C v Road Transport Authority (Administrative Review)
[2016] ACAT 46
•18 May 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
C v ROAD TRANSPORT AUTHORITY
(Administrative Review) [2016] ACAT 46
AT 6/2016
Catchwords: ADMINISTRATIVE REVIEW – reviewable decision – driver’s licence – whether applicant meets all 4 criteria under ‘Medical Standards for Licensing - Psychiatric Conditions’ in order to hold a driver’s licence – medical evidence about psychiatric and cognitive issues confirm the grounds for cancelling the applicant’s licence
Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s9
Road Transport (General) Act 1999 s 95
Subordinate
Legislation:Road Transport (Driver Licensing) Regulation 2000 ss 15, 87
Road Transport (General) Regulation 2000 ss 11, sch 1, part 1.4
List of Papers/Texts
Cited:Medical Standards for Licensing – Psychiatric Conditions’, Part 7.3, Austroad
Tribunal: Senior Member L Beacroft
Date of Orders: 18 May 2016
Date of Reasons for Decision: 18 May 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 6/2016
BETWEEN:
C
Applicant
AND:
ROAD TRANSPORT AUTHORITY
Respondent
TRIBUNAL: Ms L. Beacroft – Senior Member
DATE: 18 May 2016
ORDER
The Tribunal Orders that:
That any evidence given at the hearing, or the documents filed with the tribunal in relation to the application, will be de-identified for the public record by the exclusion of the name of the applicant.
That no person shall publish the name or address of the applicant and he is to be referred to as “C”.
The reviewable decision of 19 November 2015 is confirmed.
………………………………..
Senior Member L Beacroft
REASONS FOR DECISION
Background
The applicant, identified in these reasons as C, held an ACT driver’s licence which was cancelled by the Road Transport Authority (the respondent), and he sought a review to regain his driver’s licence.
He then applied to the Tribunal for review of the decision made by the respondent on 19 November 2015 which confirmed the cancellation of his licence (‘the reviewable decision’).
Assessment and Objection
The original decision by the respondent to cancel the applicant’s licence indefinitely, dated 5 August 2015, was based on medical evidence, being the most current Fitness to Drive Medical Clinic Report (FTDMC Report) dated 27 July 2015, signed by Dr Parekh.
The FTDMC Report considered various material provided by the applicant including a letter from a mental health nurse, dated 14 July 2015, letters from a psychiatrist, dated 14 July 2015 and 18 September 2014, and letters from a medical practitioner at a mental health service the applicant attends, dated 20 May 2015 and 1 May 2015. The preparation of the report involved telephone conversations with the applicant’s then treating doctors and mental health clinicians. The FTDMC Report relied on a clinical examination of the applicant on 25 September 2014 where (among other assessments) the applicant was administered the Addenbrooke’s Cognitive Examination ACE-III Australian Version A (2012) test (ACE test). The FTDMC Report concluded that the applicant did not meet the requirements to hold any driver’s licence, as measured against the ‘Medical Standards for Licensing - Psychiatric Conditions’.[1]
[1] Respondent’s Submissions dated 18 April 2016, Attachment D, FTDMC Report dated 27 July 2015, page 5
During the proceedings the respondent obtained a further medical report from Associate Professor O’Dell, dated 1 April 2016 (the O’Dell Report). The O’Dell Report applied the ‘Medical Standards for Licensing - Psychiatric Conditions’. Dr O’Dell concluded that the applicant is not fit to hold any licence because of his “chronic psychiatric condition, lack of insight, cognitive impairment and substance abuse.”[2]
Hearing
[2] Respondent’s Submissions dated 18 April 2016, attachment E, O’Dell Report, page 7
A hearing was held on 26 April 2016. The applicant appeared in person. Mr G Mangeruca, solicitor appeared for the respondent, instructed by Mr B Swale, Manager Road User Services, and Road Transport Authority.
Prior to the hearing, the parties lodged and exchanged various documents, including a substantial set of documents prepared by the respondent relevant to the case (called T documents). The applicant provided a letter from his brother dated 29 September 2015, a letter from the mental health nurse, dated 9 October 2015, and a written statement of his claims.
During the proceedings the applicant indicated that he had difficulty reading, remembering and digesting the material before the Tribunal. At the beginning of the hearing the respondent’s representative gave a detailed account of all the key documents they relied on, these were brought to the attention of the applicant and read out and/or summarised by the Tribunal for the applicant’s benefit. At the end of this process, the applicant said he understood the respondent’s case for cancelling his licence, although he didn’t agree with it.
Dr Parekh, the author of the FTDMC Report, gave evidence in person, and Dr O’Dell gave evidence on the telephone, at the hearing. Dr Parekh provided the examination records for the applicant from the clinical assessment conducted on 25 September 2014, (Exhibit R1), and the completed ACE test for the applicant, dated 25 September 2014, (Exhibit R2), at the hearing.
The contested issue was whether the applicant meets all four criteria under ‘Medical Standards for Licensing - Psychiatric Conditions’ in order to hold a drivers licence.
Legislation
In summary, the decision to cancel the applicant’s licence was made pursuant to section 87(1)(d) of the Road Transport (Driver Licence) Regulation 2000 (ACT) (see extract at end of these reasons). The applicant sought an internal review of this decision, which confirmed the licence cancellation (the reviewable decision). The applicant then sought a review by the Tribunal of the reviewable decision under section 95 of the Road Transport (General) Act 1999 and section 9 of the ACT Civil and Administrative Tribunal Act 2008 (see extract at end of these reasons). As the decision was an ‘internally reviewable decision’ under item 57, part 1.4 of schedule 1 of the Road Transport (General) Regulations 2000, the Tribunal has the power to review the reviewable decision (see extract at end of these reasons).
By virtue of section 15 of the Road Transport (Driver Licensing) Regulation 2000, the required medical standards which the applicant had to meet (under section 87(1)(d) of the Road Transport (Driver Licensing) Regulation 2000) are set out in the publication, Assessing Fitness to Drive, March 2012 (as amended to 30 June 2014). In the applicant’s case the standards relevant to his licence cancellation were: ‘Medical Standards for Licensing – Psychiatric Conditions’, Part 7.3, Austroad (see extract at end of these reasons).
Applicants’ Contentions
The applicant gave evidence about the importance of the licence to his quality of life, which the Tribunal acknowledged.
The applicant gave evidence that he had stopped consuming cannabis for some time prior to the hearing and had significantly reduced his alcohol consumption. He said he had recently begun taking a prescribed medication for pain-management instead of cannabis. He said that he was a very experienced driver, having driven heavy vehicles long distances without incident.
The applicant said that he does not agree that he has a mental illness, but is willing to submit to treatment. However he said he had not had his last injection of anti-psychotic medication because of an issue he has with the staff, and that he might not see his usual medical practitioner at his mental health service, because “he annoys me”. While he claimed to have an excellent driving record, ie no accidents, he said he had been “caught” for driving while under the influence of alcohol nine times. He agreed that his memory had been badly affected after a very serious assault some years ago, and stated that he knows he has damage from this assault which he described as many “hotspots” in his brain.
Respondent’s Contentions
The respondent relied on the medical evidence in the FTDMC Report and the O’Dell report.
The oral evidence of both Dr Parekh and Dr O’Dell at the hearing was important. It explained in detail various matters in their reports, allowed the applicant to hear their opinions and conclusions and the reasons for these, and also allowed these medical experts to consider the changed situation in regard to the applicant’s replacement of cannabis with a pain killer for his pain relief and other matters that the applicant put to them.
Both Dr Parekh and Dr O’Dell confirmed their conclusions as stated in their reports in their evidence at the hearing.
In essence, both doctors concluded that the applicant did not meet any of the four criteria to be fit to drive under the ‘Medical Standards for Licensing – Psychiatric Conditions’. While the applicant’s medical practitioner at his mental health service concluded that the applicant was fit to drive, Dr Parekh re-stated her opinion in the FTDMC Report which is that the applicant, given his current condition and history, would need to be compliant with his treatment for a much longer period than the three months he had seen this medical practitioner to demonstrate that he meets criteria 1 and 2[3]. Dr O’Dell stated that even if the applicant was compliant with injections of anti-psychotic medication, it is not clear from his history that this medication is always effective – compliance with an effective wider treatment plan was critical, but given the applicant’s history (many involuntary admissions), Dr O’Dell concluded that the applicant lacked insight about his medical condition and the effect on his driving when he is unwell.
[3] Respondent’s submissions dated 18 April 2016, Attachment D, FTDMC Report dated 27 July 2015, page 4
Both medical experts were concerned about the applicant’s cognitive capacity, especially for memory and spatio-visual function which are essential for driving, based on the results of the ACE test. While the applicant asked to re-do the ACE test, Dr O’Dell stated that the results would not be able to be improved at all, or over a short time frame. O’Dell stated that even if the applicant was psychiatrically stable, his cognitive dysfunction is significant, he lacks insight into its effects on his driving, and these matters preclude him from driving.
Both doctors agreed that the adverse impacts of the applicant’s medication were of least concern in regard to the applicant’s fitness to drive. They both agreed that since the applicant had been taking his anti-psychotic medication for some time, the sedation effects on him would be less marked. However Dr O’Dell stated that now that the applicant was taking medication for pain-management instead of cannabis, the sedative effects of this new medication would be significant. Dr O’Dell stated that the new medication led to increased concern about the applicant meeting the criteria relating to adverse impacts of medication.
Findings and Decision
The medical evidence in support of the cancellation of the applicant’s driving licence indefinitely is overwhelming, The applicant does not meet any of the criteria under the . ‘Medical Standards for Licensing – Psychiatric Conditions’, Part 7.3, which he must meet to be fit to drive.
The Tribunal notes that the FTDMC Report and the report by Dr O’Dell set out the medical matters to be addressed by the applicant if the applicant applies to have a driver’s licence again.
The Tribunal orders that:
1.The reviewable decision of 19 November 2015 is confirmed.
………………………………..
Senior Member L Beacroft
HEARING DETAILS
FILE NUMBER: | AT 6 of 2016 |
PARTIES, APPLICANT: | C |
PARTIES, RESPONDENT: | Road Transport Authority |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | Mr Mangeruca |
TRIBUNAL MEMBER: | Ms L. Beacroft – Senior Member |
DATEOF HEARING: | 26 April 2016 |
SCHEDULE OF LEGISLATION
ACT Civil and Administrative Tribunal Act 2008
Applications under authorising laws
A person may apply to the tribunal if an authorising law provides that the application may be made.
Road Transport (General) Act 1999
Applications for review
The following may apply to the ACAT for review of a reviewable decision:
(a)for an internal reviewer’s decision in relation to an internally reviewable decision—a person to whom an internal review notice is required to be given in relation to the decision;
(b)any other person whose interests are affected by the decision.
Road Transport (General) Regulation 2000
Internally reviewable decisions—Act, s 90, def internally reviewable decision
A decision mentioned in schedule 1, column 3 under a provision mentioned in column 2 in relation to the decision is prescribed.
Part 1.4
| column 1 item | column 2 provision | column 3 decision |
| 11 | 67 (2) | road transport authority—imposition of condition on driver licence issued because of exemption from eligibility requirement |
Road Transport (Driver Licencing) Regulation 2000
Meaning of required medical standards
(1)For this regulation, the required medical standards, in relation to a person, are the medical standards set out in the publication Assessing Fitness to Drive, as amended from time to time, published by Austroads, that apply to the person.
(2)The Legislation Act, section 47 (6) does not apply to the required medical standards.
Note The commercial standards mentioned in the required medical standards apply in relation to the accreditation of a driving instructor and of a heavy vehicle driver assessor (see s 104 (2)).
Division 5.2 Variation, suspension or cancellation of driver licences
When authority may vary, suspend or cancel driver licences
(1)The road transport authority may vary, suspend or cancel a person’s driver licence on its own initiative under section 88 (Procedures for variation, suspension or cancellation of driver licences) if the authority is satisfied on reasonable grounds that—
(a)the person is not eligible to apply for, or be issued with, a class or kind of driver licence held by the person; or
(b)the person does not have sufficient driving ability or knowledge of safe driving practices or road law to hold a driver licence or a driver licence of the class or kind applied for; or
(c)the person is not a suitable person to hold a driver licence or a driver licence of the class or kind held by the person; or
(d)the person does not comply with the required medical standards; or
(e)the person’s ability to drive safely is impaired by—
(i)an illness, injury or incapacity suffered by the person; or
(ii)the effects on the person of treatment (including the taking of a drug) for an illness, injury or incapacity suffered by the person; or
(f)the person has not complied with any requirements of a law of any jurisdiction relating to the assessment, treatment, supervision or education of drivers convicted or found guilty of offences involving alcohol or drugs that apply to the person; or
(g)the person has been convicted or found guilty in another jurisdiction, an external territory or a foreign country of an offence because of which the licensing authority of the other jurisdiction, external territory or foreign country could have varied, suspended or cancelled the person’s licence if it had issued the licence; or
(h)the licence was issued or renewed in error; or
(i)the licence is incorrect in any material respect; or
(j)the person has failed to comply with a condition to which the licence is subject; or
(k)the person has not complied with a requirement made by the authority in relation to the licence or a requirement of the Act relating to the licence; or
(l)the photograph contained in the licence is no longer a true likeness of the person; or
(m)if the licence was issued endorsed with ‘Valid without photo’—the person has unreasonably refused to go to a place designated by the authority to have a photograph taken or provide a photograph that is suitable for use on a driver licence; or
(n)the person has failed to comply with a request under section 88B (2); or
(o)the person has failed to return the person’s public vehicle driver authority card to the authority as required under section 64B (2).
NoteSee s 15 for the meaning of required medical standards.
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