Statutory 'medical defence'
The drug driving offence enforced from 21 October 2019 has a statutory 'medical defence' to protect those patients who may test positive for certain specified drugs taken in accordance with the advice of a healthcare professional and the patient information leaflet that accompanies the medicine
A patient investigated for drug driving would generally be entitled to raise the statutory 'medical defence' if:
a) the drug was lawfully prescribed, supplied, or purchased over-the counter for medical or dental purposes, and
b) the drug was taken in accordance with advice given by the person who prescribed or supplied the drug, and in accordance with any accompanying written instructions (so far as the latter are consistent with any advice of the prescriber)
In relation to (b) above, the advice from a prescriber can be considered patient specific advice following assessment of the particular prescribing needs for that individual patient.
This advice can sometimes differ from the general instructions in the medicine's information leaflet. That healthcare professional's advice can be then properly used in such circumstances as a basis for the patient's statutory 'medical defence'.
If the police had evidence that the patient's driving was impaired due to drugs, whether prescribed or not, they can charge someone under the existing offence of driving whilst impaired through drugs described in section 4 of the Road Traffic Act 1988, for which there is no statutory 'medical defence'.
Drug driving and the statutory 'medical defence'
You may find the following points useful to aid your understanding of the medical defence available to patients:
- the police have new powers to test and report to the Crown Office and Procurator Fiscal Service (COPFS) drivers who are suspected of driving having taken certain specified controlled drugs in excess of specified limits in the body.
- if a driver tests positive at the roadside, they will be arrested and taken to a nearby police station for a confirmatory blood test.
- unlike the existing offence of driving whilst impaired by a drug, the new offence has a statutory 'medical defence' to protect those patients who may test positive for certain specified drugs taken in accordance with the advice of a healthcare professional and the patient information leaflet that accompanies the medicine.
- in deciding whether to raise criminal proceedings, the Procurator Fiscal will take into account any evidence patients have provided to police that may satisfy the statutory 'medical defence'
- it remains the responsibility of all drivers to consider whether they believe their driving is, or might be, impaired on any given occasion, for example, if they feel sleepy. It will remain an offence, as now, to drive whilst their driving is impaired by drugs. If in doubt, drivers should not drive. The statutory 'medical defence' does not extend to be available for the existing 'impairment' offence because even if legitimately taking a medicine, the patient should not be driving if impaired.