Drug driving and evidentiary blood samples

By Dr Mark Burns (Medicolegal Consultant, Medical Protection) and Adam Holloway (Partner, Wotton Kearney)

It 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. 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.

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.

Missed opportunity to consider funding in PHARMAC Review

Mary Harvey | Policy advisor

Back in March, Minister of Health Andrew Little announced that the Government’s drug-buying agency PHARMAC would be the subject of an independent review. It came in response to public concern about PHARMAC’s priorities and calls for the Government to follow through on its promise of a review during the last election campaign.

The review panel was expected to issue an interim report to the Minister by 20 August and a final report by 10 December 2021. One key aspect that was signalled by the Minister as being out of scope for review was the fixed nature of PHARMAC’s budget and the total amount allocated to pharmaceuticals “as these quite rightly are for the Government of the day to determine”. ASMS made an early submission to the review panel. We argued that funding should be included as part of the review. Problems with the PHARMAC model stem from its statutory objective to stay within a fixed budget each year that is insufficient to fund the medicines New Zealanders need.

We also raised concerns around the lack of transparency of PHARMAC’s funding decisions, the long delays in approving funding for new medicines, and the fraught process clinicians face when applying for medicines not listed on the Pharmaceutical Schedule. We highlighted that each time a funded drug is switched to another drug to save money, around 20% of patients lose effect from the new drug or get side effects due to the nocebo effect. The consequences for patients are not appropriately considered by PHARMAC in its decision-making. We also pointed out that to achieve more equitable health outcomes, PHARMAC needs to understand the health needs of Ma -ori, Pacific people, and other vulnerable groups, including disabled and rural communities, and reflect informed advice in its funding decisions. This includes understanding unmet health need in New Zealand, which affects many groups disproportionately. ASMS considers there is enough headroom in the Government’s coffers for it to increase the pharmaceutical budget so that PHARMAC can address unmet need and support all New Zealanders to live longer and have improved quality of life. ASMS’ submission can be found on our website: www.asms.org.nz/publications

Readying for legalised euthanasia

Two specialists have been appointed to a new statutory body that has been established as New Zealand prepares for the legalisation of euthanasia.

From 7 November this year, people who experience unbearable suffering from a terminal illness will be able to legally ask for medical assistance to end their lives.

It comes a year after the 2020 referendum on the End of Life Choice Act 2019. The Act sets out the legal framework and a high-level process for accessing assisted dying, including strict eligibility criteria and safeguards. Assisted dying will be an entirely new service within the health and disability system. Two doctors must deem a person eligible before the assisted dying process is allowed to go ahead. Under the Act, if either doctor is unsure of the person’s ability to make an informed decision, a third opinion from a psychiatrist is required. The Support and Consultation for End of Life in New Zealand group (SCENZ) has been appointed by the Director General of Health. The 11-person group is charged with maintaining and providing a list of medical practitioners and psychiatrists involved in providing assisted dying services. It will also support the development of the standards of care for medicines as part of the implementation of the new law. The members are all currently practising health professionals. The two specialists on the group are Dr Michael Austen, a Wellington-based physician in occupational and environmental medicine and urgent care, and Dr Gary Cheung, who is currently a specialist old age psychiatrist working at the University of Auckland and Auckland DHB. Another statutory body, the End of Life Review Committee, which will report on compliance with the Act, is expected to be appointed by the Minister of Health around October.