based on the findings of the examinations and tests performed, rather than on a generic assertion of the “absence of mental illness.” First and foremost, a diagnosis is established through the assessment of specific elements, and there is no diagnosis of “absence of mental illness” based solely on the individual’s own statement. There are, however, specific types of documentation and assessment capable of ruling out known and significant causes of incapacity.

The assessment, expert report, or clinical statement is most useful when produced close to the date of the legal instrument—that is, when it is “very recent”—particularly in cases involving advanced age or progressive mental disorders. In other words, an assessment performed a year earlier may no longer be considered sufficiently current in a person who wishes to make decisions concerning a will, a gift, or an intended marriage, particularly where the person is very elderly or affected by conditions that may be associated with cognitive decline.

Even individuals with a known mental illness or cognitive impairment may, in certain circumstances, be fully capable of expressing their wishes. However, the assessment must be specifically directed at determining their remaining decision-making capacities.

Finally, the assessment should focus in particular on the specific characteristics of the legal instrument the person intends to execute: whether they understand and are aware of the decision, have been adequately informed, do not hold unrealistic expectations, and are not pathologically influenced by external pressures of a psychological nature.

Applications for civil disability benefits, admission to the benefits provided for under Law 104, or other forms of social and economic assistance or support generally require an application to be submitted to the competent authority, followed by a direct assessment by the relevant Commission.

Both before the appointment and at the time of the assessment, it is possible to seek specialist advice. The purpose is both to prepare a comprehensive presentation of the case, collecting and setting out all the clinical evidence supporting the application, and to provide direct assistance during the assessment itself.

The documentation submitted is the key element. In many cases, particularly where the assessment is psychiatric in nature, the medico-legal examination is not conducted as an extensive outpatient psychiatric consultation, but rather as a focused assessment addressing specific points that remain unclear and reviewing the relevant supporting documentation.

There may nevertheless be an opportunity to discuss aspects that are not easily understood, or situations in which the degree of disability may be underestimated because the person does not present with gross or continuously observable impairment.

The ability to fulfill the parental role adequately depends on several factors. This capacity is assessed—and its expected outcomes are considered—in terms of the anticipated benefit to the children, including educational, financial, protective, and emotional benefits.

During high-conflict separations, challenges to parental capacity are often raised, although such claims may sometimes arise as a countermeasure in disputes concerning financial support and maintenance.

Individuals with a psychiatric history may be accused of inadequate parenting on the basis of their diagnoses. Similarly, certain behaviors and attitudes may be identified as warranting psychiatric assessment for the same purpose.

Parental capacity cannot be equated simply with the presence or absence of a psychiatric diagnosis, except in extreme cases. Nevertheless, psychological factors are considered relevant, both in terms of the presence of mental disorders and of a more or less “dysfunctional” psychological profile.

The relationship with the other parent is a fundamental consideration. According to the principle of the child’s best interests, this relationship should remain constructive and functional to the management of the child’s needs and interests, requiring the parents to overcome personal conflicts even when those conflicts are well-founded. In other words, parents are expected to find a workable balance in their relationship when they need to interact in order to care for the child, provided that both have been deemed suitable to exercise the parental role.

A mental disorder may impair not so much the relationship with the child itself, but, for example, the ability to accept cooperation with or share decision-making with the other parent, including the ability to reach necessary compromises. In doing so, the parent may undermine their own parental role, thereby creating a risk of losing it.

A party-appointed expert may play a decisive role during the assessment of parental capacity, as well as in managing the relationship between the parties outside the assessment itself and in preventing situations from escalating toward the loss of custody.

Health law, and psychic damage for insurance and other purposes

Applications for civil disability benefits, recognition of eligibility for the benefits provided under Law 104, or other forms of social, economic, or welfare assistance generally require an application to be submitted to the competent authority, followed by a direct assessment by the authority’s relevant Commission.

Specialist advice may be sought both before the appointment and at the time of the assessment itself. The purpose is both to prepare a comprehensive presentation of the case, gathering and clearly setting out all the clinical evidence supporting the application, and to provide direct assistance during the assessment.

The documentation submitted is the key element. In many cases, particularly when the medico-legal assessment is psychiatric in nature, the examination is not conducted as an extensive outpatient psychiatric consultation, but rather as a focused assessment addressing specific points that remain unclear and reviewing the relevant supporting documentation.

It is possible to seek professional advice and assistance if one has been subjected to compulsory psychiatric treatment (TSO — Trattamento Sanitario Obbligatorio) and wishes to challenge the legality or factual basis of the intervention, or the nature of the measures adopted in the course of the treatment itself.

The first step is to review the documentation relating to the TSO. In collaboration with the lawyer, it is then possible to determine the appropriate course of action, which may ultimately involve an expert assessment commissioned by the court.

In my experience, people who seek to challenge a TSO they have undergone tend to focus on issues that are not legally decisive, or on what they regard as “obvious” evidence of the absurdity or unjustified nature of what happened. In such cases, however, it is important to focus first and foremost on the technical and procedural aspects. Being “compelled” to undergo psychiatric treatment is permitted by law subject to specific and relatively strict criteria. It is therefore not, in itself, unlawful, but it may become unlawful if those criteria have not been met.

It should also be emphasized that, conversely, even clearly suffering from a psychiatric disorder does not, in itself, justify the use of compulsory treatment unless the statutory criteria for such an intervention are satisfied.

A person who seeks treatment within the healthcare system, either voluntarily or as part of a programme ordered by a court as an “alternative measure”, is entitled to receive treatment selected from among the options ordinarily available, or, where appropriate, to have treatment individually tailored when a specific option is indicated.

Individuals may also seek professional advice and protection when they believe that the healthcare system is failing to provide or recommend treatments that are appropriate, indicated, or clinically sound. They may seek to ensure that, regardless of the discretion or arbitrary decisions of individual healthcare professionals, standard and evidence-based treatments are provided, particularly where these represent the best or most promising therapeutic option.

In some areas, particularly addiction treatment, effective therapies are sometimes unjustifiably or arbitrarily denied or omitted, with patients instead being directed towards options whose effectiveness is lower or even uncertain. In some cases, settings presented as therapeutic may paradoxically increase risk or have characteristics that are effectively counter-therapeutic. One example is residential treatment settings in which access is conditional upon not taking certain medications that are otherwise essential and protective, or upon discontinuing them before admission.

In the treatment of substance use disorders, particularly opioid use disorder, it is important to ensure that an appropriate treatment has actually been offered and adequately implemented before concluding that it has failed. This is because, in our healthcare system, standard treatment is often omitted, delayed, or administered at inadequate doses and without sufficient patient guidance. As a result, patients may be left to manage their treatment largely on their own or may come to believe that the treatment itself is essentially ineffective.

Toxicological tests in various legal contexts

The granting, renewal, and review of a driving licence are subject to certification of the medications a person is taking and of any confirmed diagnoses. Applicants are required to provide a self-declaration of this information, but they may also be asked to provide what is known as a certificato anamnestico, namely a medical history certificate issued by the treating physician, attesting to the information known to the doctor and generally recorded by the physician in the patient’s medical records as part of routine care.

There is also the electronic health record (fascicolo sanitario elettronico), which each citizen can access using their personal digital credentials (SPID) and which contains similar information concerning examinations and healthcare services provided through the public healthcare system. Information relating to private healthcare is generally not included and is therefore left to the individual’s self-declaration.

A person who denies or omits the existence of a diagnosis may therefore be subject to legal penalties. It is consequently advisable, when completing a self-declaration, to be aware of what is officially recorded, as this may include information that the individual does not clearly remember or may not be fully aware of.

It should also be noted that some psychotropic medications are officially classified or listed as sedatives, narcotics, or similar substances and may therefore be considered incompatible with driving or with certain occupational duties, as well as with certain responsibilities and activities, such as the possession and use of firearms. However, where the law does not address the issue in sufficient detail, it may be possible to make certain distinctions on a case-by-case basis.

First, a person’s pharmacological state is not necessarily constant, but may change depending on the pattern of medication use. For example, a substance taken at a regular dose may cease to produce significant narcotic or sedative effects, whereas those effects may persist when the same substance is taken irregularly. More generally, a substance may produce sedative or narcotic effects when taken at doses exceeding the person’s current level of tolerance. As a result, an individual may function normally while taking relatively high doses on a regular basis after tolerance has developed, but may experience sedation at much lower doses when treatment is first initiated or when the medication is taken occasionally or irregularly.

Secondly, the same substance may be prescribed according to a specific and controlled regimen, or it may be taken independently by the individual. In the latter case, unless it can subsequently be demonstrated that the manner of use was appropriate and harmless, such use may be regarded as an indicator of a broader lack of reliability on the part of the individual.

The package leaflet for medicinal products always includes a warning concerning driving. What is less clearly stated is that, for certain medications, there may also be evidence indicating an absence of significant driving-related risk. Risk should therefore not be assessed solely on the basis of a particular medication and its dosage, but rather in relation to a combination of factors. These include the diagnosis; the severity and clinical course of the psychiatric condition (whether stable or unstable, acute or chronic, with or without recent hospital admissions, and with or without cognitive impairment); the person’s current pharmacological state; the absence or presence of active or recurrent and unresolved problems involving substance misuse; and significant recreational use of psychoactive substances, even where such use does not meet the criteria for substance abuse or dependence.

A further concern is suicide risk, including the risk of road traffic accidents occurring in the context of a suicide attempt. In such cases, it may be possible either to quantify the general level of risk or to provide a reasoned assessment demonstrating the absence of factors supporting the conclusion that such a risk is present.

Where possible, these data should be presented and discussed in support of the specific case, together with the results of any fitness-to-drive assessments or tests. Such tests, however, should be conducted in a manner that allows their results to be properly documented, certified, and independently verified.

A report supporting fitness to drive can therefore be prepared by presenting the available evidence and explaining its significance in relation to the risk of driving-related incidents.

Hair Testing for Drugs and Medications: What It Means and How to Avoid Misinterpretation

In this article, I aim to explain what this type of test actually means and how to avoid mistakes, both in the way the test is carried out and in defending oneself against excessive or unjustified interpretations of its results.

What is the test for, and when is it required?

Hair testing is used to identify specific substances, usually drugs or medications, for legal purposes. Hair is preferred to other biological fluids because it retains a long-term record of exposure to these substances, rather like a recorder of the passage of substances from the bloodstream into the hair shaft. In other words, it reflects internal exposure after a substance has been taken or absorbed through various routes—such as through the nose, lungs, injection, transdermal absorption, and so on.

What hair length is required?

When a sample is requested, the required hair length should be specified. This allows the person to prepare for collection without inadvertently compromising the test.

Some people, in an attempt to eliminate as much of the possible evidence as they can, arrive with their hair shaved or cut extremely short, allowing only a small amount of regrowth—just enough to be considered “acceptable” and suitable for sampling. This, however, can be a serious mistake.

If someone effectively presents themselves with no usable hair, it is somewhat like refusing to provide a urine sample when asked to do so: the examination becomes effectively impossible, and, if the assessor takes a strict view—without necessarily being unfair—the person may be presumed to have tested positive because they have altered the conditions under which the examination was supposed to take place, or have refused to provide the requested sample.

Similarly, if the request specifies a particular hair length and a specific period to be assessed, freshly cut hair may be unsuitable.

Consider a couple of examples. A person may be required to account for drug use during a period surrounding a road traffic accident or another potentially sanctionable event. The purpose may be to establish whether the person was using a particular substance during that period, without necessarily being able to establish whether they were under the influence at the precise moment of the event.

If, having learned that they will be required to provide a hair sample after a certain period of time, the person cuts their hair beforehand, they effectively remove the physical record of earlier exposure. The record then begins again from the days preceding the haircut. Thus, if the subsequently collected hair is “clean” for the most recent month, there may be no information concerning the preceding period. If the purpose of the test was precisely to investigate that earlier period, cutting the hair could potentially be interpreted as a deliberate attempt to destroy evidence relating to a period that can no longer be tested retrospectively.

Clearly, for such measurements to be reliable and properly interpretable, they should be performed promptly and with the person fully informed in advance about the procedure and its requirements. In practice, this is not always the case.

For example, if the person was not informed of the required hair length or of the purpose and time period covered by the test, the fact that they provide recently regrown hair—and therefore material containing information only about a recent period rather than several months earlier—should not necessarily be interpreted as suspicious or deliberate.

What does it mean for hair to test positive?

A positive hair test does not, in itself, allow a diagnosis of drug addiction or “pathological” drug use to be made. It simply demonstrates exposure to a substance, which may at most be quantified.

In other words, it may be possible to establish that, during a particular period, a person was exposed to a substance more or less regularly and to a greater or lesser extent. If the hair is examined in separate segments, a more precise chronology can be reconstructed, although this comes at the cost of reduced sensitivity for detecting low-level or occasional use.

A positive hair test does not, in any way, establish whether a person was intoxicated or otherwise impaired at a specific moment. The same limitation applies to urine testing.

What should be done if the hair test is positive and an error is suspected?

First of all, the test should generally be repeated in order to minimize errors associated with contextual factors or problems with the testing system itself.

False positives are also possible, meaning that a test may produce a positive result because it reacts to substances other than the substance that the test is theoretically intended to detect. These substances may or may not be chemically related to the target substance.

Medications that a person is taking are one possible cause of false-positive results. Not all such cross-reactions are known in advance, and new evidence concerning previously unrecognized false positives may emerge and be published over time.

It is therefore important to know which testing kit was used, as well as the specific analytical method employed, which is nevertheless generally standardized. Knowing the particular kit makes it possible to assess more accurately which false-positive reactions might reasonably be expected.

Some medications, including opioid painkillers, may produce a positive reaction. This result would be “false” if the test was intended to identify a different type of opioid—for example, heroin—but would, unless proven otherwise, be a genuine positive if the test was intended to identify a broader group of chemically related opioids.

For example, if a person takes or misuses oxycodone or buprenorphine, the test may not establish the origin of the substance or the manner in which it was used. It may simply establish that the substance was present or that the person had been exposed to it.

Clearly, in order to dispel doubts of this kind, a person should ideally document in advance the medications and other substances they are taking. However, many people choose not to do so because they fear negative consequences. They may, for example, be concerned that disclosing that they are receiving treatment for opioid dependence—even successfully and with nothing to hide—could be interpreted negatively. Alternatively, they may fear that disclosing a medication could be interpreted as an attempt to confuse the issue when there is actually something they wish to conceal.

There is also the fact that, even when a substance is of pharmaceutical origin and taken for legitimate therapeutic purposes, some medications may initially appear on a list of substances that are legally problematic or prohibited.

Statements and hair testing

Many people feel obliged, or believe it is a good idea, to make voluntary statements about what they currently use or have used in the past when they anticipate being required to provide a hair sample.

The best course is to consult one’s lawyer or professional adviser beforehand.

For example, if a person states that they have never used any drugs and do not use any substances, and the subsequent test reveals otherwise, this may create a negative impression that they may later have to explain or correct.

Conversely, if a test subsequently comes back positive but the person had already provided an account of their substance use, the result is less readily used as evidence of deception or concealment. In other words, a person who has disclosed their use of a substance, knowing that the use is likely to be detected, is not thereby a drug-dependent person. Additional evidence of a different nature is required to establish that diagnosis.

By contrast, if someone denies use and continues to deny it even when confronted with the result of a repeated and reliable test, this may create the impression that there is a more significant problem with substance use.

It is therefore important to understand that a hair test cannot tell us everything. At the same time, whatever it does show needs to be given a plausible interpretation and cannot simply be disregarded unless it can be demonstrated that the test was performed inadequately or that its result is otherwise unreliable.

“Passive” exposure and second-hand smoke

Passive contamination is possible. However, substances originating from within the body become incorporated into the hair in a different manner from substances deposited externally on the hair. The sample preparation and washing procedures are intended to minimize the significance of such external contamination.

It is theoretically possible to hypothesize internal exposure resulting from passive exposure. However, by analogy with urine testing, the quantities involved tend to be low. Therefore, where the test has an established cutoff or threshold, it is unlikely that passive exposure alone would produce a positive hair test for a specific substance present at very low levels, such as THC.

Even in experiments specifically designed to investigate this possibility, the levels detected tend to be minimal and the experimental conditions are often highly unrealistic—for example, exposure to smoke for an hour inside a sealed vehicle.

The Reliability of Blood Alcohol Measurements

An important and often overlooked issue is the reliability of blood alcohol concentration, namely the level of alcohol in the blood at the time of an accident or official assessment. This level can be measured in two ways:

Directly, through a venous blood sample.
Indirectly, using a breath alcohol test—the so-called “breathalyzer”—which measures the concentration of alcohol in exhaled air by having the person blow into the mouthpiece of a dedicated device (breathalyzer). These devices are routinely carried by law enforcement officers and are commonly used immediately at the roadside.

Over the years, these devices have become increasingly reliable, and measurements are generally performed correctly. This is, in itself, one of the first issues that should be verified.

Beyond the technical accuracy of the device and the manner in which the test was performed, however, there is evidence that raises questions about the reliability of the method itself. Contrary to what was previously assumed, measuring alcohol in exhaled air does not necessarily provide a reliable indication of the alcohol concentration in the air originating from the lungs. In particular, substantial overestimation may occur. As a result, a reading that appears not only to exceed the permitted limit but also to exceed the threshold for criminal liability may, in reality, correspond to a significantly lower blood alcohol concentration.

For this reason, definitive measurements should ideally be based on blood samples. Unfortunately, blood samples are often taken with some unavoidable delay, or may not be taken at all.

There are court decisions in which defendants with high recorded blood alcohol levels have been acquitted on this basis. This means that such a line of defence is not only legally permissible and scientifically arguable, but is also supported by case law.

Depending on the circumstances of the individual case, it may therefore be useful to examine and set out the limitations of the measurement methods, including the important issue of the theoretical error underlying breath alcohol testing, even where the test itself has been correctly performed.

Alcohol Consumption Testing: What the Tests Show and How They Should Be Interpreted

People seeking confirmation or reinstatement of a driving licence that has been challenged, suspended, or withdrawn because of drink-driving are often required to undergo tests to assess their alcohol consumption.

Assessments of alcohol consumption may also be carried out to determine fitness for certain occupational duties.

These procedures should, and in part do, have a behavioural rather than purely toxicological purpose. In other words, they are intended to establish whether a person is able to remain abstinent from alcohol, or at least avoid drinking regularly and heavily, knowing that they will be required to undergo an alcohol-related assessment.

The underlying assumption is that if a person is unable to refrain from drinking during the required period, they may have an uncontrolled relationship with alcohol, or may display insufficiently cautious behaviour, suggesting that they might not take adequate care to avoid drinking before driving.

In practice, however, tests with limited specificity may sometimes be used—that is, tests that can be altered by a range of conditions unrelated to alcohol consumption.

When developing tests to identify alcohol consumption, two principal parameters are considered: sensitivity, meaning the ability of the test to identify as many actual consumers as possible, and specificity, meaning the ability to avoid incorrectly classifying people who do not consume alcohol as alcohol consumers.

From the perspective of a person who needs to establish their fitness to drive or work, it is therefore important to avoid being unfairly classified as “positive.”

With this in mind, some considerations regarding the main tests used to detect alcohol consumption are useful.

CDT (Carbohydrate-Deficient Transferrin)

CDT (carbohydrate-deficient transferrin) is currently considered the most reliable single test and is capable of identifying sustained and relatively substantial alcohol consumption during the preceding approximately 15 days.

In other words, a positive result indicates that a person has consumed a significant amount of alcohol on a continuous or repeated basis during the previous 15 days.

Its specificity is approximately 95% when measured using capillary electrophoresis or high-performance liquid chromatography (HPLC). This nevertheless means that, statistically, the test may incorrectly classify approximately 5 out of 100 people as alcohol consumers when they are not.

The ability to identify potential causes of false-positive results, such as genetic variants, depends on the specific analytical technique used. The result is expressed as the percentage of CDT relative to total transferrin.

The best way to improve reliability is to use a two-stage testing procedure on the same sample. The first test (screening) is performed using a technique designed to identify virtually all potentially positive cases, including some false positives. If the screening result is positive, a confirmatory test is then performed, using a method with greater ability to distinguish genuine positive results from analytical errors.

Confirmatory tests are not generally used as the initial test because, although more specific, they may fail to identify some genuine cases of alcohol consumption and therefore produce false-negative results.

In other words, screening is like conducting a “sweep” that may initially include some innocent people; the confirmatory test then identifies and excludes those who should not have been classified as positive.

Gamma-GT

Gamma-GT (gamma-glutamyl transferase) is a liver-associated parameter, but it is not specific for alcohol consumption. It can increase for a wide range of reasons unrelated to alcohol.

Common causes include being overweight, certain medications that stimulate enzyme activity (such as some antiepileptic drugs), diabetes, myocardial infarction, various types of trauma, pancreatitis, kidney disease, and hyperthyroidism.

Gamma-GT alone is therefore not an adequate parameter for classifying a person as an alcohol consumer.

Mean Corpuscular Volume (MCV)

MCV, or mean corpuscular volume, measures the average volume of red blood cells. It has limited specificity and is not consistently elevated in people who consume alcohol.

It should therefore not be used on its own to identify alcohol consumption.

Transaminases (ALT/GPT and AST/GOT)

ALT (GPT) and AST (GOT) are enzymes found in the liver, but they are also present in other tissues.

An AST/ALT ratio greater than 2 may be suggestive of alcohol-related liver injury. However, these parameters are not specific, as they can also increase in conditions such as muscle injury and myocardial infarction.

Furthermore, they do not increase in every person who drinks alcohol, and the degree of elevation does not necessarily correspond proportionally to the amount consumed.

CDT and Gamma-GT Combined (Gamma-CDT)

It is possible to calculate a combined value based on CDT and Gamma-GT. This may provide greater accuracy in identifying moderate but regular alcohol consumption during the preceding two to three weeks.

There are also other parameters that may be useful, particularly when attempting to determine whether a state of alcohol intoxication is attributable to a single isolated episode, occasional consumption, or sustained consumption.

Direct Blood Alcohol Measurement

Alcohol can be measured directly in the blood. If positive, this would naturally be one of the clearest indicators of problematic drinking in a person who was expected to remain abstinent, because it demonstrates alcohol consumption shortly before the blood sample was taken.

This may suggest that the person is unable to control when or how much they drink, or that they drink regularly and therefore also drank immediately before the assessment.

Ethyl Glucuronide and Ethyl Sulfate

Depending on the amount consumed, ethyl glucuronide (EtG) and ethyl sulfate (EtS) may be detected in urine for periods ranging from approximately 6 to 100 hours after consumption.

Therefore, even after alcohol itself is no longer detectable in the blood, these markers may provide evidence of relatively recent alcohol consumption—potentially up to approximately four days earlier—depending on the amount consumed.

Fatty Acid Ethyl Esters (FAEE)

Fatty acid ethyl esters (FAEE) can remain detectable in the blood for approximately 24 hours, and for up to around 100 hours when alcohol consumption has not been an isolated event but has occurred repeatedly in the recent past.

Alcohol, Tolerance, and Past Events

In some circumstances, it may be necessary to establish the relationship between a person’s alcohol-related state and an event that has already occurred—for example, a road traffic accident.

In such cases, it is important to understand that the effects of alcohol described in standard tables are influenced by tolerance, namely physiological adaptation to alcohol in habitual drinkers.

The same amount of alcohol consumed in beverages may result in different blood alcohol levels depending on the individual’s degree of adaptation or tolerance (metabolic or kinetic tolerance).

Conversely, the same blood alcohol concentration may produce different effects depending on the person’s degree of tolerance (dynamic tolerance).

Finally, the same alcohol-induced effect may correspond to different degrees of behavioural impairment depending on the nature of the circumstances in which the person is functioning, whether familiar or unfamiliar.

Conclusion

People undergoing alcohol testing for driving-licence purposes should ensure that reliable and appropriate parameters are being used. Where possible, Gamma-CDT or CDT should be preferred, rather than relying solely on parameters such as Gamma-GT, transaminases, or MCV, whether individually or in combination.

It is also useful to document the person’s health conditions, including any medications or other treatments being taken at the time of sampling.

It is important to establish that the testing procedure includes both a screening test and a confirmatory test, and to understand that the final assessment should be based on the confirmatory result rather than on the screening result alone.

The context of the assessment may also distinguish between the presence and pattern of alcohol consumption—whether occasional or habitual—and the manner in which alcohol is consumed, namely whether consumption appears controlled or uncontrolled.

Where the result is disputed, these factors should be reviewed and, where appropriate, addressed through legal channels and/or with the assistance of a trusted medical professional.

Urine Drug Testing

Urine tests are used to detect a range of substances that fall into categories considered “prohibited” or otherwise requiring detection in order to assess fitness or certain psychiatric or medico-legal circumstances.

The substances commonly screened for include:

Benzodiazepines, used primarily as tranquillizers or anticonvulsants, although they have other uses as well.
Barbiturates, which are now rarely used and may not always be included in the standard screening panel.
Amphetamines.
Cocaine—more precisely, the test generally detects metabolites produced by cocaine metabolism.
Morphine-type opioids (or simply “opiates”), referring to substances with morphine-like characteristics.
Methadone, which is also an opioid but structurally different from morphine-type opioids and is therefore tested for separately. It is particularly relevant because it is used therapeutically in the treatment of opioid dependence, but may also be taken independently by people who use psychoactive substances, usually for various purposes, most commonly to alleviate withdrawal symptoms and, in some cases, intravenously as a substance of misuse.
Buprenorphine, for similar reasons.
Hallucinogens.

Other substances are not routinely included in standard urine screening panels. However, so-called false positives may occur. In particular, when a less specific analytical method is used, the test may be reported as “positive”—that is, something is detected—because certain substances can produce a reaction similar to that produced by another target substance.

If a false positive is suspected, it is therefore advisable to repeat the test as soon as possible and subsequently challenge the initial result.

False results may be caused by external contaminants or by other medications being taken. They may also result from changes in the composition of the blood or urine associated with certain medical conditions.

There are websites that recommend various “tricks” for making urine test results appear negative. It is sufficient to note that, in most cases, these methods produce “impossible” results: even if the test appears negative, it may be immediately apparent that the sample has been tampered with or altered.

There are internal quality-control checks that can quickly identify certain forms of sample alteration. When a urine sample is intended to have medico-legal value—for example, to challenge the result of another test—it is important to understand that a sample obtained independently by the individual (for example, through a privately arranged test) generally does not have the same evidentiary value as a sample collected under controlled and certified conditions. If a counter-test is required, it should therefore be collected and documented in a manner that certifies its authenticity and chain of custody.

In most cases, when a test result is disputed, it is important to act promptly. Evidence collected after a significant delay may no longer provide meaningful information about the circumstances or specific assessment that is being challenged.