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After 9 years, Austroads has published new guidelines for fitness to drive. The guidelines have a preamble, which includes a legal disclaimer denying any culpability for those who designed the guidelines. They also warn of the legal responsibility for health professionals to satisfy their obligations, the need to be current with both relevant medical and legal expectations and if in doubt to seek guidance from Medical Defence Organisations. The guidelines are divided into Parts A and B, with A providing broad overview and background information while B deals with specific entities, such as blackouts, epilepsy or sleep disorders. This paper examines the guidelines and offers an appraisal of their content, their relevance to health practitioners and an assessment of their role in assisting to improve road safety., (© 2013 The Author; Internal Medicine Journal © 2013 Royal Australasian College of Physicians.)

Following the decision in the Gillet Case it may no longer be safe to rely on the Austroads guidelines when considering fitness to drive. This paper examines the case and its implications. Although the Guidelines claimed '... the identification and application of world best-practice...', they were disregarded by the court in Gillet. Both expert witnesses testified that on disclosure of epilepsy the accused would have been endorsed as fit for a licence application to the Roads & Traffic Authority, on the basis of 10 years of only nocturnal seizures, in accordance with the guidelines. The Court rejected this evidence and interpreted failure to disclose epilepsy as recognition of perceived risk and the previously undiagnosed sleep apnoea as the basis for that risk, despite being diagnosed after the accident. There needs to be greater certainty in the application of the guidelines, with legislative intervention and licenses should display a bold statement advising drivers of their responsibility to notify authorities of illnesses that could potentially affect driving.

Introduction: Austroads Guidelines for fitness to drive were promulgated in 2003. Epilepsy was one of the conditions included and this paper reports results of a survey of Australian neurologists regarding opinions and practices relevant to the guidelines., Methods: The survey was developed, piloted and Human Research Ethics Committee approved. Members of the Australian Association of Neurologists received three mailings and results were analysed., Results: Almost 70% of 236 surveyed indicated assessment of epilepsy and driving with <9% not doing so--establishing approximately 77% response for eligible neurologists. Most questions achieved 90% response. Almost 90% respondents assessed epilepsy and 70% found the guidelines helpful. Seventy-seven per cent endorsed doctor assessors although half discounted General Practitioners as insufficiently knowledgeable and half advocated that only neurologists evaluate potential drivers with epilepsy. Most respondents supported reporting recalcitrant patients; yet only <30% did so. Three-quarters favoured licences carrying a warning to self-report and two-thirds felt that product information should identify driving implications. Although many questions attracted expected responses, the surprise was the large undecided numbers, which were greater than expected. Neurologists were more lenient than prescribed by the guidelines with neither consensus for controlled epilepsy nor mandatory driving restrictions., Conclusion: Respondents supplied predictable answers regarding ideal circumstances; yet most did not report recalcitrant patients. Most claimed to adhere to the guidelines and yet advocated more lenient driving restrictions that may allow preventable accidents. There was agreement between neurologists and guidelines for more rigorous restrictions for commercial drivers although again neurologists were more lenient. There is need for prospective research on epilepsy and driving.

Medical guidelines aim to provide stylised procedures to manage illnesses. Doctors might believe that conforming to guidelines provides protection within legal proceedings. Guidelines were deemed inadmissible evidence in Regina v Ross Gillett, raising some concerns. Gillett was a middle aged man who denied having epilepsy when applying for a driver's licence and was involved in a car crash which killed three people. He had confirmed epilepsy yet expert witnesses testified he was within AUSTROADS Guidelines for fitness to drive. The judge refused to admit these Guidelines into evidence, finding the defendant guilty of dangerous driving occasioning death. The Guidelines were endorsed by all Australian and New Zealand traffic authorities, seven medical colleges, two sub-specialty faculties, seventeen illness-related organisations plus the Australian Medical Association. Their purpose was to achieve "...best practice for the safe and effective management and use of the road system...". The judge rejected them when considering his verdict. Precedence demands the judiciary consider all relevant data although the Guidelines were deemed irrelevant and could not be admitted into evidence. Guidelines cannot bind the court unless enforced by legislation. It is difficult for doctors to comprehend how Guidelines, designed to determine optimal road usage, can be excluded when analysing a road accident. Doctors need to be circumspect about applying Guidelines in the wake of Gillett.

Guidelines on fitness to drive were released by AUSTROADS and the National Road Transport Commission in September 2003. No recognised legal medical authority was cited. There are three parts in the document: (i) background information, (ii) specific medical conditions and (iii) appendices of relevant documents and contacts. This paper analyses the relevance of the guidelines for physicians and notes that the disclaimer exonerates its authors from potential repercussions. Guidelines for both private and commercial drivers are combined in the document and the basis for such delineation is defined. A lack of universal Australian standards with no State indicating the driver's responsibility to report changes in health standards on the issued licences is confirmed by the guidelines. Not all States indemnify physicians for reporting contrary to patients' wishes, while South Australia and the Northern Territory mandate reporting those at risk. Much of the language is patronizing, expecting '... conciliatory and supportive ...' behaviour even with recalcitrant patients. No allowance is made for patients who may not fulfil the guidelines but whom the doctor may consider fit to drive. Ambiguity regarding responsibility to report, as identified in the background section, may leave the doctor vulnerable for not reporting a patient who subsequently may cause injury. Attempt is made to differentiate the role of the specialist from the family general practitioner (GP), advocating specialists for commercial drivers, although this is largely left to the discretion of the GP. There is an implied onus on doctors to report all patients with the conditions under review. Some diagnoses, such as syncope, are discussed in different sections with application of conflicting limitations. Inappropriate language, such as reference to a seizure being '... an isolated non-epileptiform event ...', or withdrawal of medications failing to be restricted to anti-epileptic medications confounds interpretation. Some sections, such as that on sleep and epilepsy, are effectively analysed, while illnesses such as dementia are considered superficially. The guidelines are an attempt to assess fitness to drive, but contain serious flaws and provide limited information upon which to base decisions. Ambiguous language complicates application of the guidelines and places the health care professional at risk, despite a disclaimer protecting its authors.

This study sought the opinions of a select group of professionals, trained in medicine and law concerning: professional privilege; management of patients who posed risks to society; and the legal charge to impose upon a patient with uncontrolled epilepsy who caused a fatality by driving contrary to medical advice. The second Academic Seminar of the Australian College of Legal Medicine was surveyed to define demographics and opinions. Of 23 respondents, 14 were trained in law and medicine, of whom eight had post graduate medical qualifications and seven had more than basic legal training; 20/23 supported professional privilege in medicine but 18/23 denied its absoluteness; 22/23 felt the doctor had a right to divulge information in the public interest. Only 14/23 (although still a majority opinion) felt this right was a duty and 6/23 refuted the same. When concerned regarding compliance not to drive, 7/23 would discuss it with family/friends in contravention of patient consent, 12/23 would report to the driving authorities where concern became fact, 13/23 would advise the patient that a report would be sent, 4/23 would report without the patient's knowledge and four would threaten but not send the report. In the case of a fatality consequent to non-compliance, 10/23 considered murder and 22/23 considered manslaughter charges to be appropriate. The majority supported professional privilege in the doctor/patient relationship but also supported the right or even a duty to report risks to society. Where a concern arose that a patient with epilepsy may drive contrary to advice, one-third of doctors would discuss with family/friends, without consent, one-half would report the patient to the driving authorities, while almost three-quarters would report the patient if concern was realised. Murder and manslaughter, serious charges, were deemed appropriate for patients who caused death by driving against medical advice.

Privacy and professional privilege between doctor and patient were reviewed at the 21st International Epilepsy Congress and at the First Academic Seminar of the Australian College of Legal Medicine (ACLM). A survey was conducted at the ACLM to review the attitudes of a group of doctors who were also trained within the law, regarding professional privilege in general and the responsibilities and liabilities of doctors when dealing with non-compliant patients who have uncontrolled epilepsy and continue to drive motor vehicles. Most responders (17/19) felt that there should be professional privilege between doctor and patient, although only one respondent felt that such privilege should be absolute. Fourteen out of 19 respondents felt that doctors had a duty to report those patients who posed a risk, with 4/19 denying such duty and one respondent being undecided. Inconsistencies emerged when all respondents felt that a doctor should report a non-compliant, dangerous patient, as presented within the scenario and 4/19 of respondents attributed legal liability to the doctor for loss of income by the family of the victim of a traffic accident, resultant from failure to disclose. The study concluded that it was safer for the doctor to report patients seen as posing a foreseeable risk, unless such reporting contravened legislative restriction as may exist in such jurisdictions as in France.