The Police Reform Act 2002 and The Criminal Justice (Northern Ireland) Order 2005 permit the taking of blood from incapacitated drivers for future consensual testing, therefore putting them in the same position with respect to testing for drug and alcohol levels as drivers with capacity. This guidance explains the legal framework and provides ethical advice for doctors asked to take samples under this legislation.
In 2002, the Government introduced new legislative powers to close what many saw as a loophole in the law. The Police Reform Act introduced new arrangements in England, Wales and Scotland for obtaining blood specimens from people who are unable to give consent after they have been involved in road traffic accidents.
In 2005, the Criminal Justice (Northern Ireland) Order was passed, which extends these arrangements to Northern Ireland. The BMA and Faculty of Forensic and Legal Medicine (FFLM) support the arrangements in principle.
At the BMA’s annual representative meeting in 2001, the following resolution was passed:
‘That this Meeting believes that police surgeons should be legally empowered to take blood samples for testing for alcohol and drug levels without consent from a driver without capacity after a road traffic accident and that testing should occur later only with the consent of the driver.’
There was a belief that some drivers had escaped appropriate prosecution for drink-driving offences, such as causing death by careless driving while under the influence of drugs or alcohol, which can carry a heavy penalty, owing to a lack of supporting evidence. Instead, they could only be prosecuted for lesser offences.
Similarly, there was a belief that some drivers may have been wrongly suspected of drink-driving when an accurate test would have established their innocence. Concerns about the injustice of such situations led to calls for the law to be changed.
The legislation aimed to put those who cannot give consent in the same position as those who can, while protecting doctors from actions for assault if they take a specimen without consent.
Taking blood from incapacitated drivers, July 2010