Fitness to drive - legal briefing

Licences and disabilities

Introduction

This briefing outlines the circumstances when the Driver and Vehicle Licensing Agency ("the DVLA") may be informed of a disability and when driving licences must be issued, refused or revoked.

Anyone applying for a driving licence must declare on the application if s/he has, or has at any time had, a relevant disability (See What type of disability below) or a prospective disability. A prospective disability is a disability which by virtue of its intermittent or progressive nature, may become a relevant disability in course of time.

If a person who already has a driving licence develops a relevant or prospective disability or if an existing disability becomes more acute, s/he must notify the DVLA. The DVLA does not have to be notified if the disability is new and there are reasonable grounds for believing that it will not last for more than 3 months.

The law can be found in the Road Traffic Act 1988 and Part VI of the Motor Vehicles (Driving Licences) Regulations 1999 together with other regulations and guidelines for medical practitioners.

The Secretary of State for Transport, Local Government and the Regions has the responsibility via his medical advisors at the Drivers Medical Group of the DVLA, to ensure that all licence holders are fit to drive.

Types of licence which may be affected

The medical standards refer to Group 1 and Group 2 licence holders.

Group 1 licences

These are (broadly speaking) motorcycles and cars and light vans with up to 8 passenger seats.

Group 2 licences

These are any other types of vehicle not in the Group 1 category (i.e. heavier vehicles such as lorries and buses).

There are transitional provisions for some heavier goods vehicles (and minibuses of up to 16 seats) if the licence was in force before 1 January 1997 or was granted upon expiry of a licence which was in force at a time before 1 January 1997 and comes into force not later than 31 December 1997, in which case it is a Group 1 vehicle.

The medical standards are much higher for Group 2 licence holders because of the size of the vehicle and the greater time likely to be spent at the wheel.

What type of disability

The regulations state that the following are disabilities covered by the Act:

(a) epilepsy
(b) severe mental disorder (this includes mental illness, arrested or incomplete development of mind, psychopathic disorder and severe impairment of intelligence or social functioning)
(c) liability to sudden attacks of disabling giddiness or fainting which are caused by any disorder or defect of the heart which has been corrected by the insertion of an implant (eg a pacemaker)
(d) liability to sudden attacks of disabling giddiness or fainting other than those in (c) above
(e) persistent misuse of drugs or alcohol, whether or not such misuse amounts to dependency.

Some sorts of medication may also render someone unfit to drive.

There are detailed guidelines for medical practitioners issued by the Drivers' Medical Group, DVLA, concerning medical conditions which amount to disabilities which affect fitness to drive. (See At a Glance Guide to the current Medical Standards of Fitness to Drive http://www.dft.gov.uk/dvla/medical/aag.aspx).

Epilepsy

This is treated by the regulations differently from other kinds of mental disorder in that sufferers are legally barred from holding a licence except:

Group 1 vehicles: the DVLA cannot refuse to grant a licence either if the person concerned has been free of any epileptic attack during the period of one year or (if not) the person's last sleep attack was more than three years ago and he/she has not had any awake attacks since that asleep attack.

The DVLA will also need to be satisfied that granting a licence to such a person is not likely to be a source of danger to the public.

Group 2 vehicles: the DVLA cannot refuse to grant a licence if satisfied that during the period of 10 years immediately preceding the date when the licence is granted the applicant:

(a) has been free from any epileptic attack, and
(b) has not required any medication to treat epilepsy, and that the driving of a vehicle by him in accordance with the licence is not likely to be a source of danger to the public.

Psychiatric Disorders

The At a Glance Guide to the current Medical Standards of Fitness to Drive provides some guidance on when doctors will advise a person with psychiatric disorders to stop driving and when a licence is likely to be revoked by the DVLA.

The guidance uses the term ‘psychiatric disorders’ to refer to different types of mental health problems.  The advice given differs depending on the type of mental health condition being discussed.

For Severe Anxiety States or Depressive Illnesses, with significant memory or concentration problems, agitation, behavioural disturbance or suicidal thoughts:

• For Group 1 licences (eg cars and motorcycles), guidance advises that the driver should stop driving until after medical enquiries are made and the results are known.  A period of stability will be needed before driving can begin again.

• For Group 2 licences (eg lorries, etc): the guidance indicates that driving should be permitted when the person is well and stable for a period of 6 months.  Medication must not cause side effects which would interfere with alertness or concentration.  Driving is usually permitted if the anxiety or depression is long-standing but symptom-free, including with the use of medication, as long as the medication does not impair the ability to drive.

For Acute Psychotic Disorders of any Type (not including schizophrenia as this is dealt with separately):

For Group 1, driving should stop during the acute illness, but the driver may regain their driving licence if they

• have remained well and stable for at least 3 months
• are compliant with treatment
• are free from adverse effects of medication which would impair driving
• have a favourable medical report.

Drivers with a history of instability and/or poor compliance with treatment may be required to stop driving for a longer period.

There are categories in the guidance covering Hypomania/Mania and for Chronic Schizophrenia and Other Chronic Psychoses.  The advice given for these categories is broadly similar to that given for Acute Psychotic Disorders, but there are individual characteristics attached to these conditions which mean that if these conditions are relevant to your situation, you may need personal medical advice and/or legal advice as to how the guidance applies to you in your particular circumstances.

Because each person experiences a mental health condition and the effects of medication differently, it is important to look at what the Regulations say in each individual case.

The guidance also offers advice about Developmental Disorders (which includes Asperger’s Syndrome, autism and Attention Deficit Hyperactivity Disorder), Dementia or any Organic Brain Syndrome, Learning Disability, and Personality Disorders.

Other psychiatric conditions that are not specified in the guidance will need to be reported to the DVLA if they are causing or are likely to cause symptoms affecting safe driving, e.g. impairment of consciousness or awareness, or where a person has become more likely to suffer from distraction which may affect the ability to drive safely.

Some types of medication are known to have an effect on the ability to drive, but the guidance points out that ‘drivers with psychiatric illnesses are often safer when well and on regular psychotropic medication than when they are ill.  Inadequate treatment or irregular compliance may render a driver impaired by both the illness and medication’.

Patients on Leave from Hospital under Section 17 of the Mental Health Act 1983

A person may still be under a detention section of the Mental Health Act but in the community on leave from hospital, if their Responsible Clinician has agreed to them having leave.  Before starting to drive again, a person on section 17 leave should be free from any effects of medication which will affect their driving.  The Responsible Clinician should give advice about whether it is safe for a person to drive when on leave.

Notifying the DVLA

Duty to notify the DVLA

It is the duty of the licence holder or licence applicant to notify the DVLA of any medical condition which may affect safe driving. Failure to do so is an offence under the Road Traffic Act 1988.

Sometimes a licence holder:
(a) cannot do so because she lacks mental capacity or
(b) does not want to do so, for example because s/he does not agree with a doctor's diagnosis. These situations are addressed below.

(a) Incapacity

Incapacity refers to occasions when someone is unable to make decisions for themselves (eg because of severe mental illness, brain injury or dementia).

In these circumstances, the government guidelines state that medical practitioners should inform the DVLA immediately and explain to the patient that they have a legal duty to inform the DVLA.

(b) a patient does not accept that s/he is not fit to drive

Under the guidelines the doctor should suggest that the patient seek a second opinion and should make appropriate arrangements for the patient to do so. However the patient will be told not to drive until s/he has obtained the second opinion.

In both (a) and (b), if the person continues to drive when the doctor says s/he is unfit, the guidelines say that the doctor should make every reasonable effort to persuade them to stop.  The doctor may discuss their concerns with the patient’s relatives, friends or carers, as long as the person agrees to this.

If the doctor fails to persuade the person to stop driving, or discover that they are continuing to drive against medical advice, the doctor should contact the DVLA immediately and disclose any medical information in confidence to the medical adviser at the DVLA.

Before contacting the DVLA, the doctor should try to inform the person that they have decided to do this as this will break doctor/patient confidentiality, and once they have contacted the DVLA, they should write to the patient confirming that they have done so.

The doctor's duty to notify the DVLA about someone's health may override his/her duty of confidence to the patient, and GMC guidelines advise doctors about circumstances when they are permitted to do this.

What will the DVLA do once they have been notified?

The DVLA will make medical enquiries concerning the applicant's/licence holder's condition and will make a decision taking into account all available medical information.

This may take some time, and during that period a licence holder will normally retain his/her entitlement to drive under section 88 Road Traffic Act 1988. However, the doctor in charge of their care should be able to advise the driver whether or not it is appropriate for them to continue to drive during this time and remind the driver that if they ignore medical advice to stop driving, their insurance cover could be affected. The doctor is likely to make a formal note on the patient's records that the patient has been told this.

If a licence has previously been revoked for medical reasons then this entitlement is lost and the person will have to stop driving immediately.

The decision as to whether to grant/refuse or revoke a licence is made by the Secretary of State through the DVLA.

In practice this means that a committee of civil servants at the DVLA including their medical officer meet to decide these matters.

Appeals

Appeals

If a decision is taken by the DVLA to revoke or refuse a licence, there is no internal appeals procedure at the DVLA.

However, the applicant can ask them to reconsider their decision.  If there is further medical evidence available this should be sent with the request to reconsider. At this stage the evidence will be considered by a medical panel.

If such a decision is taken to refuse or revoke a licence, the DVLA promises that they will give its reasons for the decision in writing. They will also give notice of the right of appeal to a magistrate's court, under section 100 Road Traffic Act 1998.

An appeal to a magistrates court must be made within six months. However where the applicant declares a disability which requires mandatory action under the regulations there is no right of appeal.

If you intend to appeal to a magistrates court, you must give notice to the DVLA that you intend to do so.

The applicant must establish his/her case "on the balance of probabilities" which means that s/he must satisfy the magistrates that on balance s/he is more likely to be right than the DVLA.

This will almost certainly require evidence from a medical expert for the applicant, which may be difficult to fund, as legal aid is not available. A local citizens' advice bureau may be able to offer some free advice and assistance.

The courts have little experience of these sorts of applications. However, the making of the application itself requires the DVLA to review its decision to be sure that they can uphold it, which can result in the return of the licence before any hearing takes place.

The DVLA will attend any court hearing and they are likely to be represented by a lawyer. If the applicant loses his/her appeal then the DVLA will probably ask for an order that the applicant pay any legal costs the DVLA have incurred.

When a person recovers from their period of ill-health they can re-apply for a licence. The DVLA will ask for medical evidence again to confirm that the applicant is fit to drive. It may be necessary to have been well for a number of months before the DVLA will be satisfied that the applicant's health is stable. The DVLA will also want to be satisfied that the applicant's ability to drive will not be affected by medication. If the person is still taking medication any medical report should address whether this is likely to interfere with their ability to drive.

Further information

1. The Department for Transport website (Information for Drivers)
2. INF94 Customer Service Guide for Drivers with Medical Conditions
3. At a Glance Guide to the current Medical Standards of Fitness to Drive
   http://www.dft.gov.uk/dvla/medical/aag.aspx

Mind is unable to provide individual advice on Fitness to Drive or on appeals against a refusal to grant a driving licence, or a revocation of a driving licence.

Click here for further information about the work of Mind's Legal Unit.

For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of how to find a specialist solicitor can be obtained from the Law Society (telephone 020 7320 5650) or from Civil Legal Advice (telephone 0845 345 4345). Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.

Mind Legal Unit
May 2013