Tuesday 18 March 2014

The "medical condition" defence

There were two cases last week in which medical conditions are the apparent cause of people being killed by cars.

A driver who hid his fainting incidents -possibly to retain his job. He knew of his condition, and rather than report it to the DVLA, he chose to drive a 4x4 around. One day he killed two girls when that 4x4 veered onto the pavement. It's a bit of a fucking co-incidence that this would have been the only time he fainted -its more likely he'd had lots of minor faintings and kept going. His actions were wilful, and should raise the charge to manslaughter, at the very least.

A driver who killed a cyclist, apparently after some hypogycemic event. Assuming this a known condition, the DVLA granted the license after the driver certified that their condition was under control. Clearly this is not the case. Either through neglect or a worsening of the condition, his condition rendered him unstate to drive. If a one-off, unfortunate -but he's not safe to drive any more. If due to neglect -he does need punishment.

The "medical condition" defence crops up all too often.

Case 1: 94 year old, 94 year old uses 'automatism' defence to plead not guilty to death by careless driving. " a medical condition that was “not foreseeable” at the time had rendered her unconscious". Case dropped, apparently due to prosecution fuckup. Not covered in the reporting -does she continue to drive?

Case 2: 73 year old gets a suspended sentence after killing cyclist. At least he was prepared to plead guilty to death-by-careless: a lot of people deny even that. But "unknown" parkinsons disease may have been a factor -unless he fell asleep at the wheel.

Case 3: 60 year old uses 'sciatica attack' as their defence (Crap Walking and Cycling in Waltham Forest commentary).

Case 4: 35 year old "suffered a reflex syncope at the wheel"

Key points: someone got killed, driver gets out saying "medical condition".


What it should be instead is a "HERE IS MY DRIVING LICENSE FOREVER CARD"
  • Anyone who had a unknown medical condition which happened to surface while driving -DVLA rules imply 1+ year license suspension -and that suspension only when they are happy the condition is under control.
  • Anyone who had a known and reported medical condition, one they thought was under control -but yet was in any RTC? They aren't in control of their condition are they? So any conditional granting of a license has implicitly been revoked.
These aren't "prove in court" or convince a there but for the grace of god go I" judge kind of bans. These are the standard medically unfit to drive rules kicking in. Not negotiable.

It should also be the case that anyone who knew about and didn't report a condition -that's wilful endangerment of others, and shouldtrigger a dangerous driving based charge. And of course, no license until the DVLA is happy.

Irrespective of the cause, or whether they are faking it, anyone who uses a "previously unknown medical condition" as a defence -they are declaring that they aren't safe to drive again until the DVLA is happy. They are required to hand in their license, and re-apply. Then recertify that they are safe to drive every few years.

This gives a CPS opportunities -not to give up, not to say "no prosecute", but to try to show that the defendant knew of their condition, and either failed to report it, or were failing to manage it. Either way -this renders them culpable and so their crime should be in the "dangerous" category, not "careless".

And then there are the people who make up their medical condition -or exaggerate it- as a get out clause? The prosecution here could take two strategies. Show they are making it up, or show that if it did exist, then they should have known they were unsafe to drive.

And irrespective of this, they need to get the defendant to admit that they aren't safe to drive. Then to state whether or not they have returned their license already.

Anyone using "medical condition" as a defence but yet continues to drive is either faking it or wilfully endangering others. And in court, their attitude could be used against them.

Anyone who uses the "medical condition" defence and gets found not guilty, they have still lost -because its proof their condition exists and caused a death. 

But for that we need a CPS team that recognises this and knows to exploit it -and the DVLA hooked in to the court cases.


  1. This happened in my case. The driver claimed that they fainted at the wheel using medical records of vasovagal syncope (common fainting) from five years This makes prosecution pretty difficult because the defence has to prove beyond reasonable doubt that fainting didn't happen. Kind of difficult when fainting is completely asymptomatic!

    The particular problem here is that vasovagyl syncope affects about 22% of the population at some stage....

    1. If they have the history, report them to the DVLA. They are clearly not safe to be driving. I say this as someone who stopped driving for 4 years for epilapey: you have to recognise that if society doesn't consider you safe to drive, that's a choice they get to make and you don't get to ignore.

    2. Ha. Identical thing happened to me. Added detail, I gave evidence that the driver said they fell asleep after immediately getting out of the car. The figure I found for life time syncope is 40 percent.

      Actually within 4 to 5 years syncope recurrence returns to base rate (according to a paper I dupg up) which means that the Hill vs Baxter case means this probability can be dismissed.

      As an aside reasonable doubt is 5 ish percent according to research... so perhaps syncope should be considered pretty unlikely unless there is some evidence for it.

    3. So interestingly vasovagal syncope is explicitly excluded from driving bans because it is common, often has warning signs (prodrome), and happens less when standing... it is almost like this would mean the use of it as a defense is absurd: sufficiently unlikely that people can drive despite it unlikely other black out conditions yet magically sufficiently likely to avoid prosecution.