Elderly man with sleep apnoea and dementia has licence removed; court dismisses appeal

An elderly man medically assessed as having serious dementia had his driver's licence revoked and has failed on appeal to get it back. Photo / 123RF

• A doctor reported Benny Cole’s severe sleep apnoea and dementia to Waka Kotahi, leading to his licence being revoked.
• Cole’s appeal to overturn the decision was dismissed by the Whakatāne District Court.
• Judge James Geoghegan noted Cole’s eloquence but upheld the medical opinion and licence revocation.

A doctor concerned about an elderly man who defied orders not to drive wrote to transport officials who then took away his licence.

Benny Cole* had moderate to severe obstructive sleep apnoea, which meant he was at risk of falling asleep during the day. He also had severe dementia.

He was told by the GP many times to stop driving but ignored the advice and then said the doctor was harassing him. He even claimed in a legal document that the doctor had “lied”.

Doctors are legally obliged to notify Land Transport of patients who they deem should not be driving, in the interests of public safety.

A senior licensing officer at Waka Kotahi/NZ Transport Agency revoked Cole’s licence after the agency received a letter from Dr Emily McNicholas in October 2023.

Judge Paul Geoghegan said in dismissing the appeal he had some sympathy for the appellant's position. Photo / Andrew Warner.

Cole tried to have the decision overturned, but a decision published in November says his appeal in the Whakatāne District Court was dismissed when he failed to prove any error in the decision to revoke his licence.

Cole, who represented himself, said in an affidavit accompanying the notice of appeal that he’d wanted to get copies of his medical records to show the decision was “unjustifiable” and did not correctly apply the medical aspects of the “fitness to drive” guide for health practitioners, and did not consider his personal circumstances.

Cole said he needed to drive because he cared for his dependent son.

He failed to file further affidavit evidence by the deadline last year, but in June filed several documents including a “commentary” that he was “uncertain as to the identity of Dr McNicholas”, and that when he attended an appointment at a medical centre he was informed that he needed to “do a test something to do with your licence” by someone with “unknown qualifications”.

He claimed that the test was conducted without his hearing aids or reading glasses.

Cole also claimed that the doctor’s actions had affected his access to food, medical appointments and the servicing of payments and that he had been waiting 10 years for a hip replacement.

Judge James Geoghegan said it was clear that Cole took issue with the information provided to Waka Kotahi by McNicholas.

Cole described her actions as a “deliberate professional assault” on his intellectual, mental health and physical wellbeing to achieve a medical outcome, using her professional status, to support Waka Kotahi’s requirements.

He referred to the dementia test as being “a test originated with the eugenic movement to seperate(sic) the poorly educated lower classes of society” and that he considered it a “sham as a test for general medical use”.

Cole had previously held a commercial driver’s licence but in 2006 NZTA imposed a medical condition on that licence that meant he was to submit a satisfactory medical report each year that included he was compliant with medication and/or treatment.

NZTA driver safety team leader Catherine Knight said in an affidavit that the agency last received a report, by the same doctor, confirming Cole was fit to drive in November 2022.

Judge Geoghegan said that being the case, it was evident that McNicholas was familiar with Cole and had good grounds for the medical opinion expressed.

He said there was no proper basis to reach a different conclusion, even though Cole was able to speak for himself “very eloquently and fluently and certainly showed no signs of severe dementia”.

“That observation of Mr [Cole] however is the observation of a judge and not a medical practitioner,” Judge Geoghegan said.

He had some sympathy for Cole’s position, and how the revocation of his licence posed hardship upon him, but that was not relevant to the issues considered in the appeal.

Judge Geoghegan said Cole was within his rights to contest McNicholas' medical opinion but that would inevitably require the opinion of specialists in the health areas identified by McNicholas.

*Not the appellant’s real name which was redacted by the court.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.