IRENE STEWART MYLES v. THE SECRETARY OF STATE FOR TRANSPORT
Ref B425/99
JUDGMENT OF SHERIFF A.L. STEWART, Q.C.
in causa
IRENE STEWART MYLES
Pursuer
against
THE SECRETARY OF STATE FOR TRANSPORT
Defender
Act: John McLaughlin of Condies, Solicitors, Perth
Alt: Shand, Advocate; Biggart Baillie, Solicitors, Glasgow
DUNDEE.
The sheriff, having resumed consideration of the summary application FINDS IN FACT:-
1.The pursuer is Irene Stewart Myles, who resides at 10A Adelaide Place, Dundee. The defender is the Secretary of State for Transport, acting through the Driver and Vehicle Licensing Agency, Swansea (hereinafter referred to as "DVLA").
2.The pursuer served as a police officer with Tayside Police from 1978 until 1996. During her service with the police she drove motor vehicles. In 1989 she gained a Class 2 Police Advanced Driving Certificate. Between 1989 and 1994 the pursuer was a traffic patrol officer.
3.In 1995 the pursuer attended her general practitioner, Dr Birrell because she felt that she was unable to cope with her work. Dr Birrell prescribed anti-depressant medication but the pursuer did not wish to take it. Dr Birrell then referred the pursuer to Dr Ballinger, consultant psychiatrist at Royal Dundee Liff Hospital (hereinafter referred to as "Liff"). Dr Ballinger saw the pursuer as an out-patient. The precise nature of any illness from which the pursuer may have suffered at that time has not been established.
4.In 1996 the pursuer was again seen by Dr Ballinger as an out-patient. Again the precise nature of any illness from which she may have suffered at that time has not been established.
5.In 1997, following an incident at Dundee University swimming pool, the pursuer was admitted to Liff as a voluntary patient under the care of Dr Ballinger. She was diagnosed as suffering from a hypomanic illness. She was prescribed lithium and haliperidol. Lithium is a long-term mood stabiliser. Haliperidol is an anti-psychotic drug which is used for treating acute symptoms. The pursuer was reluctant to take any medication.
6.Dr Ballinger retired in 1997 and Dr Peter Dick, consultant psychiatrist at Liff became the consultant responsible for the pursuer.
7.Since at least 1998 the pursuer has suffered from a schizo-affective illness. This is an illness which is part schizophrenia and part mood disorder.
8.On one occasion in 1998 the pursuer was seen at home by Dr Dick at the request of her general practitioner. She was distressed. She felt that her house was possessed by evil influences. During 1998 attempts were made to treat the pursuer within the community but these were unsuccessful mainly because the pursuer did not accept the need to take medication. In August 1998 Dr Birrell arranged for the pursuer to be admitted to Liff as an in-patient.
9.The pursuer was a voluntary in-patient in Liff under the care of Dr Dick between 24 August and 8 September 1998. The pursuer was still reluctant to take any medication. She was prescribed carbamazepine, a mood-stabilising drug, but refused to take it. On her release from hospital further unsuccessful attempts were made to treat the pursuer within the community.
10.On 23 October 1998 the pursuer was readmitted to Liff as a compulsory patient. She was thereafter detained under the Mental Health (Scotland) Act 1984, section 26, and an application was made to the sheriff for her detention in terms of section 18 of the Act. On 17 December 1998 this application was refused, and the pursuer was discharged from hospital.
11.On her discharge the pursuer was recommended to take medication. It was hoped that she would continue to attend hospital as an out-patient but she failed to do so.
12.In May 1999 the pursuer was charged on petition with assault on a neighbour. When she appeared in court she was remanded to Liff in terms of the Criminal Procedure (Scotland) Act 1995, section 52 because she was apparently suffering from mental disorder. She again came under the care of Dr Dick. At the beginning of her admission the pursuer took anti-depressant drugs but thereafter refused to take any medication. Her reason for doing so was because she did not consider that she was ill.
13.On 8 July 1999 Dr Dick wrote to Dr Durston, Senior Medical Adviser at DVLA. This letter is no. 3/3 of process. Dr Dick realised that the contents of the letter were prima facie contrary to his duty of confidentiality towards the pursuer. However, he was so concerned about her that, having taken advice on the matter, he decided that his concern for public safety if the pursuer were to continue to drive outweighed his duty of confidentiality. The letter states inter alia:-
"The above lady is a patient of mine who I think suffers from a schizo-affective illness. ... Although I am convinced that she does suffer from a psychotic illness, she is equally convinced that I am incorrect in making this diagnosis. She does not therefore feel that treatment would be helpful and does not feel that there is any need to notify the DVLA of her condition.
"I have asked her on several occasions to contact you herself and I have offered to arrange a second opinion for her, but she does not feel any opinion I arrange would be truly independent.
"She was previously in the police and I think is a highly competent driver when well. Even when unwell, I think that she does show a reasonable degree of judgment in not driving when she feels herself to be unwell. Whilst I am not therefore particularly concerned about her immediate day to day driving ability, I am concerned that as she is not keen to take medication, her illness is more likely to remain unstable. If her illness deteriorated or in specific situations, she may not be able to exercise her usual good judgment and could pose a significant risk to other road users." (Emphasis added.)
At DVLA this letter was dealt with by Dr Jacqueline Anten, a medical adviser, who was thereafter in charge of the pursuer's case.
14.When writing to DVLA Dr Dick had regard to the terms of chapter 4 of the publication issued by DVLA entitled "At a Glance Guide to the Current Medical Standards of Fitness to Drive". This publication is intended to be an aide-memoire for doctors. Chapter 4 is no. 3/8 of process. One of the categories of psychiatric disorder mentioned in that chapter is "acute psychotic episodes of any type or cause". A schizo-affective illness may properly be described as an acute psychotic episode.
15.On 2 August 1999 Messrs Condies, Solicitors, Perth wrote to Dr Durston on the pursuer's behalf, expressing her concern about the contents of Dr Dick's letter of 8 July. This letter is no.3/4 of process. It states inter alia:-
"[The pursuer] does not accept that she requires the medication prescribed by Dr Dick, and we have instructed an independent report on [her]. Essentially that report is for court purposes, rather than to address her driving abilities. However, we will advise you of the contents of that report once it becomes available. ...
"Our client advises that on a previous occasion she was given a drug "Haliperidol", which she felt affected her driving ability and as such she did not drive while that drug was prescribed. She indicates that this shows a concern for other road users rather than ignoring risks."
No report such as is referred to in this letter was ever produced to DVLA.
16.The case against the pursuer proceeded to trial before a sheriff and jury. On 7 September 1999 at the close of the Crown case a submission of no case to answer on behalf of the pursuer was sustained, and she was acquitted.
17.On 11 September 1999 the pursuer completed the Form M1 which had been sent to her by Dr Anten following the latter's receipt of Dr Dick's letter. This form is no. 3/5 of process. It includes authorisation to doctors treating the pursuer to release reports about her medical condition. In the form the pursuer stated that she was admitted to hospital in 1998 because she was "extremely distraught due to sexual assault. I was not driving at this time." She also stated that in 1999 she was sent to hospital by the court for psychiatric assessment and was "discharged without further requirements for medical assistance having been totally exonerated". To the question "Please give the name of your psychiatric condition" the pursuer replied, "Suffered from excessive stress in 1998. Have since returned to good health."
18.On 8 October 1999 Dr McPherson, who was then the pursuer's general practitioner, partially completed and signed Form M2 which had been sent to him by Dr Anten following receipt of the pursuer's authorisation in Form M1. This form is no. 3/6 of process. In answer to the question "Please give diagnosis and history of events" Dr McPherson stated "Under care of Dr Peter Dick, consultant psychiatrist who can give relevant details. I understand a report has been submitted by Dr Dick."
19.On receipt of Form M2 from Dr McPherson Dr Anten wrote to Dr Dick asking whether he had any further information about the pursuer. On 5 November 1999 Dr Dick replied in the following terms:-
"I have written to you previously about this lady and have nothing further to add.
"She has been discharged from hospital and has indicated that she does not wish to have any further contact with me."
20.By letter dated 9 December 1999 (no. 3/1(a) of process) DVLA notified the pursuer that her driving licence was revoked with effect from 13 December 1999. Together with this letter was a notice from DVLA's senior medical adviser (no. 3/1(b) of process). This notice stated inter alia:-
"Medical enquiries have confirmed that you suffer from a psychiatric disorder. Regrettably, it is clear the [sic] you are currently unable to meet the national medical guidelines for fitness to drive. I have recommended, therefore, to the Licensing Authority that you should not hold a licence at present.
"Before you may be considered for a licence you must be in stable mental health for a period of at least 6 months and comply safely and with insight into recommended medication. You should re-apply with the support of your general practitioner or specialist."
21.On 9 December 1999 Dr Anten wrote to Dr McPherson informing him of the fact that the pursuer's licence had been revoked.
22.As at 9 December 1999 the pursuer was suffering from a schizo-affective illness. She is still suffering from that illness. One of the manifestations of this illness is that the pursuer on occasion believes that particular persons are behind the bad things in her life. There is a real risk that she might react violently towards such persons. The pursuer does not accept that she is suffering from any form of mental illness. She refuses to take any medication.
23.The illness from which the pursuer suffers is not stable. Without treatment it could improve, deteriorate or remain the same. The chances of improvement would be greatly increased if the pursuer accepted medication.
FINDS IN FACT AND IN LAW-
1.This court has jurisdiction.
2.The illness from which the pursuer suffered on 9 December 1999 and from which she still suffers is a mental illness in terms of the Motor Vehicles (Driving Licenses) Regulations 1999 (S.I. 1999, no. 2864), regulation 71(4)(a) and as such is a severe mental disorder in terms of regulation 71(1)(b) of said Regulations.
3.The illness is accordingly a prescribed disability for the purposes of the Road Traffic Act 1988, section 92(2)(a) and as such a relevant disability in terms of said section 92.
4.At the time when the notice revoking the pursuer's driving licence was served on her she was suffering from a relevant disability in terms of said section 92, and the defender would have been required in terms of section 92(3) to refuse any application by her for a driving licence.
5.The disability from which the pursuer suffers is such that the driving of a motor vehicle by her would be likely to be a source of danger to the public.
6.The defender was entitled to revoke the pursuer's driving licence.
FINDS IN LAW that the defender having been entitled to revoke the pursuer's driving licence the pursuer's crave for recall of the defender's decision must be refused.
THEREFORE, SUSTAINS the pleas-in-law for the defender and REPELS the pleas-in-law of the pursuer; REFUSES to recall the defender's decision to revoke the pursuer's driving licence with effect from 13 December 1999; FINDS the defender entitled to the expenses of the summary application so far as not already disposed of; allows him to make up an account thereof and remits the same when lodged to the Auditor of Court to tax and report.
NOTE
Introduction
This is an appeal by way of summary application in terms of the Road Traffic Act 1988, section 100 against a decision of the defender acting through DVLA to revoke the pursuer's driving licence. The appeal took the form of a proof. I have therefore thought it appropriate to make findings in fact.
The witnesses
The pursuer was the only witness on her own behalf. She was clearly under considerable strain both while giving her evidence and while listening to the evidence called on behalf of the defender. At one stage during her cross-examination she broke down. She eventually left the court somewhat dramatically in the course of the evidence for the defender.
I am, of course, prepared to make allowances for the stressful situation in which the pursuer was placed, and I also take into account that, in the eyes of the medical profession if not of her own, she is suffering from a mental illness of a relatively serious sort. However, I do not consider that these factors can really explain the evasive way in which the pursuer answered many questions. The sad fact is that the pursuer is simply not prepared to accept that she has suffered and is still suffering from a mental illness. That she is in fact so suffering is, in my opinion, amply confirmed by the evidence which I heard from Dr Dick, and it is, of course, most noteworthy in a case of this sort that no contradictory medical evidence was called on behalf of the pursuer.
The two witnesses for the defender were Dr Dick and Dr Anten. I found their evidence to be entirely acceptable.
Submission for the pursuer
For the pursuer Mr McLaughlin was conscious of the difficulties which he faced in the absence of any medical evidence having been called on her behalf.
He drew my attention to the fact that there was an important difference between the terms of sections 92 and 93 of the Road Traffic Act 1988. Section 92, the sidenote to which reads "Requirements as to physical fitness of drivers" provides in subsection (3) that if it appears from the declaration of an applicant for a driving licence that the applicant is suffering from a "relevant disability" (subject to the terms of subsequent subsections) the Secretary of State must refuse the application. Section 93, the sidenote to which reads "Revocation of licence because of disability or prospective disability" provides that if the Secretary of State is satisfied that a licence holder is suffering from a relevant disability and that the Secretary of State would by virtue of section 92(3) be required to refuse an application for a licence he may serve a notice revoking he licence.
Next, under reference to the case of Hamilton v Chief Constable of Strathclyde 1978 S.L.T. (Sh. Ct) 69, Jackson v Chief Constable of Tayside Police 1993 S.C.L.R. 160 and McFarlane v Secretary of State for Scotland 1988 S.C.L.R. 623, Mr McLaughlin submitted that in an appeal such as this I was exercising a judicial rather than an administrative function. I should therefore have regard to the pursuer's evidence that she was not suffering from any mental illness.
Mr McLaughlin emphasised that section 93 used the present tense. He submitted that in terms of the information available to DVLA as at 9 December 1999 there had been no justification for revocation.
Looking to the terms of section 92(2)(b) of the 1998 Act and under reference to Bennington v Peter [1984] R.T.R. 383 which is referred to in McFarlane v Secretary of State, cit. supra, Mr McLaughlin submitted that "likely to cause the driving ... to be a source of danger to the public" meant "more than a bare possibility". At its highest the evidence available to DVLA showed nothing more than a slight possibility of danger to the public. Therefore, if, as he invited me to do, I were to hold that any disability suffered by the pursuer were not a "prescribed disability" I could not hold that DVLA had been entitled to find that any disability suffered by the pursuer justified revocation. Dr Asten had read inferences into Dr Dick's letter which it had not been open to her to read.
On the whole matter I should allow the appeal.
Submission for the defender
Miss Shand moved me to refuse the appeal.
She accepted that the appropriate test was that applied in McFarlane v Secretary of State, cit. supra and that I was therefore entitled to have regard to the evidence led. Counsel referred me to an unreported decision of Sheriff McInnes in Perth Sheriff Court (B397/91) and to what is stated in Macphail's Sheriff Court Practice (2nd edition) at paragraphs 25.07 and 25.08. I should not interfere with the decision appealed against unless it was demonstrated to be clearly wrong or unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223). Neither was the case here.
The distinction between section 92 and 93 was not significant. The discretion afforded in section 93 might be to take account of the exceptions to section 92(3) created in the subsequent subsections of section 92. In any event the important issue was whether the Secretary of State was satisfied that there was a relevant disability. The mere fact that the Secretary of State had a discretion not to revoke did not mean that his decision in the present case was wrong.
If the pursuer had come forward with evidence to show that her condition was under control the situation might be different, but there was no such evidence. Once the medical adviser had been presented with prima facie evidence of a disability there was no obligation on him or her to make further inquiries.
It was not correct to say that the conditions for "satisfaction" under section 93 had to exist on the very day when the notice was issued, but, even if it were, the evidence showed that the pursuer's condition was likely to continue. Medication could only control it; medication could not cure it. It was clear that by at least November there had been no resolution of the condition.
The question whether the pursuer's condition was "likely to cause the driving ... to be a source of danger to the public" was not relevant because the pursuer's disability was a "prescribed disability". The evidence of the two doctors to this effect had not been challenged. In any event there was evidence of a likelihood of danger. The prognosis of the pursuer's condition was unpredictable. It was also unpredictable whether she might meet someone by whom she considered that she had been done down. Because of these unpredictabilities it could properly be said that her condition fulfilled the necessary criteria.
Statutory provisions
The relevant statutory provisions are contained in the Road Traffic Act 1988 and the Motor Vehicles (Driving Licences) Regulations 1999 (S.I. No. 2864).
Section 92 of the 1988 Act provides inter alia:-
(2) In this Part of this Act -
"disability" includes disease ...
"relevant disability" in relation to any person means -
(a)any prescribed disability, and
(b)any other disability likely to cause the driving of a vehicle by him in pursuance of a licence to be a source of danger to the public ...
(3) If it appears from the applicant's declaration, or if on inquiry the Secretary of State is satisfied from other information, that the applicant is suffering from a relevant disability, the Secretary of State must, subject to the following provisions of this section, refuse to grant the licence.
Section 93 provides inter alia:-
(1)If the Secretary of State is at any time satisfied on inquiry -
(a)that a licence holder is suffering from a relevant disability, and
(b)that the Secretary of State would be required by virtue of section 92(3) of this Act to refuse an application for the licence made by him at that time,
the Secretary of State may serve notice in writing on the licence holder revoking the licence with effect from such date as may be specified in the notice ...
Section 108 provides inter alia:-
(1) In this Part of this Act -
"prescribed" means prescribed by regulations
Regulation 71 provides inter alia:-
(1) The following disabilities are prescribed for the purposes of section 92(2) of the [1988 Act] as relevant disabilities in relation to an applicant ...
(b) severe mental disorder; ...
(4) In this regulation -
(a) in paragraph (1)(b), the expression "severe mental disorder" includes mental illness ...
Opinion
There was no dispute about the correct approach which I should take in an appeal of this sort. I am acting in a judicial capacity. I am not concerned only with procedural irregularities. I am entitled to have regard to the evidence which I heard but, unless I am satisfied that the decision of the defender is clearly wrong or unreasonable in the Wednesbury sense, I am bound to refuse the appeal.
I found the medical evidence led on behalf of the defender to be entirely convincing. I am satisfied that the pursuer was suffering from a mental illness at the time when the revocation notice was issued. I am satisfied that she is still suffering from that illness. I accept that the pursuer herself thinks otherwise. However, in a case of this sort the absence of any medical evidence to contradict that led on behalf of the defender creates an almost insuperable obstacle for the pursuer. She herself has no medical qualifications. I am afraid that the lack of such qualifications makes her own evidence of little value so far as it relates to the crucial question of whether she is suffering from a mental illness.
It is perhaps not without significance that the suggestion made by the pursuer's solicitors in their letter to DVLA of 2 August 1999 to the effect that an independent report was to be obtained has apparently not borne fruit. In my opinion, it is a not unreasonable inference that no report contradicting the clearly expressed view of Dr Dick could be obtained.
I am satisfied that the condition diagnosed by Dr Dick, viz schizo-affective illness is a mental illness in terms of regulation 71(4)(a) and as such is a severe mental disorder in terms of regulation 71(1)(b) of that regulation. It is thus a "prescribed disability" within the meaning of section 92(2)(a) of the 1988 Act.
In my opinion, the disability has also been demonstrated to be one which is "likely to cause the driving of a vehicle by [the pursuer] in pursuance of a licence to be a source of danger to the public" in terms of section 92(2)(b). I have reached this conclusion on the basis of Dr Dick's evidence about the instability of the pursuer's condition and its unpredictability. Without medication, which the pursuer is unwilling to take, the chances of an improvement in her condition are greatly reduced. There is thus a real possibility that the condition will deteriorate. If it does so there is a distinct risk that the pursuer may behave quite irrationally and violently when behind the wheel of a vehicle, even though she has not done so in the past. This is of special significance in the light of the evidence that the pursuer can develop a strong dislike of a person who she considers has done wrong by her.
The inevitable conclusion to which I am led is thus that the pursuer's disability is a "relevant disability" within both definitions of section 92(2). That being so the Secretary of State has a discretion in terms of section 93(1) to revoke the licence. On the evidence available to me there is no basis for holding that his exercise of that discretion was in any way unreasonable or that his decision was clearly wrong. That is sufficient for me to hold that the appeal must fail. However, I feel able to go further and to say that in my opinion the decision was entirely reasonable and one which was manifestly correct.
For the avoidance of doubt I should make it clear that the pursuer's driving skills are not in question. She was anxious to put before the court the fact that she had obtained a Police Advanced Driving Certificate, and that she had a clean driving record. I of course accept that evidence, but it avails the pursuer nothing. The issue is not whether she is or has been a skilled and competent driver. It is whether, given her disability, she should be allowed to continue to drive. It is that question and that question only which I have answered in the negative.
Expenses
Counsel for the defender moved me to find him entitled to expenses in the event that he was successful.
This motion was opposed by Mr McLaughlin, who submitted that, in the event of the pursuer's being unsuccessful there should be no award of expenses in favour of either party. He argued that it would not be reasonable to make any award of expenses against he pursuer as the present proceedings had been the only means open to her to seek a review of the defender's decision and maintain her right to drive. The defender was a public body. The previous two hearings of the case which had been concerned with interim revocation had proceeded on a basis of no expenses due to or by either party.
In reply counsel submitted that any concession previously made had been only in respect of the interim hearings. There was no reason why the defender should be prejudiced because the pursuer was ill. The pursuer had chosen to take the appeal the whole distance.
In my opinion, there has been nothing said on her behalf which would entitle me to do other than find the pursuer liable to the defender in the expenses of the appeal. It is true that I have held it to be established that the pursuer is ill. However, the evidence of that was substantial, and there was no contradictory medical evidence led on her behalf. The pursuer's submission carried to its logical conclusion would mean that in every case of an appeal of this sort, where the appeal failed on the basis that the appellant was indeed ill, there should be no award of expenses. This would be so contrary to the normal practice of the courts that I consider that it would be justified only if Parliament had made special provision to that effect. There is no such provision. The normal rule should apply, and I have therefore found the defender entitled to his expenses from the pursuer.
Whether the defender chooses to enforce the award of expenses will of course be a matter for him. No doubt he will have regard to the pursuer's state of health when reaching a decision about that.