Issue 39 October 2021 - Journal - Page 86
• Decisions about a person’s capacity may have
particular implications where the person refuses to
agree to a specimen being taken, since refusal without
‘reasonable excuse’ will lead to a charge of ‘failure to
provide a specimen’. Lack of mental capacity might
be a ‘reasonable excuse’ and it is therefore important
that doctors document their decisions about mental
collision, rollover motor accident, accident involving
motorised recreational vehicles, bicycle collision, or
any other potentially high-energy mechanism.”
Guidance for doctors from the British Medical Association and the Faculty of Forensic & Legal Medicine
2020 (FFLM). This document contains the following
• The Police Reform Act 2002 and The Criminal Justice (Northern Ireland) Order 2005 permit the taking
of blood from incapacitated drivers.
What happens if a blood sample is obtained from a
person under hospital procedures for incapacitated
A person who is incapable of consenting, may have a
sample of blood taken from them without their consent. The obtained sample is then retained until the
person is capable of either providing consent for it to
be sent for analysis, or refusing.
• Legally, it is the responsibility of the police constable to establish whether the person has or lacks capacity. Nevertheless, before taking a sample (Health
Care Professionals) HCPs should satisfy themselves
that the individual lacks the capacity to consent and
therefore falls within the remit of the legislation.
• The relevant legal test of capacity is that the driver
is: ‘…conscious of what he or she is doing and has
heard and fully understood the request for his
If they consent then an analysis can be obtained and
establish a drink/drugs level in the blood.
If they do not consent then they can be proceeded
with for failure to provide.
• HCPs will want to consider whether the person:
• understands what the request involves, and why the
specimen is being sought • understands any risks
associated with the specimen being taken • understands what will be the consequences of refusing to
give consent • can retain the information for long
enough to make an effective decision • can weigh the
information in the balance; and • can make a free
EXPERT WITNESS JOURNAL
The above scenario is purely a training and discussion scenario, and is not legal advice and neither does
it cover all of the issues.
The scenario raises the issue that if a driver is considered incapacitated through a head injury that the obtaining of the blood sample could achieve a safer
process, and convict those that have been driving
whilst over the limit.
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