QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF HITCHEN
|OXFORD MAGISTRATES COURT
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Mr C Thomann (instructed by The Treasury Solicitor) appeared on behalf of the Defendant
Crown Copyright ©
1. MRS JUSTICE SIMLER: The claimant, Mrs Hitchen, is a 78-year old woman who was involved in a road traffic accident on 22 March 2012, in which she collided with a number of parked cars. The police officer who attended the scene notified the DVLA of a possible medical condition because he considered that she appeared confused and had lapses of concentration.
"Possible chronic obstructive pulmonary disease or an as yet undiagnosed medical condition."
The factual background
"[The] accident occurred at cross roads of two narrow residential roads with cars parked on both sides. Even with great care, it is extremely difficult to see approaching cars. As I crossed over I was suddenly struck with great force by an unseen vehicle and the impact was so severe and sudden that my foot was jammed on to the accelerator, causing me to crash into two parked cars. The only reason I accepted responsibility for the collision was because the other driver had right of way."
"I am unsure whether they are due to your chronic obstructive pulmonary disease or to an as yet undiagnosed medical condition. However, as they constitute a road safety issue, regrettably therefore I must recommend the revocation of your group 1 ordinary licence."
"As I am not disabled, physically or mentally, also confirmed by my GP, it is completely inappropriate for me to agree to such an examination."
"I should explain that the medical information obtained during the course of our medical enquiries, including the results of your previous driving appraisal, indicates that you may be experiencing problems with your cognition which, whilst not obvious during the course of performing day to day activities, may become evident when performing the complex task of driving. This was alluded to in correspondence sent to you following the revocation of your driving licence in September last year.
I would advise that there is no single or simple marker or test for assessment of cognitive function. However, on-road driving assessments, which are only carried out at approved driving assessment centres, are considered an invaluable method of ensuring that there are no features present likely to cause the driver to be a source of danger. Such features can include visual inattention, easy distractibility and difficulty performing multiple tasks. In addition, it is important that reaction time, memory, concentration and confidence are adequate and do not show impairment likely to affect driving performance."
"Viewing your client's case as a whole, including all of the background information and the faults demonstrated during the course of the driving appraisal that she underwent in September 2012, the medical adviser was of the view that your client represented a likely source of danger to both herself and other road users and it was on this basis that her licence was revoked."
"I would advise that a disability may exist through age related cognitive decline which may not present in day to day living or to clinicians at this stage and not until quite late in the disease process. However, driving is an extremely complex activity in a novel, constantly changing environment, with multiple changing situations that have to be processed quickly, effectively and safely. It is the advice of the Secretary of State's Honorary Medical Advisory Panel that driving may come to highlight these deficits at a much earlier stage. This was implied in our letter of 26 September 2012 in the phrase 'or to an as yet undiagnosed medical condition' ..."
"Based on the on-road driving assessment report, the claimant's ordinary licence was revoked by letter dated 26 September 2012."
"It was therefore deemed Mrs Hitchen was suffering from a relevant disability as defined."
"29. The Panel discussed a scenario of an elderly driver stopped by the Police for erratic driving and where a mild impairment of cognition was felt to have possibly been a factor. In the scenario reports from the driver's doctors did not highlight any formally diagnosed conditions however, objective on road driving assessment highlighted significant difficulties. Discussion took place as to whether a licence could be revoked on the basis of the driving performance or whether in the absence of a recognised diagnosis a recommendation to retain the licence would have to be made. The erratic driving may require disqualification by the Courts if there is no recognised medical cause apparent. Panel reiterated that age alone was not reason to remove a licence entitlement and never should be.
30. There was a wide ranging discussion around the various methods of assessment available to the clinician. Panel stated that the absence of a recorded diagnosis may not correlate with the absence of pathology, the index event being the first presentation of possible problems. It was noted that driving is a high level skill and that difficulties present in forward planning and the processing of the multiple, complex sensory inputs required for safe driving may pre-date the formal recognition and diagnosis of cognitive impairment or dementia by a doctor. The Panel indicated that the commonly used assessment tools, particularly those used by non-specialities e.g the Mini Mental State Examination (MMSE) rating skill were designed as screening tools for dementia and do not correlate with driving ability and have a limited role.
31. Cognitive abilities of particular relevance to safe driving are executive skills, frontal lobe function and the ability to forward plan particularly in new situations. These were not measured accurately by the MMSE rating scale. Panel indicated that the Addenbrooke's Cognitive Examination and Montreal Cognitive Assessment are probably better at assessing driving related functions. Panel stated that the most relevant assessment to determine whether a driver was able to drive safely in traffic was a functional assessment of ability by means of an on road driving assessment or similar process. Parallels were drawn with the assessment of commercial pilots and use of simulators in assessing performance.
32. The MMSE rating scale is dependant on a subject's language skills and pre-morbid functioning. A subject with a high level of pre-morbid function may still experience a significant loss in function before it becomes apparent via the rating scale."
"(i) Medical evidence presented by the appellant since revocation of her licence is not indicative of her condition on the day of revocation.
(ii) The evidence and reports from the accident and driving assessment supports that the DVLA were reasonable in their conclusion that the appellant was suffering from age related cognitive impairment and they were correct to revoke Mrs Hitchen's licence.
(iii) We gave weight to the learned medical panel's decision, whose sole focus is driving and psychiatric disorders.
(iv) We accept that Dr Pawley is an expert in the field of applying standards of fitness to drive.
Conclusion: we believe that the appellant has not proved her case on the balance of probabilities, that the decision by the DVLA to revoke her licence was incorrect and therefore the appeal is dismissed."
The relevant legal framework
"(1) An application for the grant of a licence must include a declaration by the applicant, in such form as the Secretary of State may require, stating whether he is suffering or has at any time (or, if a period is prescribed for the purposes of this subsection, has during that period) suffered from any relevant disability or any prospective disability.
(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, and "prospective disability" in relation to any person means any other disability which—
(a)at the time of the application for the grant of a licence or, as the case may be, the material time for the purposes of the provision in which the expression is used, is not of such a kind that it is a relevant disability, but
(b)by virtue of the intermittent or progressive nature of the disability or otherwise, may become a relevant disability in course of time.
(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."
Ground 1: whether the defendant erred in law in applying a reasonableness review
"DVLA were reasonable in their conclusion that the appellant was suffering from age related cognitive impairment ..."
"It is clear that any appeal is by way of re-hearing so the court looks at the matter in issue afresh. At the hearing we heard all of the evidence that the parties sought to put before us. We made findings of fact and decided to refuse the appeal on the basis of what we heard ... no question of law arises. Moreover, it is clear that, as the appeal was by way of re-hearing, we were entitled to consider all of the relevant evidence, including that arising between the original decision appealed against and the appeal."
"What the Secretary of State/DVLA decides to do is irrelevant in the sense that we heard the matter afresh and made up our own minds."
Ground 3: misdirection in failing to consider whether there was evidence of a relevant disability likely to cause driving to be a source of danger
Ground 4: Irrational exclusion of relevant evidence
"Question 1 is a question of fact and, in any event, it is irrelevant to refer back to the date of revocation in this way."
100. MS JABER: Yes, my Lady. Thank you.
103. MRS JUSTICE SIMLER: I haven't received any submissions today. I don't know when they were sent.
105. MR THOMANN: My Lady, I certainly cannot resist the costs of the proceedings in this court. There is a question of whether my client should be bearing the cost of the magistrates court proceedings, which have been included in the schedule of costs. I say that that would not be the appropriate order in this case. Not merely was the defendant not my client in the proceedings as originally brought and the decision of the magistrates involves a separate process, but also my client did, at an early stage of these proceedings, offer to have the matter sent back to the magistrates court for re-hearing or for the case to be stated.
106. MRS JUSTICE SIMLER: Yes. All right. In principle you don't resist the costs of the judicial review?
107. MR THOMANN: No.
108. MRS JUSTICE SIMLER: Let me just then hear -- is it Ms Jaber?
109. MS JABER: Ms Jaber. Yes, my Lady.
110. MRS JUSTICE SIMLER: Do you want to hand up the document that you referred to earlier.
111. MS JABER: The schedule of costs, yes. (Document handed)
113. MRS JUSTICE SIMLER: Ms Jaber, I know you are standing in for Mr Tomlinson, but are you in a position to deal with why the costs range beyond the costs of the judicial review?
114. MS JABER: My Lady, the only point I can make in response to my learned friend's submission is the fact of the matter is the magistrates court proceedings arose from the original unlawful decision of the Secretary of State in this matter and so are incidental to it.
115. MRS JUSTICE SIMLER: The only decision that is unlawful is the magistrates court's decision. The original decision that the DVLA made was made at a time when there wasn't medical evidence from Dr Morgan.
116. MS JABER: Yes, my Lady. I understand that.
118. MRS JUSTICE SIMLER: All right. What I said on Friday to Mr Tomlinson was that, if necessary, I would be content to deal with consequential orders on paper. I don't want to be unfair to you --
119. MS JABER: It might be better, my Lady, if we had the opportunity to address that submission on paper, as I don't have instructions on it today.
120. MRS JUSTICE SIMLER: Okay. What I am going to say at this stage is, in principle, I can't see why you should have anything more than the costs of the judicial review, but I will permit written submissions to be made if that isn't accepted. All right?
121. MS JABER: Thank you very much, my Lady.
122. MRS JUSTICE SIMLER: There is then a question of detailed assessment, or rather summary assessment, of those costs, not detailed assessment. You are seeking a summary assessment, Ms Jaber?
123. MS JABER: Yes.
124. MR THOMANN: My lady, I had rather anticipated I may be pushing at an open door in suggesting that this is one of those unusual cases where a detailed assessment would be appropriate. The reasons for that are, one, this schedule, on my reading, doesn't actually distinguish in a satisfactory way between the costs of the various stages, it doesn't particularly break down the costs, and it is an unusually large schedule that includes a number of items of correspondence et cetera that aren't broken down and includes leading counsel's fees --
125. MRS JUSTICE SIMLER: I will tell you what I am prepared to do, Mr Thomann. You are right, it doesn't distinguish between the costs of the magistrates court proceedings and the costs of the judicial review. It may be difficult to deal with it, even on a broad brush basis, at this stage. I am going to allow the parties to deal with costs in writing.