Drug Driving: Proposed Regulations – Analysis of Consultation Responses

3. Views About the Three Policy Options (Q1 and Q2)

3.1 The first two questions in the consultation asked about respondents' agreement (or disagreement) with the Government's preferred policy option 1, and their views about policy options 2 and 3. The first two questions were:

Question 1: Do you agree with the Government's proposed approach as set out in policy option 1? If not, please provide your reason(s).

Question 2: Do you have any views on the alternative approaches as set out in policy option 2 and 3?

3.2 There was a great deal of overlap in relation to the comments made at Questions 1 and 2. Therefore, the analysis of these two questions was carried out in tandem, and the findings are discussed together in this section.

3.3 All 43 respondents made a comment at Question 1, and 33 respondents (30 organisations and 3 individuals) made a comment at Question 2.

3.4 Respondents' agreement or disagreement with the option 1 approach has been inferred from their comments, and Table 3.1 below shows the results. (As Question 2 did not ask respondents if they agreed or disagreed with policy options 2 and 3, no table has been produced for this question.)

3.5 In total, 28 of the 43 respondents (65%) agreed with the Government's preferred policy approach (option 1). Seven (16%) disagreed, and in eight responses, the respondent either did not state their view, specifically said they had no view, or their view was unclear.

Table 3.1: Question 1 - Do you agree with the Government's proposed approach as set out in policy option 1?

Respondent type	Yes		No		Neither agree nor disagree, or unclear		Total
Road safety, motoring and licensing	8	89%	-	0%	1	11%	9	100%
Medical, clinical and research	2	25%	3	38%	3	38%	8	100%
Pharmacist groups and pharmaceutical bodies	6	100%	-	0%	-	0%	6	100%
Alcohol and drug partnerships	3	60%	2	40%	-	0%	5	100%
Charitable organisations and forums supporting patients with chronic pain	2	40%	-	0%	3	60%	5	100%
Other public sector organisations	3	75%	-	0%	1	25%	4	100%
Private sector organisations	3	100%	-	0%	-	0%	3	100%
Other respondents	1	33%	2	67%	-	0%	3	100%
Totals	28	65%	7	16%	8	19%	43	100%

Percentages do not all total 100 due to rounding.

3.6 Among the seven respondents who disagreed with the approach set out in option 1 were three medical, clinical and research agencies; two alcohol and drug partnerships; and two individuals. Six of the seven respondents who disagreed with the option 1 approach argued instead in favour of (or implied they were in favour of) the approach set out in option 2, while one respondent expressed a preference for option 3.

3.7 In general, irrespective of whether respondents favoured policy options 1, 2 or 3, they were supportive of the Government's attempt to tackle the problem of drug driving to improve road safety. Some also commented on the positive benefits of the legislation in terms of reducing the amount of time, expense and effort involved for the police and courts when prosecutions fail because of an inability to prove that the driver was impaired by a particular drug.

Respondents' reasons for supporting policy option 1

3.8 The 65% of respondents who were in favour of policy option 1 described it as 'the most appropriate approach', and a 'sensible' and 'pragmatic' solution. It was common for this group to explicitly state that they were in favour of a zero tolerance approach to the eight illegal controlled drugs - because it 'sends a clear message that you cannot take illegal drugs and drive'. Some respondents commented that this approach was consistent with the Government's wider drug strategy, and suggested that it might help to create an environment that would discourage people from taking drugs. One respondent (a road safety / motoring organisation) cited evidence in support of their view from an AA Populus poll which showed that 73% of drivers believe that drivers should be prosecuted if they have traces of illegal drugs in their blood, even if these are not impairing their driving.

3.9 This group also generally 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. These respondents largely supported an impairment-based approach for drivers taking prescribed medication as 'fair', and 'the best way forward', and suggested that a zero tolerance approach to prescribed medication might discourage patients from taking their medication - which could have negative consequences, not only for their health and wellbeing, but also for their driving.

3.10 In their comments at Question 2, this group generally stated that they did not support policy option 2 because they believed it 'would send out mixed messages' (or 'the wrong message') and would cause 'uncertainty' and 'confusion' if higher limits were set for what are already illegal substances. A small number of respondents who stated their support for policy option 1 nevertheless expressed some reservations about having higher risk-based limits for the eight controlled drugs which may be prescribed. While these respondents specifically stated that they supported policy option 1, they also thought that policy option 3 was preferable to option 2, as option 3 'sends out the strongest message'.

3.11 A small number of those who supported policy option 1 noted that the consultation document estimated net costs to the justice system as higher for this option than for option 2. However, these respondents argued that these additional costs would be outweighed by the significant benefits to society of greater safety on the roads. One respondent with a road safety remit suggested that if the new legislation included provision for an offender's vehicle to be seized upon their conviction, the additional costs associated with option 1 could be offset by the proceeds of sales or scrappage.

Respondents' reasons for NOT supporting policy option 1

3.12 As shown in Table 3.1 above, seven respondents (16% of all respondents) were not in favour of policy option 1. One of these, an alcohol and drug partnership, stated a preference for option 3, saying that 'option 1 fails to fully address the significant problem drug driving creates in our communities,' and 'option 3 sends the strongest message and confirms you cannot take illegal drugs and drive'.

3.13 However, of those who did not support policy option 1, most (6 out of 7) supported (or implied that they supported) option 2 instead. This group expressed the views that policy option 1:

• Sought to 'persecute' people who had taken a particular drug, irrespective of whether it makes them a danger on the road
• Was inconsistent with the Government's risk-based policy on alcohol, which allows people to drink within a specific limit and still be able to drive^[5]
• Was not evidence-based, since there is no evidence that the approach proposed in option 1 would actually alter behaviour
• Appeared to be an attempt to tackle drug use, rather than dangerous driving caused by drug use; thus it was considered an inappropriate use of the Road Traffic Act
• Was illogical, as it suggests the Government believes that driving with eight illicit drugs in the body is more serious than driving with alcohol, or any other legal high in the body. Moreover, there are a number of common prescribed medicines which are not controlled, which can also impair driving, but which have not been included.

3.14 The point was made by one respondent from a medical / clinical organisation that it was unclear upon what basis the police could demand a blood sample, if an individual's driving were not impaired in some way. Another respondent - an alcohol and drug partnership - argued that there should be a requirement within the regulations, not only to measure drug levels in the blood, but also to provide evidence of impairment and ability to drive.

3.15 It was noted that policy option 1 was expected to result in an estimated 3,100 more proceedings than option 2 - and that these proceedings would likely be against people who had been stopped by the police with certain levels of illicit drugs in their bodies below the threshold for impairment. The view was expressed that it was not clear how these prosecutions would be in the public interest. Moreover, they would result in a net cost, while policy option 2 would result in a net benefit, with the difference around £32m.

Unclear responses

3.16 Table 3.1 above shows that eight respondents (19%) either expressed no views about the policy options, or expressed unclear views. One of these, a road safety organisation, specifically stated that they could not come to a view because of insufficient information provided within the consultation document. Most of the others did not address the question, but rather raised issues or concerns about implementation (discussed below).

Reasons for NOT supporting policy option 3

3.17 The reasons that respondents tended to support policy option 1 over option 2 are explained above. However, in their comments at Question 2, respondents also (apart from a few exceptions) generally endorsed the arguments made in the consultation document that option 3 should not be pursued. This option was considered to have a greater potential for unintended consequences (particularly for those who were taking prescribed medications), and to be too costly.

Other issues raised

3.18 In their comments on Questions 1 and 2 respondents raised a wide range of other issues. Many of these concerned the proposed levels for one or more specific drug(s). Other comments focused on implementation or enforcement issues. The following is a summary of the points made:

• Respondents often raised the issue of opiate tolerance. The point was made that there is a complex relationship between individual metabolism, tolerance to opiates and interactions with other medication, which may affect blood levels, but not always result in impairment. The issue of tolerance was also highlighted by other respondents specifically in relation to their comments about methadone and morphine limits (discussed below).
• While respondents generally welcomed the provision of a medical defence for people using controlled drugs legitimately through prescription, others expressed concerns that this proposal would put an unfair burden of proof upon the person accused of committing an offence, and this could cause considerable stress to people who may already be seriously ill.
• One respondent, from the police, noted that current operational procedures involve testing for alcohol first. Where a positive test is obtained for alcohol, no further testing is carried out for drug use, as it is more efficient to pursue a prosecution for drink driving. The point was made that the introduction of the proposed regulations is unlikely to alter these arrangements in any significant way, and so the number of prosecutions for drug driving offences is likely to remain at a relatively low level compared to prosecutions for drink driving. Another respondent, from a road safety organisation, described these current procedures as 'unacceptable', and called for the drug driving offence to also be taken into account (as a second offence) in the prosecution and sentencing of offenders.
• Some respondents highlighted the need to publicise and raise awareness among drivers of the proposed changes in legislation. Media campaigns, including campaigns involving young people, were suggested. In addition, respondents frequently emphasised the importance of raising awareness among medical professionals (doctors and pharmacists, in particular) about their role in alerting patients of the changes in legislation. There were also calls for improvements to current procedures regarding notification to the DVLA of a patient's medical condition and / or medication. The point was made (often by organisations involved in road safety / motoring) that current procedures rely upon the patient to self-report, and in the view of these respondents, this was not working well.

Comments about, or concerns expressed, about the proposed limits for specific drugs

3.19 Respondents expressed a range of comments about the proposed levels set for specific drugs (or about whether certain drugs should be in the zero tolerance category, or the risk-based category). Views from different respondents were sometimes contradictory.^[6]

LSD: Eight respondents made comments about the proposal to include LSD in the list of illegal drugs for which zero tolerance limits would be set. This proposal was contrary to the recommendations of the expert panel, who argued that LSD should not be included in the regulations as current use of LSD in the UK is not high and no data were available to enable the panel to propose a limit.

Of the eight respondents who made a comment about LSD, six argued that LSD should be included in the regulations since its omission could result in the 'misleading message that use of LSD is permissible when driving'. One of the respondents, from a medical / clinical body, endorsed the expert panel's recommendation that LSD should be omitted. This respondent also offered the alternative of setting a 'threshold limit' (rather than a zero tolerance limit) for LSD, and suggested that this might be able to be derived on the basis of the minimal evidence that does exist. The eighth and final respondent was from a private sector organisation involved in the development and sale of devices used for drug screening. This respondent echoed the expert panel's conclusions that the use of LSD is incompatible with driving, and that there is currently no demand (globally) for an LSD drug screen.

• Ketamine: Ten respondents made a comment in relation to ketamine. Most made the point that, although ketamine is mainly used for medical purposes as an anaesthetic, it is also sometimes prescribed to patients for severe neuropathic pain. It was suggested that current data on ketamine was likely to underestimate the actual number of prescriptions issued, since ketamine is often prescribed by specialist NHS services from secondary care, or from hospices or other non-NHS palliative care services. Respondents thought that the proposed limit for ketamine could result in people being arrested unfairly, although the point was also made that these individuals would still be able to rely upon a medical defence. There was disagreement about whether the proposed zero tolerance limit for ketamine should be raised to take into account its legitimate use. One road safety / motoring / licensing agency suggested it could be raised, while a medical / clinical / research body emphasised that there is robust evidence that use of the drug causes driving impairment. This latter respondent supported the zero tolerance limit and argued that prescribers should advise patients not to drive when taking ketamine.
• Morphine and diamorphine: Twelve respondents made comments in relation to morphine or diamorphine. Six respondents noted that legitimate doses for prescribed morphine may vary widely, and there may be considerable variability in the way morphine at different doses affects a patient's ability to drive. The point was also made that there is a range of different formulations of morphine available, and that driving may be more impaired if the total dose is taken as an immediate release tablet or oral solution. Modified release preparations may produce a relatively constant blood concentration.
  
  Other respondents expressed concerns that, apart from morphine, limits had not been specified for other opioid drugs which are often also commonly prescribed for pain relief. (These concerns will be discussed in Section 7 in relation to other medications which may need to be considered by the regulations.)
• Methadone: Seven respondents made comments about methadone, and these generally highlighted the use of methadone in the treatment of drug addiction. Three respondents made the point that prescribed doses of methadone may vary widely, depending on a person's history and their tolerance. Use of methadone, even at a very high level, may be safe and not render an individual unfit to drive. However, one respondent argued for a lower limit for methadone, given the frequency of methadone misuse.
• Cannabis: Six respondents made comments about cannabis. In general, respondents commented that current evidence suggests that cannabis use alone is less likely than alcohol to result in impairment of driving, or a fatal accident. However, one respondent cited research that suggested that cannabis used in conjunction with alcohol caused significantly greater impairment. One medical / clinical organisation made the point that there is a potential for unfairness in relation to cannabis. In particular, metabolites of cannabis may be detected in the body for several days after use, without any adverse impact on driving. This could result in someone who has used cannabis legally in countries where its use is permitted falling foul of the UK legislation days later.
• Cocaine: Three respondents made comments about cocaine. One noted that, although very rare, cocaine can be used as a legitimate ingredient in some ophthalmological preparations, and also for packing the nose in extreme cases of nasal blood loss. Another queried whether there would be any implications for people working with controlled substances in a laboratory context, and whether laboratory work could be legitimately used as a defence (for example, there may be cases where drugs analysts have raised levels of benzoylecgonine in their blood, although they have not consumed cocaine). The third respondent suggested that the limits for cocaine and benzoylecgonine should be set at the same level, since these levels vary inversely according to the time that has elapsed since a person has taken cocaine. Drug screening has reportedly shown that when cocaine levels are high, benzoylecgonine levels are low, and vice-versa.
• Dihydrocodeine: Two respondents queried statements in the consultation document (paragraph 14.16) which said that dihydrocodeine is metabolised to morphine, and therefore a single morphine limit would be sufficient to detect use of morphine itself, dihydrocodeine and codeine. These respondents believed that dihydrocodeine was not metabolised to morphine, but rather to dihydromorphine. They queried whether dihydromorphine would be detected through morphine screening.

3.20 Several respondents commented on the perceived disparity between the Government's approach to alcohol and the preferred option 1 approach. While some thought this approach was appropriate, given that alcohol is not an illegal drug, others thought that it was illogical to propose a zero tolerance of drugs such as cannabis, which do not necessarily cause impairment to driving when taken at low levels, while at the same time taking a risk-based approach to alcohol.