The Coroners Court of Queensland’s findings delivered on 26 June 2020 in to the deaths of Nicole Nyholt and Margaret Clark serve as reminder of the fundamental role general practitioners play in assessing an individual’s fitness to drive and that a greater awareness of the discretionary power to report unfit drivers is required.
On 9 June 2015, Mr. Brian Scutt (60 years) veered off the road while driving his Toyota Landcruiser and collided with an LPG gas cylinder at the rear of the Serves You Right café in Ravenshoe. The resultant explosion injured all 19 people who were in the café at the time. Nicole Nyholt (37 years) sustained burns to 86% of her body (84% of which were either deep partial thickness or full thickness) and died a few days later. Margaret Clark (82 years) sustained burns to nearly 45% of her body with 37% of these being partial thickness and 6% being full thickness. She also died as a result of her burns and their sequalae. The remaining café occupants received burns ranging from minor hand burns to burns between 10 and 60% of their bodies. With a population of 1,400, Ravenshoe is a small close knit community and many of the witnesses to the events were friends of those involved.
Mr. Scutt had a known and documented history of seizures over a 10 year period prior to the accident. After presenting to the local hospital following seizures in 2004, 2009 and August 2014, he was advised by hospital doctors on each occasion not to drive and referred back to his general practitioner (GP) for follow up care. Mr. Scutt abstained from driving for one month following his first seizure but otherwise continued to drive despite an increase in his seizures up until 9 June 2015. On many occasions he refused or did not seek treatment for his seizures and ignored the concerns expressed by his family and friends about his health and fitness to drive.
Coroner Nerida Wilson found that Mr. Scutt was not fit to drive at the time of the accident and should not have held an unconditional drivers licence. The criminal proceedings against Mr. Scutt were discontinued pursuant to the Mental Health Act and he later died in August 2019 after developing aspiration pneumonia due to, or as a cause of his epilepsy.
General Practitioners are pivotal when assessing fitness to drive
One of the key issues considered by the Coroner Wilson was the role and obligations of general practitioners when patients have medical conditions or injuries that may impact on their fitness to drive.
Dr. Connelly (deceased) was Mr. Scutt’s regular GP and had been treating him for various medical conditions for many years. Dr. Connelly’s clinical notes were silent as to whether he:
- Had made any inquires about the 2014 seizure and other similar episodes;
- Arranged for further investigations; or
- Reinforced that Mr. Scutt should not drive for a period of time following his seizures.
The Coroner found:
- Connelly’s expectant management of Mr. Scutt’s 2004 and 2009 seizures (which were five years apart) was appropriate; but
- On 25 August 2014, with knowledge of the seizures in 2004, 2009 and another a few days previously, he failed to fulfil his professional obligation to consider Mr. Scutt’s fitness to drive (i.e. Dr. Connolly could and should have notified the Department of Transport of the risk of harm to his patient and to others).
Mandatory reporting or voluntary notification?
While a doctor has a clearly defined duty to their patient they also have a less clearly defined duty to act in the public interest, to ensure public safety and protect the community from harm. The driver licensing authority (DLA) has the power and responsibility for issuing, renewing, suspending, placing conditions on or cancelling a driver’s licence but relies on input from treating doctors as well as the driver when assessing an individual’s fitness to drive.
In all states and territories, licence holders have a statutory obligation to report any medical conditions which may have an adverse effect on their ability to drive. A health practitioner’s reporting obligations in relation to patients is discretionary in all jurisdictions except South Australian and the Northern Territory, where health practitioners have mandatory reporting obligations.
The patient-doctor relationship is unpinned by trust and doctors have an ethical and a legal responsibility to maintain patient confidentiality. It was for this reason that Coroner Wilson did not recommend imposing a mandatory duty or obligation on doctors to notify the Queensland Department of Transport of any seizure events.
The findings of this inquest confirm that with the knowledge of a recent seizure (and arguably other health conditions), a patient’s regular GP is in the best position to consider a person’s fitness to drive and discuss not driving with them. However, the Coroners Court of Queensland findings in the 2016 inquest in to the death of Ruth Capps highlight that doctors should be wary of individuals who are not regular patients seeking a medical clearance to drive.
Doctors have an obligation to provide clear and accurate advice on a patient’s illness, condition or treatment/medication which may affect their ability to drive safely. In many cases this can be a difficult conversation as the patient may require a licence for work or to maintain independence in their activities of daily living. Therefore:
- For patients with declining function over time, this may be a conversation that takes place over numerous consultations; and
- In some circumstances (e.g. patient hostility,) if may be preferable for a GP to refer a patient to an independent colleague or directly to the relevant DLA for assessment without any recommendation.
In the ACT, NSW, Queensland, Tasmania, Victoria and Western Australia, legislation provides that health professionals are protected from civil and criminal liability when making a report, in good faith without a patient’s consent, to a DLA, that the patient is unfit to drive. While it is preferable that any notification made in the interests of public safety is made with a patient’s consent, health professionals should consider reporting directly to a DLA in situations where the patient:
- Is unable to appreciate the impact of their condition;
- Has a cognitive impairment that prevents them considering professional recommendations; or
- Continues to drive despite appropriate advice and is likely to endanger the public.
This article was written by Katharine Philp, Partner and Heather Nieuwenhoven, Solicitor.