PARKER and DIRECTOR GENERAL OF TRANSPORT - [2012] WASAT 151

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: ROAD TRAFFIC ACT 1974 (WA)

CITATION: PARKER and DIRECTOR GENERAL OF TRANSPORT [2012] WASAT 151

MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)

HEARD: 13 APRIL 2012

DELIVERED : 20 JULY 2012

FILE NO/S: CC 1685 of 2011

BETWEEN: DAVID CHARLES PARKER
Applicant
AND
DIRECTOR GENERAL OF TRANSPORT
Respondent

Catchwords:

Ability to control a motor vehicle - Medical conditions - Reason to believe - Treatment of conditions - Effect of conditions and/or medication on ability to control a motor vehicle - Whether ability is impaired

Legislation:

Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 7, reg 16(4)(b), reg 25, reg 25(b), reg 28(2), reg 28(3), reg 28(4), reg 41, reg 42, reg 42(c), s 42(1)(f)
Road Traffic Act 1974 (WA), s 6, s 6A, s 42, s 42A, s 48
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 27(2), s 28(1), s 28(2)

Result:

Application successful

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):

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
NEAT Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Parker made an application to the Director General of Transport for a 'F' extension to his MR and HR driver's licences pursuant to the Road Traffic Act 1974 (WA) and the Road Traffic (Authority to Drive) Regulations 2008 (WA). The question arose as to whether Mr Parker suffered nocturnal seizures. Mr Parker suffered from depression, mood disorder and borderline personality disorder. Mr Parker had been prescribed Epilim to treat his mood disorder, depression and borderline personality disorder by his psychiatrist. Epilim is an anticonvulsive medication commonly used to treat epilepsy and seizure sufferers. Mr Parker had suffered a pseudo seizure provoked by arousal from general anaesthetic following an operation in 2008 and then again in 2010. Mr Parker had also suffered episodes of nighttime tremulousness from time to time during a period when he suffered extreme stress in his daytoday life. Mr Parker's treating medical specialist informed the Director General's appointed medical practitioner that Mr Parker suffered 'nocturnal seizures'. The Director General refused Mr Parker's application for a 'F' extension to his MR and HR driver's licences and also suspended Mr Parker's MR and HR driver's licences, resulting in Mr Parker not being able to drive either a medium or heavy truck. The Director General undertook an internal review and affirmed his decision to suspend Mr Parker's MR and HR driver's licences.
The Tribunal, upon a review, concluded that, after reviewing the medical evidence produced by Mr Parker's treating medical specialists, on the balance of probabilities, Mr Parker did not suffer and does not suffer nocturnal seizures. Alternatively, even if the Tribunal was incorrect in that finding and Mr Parker did suffer nocturnal seizures along with pseudo seizures, depression, mood disorder and borderline personality disorder and was inducting Epilim to treat and manage his depression, mood disorder and borderline personality disorder, the Tribunal was satisfied, on the evidence before it, that there was no reason to believe that any of Mr Parker's conditions or his induction of Epilim did, or would likely, in fact, impair Mr Parker's ability to control a medium or heavy truck. The Tribunal set aside the Director General's decision to suspend Mr Parker's MR and HR driver's licences and directed the Director General to reinstate the same.

The Tribunal concluded that the Director General's delegate's practice of adopting a medical practitioner's view as to the eligibility of a patient to hold a motor vehicle driver's licence was a constructive failure by the Director General to exercise a statutory power conferred upon the Director General (in this case, reg 25(b) and reg 41 of the Road Traffic (Authority to Drive) Regulations 2008 (WA). Further, the Tribunal concluded that the Director General's delegate's practice of either rigidly adopting the National Transport Commission Guidelines (as a matter of policy or practice) or adopting the medical practitioner's view of eligibility to obtain a motor vehicle driver's licence by reason of a medical practitioner's rigid application of the National Transport Commission Guidelines had the effect of elevating the guidelines to rules of law that overrode the power and discretion conferred upon the Director General by reg 25(b) and reg 41 of the Road Traffic (Authority to Drive) Regulations 2008 (WA). The Tribunal considered that adoption of a medical practitioner's view and/or rigid application of the National Transport Commission Guidelines was not a lawful application of the National Transport Commission Guidelines, as such application limited the wide power conferred on the Director General by reg 25(b) and reg 41 of the Road Traffic (Authority to Drive) Regulations 2008 (WA).

Introduction

Since about 1983, Mr Parker (applicant) has held a driver's licence which has authorised him to drive a medium or heavy truck (as described below) (MR and HR driver's licences) in this State. On 12 October 2011, the delegate of the Director General of Transport (respondent) made a decision to suspend the applicant's MR and HR driver's licences (decision) upon the basis that the applicant was required to prove that he was:
still medically fit … to hold the authorisation[.]
The respondent's delegate notified the applicant of the decision by way of a notice of suspension dated 17 October 2011 and provided a copy of the notice to the applicant on 24 October 2011.
The applicant provided additional medical information to the respondent and sought an internal review of the decision. The respondent affirmed the decision.
On 1 November 2011, the applicant made an application to the Tribunal for review of the decision. The applicant maintains that he is fit to hold a MR and HR driver's licence, which licences he requires in order to retain his current gainful employment and to find suitable alternative employment in the future, should the need arise.

The Tribunal's jurisdiction

The applicant's application to the Tribunal to review the decision, made on 12 October 2011 (internally affirmed on or about 31 January 2012), and to set the same aside, was made pursuant to s 48 of the Road Traffic Act 1974 (WA) (RT Act) and reg 42(c) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations) and s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal is required to undertake the review of the decision by way of a hearing de novo (s 27 of the SAT Act). Both parties were provided with an opportunity to give additional evidence, to be heard on any additional relevant issues, and to produce all material upon which they intended to rely. The Tribunal's task, upon a review, is to arrive at the correct and preferable decision (s 27(2) of the SAT Act).

The reasons

At the hearing on 13 April 2012, the applicant informed the Tribunal that his current employer, the City of Stirling, was to review his employment, and that the applicant believed that his employment would not likely be renewed unless the decision was set aside. The applicant had originally been employed to drive a heavy truck and had been unable to perform that work for his employer since the decision. Because of the urgency presented by the applicant, the Tribunal made its final order on 17 April 2012, upon the basis that reasons were to follow. These are those reasons.

The issues

The issues for determination are:
1)Is there reason to believe that the applicant suffers from a mental or physical condition that is, or treatment for which is, likely to impair his ability to control a motor vehicle?
2)If the answer to 1) is yes, should the applicant's MR and HR driver's licences be suspended?
3)If the answer to 1) is yes and the answer to 2) is no, should any restrictions or conditions be endorsed upon the applicant's MR and HR driver's licences?
The Tribunal has concluded that the answer to 1) above is 'no' and there is no need to answer 2) or 3) on the facts as found by the Tribunal.

The statutory framework

Section 6 of the RT Act imposes on the respondent the obligation for the administration of the licensing provisions of the RT Act, and the obligation to exercise all powers vested in the respondent by the RT Act. Section 6A of the RT Act confers on the respondent a power to delegate his powers, provided that the delegation is in writing, and where the delegate exercises any delegated power, it is to be 'taken' that the delegate exercises that power in accordance with the written delegation. Section 42 of the RT Act relevantly provides:
(1)The regulations are, together with this Part, to provide for a driver licensing scheme under which
(a)the Director General
(i)grants people licences to drive motor vehicles on roads;
…
(5)The regulations may
…
(e)include provisions about the disqualification of a person from holding or obtaining a driver's licence and the surrender, cancellation, variation or suspension of a driver's licence[.]
The Regulations came into effect by 30 June 2008 and are the 'regulations' referred to in s 42 of the RT Act.
Regulation 7 of the Regulations confers power on the respondent to grant a person a licence authorising that person to drive a particular kind of motor vehicle on a road. Regulation 28(2) of the Regulations provides that the respondent may '… by notice in writing given to the licence holder vary a driver's licence'. The variations that can be made to a person's driver's licence pursuant to reg 28(2) of the Regulations are not limited to the kind identified in reg 28(3) and reg 28(4) of the Regulations (that is, an extension, suspension or cancellation). The respondent has the power to grant (and therefore vary) a licence in any circumstances and on any basis he sees fit (see reg 16(4)(b) of the Regulations), provided that he meets all other requirements of the Regulations.
Regulation 41 of the Regulations provides:
(1)The Director General may, by notice in writing given to the licence holder
(a)suspend a person's driver's licence if the Director General has reason to suspect 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
(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
…
(2)In order to decide whether there is a basis for suspending or cancelling a person's driver's licence under subregulation (1) the Director General may, by notice in writing given to the licence holder, require the person to satisfy the Director General within the period specified in the notice, being not less than 14 days, as to any matter relevant to that decision.
(3)If the person fails to satisfy the Director General within that period or within any further period that the Director General allows, the Director General may
…
(c)suspend the licence until the Director General is satisfied as to the matter.
Regulation 25 of the Regulations provides:
(1)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[.]
Regulation 42(1)(f) of the Regulations provides that a decision by the respondent to suspend a driver's licence is a 'reviewable' decision and the person aggrieved by a reviewable decision may apply to the Tribunal for a review.
Regulation 25(b) and reg 41 of the Regulations lie at the heart of this application. In summary, reg 25(b) and reg 41 of the Regulations provide that if the respondent, through his delegate, has reason to believe that the applicant suffers from a mental or physical condition that is likely to impair the applicant's ability to control a motor vehicle, the respondent 'may' suspend the applicant's driver's licence. The respondent 'may' also suspend the applicant's driver's licence if the respondent has reason to believe that the treatment for that condition is likely to impair the applicant's ability to control a motor vehicle.
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.

The evidence and findings of fact

Background facts

The applicant is currently 46 years old. He is the holder of a C class driver's licence, authorising him to drive a motor vehicle (other than a motorcycle or motor carrier) that has a gross vehicle mass not exceeding 4.5 tonnes and that is equipped to seat not more than 12 adults, including a driver. He is also the holder of an R class driver's licence, authorising him to drive a motorcycle or motor carrier. He also holds an LR class driver's licence, authorising him to drive a motor vehicle (other than a motorcycle or motor carrier) that exceeds 4.5 tonnes but does not exceed 8 tonnes. These facts are not in issue and the Tribunal finds these facts to be true.
Since sometime in or about 1983, the applicant applied for, and was granted, and has continuously held until October 2011, a MR and HR driver's licence, which licences authorise the applicant to drive, in the case of a MR driver's licence, any motor vehicle (other than a motorcycle or motor carrier) that has two axles and a gross vehicle mass of 8 tonnes (medium truck), and in the case of a HR driver's licence, any motor vehicle (other than a motorcycle or motor carrier) that has three or more axles and a gross vehicle mass exceeding 8 tonnes (heavy truck). Again, these facts are not in issue and the Tribunal finds these facts to be true.
The applicant gave evidence to the Tribunal, and it was not challenged by the respondent, that he has never been involved in a motor vehicle collision. There was no evidence before the Tribunal contradicting the applicant's evidence and the Tribunal finds this fact to be true.
The applicant gave evidence concerning his background and personal circumstances, none of which evidence was challenged and most of which is recorded in the reports of the applicant's treating medical practitioners. The Tribunal finds these following facts to be true.
1)During the period of his life when his father operated a farming business near Northampton, the applicant assisted his father by driving a medium or heavy truck to cart wheat and canola grain, amongst other goods, to the depot in Northampton in the State. This work involved a 40 minute journey each way. At some later point in time, the applicant acquired the farm and the farming business from his father, and continued the same business on his own account. The farm had been in the applicant's family for five generations. He continued to drive a truck to cart wheat and canola grain and other goods to the depot at Northampton in the State. The applicant acquired and used his MR and HR driver's licences for this type of work until about 2007.
2)In 2007, the applicant commenced working off the farm (all the while farming the property), and was engaged in cartage work and using his front end loader on building sites, which required him to cart the front end loader on his truck. He was also involved in labouring occupations. Since 2008, the applicant has used his MR and HR driver's licences to obtain gainful employment as he had ceased all farming operations on his own account.
3)From 2004 to 2010, the applicant experienced periods of physical, emotional and financial distress and hardship. He asserts all of these influences affected his physical and mental heath, from time to time, to a greater or lesser degree. He asserts that during this period, he continued to drive medium and heavy trucks without incident. He asserts that he has received treatment for his various conditions, is in relatively good health, and that his conditions are under management by way of treatment supervised by his medical practitioners. He asserts that, in fact, none of his conditions, temporary or permanent, or the treatment thereof has impaired his ability to control a medium or heavy truck. He says that, based on that fact, and on a proper consideration of all of the medical information, there is no reason to believe that his conditions and/or the treatment thereof will likely impair his ability to control a medium or heavy truck.
4)The applicant suffered childhood sexual abuse by an elder family member, and has a history of childhood physical and emotional abuse by his father. There is evidence before the Tribunal that during the applicant's early teens, his torment manifested itself in an extreme fashion and he attempted suicide. There is some evidence that this occurred in 2005 as well.
5)In 2004, the applicant underwent investigative treatment to identify the cause of severe back pain. By 2006, the cause of the applicant's back pain had been identified and treated by Mr McCloskey, orthopaedic surgeon, which resulted in the applicant's back being painfree.
6)In 2005, the applicant's crop failed and the applicant's finances became strained. In 2006, a drought struck the applicant's farming operations and the applicant's finances deteriorated. By 2006, the applicant had become depressed as a consequence of the back pain he had experienced, his weakened financial position and difficulties experienced in his marriage. He was referred to Dr Kumar, psychiatrist, who diagnosed that the applicant suffered depression, dysthymia or mood disorder, and borderline personality disorder. The applicant's symptoms, at this point in time, were severe and manifested themselves in a number of extreme ways, and the applicant experienced periods of suicidal idealation.
7)In 2007, a further drought struck the applicant's farming operations and the applicant's financial circumstances became precarious. In or about 2007 and in the course of the treatment of his conditions, Dr Kumar prescribed induction of sodium valproate by the applicant 'as a mood stabiliser'. The applicant was also treated by a psychologist upon referral by Dr Kumar.
8)In 2008, the applicant's farming business ceased operation as it was no longer viable, and the applicant looked to find gainful employment away from the farm to support himself, his then wife and their four children. He relied upon being able to find gainful employment using his MR and HR driver's licences, and he continues to rely on his MR and HR driver's licences to support himself and his family.
9)In 2009, the applicant's farm was sold as he was unable to financially service the liabilities he had incurred during the periods of drought which, he informed the Tribunal, amounted to more than $1,000,000. By 2009, the applicant's marriage had broken down irretrievably.
10)The applicant experienced a very high level of stress between 2004 and 2010, for which he received treatment from Dr Kumar and on referral by Dr Kumar. In 2008, the applicant continued to induct sodium valproate, although, by that stage, his dosage had been reduced. By 2008, the trade name of the sodium valproate taken by the applicant was known as 'Epilim'.

The applicant's alleged 'seizure' events

It is common cause between the parties that Epilim is a drug that is often prescribed as an anticonvulsive for the treatment of seizures. In this case, however, the Tribunal finds that Epilim was prescribed to the applicant to treat the applicant's diagnosed conditions of depression, mood disorder and borderline personality disorder, for the reasons referred to below. The events following August 2008 to the present date, and the nature of the applicant's conditions and treatment remain in issue. The medical evidence is to be found in the reports and documents provided to the Tribunal by Dr Taylor and Dr Silbert.
On 1 August 2008, the applicant underwent general anaesthetic and surgery to treat his obstructive sleep apnoea. After the operation had been concluded, during the period when the general anaesthetic administration had ceased and the applicant was in the recovery room that is, in the immediate postoperative moments the applicant had what has been described as a postoperative seizure (Dr Silbert's report 5 August 2008).
There is confusion surrounding the aetiological facts of this event in the evidence before the Tribunal. Much of the confusion arises from the various inconsistent uses of the word 'seizure'. Even highly skilled specialists in the field of neurology differ in their use of expressions and diagnosis of the applicant's 'condition', as appears from the material before the Tribunal on the review. Neither party called the applicant's current or former treating medical practitioners. The respondent did not call Dr Juniper, upon whose assessment of the applicant's 'fitness to drive' the respondent relied in making the decision. Further, the respondent did not call Dr Campbell, who was involved in the respondent's internal review of the decision. The applicant did not call any of these witnesses either, on account of his lack of funds to pay for the costs associated with the attendance of two neurologists and a psychiatrist to the Tribunal hearing.
Upon the application of the applicant, the Tribunal made an order that the applicant's neurologists produce to the Tribunal all of their respective records concerning their treatment of, and consultations with, the applicant. Both Dr Taylor and Dr Silbert provided their records to the Tribunal. The parties were provided with an opportunity to view the documents provided to the Tribunal by Dr Taylor and Dr Silbert during the course of the hearing in the Tribunal on 13 April 2012.
Immediately following the postoperative event in 2008, Dr Silbert, consultant neurologist, was assigned as the consultant to the applicant. The applicant had not been treated by Dr Silbert before. The applicant consulted Dr Silbert on 9 August 2008. The applicant's then wife disclosed to Dr Silbert that she had observed instances of some involuntary physical movement by the applicant at night and while he was asleep. Dr Silbert made the following observations in his reports dated 5 and 9 August 2008:
a)the applicant had a history of depression;
b)the applicant had a history of alcohol excess;
c)the applicant had a history of traumatic childhood experiences;
d)the applicant had been prescribed and had taken Epilim and Efexor for his depression and mood swings and had been treated by Dr Kumar;
e)Dr Silbert was informed that the applicant began to have a 'seizure' event in the recovery room, although Dr Silbert did not receive a good description of the events;
f)the applicant had a further 'seizure' event soon after the operation when he arrived on the ward, and the applicant was aware of the initial shaking;
g)the applicant's prolactin levels following the postoperative incident in 2008 were normal;
h)prior to the postoperative event in 2008, the applicant felt anxious;
i)the applicant had been admitted to Geraldton Hospital in May 2005 following a drug overdose, and nonepileptiform seizures were diagnosed at that time;
j)the applicant's MRI scan, undertaken when investigating the applicant's back pain, noted 'multiple cavernous angiomas involving the applicant's brain and spinal cord';
k)the multiple cavernous angiomas involving the applicant's brain and spinal cord gave the applicant a 'substrate for epilepsy', by which the Tribunal understands that the applicant's physical condition noted in the MRI had the potential to predispose the applicant to epilepsy;
l)the applicant did not have a history to suggest epilepsy, and previous events were nonepileptiform seizures in a situation of stress 'very similar to what occurred during his recent hospitalisation';
m)the applicant had no definite 'histories' of 'generalised tonicclonic seizures';
n)as at 5 August 2008, Dr Silbert was not 'convinced' that the postoperative episode in 2008 was an epileptic seizure;
o)as at 5 August 2008, Dr Silbert considered that the observations made by the applicant's wife of him shaking at night gave Dr Silbert the 'impression' that the applicant 'may' suffer 'nocturnal seizures'; and
p)as at 9 August 2008, Dr Silbert noted that the applicant had never bitten his tongue or lost control of his urine during a nighttime tremulous period and that the tremulousness at night was 'probably REM sleep'.
As to Dr Silbert's statement referred to in paragraph j) above that the applicant's MRI scan had noted 'multiple cavernous angiomas involving the applicant's brain and spinal cord', the only document produced by Dr Silbert that is suggestive of this is a report by Mr McCloskey dated 28 July 2004, wherein he noted:
… MRI scan of the brain, which again showed some changes throughout the brain. Jay Ives thought that this may either represent haemangiomas or previous brain trauma. (David had been involved in a motor vehicle accident as a child).
Dr Silbert had not had the opportunity, as at 9 August 2008, to view the brain scan that had been taken on 5 August 2008. Dr Silbert's documents include a copy of a report by Dr Ives in respect of the scan taken on 5 August 2008. Dr Ives' report stated:
[t]he multiple small punctuate low signal foci in the cerebral hemispheres and brain stem are again demonstrated and do not appear to have changed. None show typical appearance for cavernous angiomas though these are still a possibility.
Dr Ives commented:
Unchanged multiple small haemosiderin deposits of nonspecific nature. The major possibilities for these are enumerated above.
The possibilities mentioned by Dr Ives are cavernous angiomas, small foci of bleeding from previous head trauma or vasculitis. The applicant gave evidence that he had been injured as a child as a consequence of a car accident but had never suffered any symptoms from any permanent injury. There is no evidence before the Tribunal that it had been established that the applicant did suffer 'multiple cavernous angiomas involving the applicant's brain and spinal cord', or whether the 'multiple small punctuate low signal foci in the cerebral hemispheres and brain stem' were related to a previous head trauma or vasculitis, and whether they had any effect upon the applicant's heath at all. That being the case, the conclusion that the applicant had a 'substrate for epilepsy' (referred to in statement k) above) seems, perhaps, to be questionable.
There is no evidence that the applicant was treated by a neurologist in 2005. The applicant gave evidence to the Tribunal that he had no recollection of any seizure event at all in 2005, 2008 or 2010 (see below). Notwithstanding the note made by Dr Silbert concerning a similar event in 2005 and the noted consciousness of the applicant during the postoperative event in 2008, the Tribunal accepts that the applicant did not have any actual recollection of any seizuretype event at all. He knows no more than he has been told by his medical advisors.
As to the postoperative event of 2008, Dr Silbert diagnosed pseudo seizures, which is consistent with a history of traumatic childhood experiences. Dr Silbert stated in his report that:
… such seizures are often seen in patients who have this type of 'reemergence phenomenon' associated with the traumatic history of the patient.
This diagnosis, he said, is supported by the applicant being aware of the onset of the convulsions postoperatively and the applicant's normal prolactin levels. As at 9 August 2008, Dr Silbert diagnosed the nighttime tremulousness as probably REM sleep, although, as at 5 August 2008, he says that he had the 'impression' that the applicant 'may' suffer 'nocturnal seizures'. Dr Silbert recommended further investigation of this issue. It is to be noted that, at this time, the applicant faced the prospect of financial ruin, the loss of the family farm which he had inherited from his father, and the breakdown of his marriage. The extent to which these events were fully known by Dr Silbert in August 2008 is not clear.
It is to be noted that, whilst under the care of Dr Kumar, on 29 June 2005, the applicant underwent an EEG. The conclusion reached by Dr Kumar was that the applicant's responses during the EEG were within normal limits. The fact and results of the EEG appear not to have been made known to Dr Silbert in August 2005, as he made no comment of the fact or results in either of his reports.
Dr Silbert referred the applicant for an EEG in 2008, which was conducted by himself and Dr Carroll. The results of the EEG were within normal limits and 'no focal or epileptiform activity [was] seen': see EEG report dated 14 August 2008 by Dr Silbert.
On 10 September 2008, Dr Silbert wrote a report to the applicant's general practitioner (Dr Guerin) and stated that the applicant is aware that he 'cannot legally drive' and that for the 'present', the applicant would not drive a motor vehicle.
The applicant's evidence on this issue was that, as epilepsy had been suspected, he thought that he ought not drive and, in fact, he did not drive until February 2009, when Dr Silbert indicated that it would be safe for him to drive: see Dr Silbert's report dated 16 February 2009. The fact that Dr Silbert did not indicate that the applicant could not drive a medium or heavy truck at that stage tends to suggest that either Dr Silbert was not fully aware of the applicant's history (driving trucks being such an everyday event for him in his life as a farmer and after he had given up farming), or he did not consider the applicant's ability to control such vehicles to be impaired. Given the fact that Dr Silbert had concluded that the applicant was probably not epileptic and had not suffered a seizure but only a pseudo seizure, that the pseudo seizure had occurred while emerging from general anaesthetic, and that the nighttime tremulousness was REM sleep activity caused by stress, it is highly probable that Dr Silbert did not consider the applicant's ability to drive medium and heavy trucks to be impaired at all.
Dr Kumar was consulted by Dr Silbert following his examination of the applicant in 2008, and the latter informed Dr Kumar of his diagnosis of pseudo seizures in the postoperative period in 2008. Dr Kumar was also of the view that the single seizuretype event experienced by the applicant in 2008 was a pseudo seizure. Dr Kumar, in his report dated 25 August 2008, informed Dr Silbert that he had performed an EEG on the applicant which had produced normal results. In Dr Kumar's report to the applicant's general practitioner, dated 24 April 2009, he again stated his agreement with Dr Silbert's diagnosis of pseudo seizures, which he stated were 'quite common in borderline personality disorder'.
The applicant consulted Dr Silbert in February 2009, as he was due to undergo a colonoscopy and was aware of the importance of Dr Silbert speaking with the anaesthetist. Dr Silbert stated in his report dated 16 February 2009:
[t]he anaesthetist needs to be aware of reemergence phenomenon, to avoid some problems that occurred after the UPP.
He also stated (contrary to the view that he had taken in his report of 9 August 2008), that:
[t]here is still some uncertainty regarding the diagnosis of epilepsy, but I feel it best to leave him on the Epilim.
Dr Silbert had, however, in effect, ruled out epilepsy in 2008.
The applicant's anaesthesia during his colonoscopy and his immediate postoperative condition was uneventful. However, the Tribunal notes that such anaesthesia was not, in all probability, a complete general anaesthetic as had been the case with the UPP: see below and the evidence and statements of Dr Taylor in her report dated 13 January 2012.
In November 2010, the applicant underwent a general anaesthetic for the removal of two wisdom teeth. The applicant's general practitioner described what occurred as a 'further seizure whilst recovering from a [general anaesthetic]' and described it as a 'right sided tonicclonic seizure'. Dr Moffitt, anaesthetist, stated in his report to Dr Taylor dated 16 January 2012 that:
a)the applicant had been prescribed Epilim following the postoperative event in 2008 to treat 'seizures' (which the Tribunal finds is incorrect for the reasons stated above); and
b)the applicant spoke to Dr Moffitt during the postoperative seizure in 2010 and said to Dr Moffitt, 'this is like what happened previously'.
The applicant consulted Dr Silbert following the 2010 postoperative event. At the time when he saw Dr Silbert on 20 April 2011, the applicant's new partner, Ms Fribbins, informed Dr Silbert of at least three nighttime tremulous events early in their relationship in August and September 2009. Dr Silbert reported in his 'amended' report to Dr Guerin, dated 21 April 2010, that 'he may have had some nocturnal seizures, but probably none since', and concluded, contrary to the statements made by him, in his report dated 9 August 2008, that:
David probably does have occasional nocturnal seizures and should be on longterm Epilim[.]
Dr Silbert concluded that the applicant could continue to drive. Again, he made no mention of the applicant's MR and HR driver's licences.
The manner in which the original report to Dr Guerin dated 21 April 2011 was amended and when that amendment took place is not known to the Tribunal. The Tribunal considers this statement to be contrary to his diagnosis in 2008 and contrary to all of the physical indicia Dr Silbert had identified as being referrable to epileptic seizures, tonicclonic seizures and nocturnal seizures. Further, Dr Silbert does not seem to have taken into account the stress that the applicant remained under following the separation of the applicant from his former wife, the loss of the farm and the associated strain of operating the farming business during the drought. Dr Silbert seemed to overlook the longterm treatment of the applicant by Dr Kumar and the fact that the Epilim was first prescribed by Dr Kumar to treat the applicant's mood swings, depression and borderline personality disorder. He also indicates that the existence of multiple cavernous angiomas supported this tentative conclusion. Dr Silbert has, in this regard, failed to note that the brain MRI undertaken of the applicant on 5 August 2008 and Dr Ives' statements do not support a finding that the abnormalities conclusively indicated cavernous angiomas (refer above).
As to the postoperative event of 2010, Dr Silbert remains of the view that it was a nonepileptiform event, as in 2008 a pseudo seizure.
Ms Fribbins gave evidence before the Tribunal that she became the applicant's new partner in about 2010, and that she observed three events that occurred at night during the early part of her relationship with the applicant. She stated that she observed that, while the applicant was asleep, he became disturbed and began to shake for 10 15 seconds or so. Similar events had been described by the applicant's former wife to Dr Silbert in 2008. Both the applicant and Ms Fribbins gave evidence that Dr Silbert told them that the postoperative event of 2010 was a repetition of the postoperative event in 2008 and occurred when the applicant reemerged from deep sedation induced by general anaesthetic. The applicant gave evidence before the Tribunal that he had been told by Dr Silbert that it was important for the anaesthetist to 'bring him round' or 'wake him up' from the general anaesthetic quickly, so that he would not have this period of deep relaxation which would trigger the reemergence phenomenon which might result in the psuedo seizure. This explanation is consistent with Dr Silbert's reports and Dr Kumar's report concerning psuedo seizures. The applicant and Ms Fribbins both gave evidence to the Tribunal that Dr Silbert's assessment of nocturnal seizures in April 2011 (and in 2009) was not ever mentioned to the applicant or Ms Fribbins, or discussed by Dr Silbert with either of them. The Tribunal accepts this statement by the applicant and Ms Fribbins, and is consistent with Dr Silbert's expressed view that the applicant could return to driving which recommendation was unlimited.
The applicant gave evidence to the Tribunal that the events between 2004 and 2010 had a profound effect on his life, state of mind and mental wellbeing, in addition to the unhappy events suffered by him in his childhood. He explained to the Tribunal that the loss of the farm had dealt him a heavy blow, as the farm had been in his family for five generations and he had been the last owner of the family farm. The impact these events had on the applicant's state of mind and mental wellbeing does not seem to have been squarely put to Dr Silbert in 2008, 2009 or 2011, so that he could consider whether the events described by Ms Fribbins and the applicant's former wife in the context of the applicant's life at that time were related to his state of mind and the strain he was suffering, or were nocturnal seizures. The Tribunal notes that Dr Silbert did not arrange for the applicant to undertake any further clinical assessments, such as a sleep trial.
As stated below, the applicant made an application for an 'F' extension to his MR and HR driver's licences. On 5 October 2011, Dr Juniper wrote to Dr Silbert and asked him to confirm that the applicant:
… has no reason to avoid [duties as a bus driver for Transperth] on the basis of his seizures under anaesthetic and current Epilim use.
There is no written response to Dr Juniper's letter. There is no file note of any oral response allegedly given to Dr Juniper by Dr Silbert. The Tribunal notes a letter, dated 19 October 2011, from Dr Silbert to the applicant's general practitioner in which he stated:
… his nocturnal epilepsy and his multiple cavernous hemangiomas preclude him from that occupation [Transperth bus driver]. His daytime postoperative events are nonepileptiform. It is[,] however[,] a fine line in the decision regarding commercial vehicles, but I have indicated to David that he probably could drive light rigid vehicles up to eight tonnes according to the guidelines.
The Tribunal assumes that Dr Silbert made a similar oral statement to Dr Juniper in response to Dr Juniper's letter dated 5 October 2011.
The Tribunal finds that Dr Silbert's diagnosis of nocturnal seizures was inconsistent with the view he took, in 2008 and 2009, that the applicant probably suffered REM sleep tremulousness rather than nocturnal seizures.
Notwithstanding two uneventful EEGs, an absence of clinical trials or sleep assessments so as to confirm the diagnosis of nocturnal seizures, no evidence of any incidents associated with nocturnal seizures, a possible absence of knowledge of events in the applicant's life in this period, his contrary earlier diagnosis of REM sleep, and the MRI of the applicant's brain on 5 August 2008 which did not conclusively establish multiple cavernous angiomas, Dr Silbert concluded in 2011 that the applicant suffered nocturnal seizures.

Dr Silbert appears to have relied more heavily upon the alleged existence of multiple cavernous angiomas to establish an epileptic 'substrate' to ground a changed diagnosis of nocturnal seizures in October 2011. 'Nocturnal seizures' is the diagnosis noted by Dr Juniper in the Medical Assessment Certificate. Given Dr Silbert's reasoning and diagnosis of REM sleep in 2008 and the Tribunal's conclusion that the MRI scan of the applicant's brain in 2008 and Dr Ives' assessment does not support a conclusive finding of cavernous angiomas, the Tribunal finds, for the reasons expressed herein, that this diagnosis is not to be preferred to the diagnosis of REM sleep made in 2008.
As to the postoperative events in 2008 and 2010, Dr Silbert has concluded that these were nonepileptiform events. To the extent that the respondent contends that Epilim was prescribed to the applicant to control alleged seizures, the Tribunal finds that there is no evidence for this conclusion, save for Dr Moffitt's incorrect statement (repeated by Dr Taylor as noted below) that Epilim was prescribed to the applicant to deal with seizures. There is no evidence before the Tribunal concerning what effect (if any) Epilim has, or could have, on the applicant's ability to control a medium or heavy truck.
The applicant sought to challenge Dr Silbert on his diagnosis of nocturnal seizures, but Dr Silbert refused thereafter to treat the applicant any further.
At this point, the decision was made. The applicant sought a second opinion from Dr Taylor, neurologist and epileptologist, and sought an internal review of the decision by the respondent. In December 2011, the applicant consulted Dr Taylor. Under Dr Taylor's care, the applicant underwent a further EEG and consulted with her on 12 December 2011 and 7 February 2012. Dr Taylor also arranged for the applicant to undertake a sleep program at Royal Perth Hospital that had not taken place as at the date of the Tribunal hearing, notwithstanding the best efforts of the applicant to arrange the same prior to the hearing on 13 April 2012.
Like Dr Silbert in his reports dated 5 and 9 August 2008, Dr Taylor noted in her report, dated 13 January 2012, that during the tremulous sleep episodes, the applicant had not:
1)involuntarily wet himself or lost bladder control;
2)bitten his tongue; or
3)woken with a bad headache.
In addition, Dr Taylor noted in her report, dated 13 January 2012, that the applicant did not ever experience 'significant déjà vu, jamais vu, absent seizures or any other experiential phenomena', and he had not been witnessed sleepwalking. Whilst Dr Taylor does not expressly state that the applicant does not suffer with nocturnal seizures, she has stated that, in her opinion, the applicant had only suffered two seizures provoked by the general anaesthetic. This would suggest that she is of the view that the applicant does not suffer nocturnal seizures.
As to the postoperative events of 2008 and 2010, she considers that if, after considering all of the reports, those were provoked by the general anaesthetic, she proposed to explain the position to the respondent suggestive of the applicant not suffering true seizures. Dr Taylor incorrectly stated that Dr Silbert prescribed Epilim to the applicant to treat his nocturnal seizures and also relied upon the incorrect statement by Dr Moffitt that the applicant was prescribed Epilim in 2008 for his nocturnal seizures. Neither of these statements is supported by the report by Dr Kumar and the early reports of Dr Silbert. On this point, the Tribunal finds that both Dr Moffitt and Dr Taylor were mistaken and that the applicant was prescribed Epilim by Dr Kumar to treat the applicant's depression, mood disorder and borderline personality disorder.
Dr Taylor noted the alleged 'cavernous haemangiomas' as 'incidental' and, in her report dated 9 February 2012, she does not agree that the abnormalities seen on the applicant's brain scan are necessarily 'cerebral angiomas', but noted the abnormalities as 'hemosiderin deposits' which are irritative and 'would possibly increase [t]he chance of having seizures'.
Dr Taylor incorrectly noted in her report of 13 January 2012 that Ms Fribbins did not attend with the applicant on the first consultation with the applicant. However, in her subsequent report dated 9 February 2012, she clarifies that Ms Fribbins did, in fact, attend that initial consultation between the applicant and Dr Taylor. Dr Taylor stated that the anaesthetic provided to the applicant during his colonoscopy was not likely to have been a full general anaesthetic.
Dr Taylor noted in her reports that she could only state a diagnosis, and that it is for the respondent to determine whether the applicant is eligible to be authorised to retain his MR and HR driver's licences. In the Tribunal's view, this is a broadly correct statement of the respondent's obligation under reg 25(b) and reg 41 of the Regulations.

The applicant's application for an 'F' extension, the decision and the internal review

On 3 October 2011, the applicant applied to the respondent for an 'F' extension to his driver's licence, pursuant to the RT Act and the Regulations, so that he could drive a bus.
The applicant completed a 'Driver's Licence Application'. This document appears as document 11 in the respondent's bundle of documents filed pursuant to the Tribunal's direction (respondent's bundle). Relevantly, the applicant completed the application in the following manner:
1)He did not indicate that he suffered any complaint or disease and, specifically, that he did not suffer 'EPILEPSY', 'SEIZURES', 'PHYSICAL/MENTAL DISABILITY' or 'DEPRESSION'.
2)He indicated that he was taking medication and, in providing details, he stated:
'EPILIM, although I don't officially have epilepsy'.
The applicant gave evidence to the Tribunal that he was directed by the respondent to attend at the respondent's nominated doctor to undergo a medical assessment. The respondent's nominated doctor was Dr Juniper of the Joondalup Drive Medical Centre. Dr Juniper was not the applicant's usual general practitioner and had not treated the applicant ever before. The respondent's bundle contains a 'Medical Assessment Certificate', and discloses that a medical examination of the applicant was undertaken on 5 October 2011 by Dr Juniper. The applicant gave evidence that he discussed his Epilim induction with Dr Juniper, told him briefly the circumstances concerning the postoperative events in 2008 and 2010, and informed him that he had consulted Dr Silbert, neurologist.
The Tribunal notes that the 'Medical Assessment Certificate' is not signed by the applicant. In particular, the Tribunal notes that the signature of the applicant is missing from the area allocated on the front page beneath the statement:
I consent to any reporting health professional named on this form releasing information to the Department of Transport (DoT) and DoT contacting any reporting health professional named on this form to obtain any further information relevant to my Fitness to Drive.
The Tribunal notes that there is no document on Dr Silbert's file produced to the Tribunal that indicates that the applicant had consented to Dr Silbert making any disclosure of his confidential medical information to Dr Juniper, the respondent or any other third party that was not already involved in his treatment. There is no evidence in the respondent's bundle to suggest that Dr Juniper obtained the applicant's written consent to consult Dr Silbert. The Tribunal, however, does accept that in the course of giving his evidence, the applicant conceded implicitly that Dr Juniper was welcome to liaise with Dr Silbert to discuss his medical conditions. Without that concession, it could be suggested that the information was obtained in breach of the confidence owed by Dr Juniper and Dr Silbert to the applicant.
Beneath the heading on the front page of the 'Medical Assessment Certificate', the following notation appears:
Please read the detailed instructions for the applicant and medical practitioner.
The respondent did not provide the Tribunal or the applicant with detailed instructions for the applicant and medical practitioner. In his statement of issues, facts and contentions, the respondent says:
The complete Austroads 'Assessing Fitness to Drive' can be accessed online through the following link:
…
That link did not disclose any information for the reasons referred to below.
The 'Medical Assessment Certificate', at page 2, noted that the applicant was examined according to 'Commercial Vehicle Standards', which is said to include standards for the acquisition of MR and HR licences. On the second page of the 'Medical Assessment Certificate', the box allocated for 'Does not meet the medical criteria for an unconditional or conditional licence' is ticked. In handwriting, the following note appears in the section allocated for and described as '1) Criteria not met and other relevant medical details':
Nocturnal seizures, assessed by neurologist and deemed unfit to drive commercial vehicles at this point in time. (Tribunal emphasis)
On 13 April 2012, the day of the final hearing, the Tribunal member put to the respondent's representative:
a)The link provided by the respondent and referred to above did not provide any information and took the user to a blank space.
b)The Tribunal member had inferred from the respondent's statement of issues, facts and contentions that the link was intended to reveal to the Tribunal and the applicant the 2003 Guidelines.
c)The Tribunal member's research indicated that the 2003 Guidelines had been overtaken by a new National Transport Commission Medical Standards for Licensing and Clinical Management Guidelines, which was expressed to take effect on 1 March 2012 (2012 Guidelines).
d)The Tribunal member had inferred from the respondent's statement of issues, facts and contentions that the respondent assessed the applicant's ability to control a vehicle by reference to the 2003 Guidelines.
The respondent's representative did not disagree.
Further, on 13 April 2012, the Tribunal enquired of the respondent's representative whether there was any policy that had been published in the Government Gazette pursuant to the RT Act or Regulations, or at all, concerning the exercise of the discretion conferred upon the respondent to follow any particular guidelines when assessing a person's ability to control a vehicle, such that the policy fell within the provisions of s 28(1) of the SAT Act. The respondent's representative said that he was not aware of any gazetted policy, but it was the respondent's practice to apply the 2003 Guidelines in matters such as arose in this application. During the hearing, the respondent's representative informed the Tribunal that:
1)Dr Juniper is the respondent's medical practitioner who was engaged by the respondent to undertake a medical assessment of the applicant's 'fitness to drive'.
2)Dr Juniper's note on the 'Medical Assessment Certificate' was the basis of his conclusion that the applicant did not meet the criteria for an unconditional or conditional commercial vehicle licence.
3)Dr Juniper's note was made by him following his telephone conferral with Dr Silbert.
4)The respondent does not have a separate note of the information provided by Dr Silbert to Dr Juniper concerning the applicant's medical 'fitness to drive'. The respondent's representative believes that there is no such document.
5)The respondent does not have a letter or report from Dr Silbert to Dr Juniper recording the contents of the telephone discussion between them. The respondent's representative believes that there is no such document.
The Tribunal notes that Dr Silbert did not produce to the Tribunal any note of his conversation with Dr Juniper concerning the applicant's medical conditions.
Dr Juniper's signed 'Medical Assessment Certificate' was received by the respondent sometime on or about 11 October 2011. On 12 October 2011, an assessor, known only as 'Tresa', and/or Ms Vijit, the driver assessment coordinator, alone or in combination, produced two direction sheets. Each direction sheet is divided into segments one each titled 'File Type', 'File Recommendation for' and 'Document Attached'. At the end of each direction sheet, a box is allocated for an acknowledgement of the following statements:
I have reviewed all of the above documents and have taken those into consideration when forming my decision.
Beneath the word 'Decision', a box is allocated for acknowledgement of one of two statements as follows:
I concur with the recommended action
and
I do not agree with the recommended action[.]
Each of the direction sheets allows for a signature for Ms Vijit and for a date.
In the segment titled 'Document Attached', a further heading is referred to 'Any Relevant or Additional Information'. One category of additional information is designated 'Specialist Reports'; in both cases, this remains blank. The applicant's application for an 'F' extension was refused, as noted in the direction sheet. However, the applicant does not seek a review of that decision.
Although the 'assessment' was made in relation to the applicant's application for an 'F' extension to his MR and HR driver's licences, the respondent has taken the information received from Dr Juniper and reviewed the applicant's MR and HR driver's licences (as he is entitled to do when provided with facts which give him reason to suspect that there are grounds upon which the licences should be suspended: reg 41 of the Regulations).
In the case of the direction sheet concerning the review of the applicant's MR and HR driver's licences, the following boxes are ticked:

File type

                  - fitness to hold (medical)

                  File recommendation for

                  - suspension

                  Document attached

                  - Medical Assessment

There was no expression or implication that the respondent's assessor held the intention to seek further information. The respondent's delegate and the decisionmaker, Ms Vijit, 'ticked' the box acknowledging the statement that she had 'reviewed all of the above documents' and had 'taken these into consideration when forming' her decision. Ms Vijit also ticked the box acknowledging that her decision was to 'concur with the recommended action'.
By letter dated 17 October 2011 (handed to the applicant on 24 October 2011), Ms Vijit, for the respondent, wrote:
Under Regulation 28 of the Road Traffic (Authorisation to Drive) Regulations 2008, the Director General (or his delegate) may suspend or cancel an extension or authorisation where he believes that a holder of an authorisation/extension suffers from a medical condition that is likely to impair their ability to control a motor vehicle.
As a delegate of the Director General I have carefully considered all of the information before me and having done so, I have decided to suspend your authorisation HR, MR.
The Director General has to be satisfied that you are medically fit to hold the authorisation/extension sought. It is therefore necessary for you to prove that you are still medically fit to hold the authorisation/extension. This may be possible if you produce a completed and satisfactory medical assessment of your fitness to drive from a Neurologist.
Until that time your authorisation/extension will remain suspended.
However, you have been assessed as fit to continue to hold a driver's licence, authorisations LR, C, R.
My Decision in your case is based on:
•The outcome of your medical assessment on 05/10/2011.
This assessment/advice included reference to the national medical standard for Driver and Vehicle Services and clinical management guidelines for determining a person['s] fitness to drive an Austroads publication 'Assessing Fitness to Drive 2003'.
Should you be dissatisfied with Decision, you are entitled to request the Director General (or his delegate) reconsider the Decision. This request must be in writing and addressed to the Internal Review Officer GPO Box R1290 Perth 6844. It must also be received within 28 days of the date this letter is served.
The Director General will then review the Decision and you will be advised of the outcome in writing.
At any time you may apply to the State Administrative Tribunal (SAT) for a review of the decision of the reviewed decision.
…
For the internal review, the applicant provided the respondent with a report by Dr Taylor, and he provided the respondent with the following statements:
1.I have only ever had two seizures and this was while I was in hospital while under general anesthetic [sic].
2.I had further investigations that I had never been formerly [sic] diagnosed with nocturnal seizures.
3.I disagree with the letter from Dr Peter Silbert. (Presumably the letter from Dr Silbert to the applicant's general practitioner dated 19 October 2011)
4.Dr Silbert did not suggest further tests as identified in the letter dated 31 October 2011 to the respondent.
On 31 January 2012, Dr Campbell and/or Dr Lucas, both occupational health physicians engaged by the respondent, made a further 'assessment' of the applicant's 'fitness to drive'. The document produced is another departmental box/check sheet with provision for very little additional comment. The box allocated to acknowledge the statement:
Is not fit to drive
is checked.
There is no reference next to the 'appropriate specialist', and the additional comment provided is:
Is not fit to drive HR as does not have clearance from a neurologist.
The review, such as it was, appears to conclude that, as no relevant specialist had made the decision that the applicant was 'fit to drive' a medium or heavy truck, the applicant would not be permitted to do so.
By way of explanation for her 'assessment', Dr Campbell provided six statements to the respondent which she described as 'salient' and which were provided by the respondent to the applicant and the Tribunal. The statements are as follows:
1)The applicant was not known to Dr Taylor prior to her review of the applicant.
2)Dr Taylor was relying upon the applicant's version of events, as the applicant presented unaccompanied to the consultation.
3)Dr Taylor herself had stated that there was conflicting information in the history provided by the applicant and that provided by his previous neurologist (Dr Silbert).
4)The applicant was assessed previously by Dr Silbert, 'a highly competent neurologist who specialises in seizure disorders', to be unfit to hold a commercial licence, and Dr Taylor had acknowledged that fact.
5)Dr Taylor had asked advice from the 'assessment officer' as to the applicant's eligibility to hold a commercial licence and had failed to provide her own opinion, as a neurologist, whether or not he was 'fit to hold'.
6)Finally:
The Fitness to Drive guidelines are specific in requiring the opinion of a specialist in epilepsy to determine fitness to drive for commercial licence applications by individuals with seizure disorders. To date, the only opinion has been that the applicant is NOT fit to hold a commercial licence.

The Tribunal's findings

Neither party has provided the Tribunal with any accurate definition of a seizure, epilepsy, provoked seizures or nocturnal seizures. The applicant has provided some material which he has downloaded from the internet. This information is not the subject of any expert report so as to more clearly and more authoritatively inform the Tribunal of what is a seizure, provoked seizure or nocturnal seizure.
Dr Silbert is of the view that the postoperative events of 2008 and 2010 are not seizures, whereas Dr Taylor refers to those events as seizures, albeit provoked by general anaesthetic. However, she does not disagree with Dr Silbert's diagnosis of pseudo seizures. As mentioned earlier, there is substantial confusion caused by the use of the term 'seizure' in connection with the applicant's condition. According to Dr Silbert, the postoperative events are not tonicclonic seizures. However, he diagnosed the nighttime tremulous events observed by the applicant's former wife and Ms Fribbins as REM sleep episodes in 2008, and as nocturnal seizures in 2009 and 2011.

I certify that this and the preceding [120] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS NATASHA OWEN-CONWAY, MEMBER

File type	- fitness to hold (medical)
File recommendation for	- suspension
Document attached	- Medical Assessment