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Cite as: [2005] HCJAC 71, [2005] ScotHC HCJAC_71

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Pacitti v. Procurator Fiscal [2005] ScotHC HCJAC_71 (03 May 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lady Paton

Lord Macphail

[2005HCJAC71]

Appeal No: XJ1417/04

OPINION OF THE COURT

delivered by LADY PATON

STATED CASE

APPEAL

ANN MARIE ANTOINETTE PACITTI

Appellant;

against

PROCURATOR FISCAL, Aberdeen

Respondent:

_______

Appellant: C. M. Mitchell, Advocate; Drummond Miller W.S. (for Bruce Macdonald & Co., Aberdeen)

Respondent: G. D. Mitchell, A.D.; Crown Agent

3 May 2005

Suspected drink-driver in hospital: medical practitioner "in immediate charge"
[1] Section 9 of the Road Traffic Act 1988 (as it stood prior to amendment on 1 October 2002 by section 56 of the Police Reform Act 2002) provided:

"Protection for hospital patients

9 (1) While a person is at a hospital as a patient he shall not be required to provide a specimen of breath for a breath test or to provide a specimen for a laboratory test unless the medical practitioner in immediate charge of his case has been notified of the proposal to make the requirement; and -

if the requirement is then made, it shall be for the provision of a specimen at the hospital, but
if the medical practitioner objects on the ground specified in subsection (2) below, the requirement shall not be made.

(2) The ground on which the medical practitioner may object is that the requirement or the provision of a specimen or, in the case of a specimen of blood or urine, the warning required under section 7(7) of this Act, would be prejudicial to the proper care and treatment of the patient ..."

[2] In this appeal against conviction, the relevant procedure in terms of section 9 was carried out in the presence of Dr. Pereira, then in charge of the Accident and Emergency Department. However by the time the appellant gave a blood sample, another medical practitioner, Dr. Johnson, was in charge of Accident and Emergency. The appellant contends that the notification procedure set out in section 9 should have been carried out with Dr. Johnson as the medical practitioner in immediate charge of her case at the time when the blood sample was taken.

[3] In the Stated Case, the first and fourth questions posed by the sheriff are as follows:

"1. On the facts, was I entitled to hold that Dr. Pereira was the medical practitioner in immediate charge of the appellant's case? ...

4. In all the circumstances, was I entitled to convict the appellant as libelled?"

Questions 2 and 3 related to matters not argued in the appeal.

Facts outlined in Stated Case
[4] The appellant was convicted after trial of a contravention of section 5(1)(a) of the Road Traffic Act 1988. Two police constables gave evidence that at about 17.20 p.m. on 6 September 2002 (not 6 December 2002, as noted per incuriam in the Stated Case) they saw a car which had mounted a pavement and struck a bollard. They were approached by the appellant who admitted having been the driver, and having drunk a whisky about ten minutes earlier. Paramedics in attendance thought that the appellant had fractured her arm. Because of concern about her condition, no breath test was carried out at that stage. The appellant was taken by ambulance to the Accident and Emergency Department of Aberdeen Royal Infirmary. The police officers followed the ambulance, and arrived at the hospital at about 17.50 p.m.

[5] At the hospital, the officers wanted to give the appellant a breath test, and to take a sample of blood or urine. A standard form, Form 5 (Crown Production number 1) set out the necessary steps in the notification procedure provided for in section 9, quoted in paragraph [1] above. Part 1 of Form 5 was headed "Interview with hospital medical practitioner". It set out the way in which the practitioner was to be notified of the proposed procedure to which the patient was to be subjected. Part 1 made clear the practitioner's entitlement to object to any part of the proposed procedure on the ground that it would be prejudicial to the patient's proper care or treatment. Specific questions were to be put to the practitioner, the answers recorded, and the practitioner's signature obtained. Parts 2 and 5 of the form set out the steps to be taken when obtaining samples of breath and blood from the patient.

[6] Dr. Pereira, a senior house officer, was the medical practitioner in charge of the Accident and Emergency Department at the time. He was about to go off duty, as the officers were aware. The officers asked Dr. Pereira for permission to carry out the procedure in Form 5. Permission was given. The relevant parts of the form were read out to the appellant by the officers. Pages 1, 2, and 3 of the form were read out to Dr. Pereira by one officer in the presence of the other officer. In Dr. Pereira's opinion, there was no reason why the appellant could not be interviewed by the police in connection with the incident, or give a breath test, or provide a sample of either blood or urine. Dr. Pereira completed and signed parts of the form.

[7] As was common practice, the officers then requested a police surgeon to attend hospital to take the samples. Before he arrived, Dr. Pereira went off duty, leaving a more junior doctor, Dr. Johnson, in charge of Accident and Emergency.

[8] The chronology of events was therefore as follows:

18.00 Dr. Pereira examined the appellant

18.02 Dr. Pereira signed Form 5

18.06 The appellant agreed to provide a specimen of breath

18.15 Dr. Pereira went off duty, and Dr. Johnson took over

18.30 (Approximately) Dr. Pereira left the hospital

18.55 The appellant agreed to provide a specimen of blood

18.58 The police surgeon (Dr. Duffus) took a specimen of blood

[9] The police officers did not see Dr. Pereira after the initial examination. They were not aware that he had left the hospital, or that Dr. Johnson had taken over. The officers relied upon the procedure which they had carried out with Dr. Pereira.

Submissions
[10] For the appellant, it was contended that when the appellant gave the blood sample, the medical practitioner "in immediate charge" of her case was Dr. Johnson, not Dr. Pereira. It was necessary to have Dr. Johnson's view as to whether the procedure was objectionable. The appellant might become unwell. For section 9 to have practical effect, the opportunity for the supervising medical practitioner to make an objection should be as close as practicable to the sample-taking.

[11] Counsel advised that there was little authority on the point. One decision from England, R. v Everett Lewis, unreported, February 14, 1997 (Harrow Crown Court, H.H. Judge Black) was summarised in the commentary in Sweet and Maxwell's Encyclopaedia of Road Traffic Law and Practice, Vol.2 at paragraph 4-870 as follows:

"Where the defendant was transferred, without the knowledge of the police constable, from the immediate charge of a doctor in Casualty who had consented to the taking of a blood sample to the charge of a doctor in the Orthopaedic Department, it was held that the constable should have obtained the consent of the second doctor before requiring a specimen and that a requirement made without such consent was not properly made ..."

Counsel accepted that the brief summary did not give all the facts.

[12] Counsel reiterated that if the appellant had become ill, or too unwell to give samples, or unable properly to give her consent, she required the protection of the Act. A medical practitioner in immediate charge of the appellant had to say that the samples could properly be taken. In the present case, there were no findings-in-fact that Dr. Johnson saw the patient, or gave a view.

[13] The Advocate depute then addressed the court. He submitted that the policy underlying the legislation was to provide a check upon the actions of police officers within a hospital. It was obviously undesirable to have blood samples taken from patients without notifying hospital staff and obtaining their assessment. However the legislation drew a distinction between the proposal to take samples, and the actual taking of a sample. The legislation envisaged a lapse of time between those two stages. It could not have been Parliament's intention to oblige police officers to carry out their statutory obligations two or three times, depending upon hospital staffing arrangements.

Decision
[14] Section 9 provides a degree of protection to a suspected drink-driver who has been taken to hospital. The driver may be so badly injured or in such a condition that any attempt to obtain a sample of breath, blood, or urine would be prejudicial to his care and treatment. The medical practitioner "in immediate charge" of the driver's case can object to such sample-taking. That practitioner would be in a good position to assess the patient's condition.

[15] However, section 9 envisages some time passing between that medical practitioner's assessment of the patient's condition and the actual taking of samples, for the section provides that the patient "shall not be required to provide [the specimen] unless the medical practitioner in immediate charge of his case has been [italics added] notified of the proposal to make the requirement", and has not objected. The statute imposes no time-limits, although the police would be unlikely to delay in taking samples because of the risk of losing evidence.

[16] In our view, on a proper construction of section 9, bearing in mind the possible passage of time between the notification procedure and the time when a sample is taken, the phrase "in immediate charge of his case" refers to the medical practitioner in immediate charge of the patient at the time when the police carry out the notification procedure provided for by section 9. We consider that there is no obligation upon police officers, who have already carried out the necessary notification procedure with the medical practitioner then in immediate charge, to confirm whether the same practitioner is still in immediate charge at the time of the taking of samples, and if not, to seek out the practitioner currently in immediate charge and to repeat the whole notification process.

[17] It will be seen therefore that we have not followed R. v Everett Lewis, unreported, 14 February 1997; but as the full facts and the reasoning underlying that decision were not available, we felt unable to place much reliance on it.

[18] Accordingly we are satisfied that the police officers, having carried out the notification procedure with Dr. Pereira, were entitled to proceed as they did. There was no suggestion that the appellant was unfit to be tested when the test was carried out.

[19] For the foregoing reasons, we answer Questions 1 and 4 in the Stated Case in the affirmative, and refuse the appeal.