Drug driving and evidentiary blood samples By Dr Mark Burns (Medicolegal Consultant, Medical Protection) and Adam Holloway (Partner, Wotton Kearney)
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t is well established that the risk of being involved in a motor vehicle accident increases as a driver’s blood alcohol level increases. There has recently been an increased focus on the role that recreational and prescribed drugs can also have. Waka Kotahi NZ Transport Agency’s ‘Drug-affected driving’ advertising campaign highlights that driving is greatly impaired by substances that affect cognitive processing, reaction times and the perception of reality. Most injuries from motor vehicle accidents are seen in hospital emergency departments, although some may present elsewhere such as after-hours medical clinics. Doctors working in these areas may not be aware of their obligations and options regarding taking evidentiary blood samples. Medical Protection has received enquiries from members contemplating a more pro-active approach to screen for potential drug driving. The legality of a pro-active approach The legal framework under the Land Transport Act 1998 (LTA) for taking evidentiary samples and providing them to police is the same for drugs as for alcohol. Section 73 of the LTA deals with who must give blood specimens when in hospital or at a medical centre. The doctor must take an evidentiary blood sample when requested by an enforcement officer under s73(3) (b) but may also do so at their own volition under s73(3)(a), provided in both instances that certain requirements of s73(5) are met. These requirements include that the doctor has a reasonable suspicion that the patient has been involved in a motor vehicle crash, that taking the sample wouldn’t prejudice their care, and that they inform the patient (either in person or, if the patient is unconscious, by telling them in writing as soon as practicable). If the circumstances of s73(5) above are met, then a doctor may, at their discretion, choose to take an evidentiary blood sample. No request from police is required and no consent from the patient is needed. If such a sample is collected, it must be sent to an approved laboratory and a certificate should be completed (s75). Section 73 provides the power to take a blood sample without a patient’s consent, but in practice a doctor may be unable to do so due to the patient’s refusal or behaviour. Notably, s60 of the LTA states that a person commits an offence if they refuse to allow such a blood sample. What are the potential criminal charges related to drug driving?
A blood sample will be important evidence under a charge of being under the influence of a drug to such an extent as to be incapable of having proper control
of the vehicle (s58); driving or driving and causing injury with evidence of using any schedule 1 drug (s58 & s61), which includes methamphetamine, LSD, cocaine and heroin; and finally, driving or driving and causing injury using ‘qualifying drugs’ in combination with failing an impairment test (s57A & s61). Qualifying drugs include controlled drugs in the Misuse of Drugs Act 1975 such as cannabis and benzodiazepines. Evidentiary blood samples taken under s73 cannot be used to prove use of a controlled drug in a prosecution under the Misuse of Drugs Act. They relate specifically to charges under the LTA. If doctors philosophically want to start taking evidentiary blood samples from every patient who presents because of a motor vehicle accident, they may do so provided they have followed the criteria set out above. It will remain a decision for police as to whether they wish to bring charges. In cases where police have not been at the accident scene, the charge of driving using schedule 1 drugs, for example, is likely to be more easily proved through such doctor-initiated sampling. It is a legal requirement under s22(3) of the LTA for drivers to report any motor vehicle accident causing injury within 24 hours to police, so most cases should already be known to them. However, not all drivers will be aware of this requirement, or they may choose not to report. Establishing whether this has occurred may assist the doctor in their ethical consideration of the merits of initiating a blood test of their own volition.
Broader ethical considerations The health and wellbeing of patients as the doctor’s first consideration is a basic tenet of medical care; however, there are many examples of where a doctor’s actions are for the protection of society more widely, overriding the interests of individual patients. Doctor-initiated evidentiary blood samples may not necessarily lead to treatment of the substance misuse health problem, merely to criminalisation. This of itself might be an objective for some who wish to see recidivist drug-drivers removed from the road. However, social disadvantage and marginalisation are strong predictors of drug use, and such an approach could conceivably criminalise an already disadvantaged sector of society. Some might argue that removing those who present a risk on the roads and to others is justifiable from a utilitarian perspective, but this would need to be underpinned by evidence that such an approach would actually reduce drug driving deaths and harm. Otherwise, there is potential for doctors to be acting merely as agents of the state, and what might be legal for doctors to do is not necessarily the right thing for doctors to do. While the legality of doctor-initiated evidential blood tests is clear, there is an ethical dilemma that every doctor involved in these processes needs to consider. Each clinical presentation would need to be taken on its own merit, and doctors may want to call their indemnifier to discuss the pros and cons of how to act in a particular case.
Taking an evidentiary blood sample, sending it to a police-approved lab with completion of an s75 certificate, with police accessing the results, delivers protection from civil or criminal proceedings. Furthermore, the Health Information Privacy Code (HIPC) is subservient to other legislation, so if the doctor is complying with these LTA sections, the HIPC cannot overrule the exercise of these powers. Importantly, this applies narrowly only for blood samples from patients involved in motor vehicle accidents. The LTA would not, for example, provide protection for taking urine samples without consent or passing on other information to police such as a patient’s verbal disclosure of drug use. WWW.ASMS.ORG.NZ | THE SPECIALIST
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