Applicant 662023 v Road Transport Authority (Administrative Review)
[2024] ACAT 2
•9 January 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
Applicant 662023 v ROAD TRANSPORT AUTHORITY (Administrative Review) [2024] ACAT 2
AT 66/2023
Catchwords: ADMINISTRATIVE REVIEW – review of decision – Road Transport (Driver Licensing) Regulation 2000 – driver licence – medical standards for licensing and clinical management guidelines – whether guidelines mandatory or discretionary – whether non-compliance with criteria under medical standards requires cancellation of licence – interpretation of “Assessing fitness to drive” in the guidelines – cancellation on medical grounds – failure to meet required medical standard in relation to eyesight
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 48, 68
Road Transport (Driver Licensing) Act 1999, s 3
Road Transport (General) Act 1999, Part 7
Subordinate
Legislation cited: Road Transport (Driver Licensing) Regulation 2000, rr 78A, 87
Road Transport (Driver Licensing) (Authorised Medical Reviewer) Appointment 2022 (No 1)
Cases cited:Bergild v Road Transport Authority [2017] ACAT 80
Bergild v Road Transport Authority (No 2) [2018] ACAT 8
Brent v Road Transport Authority [2018] ACAT 37
C v Road Transport Authority [2016] ACAT 46
Christopherson v Road Transport Authority [2023] ACAT 69
Sutton v Road Transport Authority [2008] ACTAAT 2
List of
Texts/Papers cited: Austroads, Assessing fitness to drive for commercial and private vehicle drivers (2022)
Tribunal:Senior Member J Kalokerinos
Date of Orders: 9 January 2024
Date of Reasons for Decision: 9 January 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 66/2023
BETWEEN:
APPLICANT 662023
Applicant
AND:
ROAD TRANSPORT AUTHORITY
Respondent
TRIBUNAL:Senior Member J Kalokerinos
DATE:9 January 2024
ORDER
The Tribunal orders that:
The decision under review is confirmed.
The application is dismissed.
………………………………..
Senior Member J Kalokerinos
REASONS FOR DECISION
Introduction
The applicant, identified in these reasons as 662023, held an ACT driver licence which was cancelled by the ACT Road Transport Authority (RTA). This matter is an appeal of a decision by the RTA to cancel the applicant’s driver licence, following a health assessment. The applicant sought an internal review, at which the original decision was confirmed. She subsequently sought appeal to the tribunal, requesting that she have the opportunity to undertake a driving test for the purpose of re-obtaining her licence to drive. For reasons which will become apparent in this decision, undertaking a driving test is not always an appropriate alternative to undertaking the relevant vision testing.
Decision under review
The applicant was a licenced driver in the ACT for many years. On 9 May 2023, she underwent assessment with the Fitness to Drive Medical Clinic. On 11 May 2023, the RTA wrote to the applicant, indicating that it proposed, under regulation 87 of the Road Transport (Driver Licensing) Regulation 2000, to cancel her licence to drive on the grounds that during her assessment, it was identified that her visual acuity results did not meet the medical standards required for any class of licence. The letter specified that the option of reasonable adjustments had been considered for the applicant. The letter also informed the applicant of her right to apply for internal review of the decision or for review by the ACT Civil and Administrative Tribunal (ACAT).[1]
[1] Letter from the RTA to the applicant dated 11 May 2023
The applicant requested an internal review of the decision. On 20 June 2023, the RTA wrote to the applicant confirming the original decision and providing further information about it. It explained that:
(a)the original decision was made under paragraph 87(1)(d) of the Road Transport (Driver Licensing) Regulation 2000, which provides that a driver licence may be cancelled where the person does not comply with the required medical standards;[2]
(b)consideration was given to:
(i) a driver licence medical dated 3 February 2023 which requested an assessment by the Fitness to Drive Medical Unit due to her left-sided homonymous hemianopia; and
(ii) the assessment by the Fitness to Drive Medical Unit dated 10 May 2023 which stated that the applicant did not meet the requirements to hold an unconditional or conditional licence of any kind due to her visual impairment. Specifically, her macular degeneration and visual acuity and visual field results, both of which did not meet the driving standard for a private driver licence.
[2] The “required medical standards” is defined in regulation 78A to mean the medical standards set out in the publication Assessing Fitness to Drive, as amended from time to time, published by Austroads.
In response to the applicant’s request for an opportunity to undertake a driving test, the internal review letter explained to the applicant that “[d]river licensing decisions are made in line with Austroads Assessing Fitness to Drive for commercial and private vehicle drivers (Austroads Standards)[3] and while reasonable adjustments were considered to maintain your licence, you no longer meet the required medical standards to drive a motor vehicle or participate in a driving test.”[4]
[3] Austroads, Assessing fitness to drive for commercial and private vehicle drivers (2022)
[4] Letter from the RTA to the applicant dated 20 June 2023. This letter refers to the Fitness to Drive Medical Unit. This appears to be intended to refer to the Fitness to Drive Medical Clinic.
The applicant requested review by the tribunal. Such decisions are reviewable by ACAT pursuant to Part 7 of the Road Transport (General) Act 1999 and section 9 of the ACT Civil and Administrative Tribunal Act 2009 (ACAT Act). In her submissions, she stated that she wished the tribunal to “arrange for me to have a driving test with supervising driver so I can prove my eyesight is more than adequate to hold an ACT driver licence.”[5] In effect, the applicant sought that the decision be varied or set aside, pursuant to section 68 of the ACAT Act.
Evidence before the tribunal
[5] Applicant’s submissions, received on 19 October 2023
At the hearing before the tribunal on 22 November 2023, evidence was given by Clinical Associate Professor Vanita Parekh AM, the director of the Fitness to Drive Medical Clinic.[6] Professor Parekh was also the author of the Fitness to Drive Medical Clinic report of 10 May 2023. The summary in that report noted that the applicant was a 90-year-old woman with a background history of macular degeneration and left homonymous hemianopia.[7]
[6] Transcript of hearing dated 22 November 2023, page 10, lines 5 to 8
[7] Fitness to Drive Medical Clinic Report dated 10 May 2023, page 1
The report explained the examinations and testing of the applicant that had been undertaken. Professor Parekh explained the report in her evidence, and how the applicant’s results rated against the relevant Austroads Standards.[8] The report noted that safe driving requires a range of cognitive and physical abilities, and that, following clinical consultation on 9 May 2023, three issues were identified: visual impairment; type 2 diabetes mellitus; and use of sedating medications.[9] Professor Parekh expanded on these in her evidence at the hearing. In sum, the report noted the factors below.
Visual impairment
[8] Transcript of hearing dated 22 November 2023, from page 9
[9] Fitness to Drive Medical Clinic Report dated 10 May 2023, page 5
The applicant has a diagnosis of macular degeneration, a progressive eye condition. She has a left-sided homonymous hemianopia, meaning that in both eyes there is a deficit in the same side of the visual field. Regarding her visual acuity and her visual fields, the applicant did not meet the driving standard for a private driver licence. Her binocular visual field test demonstrated a maximum horizontal extent of 90 degrees within 10 degrees above and below the midline.[10] The relevant “Medical Standard for Licensing” pertaining to vision and eye disorders relevantly states that “A person is not fit to hold an unconditional licence: If the binocular visual file does not have a horizontal extent of at least 110 degrees within 10 degrees above and below the horizontal midline” (emphasis in original).[11] The report noted that the applicant’s not meeting the driving standard for a private driver licence with reference to her visual fields was confirmed with her optometry practice.[12] This is also relevant to another part of the same table in the medical standard which provides that “[A] conditional licence may be considered by the driver licensing authority subject to annual review, taking into account the nature of the driving task and information provided by the treating optometrist or ophthalmologist (emphasis in original).[13] The applicant’s binocular driving test results were tendered at the hearing. These further illustrated the optometrist’s findings and those of the medical clinic report.[14]
Type 2 diabetes mellitus
[10] Fitness to Drive Medical Clinic Report dated 10 May 2023, page 4
[11] Austroads Standards page 210
[12] Transcript of hearing dated 22 November 2023, pages 15-16
[13] Austroads Standards page 210
[14] Exhibit A: Results of Binocular Driving Test conducted on 16 February 2023
The applicant has a diagnosis of type 2 diabetes, treated with oral hypoglycaemic agents. The applicant was found to have met the relevant standard.[15]
Sedating medication use
[15] Fitness to Drive Medical Clinic Report dated 10 May 2023, pages 7-8; Transcript of hearing dated 22 November 2023, page 16
The medical clinic report listed the medications currently prescribed to the applicant,[16] and noted that the applicant “is prescribed oxycodone and paracetamol/codeine taken on an ‘as required’ basis. Oxycodene, codeine and other sedative medications, when taken intermittently, are very likely to cause driving impairment for the duration of their use.”[17] When Professor Parekh provided evidence on this point at the hearing, the applicant indicated that she had since ceased taking one of the medications listed in the medical clinic report – oxycodone. However, she provided no such qualification regarding the other medication she was prescribed in this class – paracetamol codeine, to use on an intermittent or as needs basis.[18]
[16] Fitness to Drive Medical Clinic Report dated 10 May 2023, page 2 at [2(a)]-[2(l)]
[17] Fitness to Drive Medical Clinic Report dated 10 May 2023, page 9
[18] Transcript of hearing dated 22 November 2023, pages 16‑17 and 25-26
In her evidence at the hearing, Professor Parekh explained that in addition to these issues, several other factors were also relevant which contributed to “a highly significant risk of impaired driving”.[19] She noted, specifically, findings about the applicant’s reduced cervical mobility which impacted her ability to turn her head which was critical, particularly when a visual field defect was present.[20]
[19] Transcript of hearing dated 22 November 2023, pages 17 and 18
[20] Transcript of hearing dated 22 November 2023, page 17
Regarding cognition, the medical clinic report noted that the applicant did meet the driving standard for an unconditional driving licence.[21] However, as noted in the medical clinic report[22] and by Professor Parekh in her evidence,[23] the applicant did not demonstrate insight into how her medical condition could adversely affect her ability to control a car, as shown by the applicant stating that the left lower quadrant of vision is not needed to drive a car, and stating that “if it’s so important why haven’t I had an accident then?” and “I’ve had this for a long time and I’ve never had an accident.”
[21] Fitness to Drive Medical Clinic Report dated 10 May 2023, page 4
[22] Fitness to Drive Medical Clinic Report dated 10 May 2023, pages 3-4
[23] Transcript of hearing dated 22 November 2023, page 17
Ultimately, the medical clinic report concluded that the applicant did not meet the requirements to hold a driver licence of any type due to her visual impairment.[24] Notably, it did go on to state that although it is unlikely that the applicant’s medical condition will improve to such an extent that it would enable her to hold a conditional licence, that the clinic would be happy to review her in the future should her treating doctor feel that there has been an improvement in her clinical condition.[25]
The effect of the word “may”
[24] Fitness to Drive Medical Clinic Report dated 10 May 2023, page 9
[25] Fitness to Drive Medical Clinic Report dated 10 May 2023, page 9
There is some discretion in the language of paragraph 87(1)(d) of the Road Transport (Driver Licensing) Regulation 2000. It provides that the RTA may cancel a person’s driver licence if the person does not comply with the required medical standards (emphasis added). The use of the word “may” in this regulation has utility, but its significance must be carefully contextualised. The effect of the use of the word “may” in comparable contexts has previously been considered by the tribunal.[26]
[26] See Bergild v Road Transport Authority [2017] ACAT 80 at [88] to [110], Brent v Road Transport Authority [2018] ACAT 37 at [61]-[68], and Christopherson v Road Transport Authority [2023] ACAT 69 at [62]-[66]
This Tribunal agrees with the finding in Brent v Road Transport Authority (Brent) that failure to comply with a required medical standard enables refusal of the application, but does not require that outcome.[27] The Tribunal in Brent agreed with the approach of Presidential Member McCarthy in the case of Bergild v Road Transport Authority in finding that the standards are considerations which should be followed unless exceptional circumstances exist, but not mandatory rules of law.[28] In terms of what might constitute exceptional circumstances, the Tribunal in Brent opined that in some circumstances, the grant of a learner licence to enable a test where the person is close to the required medical standard would be useful and appropriate.[29]
Was this a borderline case?
[27] [2018] ACAT 37 at [67]
[28] [2018] ACAT 37 at [63]
[29] [2018] ACAT 37 at [66]
At the hearing, the Tribunal asked Professor Parekh whether the applicant’s circumstances could in any way be characterised as “borderline”, i.e., “close to” the required medical standard. Professor Parekh declined to do so and pointed out the clear delta between the required standard under the visual binocular estimate test and the applicant’s result under that test, and made it clear that the applicant’s case could not be characterised as borderline given her result under the test and her broader circumstances as disclosed by the other medical tests.[30] The RTA’s submissions also emphasised the significance of the effect of the combination of the applicant’s multiple medical conditions in this regard.[31] Professor Parekh’s report summarised the position, in sum, as “In the case of [Applicant 662023], her visual field deficit and decreased range of cervical spine rotation precludes her from having the skills required for safe driving.”[32]
[30] Transcript of hearing dated 22 November 2023, page 10
[31] Transcript of hearing dated 22 November 2023, page 28
[32] Report of Professor Parekh dated 28 September 2023, page 3
Professor Parekh went on to note:
[Applicant 662023] is not medically fit to undertake a practical driving assessment as she does not meet the visual standard for driving.
…
Based upon the clinical consultation, and the information provided above, it is my opinion and the opinion of the Fitness to Drive Panel that [Applicant 662023] should not be issued any type of driver licence nor participate in an on-road test for the purposes of these proceedings.
Should [Applicant 662023] be granted a driver licence the responsibility of this decision rests with any supporting medical practitioner(s), the Road Transport Authority and the Australian [sic] Civil and Administrative Tribunal and is not supported by the FTDMC Panel.[33] (emphasis in original)
[33] Report of Professor Parekh dated 28 September 2023 pages 3-4
It was clear from the medical tests and reports which were tendered with the tribunal and from Professor Parekh’s evidence that the applicant’s case was clearly not one which could be classed as “close to” or at the “borderline” in relation to the required medical standard. All of the medical evidence clearly supported the RTA’s original decision of 11 May 2023.
Is the order sought by the applicant appropriate?
The applicant did not seriously contest any of the medical findings made. She submitted, however, that the correct and preferable decision would have been to provide her with the opportunity to prove her continued driving ability through undertaking a driving test.
For the reasons which follow, this would not be an appropriate order to make in the circumstances.
Road safety is a cardinal consideration in the applicable legislative framework. Paragraph 3(e) of the Road Transport (Driver Licensing) Act 1999 specifies that one of the objects of the Act is to provide a way of enforcing safety standards relating to the driving of motor vehicles on roads. The relevant Austroads Standards acknowledge that decline in vision is associated with normal ageing and is therefore an important consideration for the fitness to drive of older people. It also notes that progressive eye conditions are more common in older people. [34] The Standard addresses the effects of vision and eye disorders on driving in some detail.[35] It is instructive to quote it directly:
Good vision, including visual acuity and visual fields, is essential to operating a motor vehicle. Any marked loss of visual acuity or visual fields will diminish the person’s ability to drive safely, including their ability to detect another vehicle, pedestrians or warning signs. It may also increase the time for a person to perceive and react to a potentially hazardous situation.
Peripheral or side vision assists the driver to be aware of the total driving environment and is particularly important in certain common driving tasks, such as merging into a traffic stream or changing lanes, and in detecting pedestrians and vehicles to the side of the line of vision.
Vision defects can develop slowly, and drivers may be unaware of their reduced abilities, particularly in relation to peripheral vision.[36]
[34] Austroads Standards, page 202
[35] Austroads Standards, page 201
[36] Austroads Standards, page 201
The respondent submitted that it would not be appropriate for the applicant to undertake an on-road test as it is not a reliable method to assess visual fields, given that a person or object may not happen to appear in the areas of reduced vision during the driving test.[37]
[37] Submissions of respondent dated 1 November 2023, page 7
Section 10.2.9 of the relevant Austroads Standards explain this further. They provide that:
A practical driver assessment is not considered to be a safe or reliable method of assessing the effects of disorders of vision on driving, especially the visual fields, as the driver’s response to emergency situations or various environmental conditions cannot be determined. Information about adaptation to visual field defects can be gained from visual field tests such as the Esterman.[38]
[38] Austroads Standards, page 208
This section is clear in explaining the reasoning behind the use of visual field tests rather than on-road tests as an appropriate means of assessing visual ability and it has been cited by the tribunal in multiple cases.[39] It was also cited by Professor Parekh in her evidence to the tribunal.[40] Professor Parekh’s very significant qualifications and experience were tendered with the tribunal. They included (but were not limited to) the fields of traffic medicine and forensic medicine.[41] Professor Parekh established the Fitness to Drive Clinic in 2014[42] and is an Authorised Medical Reviewer under the Road Transport (Driver Licensing) Regulation 2000.[43] Her evidence was of great assistance to the tribunal.
[39] See Bergild v Road Transport Authority (No 2) [2018] ACAT 8 at [48] and Christopherson v Road Transport Authority [2023] ACAT 69 at [82]
[40] Transcript of hearing dated 22 November 2023, page 19
[41] Report of Professor Parekh dated 28 September 2023, Annexure A
[42] Transcript of hearing dated 22 November 2023, page 10
[43] Road Transport (Driver Licensing) (Authorised Medical Reviewer) Appointment 2022 (No 1)
In her report of 28 September 2023, Professor Parekh summarised the medical position clearly in the following terms:
Practical driving assessment
A practical driving assessment involves putting a person into a vehicle with a driving instructor and occupational therapist. Driving skills are then assessed whilst the person is driving on a public road. There are clinical situations that are clearly unsuitable for on-road assessments such as significant visual impairment or significant cognitive impairment. This assessment is not recommended for these conditions as it has limited utility and risk to public safety.
Driving fitness has implications beyond those directly pertaining to driver safety. Other road users and passengers are at risk of being affected by crashes, and fitness to drive therefore, has an important role in public health and safety. This also extends to the driving instructor and occupational therapist involved in the on-road assessment and places them at risk if they were to drive with a person who is medically unfit to drive. This was tragically confirmed in Victoria a few years ago when an occupational therapist was killed, and a driving instructor was severely brain injured whilst undertaking a practical driving assessment. Medical clearance to undertake a driving assessment is an essential aspect of fitness to drive assessments.[44]
[44] Report of Professor Parekh dated 28 September 2023 at pages 3-4
The then Administrative Appeals Tribunal (ACT) in Sutton v Road Transport Authority noted that the rationale behind the relevant legislative tests is whether the benefit which the applicant might derive from the grant (or renewal) of a driver licence would be outweighed by the risks associated both to themselves and the public.[45] In the instant case, the expert testimony of a qualified and eminent expert has clearly indicated that risks would so outweigh the benefits.
[45] [2008] ACTAAT 2 at [31]
As Presidential Member McCarthy stated in Bergild v Road Transport Authority (No 2) (Bergild No 2):
…I am satisfied that the need for peripheral vision in order to respond to unexpected events explains why there is little (if any) purpose in conducting an on-road driving test. In all probability, an on-road driving test would be entirely uneventful because nothing would unexpectedly come onto the road. Put another way, Mr Bergild’s ability to respond to unexpected events happening or commencing in his peripheral vision relevant to his driving ability would remain untested.
…
[A]n on-road driving test is not an appropriate means of testing whether a person has sufficient peripheral vision to hold a driver licence, conditional or otherwise, because it would only test the person’s ability to respond to an unexpected event in the periphery if it occurred. In all probability it would not occur.[46]
[46] [2018] ACAT 8 at [44] and [48]
The relevant Austroads Standards notes that “[d]ecline in vision is associated with normal ageing and is therefore an important consideration for fitness to drive in the general care of older persons.”[47]
[47] Austroads Standards, page 202
As noted by the tribunal in Christopherson v Road Transport Authority, such cases present significant difficulties for the applicant, in that this is not a case where it is difficult to assess the extent to which the applicant fails to meet the required standard or where an on-road driving test has been recommended to assess whether she is able to drive safely.[48]
[48] [2023] ACAT 69 at [82]
In Bergild No 2, the Tribunal remarked on the essentiality of peripheral vision for safe driving in order to respond to unexpected actions, objects or circumstances which may have consequences for the driver (and for others).[49] The obvious example there cited was of a child running onto the road without first checking for oncoming traffic. The ability of a driver to react in time would be significantly hampered where they have poor peripheral vision. Although the possibility of a child running onto the road and being hit might seem, to some, to be remote, the consequence of it is so serious that the risk of it should be avoided.[50]
[49] [2018] ACAT 8 at [38]
[50] [2018] ACAT 8 at [41] – [42]
The applicant’s driving record was put into evidence.[51] It constituted a good record, for which she is to be commended. However, a past driving record is not necessarily an indicator of future driving outcomes. This is particularly so when degenerative medical conditions are present.
[51] Statement of Demerit Points as at 10 October 2023, Statement of Licence Details dated 10 October 2023, Tribunal documents, and applicant’s submissions
I recognise that this outcome is disappointing for the applicant. Nonetheless, there comes a time at which everybody must stop driving. The evidence before the Tribunal leads to the inexorable conclusion that, in all of the circumstances, any benefit which she might obtain from the grant of a driver licence would be outweighed by the risks both to herself and to the general public.
Orders
The decision under review dated 11 May 2023 is confirmed.
The application for review is dismissed.
………………………………..
Senior Member J Kalokerinos
| Date of hearing: | 22 November 2023 |
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Ms S Kivela, ACT Government Solicitor |
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