Thu, 04 Feb 2010
Diabetes can affect the body’s cognitive and motor functioning abilities, and in recent years there have been a number of serious road traffic accidents, leading to fatalities and serious injuries involving insulin dependent diabetic drivers suffering from hypoglycaemic episodes.
A leading criminal law barrister specialising in this area is therefore calling upon the motor insurance industry to alert and educate their diabetic motorists to be more aware of the potential legal implications. According to Ian Bridge from No5 Chambers, the police and prosecutors have tended in such cases to prosecute for dangerous driving and or causing death by dangerous driving. Conviction for either offence is also likely to lead to imprisonment of the insured driver and makes the defence of any civil related claim impossible.
Whilst the DVLA issues guidance for medical practitioners treating insulin dependent patients, entitled ‘At a glance guide to the current medical standards of fitness to drive’, greater emphasis needs to be placed by all parties to highlight the potential dangers. The guidance is regularly updated and was last updated in September 2009, including a chapter dedicated to Diabetes Mellitus.
Strict conditions apply to diabetic motorists who must notify the DVLA of their condition and are prohibited from driving HGV’s. In order to meet the required visual standards, all diabetic drivers of cars and motorcycles must recognise the symptoms of hypoglycaemia and are issued with a detailed letter providing advice from the DVLA. This can be found at www.direct.gov.uk/driverhealth contains the following advice.
The risk of hypoglycemia (low blood sugar) is the main hazard to safe driving. This may endanger your own life as well as that of other road users. Many of the accidents caused by hypoglycaemia are because drivers continue to drive even though they are experiencing warning signs of hypoglycaemia. If you experience warning signs of hypoglycaemia whilst driving you must always stop as soon as safely possible – do not ignore the warning signs.
You must inform DVLA if:
• You suffer more than one episode of disabling hypoglycemia (low blood sugar) within 12 months, or if you or your carer feels you are at high risk of developing disabling hypoglycaemia
• You develop impaired awareness of hypoglycaemia. (Difficulty in recognising the warning symptoms of low blood sugar)
• You suffer disabling hypoglycaemia while driving
• An existing medical condition gets worse or you develop any other condition that may affect you driving safely
Drivers with insulin treated diabetes are advised to take the following precautions:
• Do not drive if you feel hypoglycemic or if your blood glucose is less than 4.0 mmol/l
• If hypoglycemia develops while driving stop the vehicle as soon as possible in a safe location, switch off the engine, remove the keys from the ignition and move from the driver’s seat
• Do not resume driving until 45 minutes after blood glucose has returned to normal. It takes up to 45 minutes for the brain to fully recover
• Always keep an emergency supply of fast-acting carbohydrate such as glucose tablets or sweets within easy reach in the vehicle
• Carry your glucose meter and blood glucose strips with you. Check blood glucose before driving (even on short journeys) and test regularly (every 2 hours) on long journeys. If blood glucose is 5.0mmol/l or less, take a snack before driving
• Carry personal identification indicating that you have diabetes in case of injury in a road traffic accident
• Particular care should be taken during changes of insulin regimens, changes of lifestyle, exercise, travel and pregnancy
• Take regular meals, snacks and rest periods on long journeys. Always avoid alcohol
The letter is not sent by registered post and no acknowledgement of the receipt and consideration of the letter by the licence holder are required. The guidance is not sent repeatedly throughout the lifetime of the licence holder.
Unsurprisingly, insulin dependent drivers have reported never having received the letter and not having retained it.
Those who experience frequent hypoglycaemic episodes should be advised by their doctor to cease driving until control has been re-established. Those with impaired awareness of hypoglycaemia should be advised by their doctor to stop driving and resume only when awareness of hypoglycaemia is confirmed to be regained by a consultant or GP report.
As Mr Bridge explained, the Court of Appeal has heard a number of cases in recent years, which make devastating reading.
In R v Clarke, a four year old boy died after Mr Clarke drove his car onto the pavement whilst suffering a hypoglycaemic attack. Experts at the trial gave evidence that Mr Clarke suffered with hypoglycaemic unawareness on the one hand and that he was definitely aware of his state on the other hand.
The verdict of the jury was that he was aware at some point and should have stopped. The detail upon which the experts reached their opposing conclusions is unclear except that it appears that his management of his condition was said to be exemplary. He tested himself more frequently than was recommended and had tested on the day in question only one hour before the collision.
He was sentenced to three years imprisonment reduced in exceptional circumstances to 12 months on appeal. Sentencing guidelines suggest the start point in such a case should have been between four and seven years.
In R v JG, the Court of Appeal considered an appeal brought by the prosecution against a terminating ruling by the judge at the conclusion of the prosecution case. The defendant concerned, a 45 year old woman who had a clean driving record suffered from insulin-dependent or Type 1 diabetes. She had no recollection of the events leading to the collision, which occurred on 18th October 2004, and was very badly injured herself.
At the time of the accident she was taking a mixture of long and short acting human insulin before breakfast and before her evening meal. She had her evening meal early on the night in question and took her insulin beforehand. A bookkeeper by profession, she drove from home to call on Mr French, a farmer whose VAT she did, and was with him between about 6.50 pm and 7.10 pm. He noticed nothing abnormal about her.
On leaving she turned on to the road in the opposite direction to her home, and from there her movements remained unknown until very shortly before the accident. The collision caused the death of the driver of another vehicle, and the defendant had recently suffered hypoglycaemic attacks.
Experts gave evidence at the hearing to the effect that diabetics are advised to test their blood sugar before setting out on a journey, but it was also stated that in reality they cannot always be expected to do so, as that is a council of perfection. Experts appear to have agreed that despite her history, she could not be criticised for failing to test before driving. The Court of Appeal upheld the decision of the trial judge to withdraw the case from the jury.
But as Mr Bridge points out, there is a clear and perhaps unfortunate contrast to be drawn between the outcomes in the two cases. Mr Clark was convicted and imprisoned, Mrs G avoided conviction.
“There are numerous other reported cases and no doubt others, never the subject of appeal, which remain unreported.
“A significant difficulty in these cases implicitly acknowledged by the guidance is the onset of unaware hypoglycaemia. The symptoms, which accompany hypoglycaemia, are sometimes not recognised as such by the licence holder, until it is too late.
“The evidence in these cases of knowledge of condition often comes from the mouth of the licence holder who after the event recognises the problem and seeks to justify his or her behaviour by stating that he or she was looking for a shop to buy chocolate”, said Mr Bridge.
Until R v Marison (Lee John) (1997) RTR 457 CA, those facing prosecution for dangerous driving or causing death by dangerous driving, as a result of hypoglycaemia, often raised the defence of automatism. Once they were in a hypoglycaemic state they were acting automatically and hence not culpable.
In R v. Quick (1973) QB 910 an earlier case, the defence of automatism was considered by the Court of Appeal and found that "Automatism must be caused by some factor which he could not reasonably foresee and not by a self-induced incapacity”. Clearly a driver who has any history of hypoglycaemia is in some difficulty since a hypoglycaemic attack could not be said in such circumstances to be unforeseeable.
In Marison the Court of Appeal followed an earlier decision in Terence Woodward (1995) 2 Cr.App.R. 388 - A drink driving case.
Dangerous driving is defined by section 2A of the Road Traffic Act 1988 as amended in the following terms:
(1) For the purposes of section 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection 2 below, only if)-
(a) The way he drives falls far below what would be expected of a competent and careful driver, and
(b) It would be obvious to a competent and careless driver that driving in that way would be dangerous.
(2) A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.
(3) In subsections (1) and (2) above 'dangerous' refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused....
Following Woodward and Marison, drivers who are hypoglycaemic are now routinely prosecuted under subsection 2 ‘the current state of the vehicle’ being as driven by someone in a hypoglycaemic condition. This rather contrived construction of the legislation avoids the need for the consideration of the legal concept of automatism. The question arising ultimately for a jury in any particular case can be distilled to the simple question, ought the driver to have known that he or she was low on blood sugar, and or is there evidence that the driver did in fact know.
The difficulty with this approach for the diabetic driver is that the experience of many diabetics is that they can for many years never knowingly experience hypoglycaemia, and yet have an episode whilst driving which can lead to catastrophe.
Most diabetics are aware of their symptoms and can intervene, but a significant minority experience ‘unaware hypoglycaemia’.
An analysis of medical records may show previous recent incidences of hypoglycaemia. Records may also show advice given by doctors or nurses to any such drivers. There is a concern that medical professionals might not always consider the potential dangers of driving for their diabetic patients changing medication or experiencing unaware or unusual hypoglycaemic attacks and that hence no warning is given.
Driving patients who have not been warned are nonetheless potentially criminally liable should they be involved in an accident.
Evidence of things said by the driver at the scene of any collision or subsequently might also assist in determining liability. It should be borne in mind that individuals suffering a hypoglycaemic attack will often not recover from the symptoms for a substantial period depending on the individual and on how low blood sugar levels went.
There is perhaps a need for law reform to accommodate the substantial population of insulin dependent drivers at the very least; given the number of cases coming before the courts the system for educating and regulating diabetic drivers should be reviewed.
The motor insurance industry also has a key role to play in advising and educating diabetic drivers of the potential consequences they face and their liabilities.