Every year, approximately 300 people in New Zealand are killed on our roads, with a further 12,000 injuries reported. Many of these accidents are caused by a lack of fitness to drive by the occupants of the vehicles, suffering from issues such as epilepsy, poor eyesight or inebriation.
Rather than waiting with an ambulance at the bottom of the cliff, ie waiting for road accident victims to be treated in hospitals, doctors can take opportunities to reduce the risk of these fatalities and injuries from happening in the first place by proactively assessing the fitness of their patients to drive—and recommending that they avoid driving if necessary.
The process of doing this can be a confrontational one, but it is important that doctors don’t shy away from it. Taking one dangerous driver off the road could save lives. This is the process that we recommend you follow.
Section 18 of the Land Transport Act 1998 places a legal obligation on medical practitioners to report a patient to the New Zealand Transport Agency (“NZTA”) if it appears that they are not medically fit to drive. While this situation will most often confront GPs, the duty to report applies to all medical practitioners. The concern is not only that the doctor comply with their statutory obligation but that this be done in such a way as to minimise the possibility of a complaint and subsequent disciplinary proceedings.
We recommend that if you are faced with a patient who may be unfit to drive you should take the following steps:
Speak to the patient and advise them of your opinion that they should not drive. It may be beneficial to suggest a longer appointment focused on the patient’s fitness to drive and give the patient the opportunity to bring a support person to ensure that any questions or concerns can be addressed.
Send a letter to the patient recording the following details:
(a) The relevant features of the patient's condition and that you have discussed this with them on specified dates. For example, in the case of epilepsy, the unpredictability of seizures would be a relevant consideration.
(b) That you are under a legal obligation to advise the NZTA in the interest of public safety if you believe that a patient’s medical condition may impact on their ability to drive.
(c) In your opinion, owing to the patient's condition, it is in the interest of public safety that they should not be permitted to drive a motor vehicle (or motor vehicles of a specified class) OR should only be permitted to drive motor vehicles under such limitations and/or conditions as necessary to facilitate safe operation of a motor vehicle.
(d) You require confirmation from the patient that they have sent their licence to the NZTA so that it may be revoked (or for limitations to be imposed as appropriate) with a copy of your letter by way of explanation.
If confirmation is not received by a certain date (for example, within seven days) you must assume that the patient is likely to drive in the future and will not surrender their licence voluntarily. In those circumstances you will have no choice but to write to the NZTA giving notice, in accordance with your legal obligations.
You may also wish to invite the patient to discuss this further if there is any issue that is unclear to them.
If the patient does not comply you must write to the NZTA giving notice in accordance with your legal obligations. As long as you give the notice in good faith, you have statutory protection from liability. Good faith would mean that the medical condition must be confirmed (appropriately investigated, diagnosed and recorded in medical notes) and you believe the patient is likely to drive. A letter in the terms set out above is a sensible way of dealing with this as it also records your grounds for believing the patient is not medically fit to drive.
In an emergency situation different considerations will apply. One example is where a patient presents to the emergency department intoxicated and leaves insisting that they are fit to drive. In this situation there is an immediate safety risk to the patient and to the public. You should speak to the patient and advise them that they are not fit to drive. Alternative transport should be arranged. If the patient continues to express an intention to drive, it will be necessary to alert the Police.
The NZTA publication Medical Aspects of Fitness to Drive: A Guide for Medical Practitioners contains detailed guidance relating to fitness to drive and explains the legal requirements to your patient.
Current as at 2 October 2018
In short, the opportunity to reduce the risk on our roads by assisting a patient with alternatives to potentially dangerous driving is one that all doctors should take. However, it doesn’t always come without confrontation, so if you are concerned about a potential complaint following your recommendation to avoid driving, get in touch with NZMPI’s medico-legal advisory team now for further advice and peace of mind.