Feature, Management

Making the tough decisions about driving

Informing a patient they are no longer able to drive is a difficult task, particularly if they are unreceptive to the news. KAREN CROUCH explains practitioner obligations in such situations.

As people live longer, elderly people enjoy much better health conditions than their predecessors. Consequently, in order to continue enjoying their ‘youthful’ lives, men and women are understandably keen to retain their driving licences.

However, from time to time, even the healthiest of individuals may experience problems that impact their ability to drive competently. Additionally, as the driving habits of many turn aggressive, many elderly drivers face risks they are unaccustomed to. Furthermore, with the advent of the festive season consumption of much Christmas and New Year (alcoholic) cheer is likely.

Consequently it is timely for practitioners to review fitness levels of elderly patients to assess their ability to drive. If it is apparent that a patient has a condition that may affect his or her ability to drive, the tending practitioner should inform the patient of the potential impact on both their driving effectiveness and the lives of others.

When to report?

In normal circumstances, the onus of notification to the NSW Roads and Maritime Services (RMS) of permanent or long-term injury or illness that impairs a driver’s ability rests with the licence holder. However, if in some instances a patient may be incapable of understanding, or, regardless of practitioner advice, decides to continue driving, you should seriously consider reporting the matter to RMS.

As such action will possibly have a negative impact on the ongoing practitioner/patient relationship, the practitioner should address the situation appropriately. Regardless, it is advisable in such situations to not only pay heed to the relationship, but also the potential negative impacts on other road users.

RMS Guidelines set out specific conditions that must be reported as a statutory duty. However, the situation is not so simple or straightforward for circumstances that fall outside these clearly reportable categories.

Currently there is no statutory obligation to report to RMS and, as yet, Australian courts have not imposed obligations upon medical practitioners to warn third parties (drivers/patients) of serious risk of harm to that person’s life or health. However, it is possible that future Courts may impose such obligations if evidence shows that the incidence of ‘unfit-to-drive’ persons are found to be the cause of increasing numbers of accidents.

As a suggested starting point, it would be recommended for the practitioner to advise a patient/driver who is deed to be ‘unfit-to-drive’ of their obligation to report the matter to RMS. However, if a practitioner does elect to lodge a report, the Road Transport Act 2013 provides appropriate protections for medical practitioners from civil or criminal liability for “… expressing to the Authority in good faith, an opinion formed as a result of having carried out a test or examination”.

Further, an individual will not incur civil or criminal liability for disclosure to the RMS “… in good faith, information that discloses or suggests that: a person may be unfit to drive”.

The Privacy Amendment (Private Sector) Act 2000 further permits disclosures of information to lessen or prevent serious and imminent threat to an individual’s life, health or safety, or a serious threat to public health or safety.

As noted above, these protections apply only where a practitioner has formed an educated “unfit-to-drive” opinion based on actual tests and the patient/driver appears unlikely to discharge his or her responsibility of reporting the condition to RMS.

Admittedly, these obligations involve careful consideration and exercise of discretion in deciding on the most appropriate course of action. Medical practitioners have two conflicting responsibilities that must be weighed against each other:

  • duty to protect confidentiality of information collected from a patient;
  • duty to protect third persons and/or the public from potential danger (and subsequent injury) that may be created (or caused) as a result of a patient’s condition while driving.

Making the call

It is advisable that medical practitioners who, having counselled a patient appropriately, become aware that the patient has not reported the impairment and continues to drive, report the matter to the RMS.

Provided the report is made in good faith, practitioners should be assured of adequate personal protections under the two Acts cited above. Assessing Fitness to Drive Guidelines 2016 (updated up to August 2017) contains commercial/private standards, necessary questionnaire and examination proforma to follow when completing an RMS medical certificate.

ABOUT THE AUTHOR: Karen Crouch is Managing Director of Health Practice Creations Group, a company that assists with practice set ups, administrative, legal, business and financial management. Contact Karen or Email kcrouch@hpcnsw.com.au or visit www.hpcgroup.com.au

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