Drivers face blood sample law change

The change - under the provisions of the 2002 Police Reform Act - comes into effect on Tuesday.

It is designed to ensure that samples can be taken from drivers suspected of drink driving even if they have been injured in a crash.

There is a belief that some drivers involved in causing car crashes may have escaped appropriate prosecution, as it has not been possible to prove that they were drunk and over the limit while driving.

Campaigner Declan Duggan, of Dunstable, Bedfordshire, whose son Kevin died because the car in which he was a passenger was driven by a drunk driver, has welcomed the change in the law.

"It transpired that the driver of the car had been drinking throughout the day.

"There were three boys in the car and only person whose blood was tested was my son's.

"The driver's was not tested and the only reason he was not tested is because he was unconscious. This loophole had now been closed.

"It feels that we have got justice. It has been a long road - a long campaign.

"At least the driver of a car will be tested whether he is conscious or not."

Although police officers can now ask doctors to take a blood sample, it cannot be tested until the subject is in a fit state to provide consent.

But anyone who refuses to allow a sample to be tested is liable to prosecution.

Guidance

The British Medical Association has issued guidelines to help doctors understand the new law.

Dr Michael Wilks, chairman of the BMA's ethics committee, said: "It is extremely rare for the BMA to advocate taking samples from people for forensic purposes without their consent, but in this case we see a clear public interest in having these samples available for testing so we can establish whether drivers have been drinking or taking drugs.

"However the BMA is extremely concerned that the police have received no guidance or training about how to assess capacity.

"Although the Act protects doctors from a charge of assault, the BMA believes that ethically doctors should make their own assessment of the driver's capacity to consent to the samples being taken."

Dr Wilks said the the law needed to be tightened up so it could not be used simply to take samples from people who had some form of mental incapacity.

The BMA guidelines state that a blood sample may be taken for alcohol and drug tests where:

• a police constable has assessed the person and found they are incapacitated due to medical reasons
• the police surgeon taking the sample should be satisfied that the person is not able to give valid consent and ensure the person does not object to, or resist, the sample being taken
• in the view of the doctor in immediate charge of the patient's care, taking the sample would not be prejudicial to the proper care and treatment of the patient.

A Home Office spokeswoman said the new law would "close a legal loophole".

"Medical practitioners will have a power, but not a duty, to take the samples.

"All doctors could refuse a request if they considered it was inappropriate."

Concern

However, Mark Littlewood, from the campaign group Liberty, described the measure as "extremely intrusive".

"If you start putting needles into people because they are incapicitated or unconscious without any other means of establishing their guilt, you are taking a step down a very slippery slope.

"I am also not persuaded that we are looking at huge numbers of cases where we would be able to nail somebody who had caused death by dangerous driving if only we had taken a blood sample from them a week or two previously before they came round from a coma."