Drug Driving: Proposed Regulations – Analysis of Consultation Responses

Executive Summary

1. In 2013, the UK Government and Scottish Government undertook a joint public consultation about proposals for new regulations on drug driving. Separate UK and Scottish analyses of the responses were carried out, and the findings presented here are for the Scottish analysis only. These findings will inform decisions about whether Scottish regulations should be brought forward under the Crime and Courts Act 2013 ('the 2013 Act'). Under the 2013 Act, it is for the Scottish Government and Scottish Parliament to decide whether a new drug driving offence should be introduced in Scotland and if so, what the limits for specified drugs should be.

2. Drug driving has been illegal in the UK for many years. However, it has been difficult to prosecute offences under existing legislation because of the need to demonstrate that an individual's driving was impaired as a result of drugs. This is in contrast to the offence of drink-driving, where it has been possible to collect clear evidence of a driver being 'over the limit'. The 2013 Act attempts to overcome this difficulty, by introducing, for the first time, an offence of driving under the influence of a specified drug over a specified limit.

3. To determine which drugs should be included in the legislation, and what the appropriate limits for each drug should be, the UK Government set up an independent expert panel in early 2012 to consider how it will be possible to set levels for the impairing effects of specific drugs on someone driving, and how to measure these levels. The expert panel's report and recommendations were published in March 2013.^[1]

4. The UK Government and the Scottish Government then undertook a consultation, setting out three different options for the policy approach to be followed:

• Option 1 (both Governments' preferred option): took a zero tolerance approach to eight controlled drugs (including LSD) which are mostly associated with illegal drug use, and a road safety risk based approach to eight controlled drugs which have medical uses.
• Option 2: took the expert panel's recommendations in full - specifying 15 controlled drugs (not including LSD) and setting limits based on evidence of impairment to driving and / or on evidence of increased odds of a road traffic accident, death or injury.
• Option 3: took a zero tolerance approach to all 15 controlled drugs and LSD.

5. The consultation also sought views on what would be a suitable limit for amphetamine.

About the respondents

6. Forty-three (43) responses were included in the Scottish analysis - 4 from individuals and 39 from organisations. Organisational respondents included: road safety, motoring and licensing organisations; medical, clinical and research bodies; pharmacy groups; alcohol and drug partnerships; and charitable organisations and forums supporting people with chronic pain.

Respondents' views about the policy options

7. Altogether, two-thirds of respondents (28 out of 43) agreed with the Scottish Government's preferred policy approach (option 1). Seven respondents disagreed. The remaining eight respondents either did not state their view, specifically said they had no view, or their view was unclear.

8. Six of the seven respondents who disagreed with the option 1 approach argued instead in favour of the approach set out in option 2, while one respondent expressed a preference for option 3. This latter respondent argued that option 1 did not fully address the significant problem of drug driving and its effect on communities, and felt that option 3 sent out the 'strongest message' that illegal drug use would not be tolerated.

9. Those who were in favour of policy option 1 expressed general support for the proposed zero tolerance approach to the eight illegal controlled drugs - because it 'sends a clear message that you cannot take illegal drugs and drive'. This group also largely expressed their agreement with the distinction made by policy option 1 between the eight illegal drugs and the eight controlled drugs which may be prescribed for legitimate reasons. This group did not support policy option 2 because they believed it 'would send out mixed messages' and would cause 'uncertainty' and 'confusion' if higher limits were set for what are already illegal substances.

10. The six respondents who supported option 2 over option 1 expressed the views that policy option 1 was not evidence-based; appeared to be an attempt to tackle drug use rather than dangerous driving; and was inconsistent with the Government's risk-based policy on alcohol. There were also concerns among this group about the likely increased costs associated with the implementation of policy option 1 as compared with option 2.

11. In general, policy option 3 was rejected by respondents as it was considered to have a greater potential for unintended consequences (particularly for those who were taking prescribed medications), and to be too costly.

Views on other issues covered in the consultation

12. Among those respondents who commented, nearly all (22 out of 24) agreed with the Scottish Government's proposal not to set limits in urine and nearly three-quarters (23 out of 32) agreed with the proposal to set a zero tolerance limit for cannabis / Sativex.

13. In relation to the question of a limit for amphetamine, there was no clear consensus among respondents about a specific limit. However, a majority of those who commented (10 out of 17) wanted the limit to be lower than the expert panel's recommendation of 600 g/L.

14. Just over one-fifth of respondents (10 out of 43) offered a suggestion about other medications which they thought should be considered in the legislation. These included: other strong opioid drugs prescribed for pain; tricyclic antidepressants and anti-epileptics (also prescribed for pain); legal high salvia and mephedrone and synthetic cannabinoids (increasingly popular among young people); magic mushrooms and certain over-the-counter antihistamines.

Impact assessment

15. Although there was no specific impact assessment produced for Scotland as part of the consultation, a small number of respondents made comments regarding the UK Government's draft impact assessment for England and Wales - related to the estimates of increased prosecutions, decreased casualties and costs. In addition, respondents highlighted possible impacts on a range of businesses and services, including businesses involved in providing training, awareness raising and advice about road safety; healthcare professionals including community pharmacies; the police; the courts; alcohol and drug treatment services; the DVLA; and private companies involved in the manufacture and sale of drug screening devices.

Other comments

16. In addition to their comments on the questions posed in the consultation document, respondents also sometimes made comments that were not directly related to the consultation questions. These addressed a range of issues, including: concerns about implementation of the proposed regulations; the need for raising awareness of the regulations, both among members of the public and among doctors / prescribers; and the need to review procedures for reporting patients to the DVLA when their driving may be impaired as a result of their medical condition or their medication.