Harassment or Following Procedure: Can Collectors watch a donor in the bathroom?

As a medico-legal toxicologist and drug testing expert, I often encounter complaints from individuals who have failed a drug test. This is usually when they are trying to appeal another organisations test results/procedures.

One frequent allegation is: “The collector came into the bathroom with me and looked at my genitals — that’s harassment!” But is it?

With the industry transitioning to AS/NZS 4308:2023, this article defers to that standard to address this question. Specifically, we will analyse the apparent contradictions in Clauses 2.3.2 and 2.3.3.1 of the Standard.

Relevant Clauses in AS/NZS 4308:2023

Clause 2.3.2

“If there is a risk of obtaining a compromised specimen, then other measures should be taken to protect the integrity of the specimen such as direct or indirect observation of the donor during the collection procedure.”

Clause 2.3.3.1

(c) “The donor shall remain in the presence of the collector.”

(d) “The donor shall provide the specimen in an area such that individual privacy is maintained.”

Analysing the Clauses

What Does ‘Individual Privacy’ Mean?

The term ‘individual privacy’, as used in Clause 2.3.3.1(d), does not appear to refer to the collector’s proximity or actions during the procedure. Instead, it refers to ensuring that third parties are not privy to the procedure or the test results. For example, while observers may deduce that a drug test is being conducted if they see a collector accompanying a donor to the bathroom, they will not know the test’s purpose, results, or details.

In this context, ‘privacy’ focuses on confidentiality rather than the collector’s immediate presence.

What Does ‘In the Presence of’ Mean?

Clause 2.3.3.1(c) states that “The donor shall remain in the presence of the collector.” This does not necessarily mean the collector must directly observe the donor providing a specimen.

The phrase ‘in the presence of’ is interpreted differently across legal contexts:

• In criminal law, a threat made “in the presence of” someone typically means the person directly witnessed or heard the threat.

• In contract law, signing a document “in the presence of” a witness means the witness must be physically present and able to observe the signing.

While ‘in the presence of’ may imply proximity and the ability to observe, it does not create a duty for the collector to watch the donor urinate. It only requires physical proximity without visual obstruction, unless further observation is justified. This is reinforced by the provisions of clause 2.3.2.

When Is Observation Justified?

Clause 2.3.2 specifies that direct or indirect observation of the donor is only necessary if there is a risk of obtaining a compromised specimen. Examples of such situations may include:

• Return-to-work tests following workplace incidents.

• Court ordered, probation, or parole drug tests.

• Tests conducted in prisons, where tampering is more likely.

For most routine drug tests, where no suspicion of tampering exists, observing the donor providing the sample may be unnecessary and could indeed constitute harassment.

What Constitutes Harassment?

In Australian law, harassment is generally defined as unwanted behaviour that causes humiliation, distress, or intimidation. Directly observing a donor urinate without reasonable suspicion of tampering could meet this definition, as it violates the donor’s dignity without justification.

Collectors must be able to articulate a clear and objective reason for observing a donor, such as prior incidents of tampering or specific risk factors. Without such justification, direct observation risks crossing the line into harassment.

Privacy and Reasonable Cause

Clause 2.2.2 establishes that procedures for collecting urine specimens must allow for individual privacy. However, increased supervision or directly observed collections are permitted where policy, medico-legal requirements, or reasonable cause exists.

Reasonable cause must be recorded on the chain-of-custody record and may include:

• A prior record of specimen tampering (e.g., low creatinine or unacceptable temperature of the first collection).

• High-risk situations such as post-incident collections, court-mandated testing, or safety-critical industries (e.g., heavy industry, law enforcement).

  
  

Observed collections, where justified, can involve:

• Indirect observation (e.g., standing directly behind the donor).

• Direct observation (e.g., standing in front of the donor).

• The use of a mirror to observe the passage of urine.

These provisions emphasize the importance of balancing specimen integrity with the donor's privacy, and any decision to conduct an observed collection must be supported by clear and documented reasoning.

Conclusion

For almost every urine test, directly observing the donor while they provide a specimen is likely to constitute harassment unless there is a clear, articulable reason to suspect tampering. Situations where observation might be justified include return-to-work, probation, or prison testing, where the risk of cheating is high. However, for routine workplace or pre-employment tests, collectors should adhere to the requirements of AS/NZS 4308:2023 by ensuring proximity (‘in the presence of’) without breaching the donor’s dignity or privacy.

Collectors must strike a careful balance between protecting the integrity of the specimen and respecting the donor’s rights. When in doubt, following the Standard’s guidance and documenting the rationale for any decision to observe is the safest course of action.

Collectors must also be aware that inappropriate observation, beyond what is required for the integrity of the specimen, could constitute a breach of voyeurism laws, attracting criminal penalties.