Le Vannais and Department Of Transport
[2012] WASAT 155
•31 JULY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008
CITATION: LE VANNAIS and DEPARTMENT OF TRANSPORT [2012] WASAT 155
MEMBER: MR T CAREY (MEMBER)
HEARD: 8 JUNE 2012
DELIVERED : 31 JULY 2012
FILE NO/S: CC 247 of 2012
BETWEEN: ROBERT LEON LE VANNAIS
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Road traffic Decision to suspend and refuse to grant licence authorisations for commercial purposes Applicant with implanted cardioventer defibrillator National Assessing Fitness to Drive Guidelines prohibiting grant of licences Whether strict application of guidelines required Rationale for prohibition in defibrillator cases Whether prohibition warranted given applicant's circumstances
Legislation:
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 25, reg 41(1)(b)(i), reg 25(b), reg 41, reg 42(4)
Road Traffic Act 1974 (WA), s 48
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Review application successful
Final orders to be determined
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr P Busby (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: Department of Transport
Case(s) referred to in decision(s):
Parker and Director General of Transport [2012] WASAT 151
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant was the subject of two separate decisions of the respondent, the effect of which was to prevent him from holding commercial driver's licences. The decisions were based upon the admitted fact that the applicant has had a cardioverter defibrillator implanted. According to nationally accepted guidelines used by licensing authorities in reaching their decisions and applied by the respondent in the present case, the admitted fact disentitled the applicant to the commercial licences.
The applicant was able to point to a number of personal circumstances which he contended militated against the strict application of the national guidelines in his case. They were that the defibrillator was implanted in his case at a time he had a cardiomyopathy in order to guard against possible future arrhythmias; he has never had an arrhythmia; he no longer has any cardiomyopathy; and, if he were to be considered now, he would not have a defibrillator implanted.
The Tribunal considered first whether the national guidelines must always be strictly applied. It found against such a strict application, on the basis that to do so would represent a failure to exercise the statutory power vested in the decisionmaker, and the impermissible elevation of the guidelines to rules of law. This did not mean, however, that the guidelines did not perform a useful role in assisting the decisionmaker to make informed and consistent decisions.
In the present case, the prohibition under the guidelines directed the Tribunal's attention to those aspects of the implantation of the defibrillator giving rise to an appreciable risk or likelihood that the applicant's ability to control a motor vehicle might be impaired, such likelihood conditional upon the exercise of the statutory power. On the basis of all the available evidence, the Tribunal found against the existence of an appreciable risk in the applicant's case.
The Tribunal accordingly concluded that the decisions must be set aside. The proceeding was listed for directions in order to determine whether the applicant's licences ought to be conditional or unconditional.
Overview
The applicant seeks review of two decisions of a delegate of the Director General of the Department of Transport on internal review, pursuant to reg 42(4) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations) given effect to by s 48 of the Road Traffic Act 1974 (WA).
The two decisions were to suspend Mr Le Vannais' HRB and MRB licence authorisations and to refuse to grant him an 'F' extension endorsement. The MR and HR licences are for heavy vehicles, and the 'F' extension allows the holder to drive for the purpose of carrying passengers for reward except in a taxi.
The decision on internal review was made by Ms Anne Mason, Acting Director, Quality Assurance and Compliance, Department of Transport, on 17 October 2011. Subsequently, apparently as a result of a request for a further review, a further decision was made on behalf of the Director General by Mr Bruce Moore, Director, Quality Assurance and Compliance, on 30 December 2011, affirming the conclusion arrived at by Ms Mason.
The rationale for the decisions adverse to Mr Le Vannais is that he is not medically fit to hold the licence authorisations and the endorsement in question, by reason of the fact that he has a cardioverter defibrillator implanted. On the basis of nationally recognised guidelines used by all Australian road traffic licensing authorities in determining a person's fitness to hold a driver's licence as they stood at the time of the original decision, and under the slightly more stringent guidelines which now exist, Mr Le Vannais is assessed to be ineligible to hold the authorisations and the endorsement.
Mr Le Vannais contends that the strict application of the guidelines is unreasonable in light of his particular circumstances, and that he should be assessed as medically fit for the relevant purpose.
Issue for determination
In February 2010, Mr Le Vannais was diagnosed with a cardiomyopathy. His cardiologist advised that an implantable defibrillator was indicated in order to prevent the future occurrence of ventricular arrhythmias.
According to all the available medical evidence, Mr Le Vannais has made excellent progress. He no longer has any cardiomyopathy. He has not had any arrhythmias since the insertion of the device and is an extremely low risk case for any arrhythmias now.
Under the Regulations, the Director General of the Department of Transport has ground for refusing to grant a driver's licence or authorisation (and ground to suspend an existing licence or authorisation) where he has reason to believe that a person suffers from a physical condition that is likely to, or treatment for which is likely to, impair the person's ability to control a motor vehicle. In the exercise of the discretion embodied in the relevant provisions of the subsidiary legislation, the Director General has regard to indeed, it seems, invariably applies the provisions of the then current version of Assessing Fitness to Drive For Commercial and Private Vehicle Drivers Medical standards for licensing and clinical management guidelines, a publication of the Australian Transport Council which has been endorsed by all Australian State and Territory driver licensing authorities (Assessing Fitness to Drive publication/Assessing Fitness to Drive Guidelines).
The Assessing Fitness to Drive Guidelines, as they were at the time of the Director General's decisions (original and on internal review) appearing in the September 2003 edition (2003 Guidelines), provided that, in the case of commercial licences, the criteria for an unconditional licence are not met 'if the person has a cardiacdefibrillator implanted for ventricular arrhythmias'. In the case of a private licence, the same provision is made, but conditional licences are possible in certain circumstances.
The version of the Assessing Fitness to Drive Guidelines applying currently was published in March 2012 (2012 Guidelines). They incorporate a small but potentially significant variation to the previous guidelines. In the case of commercial licences:
A person is not fit to hold an unconditional licence or a conditional licence if the person requires or has had an [implantable cardioverter defibrillator] implanted for ventricular arrhythmias.
The 2012 Guidelines allow that conditional private licences may be granted to persons with an implantable cardioverter defibrillator (ICD) implanted. The text of the relevant provision is reproduced here:
A conditional licence may be considered by the Driver Licensing Authority subject to periodic review, taking into account the nature of the driving task and information provided by the treating specialist as to whether the following criteria are met:
•The ICD has been implanted for an episode of cardiac arrest and the person has been asymptomatic for six months;
or;
•The ICD has been prophylactically implanted for at least two weeks; and
•There are minimal symptoms relevant to driving (chest pain, palpitations, breathlessness).
A person should not drive;
•For two weeks after a generator change of an ICD;
•For at least four weeks after appropriate ICD therapy associated with symptoms of haemodynamic compromise
…
The parties are in agreement that the application of the 2012 Guidelines in Mr Le Vannais' case would mean that entitlement to any commercial licence of the nature sought by Mr Le Vannais is excluded. The primary issue for determination, therefore, is whether or not the 2012 Guidelines should be applied in the circumstances of Mr Le Vannais' case.
The determination of the primary issue depends upon the answers to the following subordinate questions:
1)Whether, in exercising the discretion to refuse a licence or authorisation on medical grounds, the Assessing Fitness to Drive Guidelines must be strictly applied.
2)If the answer is 'no', the rational for the prohibition under the Assessing Fitness to Drive Guidelines in cases involving ICDs.
3)Whether, in light of any reasonable justification disclosed under 2) and the circumstances of the present case, the prohibition should stand.
I will consider each question in turn.
A. Extent to which Assessing Fitness to Drive Guidelines must be followed in exercising statutory discretion
The decision to suspend the HR and MR authorisations is referable to the Director General's power under reg 41(1)(b)(i) of the Regulations, whereby:
(1)The Director General may, by notice in writing given to the licence holder
…
(b)suspend or cancel a person’s driver's licence if
(i)the Director General has reason to believe that there are grounds on which the Director General could, if then considering whether to grant the driver's licence, refuse under regulation 25 to grant it; or
(ii)the Director General is no longer satisfied of each of the matters referred to in regulation 24.
Regulation 25 of the Regulations provides, relevantly:
The Director General may refuse to grant a driver's licence to a person if the Director General has reason to believe that the person
…
(b)suffers from a mental or physical condition (which may include a dependence on drugs or alcohol) that is likely to, or treatment for which is likely to, impair the person's ability to control a motor vehicle; …
The decision to refuse the grant of an 'F' extension endorsement was made directly under reg 25 of the Regulations.
As I have said, in purportedly exercising these powers, it appears that the Director General's delegate habitually invokes the standards of the Assessing Fitness to Drive Guidelines. This was certainly the case in the current matter. The respondent's statement of issues, facts and contentions includes as its first contention, at page 2:
…
6.On the 25/07/2011 the Respondent's Occupational Health Physician made the recommendation that the Applicant was not medically fit to hold the licence and extension applied for. The recommendation was made with reference to the commercial vehicle guidelines noting that the Applicant has an implanted defibrillator …
Ms Mason's letter dated 17 October 2011 makes clear that her decision on internal review was founded upon the recommendation of the Occupational Health Physician.
The respondent's statement contains the following somewhat contradictory contention, at page 4:
…
Certainly the Respondent is not bound by the guidelines[;] however, where there is a divergence of medical opinion on a person's physical ability to control a motor vehicle the Respondent is duty[-]bound to act in the interests of public safety.
…
In fairness to the respondent, this contention was advanced prior to the production of the report of the respondent's own medical expert report which, as will be explained, was, in significant respects, entirely consistent with the only other medical evidence dealing with Mr Le Vannais' condition, treatment and ability to drive. However, in closing submissions, after all the evidence had been adduced, the respondent's representative maintained that the decisions ought to stand, because that is the result demanded by the Assessing Fitness to Drive Guidelines.
The Tribunal has recently had cause to consider the status of the Assessing Fitness to Drive Guidelines in Parker and Director General of Transport [2012] WASAT 151 (Parker). In Parker, the applicant had been diagnosed as having experienced an epileptic or other seizure, which resulted in a decision to suspend his commercial licences. In reaching this decision, the Director General's delegates relied upon the Assessing Fitness to Drive Guidelines. Member OwenConway characterised their reliance in this regard as the adoption of an administrative policy, and made the following observations which are pertinent to the current matter (at [19] [23]):
There is no other regulation to instruct the respondent how to arrive at the state of mind called for by reg 25(b) and reg 41 of the Regulations. There is no gazetted policy to which the Tribunal must have regard, pursuant to s 28(2) of the SAT Act. Where the respondent has an informal policy, and if the policy is lawful, generally, the lawful administrative policy should be applied unless there are cogent reasons to the contrary, including where the application of the policy will give rise to an injustice in an individual case: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Where the respondent adopts a policy, the respondent must be satisfied that the policy itself is lawful and not inconsistent with the legislation which confers the statutory power upon the respondent: see NEAT Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277. The application of the policy must not prevent the respondent from exercising the full extent of the legislative power conferred on him in this case, to form a particular reasoned belief in relation to the applicant's condition and/or treatment, and the impact of that condition and/or treatment on the applicant's ability to control a medium or heavy truck.
Regulation 25(b) and reg 41 of the Regulations identify that the respondent must form, or arrive at, a reasoned belief that the applicant's medical condition is likely to impair the particular driver's licence holder's ability to control a motor vehicle. Whilst there is no gazetted or written departmental policy relevant to the exercise of the statutory power conferred on the respondent by reg 25(b) and reg 41 of the Regulations to suspend a driver's licence, it is an admitted fact that the respondent's delegates relied upon the National Transport Commission's Medical Standards for Licensing and Clinical Management Guidelines 2003 (2003 Guidelines) when making the decision and in undertaking the internal review.
The 2003 Guidelines identify medical standards for determining 'fitness to drive' either a 'private' vehicle or a 'commercial' vehicle. A MR and HR driver's licence fall within the category of commercial vehicle. Generally, the 2003 Guidelines determine the 'fitness to drive' by reference to a condition and the treatment of the condition. In short, the 2003 Guidelines determine that, in the case of epilepsy, 'seizures', 'provoked' seizures, nocturnal seizures and the induction of medication therefore (which Epilim is), a person is not 'fit' to drive and there is no discretion to depart from that conclusion within the 2003 Guidelines in the circumstances of this application.
Further, in discharge of the power conferred by reg 25(b) and reg 41 of the Regulations, the respondent cannot purport to exercise the statutory power by adopting another person's belief or decision. To do otherwise is to misconceive the exercise of the power, and will amount to a constructive failure on the part of the respondent to exercise the discretion: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57. The prescribed belief must be in relation to the licence holder (in this proceeding, the applicant). In the Tribunal's opinion on the law, the respondent is not entitled to formulate a belief in respect of the type of condition or treatment in issue alone. What is required of the respondent is an assessment of the particular licence holder and that person's condition or treatment in relation to any possible resultant impairment of the person's control of a motor vehicle which the licence authorises the person to drive.
And, at [111] [113] of Parker, the Member exposed the error which she identified as having occurred in the case before her when she said:
It is apparent from the facts concerning the original 'decision' and the internal 'review' that it is the practice of the respondent's delegates to accept the statement of the medical practitioner and the medical practitioner's rigid application of the 2003 Guidelines or the 2012 Guidelines. Further, as can be seen from the manner in which the various 'assessments' have been undertaken, the respondent's delegates merely adopted the opinion of a treating medical practitioner as to the applicant's condition(s), treatment and ability to control a medium and heavy truck without any documentation justifying the opinion. No real attempt was made by the respondent's delegates to form any reasoned belief as required by reg 25(b) and reg 41 of the Regulations.
In this application, the respondent's delegates did not actually give consideration to the applicant's medical condition and treatment, and how, if at all, it affected or would likely affect the applicant's ability to control medium and heavy trucks. Such adoption of the medical practitioner's view as the decision is a constructive failure to exercise the decisionmaking power conferred on the respondent by reg 25(b) and reg 41 of the Regulations. There was, in the Tribunal's opinion, no real decision made or review undertaken by the respondent or his delegate pursuant to reg 25(b), reg 41 and reg 42 of the Regulations.
Further, in this case, the recommendation of Dr Silbert was treated as the decision, and no further consideration was given to the applicant's particular condition or treatment, his circumstances and his history of driving medium and heavy trucks. Such application of the 2003 Guidelines, even by the respondent's delegates, would have the effect of elevating the 2003 Guidelines to rules of law that overtake the provisions of reg 25(b) and reg 41 of the Regulations.
Although the review is by way of a hearing de novo, and its purpose is not to critique the decisionmaking of the decisionmaker but to produce the correct and preferable decision (see s 27 of the State Administrative Tribunal Act 2004 (WA)), it is clear on the evidence in this case that the respondent's delegates have engaged in the same rigid adoption of the Assessing Fitness to Drive Guidelines as occurred in Parker. For the reasons explained in that case, this has resulted in a constructive failure by the respondent to exercise the discretion conferred on it by the Regulations and the elevation the Assessing Fitness to Drive Guidelines to rules of law, thereby impermissibly overtaking the proper exercise of the respondent's powers under reg 25(b) and reg 41 of the Regulations.
B. Policy justification for prohibition where defibrillator implanted
It is necessary to bear in mind that the present case is concerned only with the implantation of Mr Le Vannais' fibrillator, and not any underlying medical condition. The respondent accepts that Mr Le Vannais has never had ventricular arrhythmias, that the fibrillator was inserted prophylactically (that is, as a purely preventative measure, rather than to treat a diagnosed arrhythmia), that Mr Le Vannais has no higher risk of ventricular arrhythmias than the general population, and that, if being considered now, Mr Le Vannais would not qualify for an implantable defibrillator. These matters have a sound evidentiary foundation, appearing from both the various reportings of Mr Le Vannais' treating cardiologist, Dr Purnell, and a report prepared by the respondent's own expert cardiologist, Dr O'Shea.
The somewhat limited material produced by the respondent going to the potential risks to good driving posed by an ICD has assisted me in gleaning the following as the potential risks:
a)discharge on correct operation of device that is, upon arrhythmia occurring (appropriate discharge); and
b)discharge on incorrect operation of device (inappropriate discharge).
One piece of research relied upon by the respondent is an unattributed article downloaded from the internet which, in dealing with the effects of shock treatment from an ICD device implanted in a person, states:
Even if therapy is successful and the patient remains conscious, an ICD discharge, either appropriate or inappropriate, may startle or briefly incapacitate the patient and disrupt safe motor vehicle operation.
Despite the uncertainty of the source, I am prepared to accept that discharge of an ICD might result in some impact upon the driver in whom it is implanted. The likely nature of that impact is the subject of the respondent's own expert's evidence, to which I will come later in these reasons.
A second article, attributed to Blair P Grubb MD and Naser Imran MD, both of the University of Toledo, written in 2008, contains an interesting historical perspective of the use of ICDs. It explains that ICDs were initially developed in order to deal with diagnosed serious cardiac conditions, in particular, ventricular tachycardia and ventricular fibrillation, which might lead to 'sudden cardiac death'. In such cases, the ICD could terminate an episode only once it had occurred. In a patient who was driving at the time, loss of consciousness, or even a lapse in orientation, could potentially have devastating consequences. As a result, according to the article, expert panels convened to address the issue of driving by patients who have received an ICD suggested that a patient who had received an ICD after surviving an episode of sudden death, or who had received an ICD shock for an episode of ventricular tachycardia or ventricular fibrillation, should not drive for six months after implantation. This reflected the likelihood of experiencing another event being represented by a descending exponential curve, with the highest risk being the period immediately following an event, and with the period thereafter flattening to the point where, at six months, it is completely flat.
The article goes on to refer to the expansion in the use of ICDs for the prophylactic treatment of a certain category of cardiomyopathies (namely, where patients have low ejection fractions). It notes that in these cases, the risk of experiencing a shock was 'far lower' than that of the previous ICD population. A second set of guidelines was issued (according to a footnote to the article, by the American Heart Association and the North American Society of Pacing and Electrophysiology in 2007) which recommended that driving needed to be restricted only for a period of time sufficient to allow the implantation wound to heal (commonly regarded as around one week).
The same article notes, as the principal problem with all the recommendations, the relative dearth of good data available for assessing the actual risk of experiencing an ICD shock whilst operating a motor vehicle. It goes on to canvass the possibility that driving itself might result in an increase in the risk of ventricular tachyarrhythmias occurring. A 2007 study of drivers implanted with ICDs, in both sudden cardiac death survivors and for prophylactic purposes, concluded that there was a significant increase in the risk for ICD shocks in the first 30 minutes after driving, but no significant risk occurred during driving. The study confirmed that the risk for sudden cardiac death in the patient population receiving an ICD for 'primary prophylaxis', although higher than the general population, is far lower than for sudden cardiac death survivors. Restrictions in driving after implantation of prophylactic ICDs in such patients appeared to the article's authors unduly excessive.
The 2012 Guidelines reflect, to some extent, the views expressed in the Gribb/Imran article in relation to a candidate for a private driver's licence who has had an ICD implanted prophylactically. The relevant provision is reproduced earlier in these reasons. Such a person may be granted a conditional licence where the device has been implanted for at least two weeks. However, the position where commercial licences are in issue is the radically different one of such a person not being fit to hold an unconditional or a conditional licence. If the reasoning in the Gribb/Imran article is to be used as a guide, such a position is difficult to fathom, even accepting the increased amount of driving and stresses which might be assumed under a commercial licence.
Further downloaded material relied upon by the respondent was of little assistance, as either being too general, or containing conclusions without reference to important distinctions such as whether an ICD was implanted on a diagnosis of heart failure or prophylactically.
C. Whether prohibition should stand in light of accepted rationale and circumstances of the case
In my exposition of the three subordinate questions, I included a requirement that any justification for the prohibition under the Assessing Fitness to Drive Guidelines be reasonable in order for it to be included in any assessment (in the event that the guidelines do not need to be strictly applied). To the extent that any matter put forward to justify an outright exclusion is unreasonable, I would not regard the Director General, and the Tribunal standing in his shoes, as being bound to have regard to it.
It is, on the other hand, necessary, in my view, to take a conservative approach in order that the interests of the roadusing public and Mr Le Vannais himself are protected. To do so is entirely consistent with the statutory power exercisable in this case under reg 25 of the Regulations.
Adopting the required conservative approach, I have had regard to any aspect of the implantation of the ICD shown to give rise to an appreciable risk or likelihood that Mr Le Vannais' ability to control a motor vehicle is impaired. In context, this requires consideration of the identified risks of appropriate discharge and inappropriate discharge.
Dr O'Shea's report (Exhibit 6) accepts the diagnosis of Dr Purness that Mr Le Vannais has made a significant improvement in general condition since the implant. He refers to Dr Purnell's report that the patient's ejection fraction has improved to the lower limit of the normal range, allowing the conclusion that Mr Le Vannais no longer has the cardiomyopathy. He goes on to describe Mr Le Vannais as now being 'at very low risk of an appropriate discharge for a ventricular arrhythmia as the probability of such an arrhythmia is now very low'. The respondent accepts this conclusion, as do I. That being the case, the risk of appropriate discharge of the ICD must also be 'very low'.
In relation to inappropriate discharge, Dr O'Shea sheds the following light, at page 3 of his report dated 17 May 2012:
… it is certainly theoretically possible for the defibrillator to discharge in an inappropriate manner, particularly if the patient were to develop an atrial arrhythmia or a marked sinus tachycardia which is then mistakenly interpreted by the device as a life threatening ventricular arrhythmia and device discharge then occurs. The chance of this occurring would seem to be fairly remote and, even if such a sequence of events occurred, such inappropriate device discharge would be unlikely to cause loss of consciousness or major impairment to driving. However, such an inappropriate discharge can be uncomfortable for the patient.
The respondent accepts Dr O'Shea's conclusions that the risk of inappropriate discharge of the defibrillator is remote and that, if it were to occur, it is unlikely to cause a major impairment to driving. In his oral evidence given by telephone at the hearing, Dr O'Shea assessed both risks of adverse outcomes at less than one per cent, neither of which he had observed in all his years of practice. He said that a patient usually feels a discharge as a 'jolt', which is 'highly unlikely' to affect his ability to function or his conscious state. Dr O'Shea noted (consistent with an observation in the article by Professor Grubb and Mr Imran) that the functioning and reliability of defibrillators had improved over the years to the point where they are now sophisticated and very well made.
On my assessment of the medical evidence, there is currently no appreciable risk that the ability of Mr Le Vannais to control a motor vehicle will be impaired, at least to any significant degree, if the authorisations and endorsement are granted.
Essentially, the chance of anything untoward occurring by reason of the existence of the implant is theoretical only. Even if the very low risk of either an appropriate or inappropriate discharge eventuates, the risk of the discharge affecting the driver to the extent that he loses his ability to control a motor vehicle is remote.
These types of risks are not, in my opinion, of such nature as to justify denying an authorisation or endorsement under a statutory provision in terms of treatment for a condition 'that is likely to … impair the person's ability to control a motor vehicle'.
Conclusion and order
For the above reasons, the two decisions will be set aside. A question, not ventilated at the hearing, remains as to whether the licences should be unconditional, or, as recommended by the Assessing Fitness to Drive Guidelines applying to a private licence granted to a person with an ICD prophylactically implanted, on conditions. I will hear from the parties on this question.
The Tribunal shall issue an order in the following terms:
1.The proceeding is listed for a directions hearing at 9.30 am on 7 August 2012.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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