7761 v. Registrar of Motor Vehicles, 2012 CanLII 83859

Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2012-12-31

FILE: 7761/MED

CASE NAME: 7761 v. Registrar of Motor Vehicles

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles Pursuant to Section 47(1) of that Act - to Suspend a Licence

7761 Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. W. HURST, M.D. Member

APPEARANCES:

For the Applicant: Self-represented

For the Respondent: Kyle Biel, Agent

Heard by teleconference: December 18, 2012

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

PRELIMINARY MATTERS

The Applicant stated that she wished to present Dr. J. B. and Dr. R. S.to give evidence on her behalf. Mr. Biel questioned the propriety of this in that there had been no prior notification to the M.T.O. or to the Tribunal.

The Tribunal ruled that it would hear their evidence, aware of, the possibility that Mr. Biel might enter an objection.

EVIDENCE AND SUBMISSIONS

Mr. Biel reviewed his documents.

He presented a Medical Condition Report that had been filed by Dr. D. H. on the 21st of August, 2012 that the Applicant suffered from a mental or emotional illness – unstable.

On September 21st, 2012, the Deputy Registrar of Motor Vehicles wrote to the Applicant stating they had received a report indicating that she has a condition that affects her ability to drive safely. The condition was described as psychiatric, and suspension was applied, as per Section 47(1) of the Highway Traffic Act.

To seek reinstatement, the Applicant was advised to take the letter to her treating physician who should describe any improvement of her condition, and provide the following information to the Medical Review Section:

The enclosed form is to be completed fully. The Ministry would then review the information and then send a letter to the Applicant explaining their decision.

A copy of the Mental Health Assessment Form was appended.

Mr. Biel presented a completed Mental Health Assessment signed by her family doctor, Dr. R.S. Mr. Biel reviewed this form indicating, by checked boxes, that there was depression for three months duration, her current status was stable, and had been stable for less than three months. There were no current symptoms to cause concern. Section 5 of this document indicated that there had been two admissions to hospital in the previous 12 months.

The section regarding medication indicated the Applicant was taking mood altering drugs. She had been compliant with recommended treatment and was being monitored regularly by a health practitioner. These visits to her practitioners were described as occurring every two weeks and sometimes weekly. The doctor also observed that on the day of the August hospital admission, the Applicant had shown enough insight to not drive to the hospital.

An added note indicated that the Applicant is very insightful about her medical condition. She does not drive if she feels for any reason that she cannot. She did not drive on the day of admission, August 21, 2012, and is a conscientious driver. The report was dated September 27th, 2012.

Mr. Biel’s next entry consisted of a letter from the Applicant to the Medical Review Section of the M.T.O. and referred to the fact that her driver’s licence was under suspension due to a suspected psychiatric condition. She noted that Dr. R.S. had already faxed the required Medical Forms to the Ministry and that her psychiatrist, Dr. J.B., was going to provide a completed Medical Form as well.

The applicant stated that she did not drive on August 21st, 2012. She also informed the Ministry that she lives in a remote part of the province and access to her medical advisors is very difficult. The bus service and taxis fares, round trip are $86.00.

On October 30, 2012, the M.T.O. wrote to the Applicant stating that this suspension should continue. They went on to state that the Ministry requires confirmation of a six month period of stability and also the enclosed Health Assessment Form be completed and returned.

Having complied with the above, the Ministry could then determine whether the Applicant’s licence could be reinstated.

Mr. Biel then entered a certified copy of the Applicant’s driving record indicating the suspension for medical reasons on October 1st, 2012 – no demerit points.

Also appended was a copy of the C.C.M.T.A. and Mr. Biel drew attention to the details on page 216 of this document. The details of this page are that the driver has sufficient insight to stop driving if his or her condition becomes acute. Also included was the fact that functional abilities necessary for driving are not impaired. A treating physician must support a return to driving for drivers who have stopped driving due to a psychiatric disorder.

As to conditions for maintaining a licence, it is required that the driver stops driving and reports to the authority if hospitalized due to a psychiatric disorder and also must remain under regular medical supervision and comply with prescribed psychotropic medications.

Further information required in this C.C.M.T.A. document included:

1. An opinion of a treating physician whether the condition is stable and controlled.
2. Opinion of a treating physician whether the driver has sufficient insight to stop driving if condition becomes acute.
3. Opinion of a treating physician whether the functional abilities necessary for driving may be persistently impaired by the condition or its treatment.
4. Whether the driver remains under regular medical supervision.
5. Details of any prescribed psychotropic medication regime
6. Opinion of a treating physician whether the driver is compliant with the treatment
7. A specialist’s report supporting a return to driving, for drivers who have stopped driving due to a psychotic episode
8. Date of most recent psychotic episode
9. Opinion of treating physician as to the appropriate reassessment interval.

Mr. Biel, for the record, presented new reports by Dr. J.B. on November 19th, and Dr. R.S. on November 26th.

A review of Dr. J. B.’s letter (she is a psychiatrist) stated that the Applicant had been her patient for 20 years and during that time the doctor was never concerned that she would pose a threat to herself or others by driving her car. She disagreed with the decision and defends her patient regarding her mental health issue. In her opinion, the Applicant is able to operate a motor vehicle without posing a risk.

The letter written by the Applicant’s physician Dr. R.S. on November 26th, 2012 says he was in support of “an appeal to reverse the decision made to suspend the Applicant’s driver’s licence”. He reported strongly that his patient, the Applicant, is able to operate a motor vehicle safely and conscientiously without posing a risk to herself or others. This doctor went on to state that the Applicant had been his patient for about five years and over that period he had never felt that she posed a risk to herself or others while operating a motor vehicle. He disagreed with the suspension on the grounds of mental health issues and asked that the situation be reconsidered.

Mr. Biel hoped that her earlier admission to a psychiatric centre was very brief or on an outpatient basis only, prior to the Applicant’s documented admission to the same institution on August 28th. Mr. Biel dwelled on this, stating that the M.T.O. had to recognize there was a licencing problem if there had been significant time spent in a recognized psychiatric centre.

The Applicant questioned the C.M.T.A. document stating that it says nothing about “multiple admissions” yet the M.T.O. expresses their concern. Mr. Biel again stated that he had hoped that her April 2012 admission had been brief (ER only) but that this had not been the case.

The Applicant reviewed her history of living in a remote part of Ontario and that there is no local psychiatric care available at the local hospital. Because of this difficulty, she was required to travel over a 1½ hour drive. On April 12th, 2012, she had gone to the local hospital to activate a referral process. The local hospital had no psychiatric help available.

The Applicant went on to state that a psychiatrist was assigned on April 13th and on the 14th she saw him and was discharged immediately with a total stay at the hospital of 40 hours. A large portion of this was simply a waiting period to get psychiatric help.

Mr. Biel at this point indicated that they have no evidence of how those three days were spent at the psychiatric centre and that Dr. R.S. should verify this matter in his report. The Applicant continued stating that of the 40 hours at the hospital in April her consultation interval with the psychiatrist was brief. Again Mr. Biel indicated that the M.T.O. has no details.

The Applicant stated that at times when she feels unstable she always talks with her therapist as to the advisability of hospital and latterly this has been on something like a weekly basis.

She went on to describe her 7 day admission to a psychiatric treatment centre on August 28, 2012 which was on a voluntary basis for the last 4 days. She went on in on a “Form One” basis and became voluntary after 3 days. She has complied with all her medical advisors regarding her borderline personality disorder which arose from childhood trauma. She has two post-graduate degrees. She said she understood the M.T.O.’s requirement for a six month period of stability (well documented) and also noted that the C.C.M.T.A. does not address this. She also observed that what eventually became a matter of three days at a psychiatric centre could have been dealt with in two hours if there had been a suitable specialist available at her local hospital. It was clear from her narrative that being an admitted patient involves a lot of waiting time simply to see a psychiatrist.

Mr. Biel cross examined the Applicant and, in particular, inquired about the symptoms she had shown when she went to the hospital. The Applicant described her troubles then as either anxiety or depression, plus situational stress, frequently caused simply by her appearance at the emergency room. She went there with depression and then other factors began to build up simply because of the locale. She suffered from hopelessness, despair, and lack of self-esteem. She mentioned transient suicidal ideation but with only a passing thought. When questioned by Mr. Biel about her hospital admission in April 2012, the Applicant stated that this hospital admission likely would not have occurred if such a facility had been close to where she had lived; a simple outpatient visit would have sufficed. But because of the time and distance, she had to be admitted and then wait to be seen. Mr. Biel ascertained that when the Applicant was discharged she was stable with her symptoms having resolved. Follow up by Dr. R.S. and a therapist, showed she stayed on her medications. Mr. Biel reviewed the August hospitalization with symptoms of anxiety and depression: a therapist at that time was concerned as to whether her depression might become more severe. It also emerged that the Applicant never feels that she has lost control in her normal environment but this problem can develop quickly when she is in an ER room.

With further questioning, the Applicant told Mr. Biel she saw Dr. M. at the regional psychiatric centre who lifted her “Form One” status immediately. It was also explained by her psychiatrist Dr. J.B. that a “Form One” designation enabled a patient to reach a suitable psychiatric centre and lasts up to a maximum of 72 hours. It can be cancelled, as in this case, at an earlier moment. At times, the patient often stays voluntarily as occurred here.

Mr. Biel reviewed the August 2012 hospital admission of depression and that there was considerable time lapse in being seen by a psychiatrist. The Applicant had experienced multiple stresses of finances, her own physical health, and also there was a problem with self-esteem and anxiety. On the second hospitalization, Dr. M. changed the “Form One” status quite quickly and she stayed voluntarily. The stay there was to simply give her a little rest. A review of her diary at the time of that hospitalization showed she noted that she was back to normal when she left there. There had been no change in her medication and she was free of symptoms. Mr. Biel observed that it was only four months after her April confinement that she had returned to hospital. Her problem seemed to be ongoing and that she was taking courses on stress tolerance. He hoped her problems are well behind her now, but that the Ministry must act because of these reports.

Questioning from the Tribunal disclosed that the Applicant is feeling well and quite steady through the fall months and she also observed that despite this very discouraging news from the M.T.O. she has handled that distress very well, and with that her therapist is very impressed and pleased. Dr. R.S. has also seen her on roughly weekly intervals through the fall and is impressed how well she has handled these problems. He said that he is seeing her on the weekly basis mainly because of her longstanding status as his patient and that he is just keeping a friendly eye on her. Dr. J.B. reviewed real stresses in her patient’s life:

1. Living in a remote area
2. A problem relationship
3. Money
4. Her ankle problems

She now sees her monthly and says that she has embarked on C.A.M.H courses. This psychiatrist also observed she was now being well managed on an outpatient basis in a remote area, rather than having to be admitted to a distant hospital.

Mr. Biel went on to explain that the Ministry must act upon receipt of such a Mental Health Report. He observed that as a result of the second hospitalization they need well documented evidence of six months of stability. He observed that her doctors are supportive, but the standard of the C.C.M.T.A. does not cover multiple admissions. Therefore the M.T.O. has to include these events in their deliberations. Her condition is fluctuating and the M.T.O. must have evidence of full six months of stability. He observed that the Applicant is still being evaluated and therefore as a matter of safety a six month interval of stability is mandatory and he noted that this will soon be completed, in February.

The Applicant summarized her position by stating that she can’t seem to win in that if she didn’t seek help she was noncompliant, and that if she is getting help she is considered unstable – in other words she can’t win. She stated that she had enjoyed 17 years of stability in which she had gotten two masters degrees and that “if all instabilities were placed in a barrel she would be one of the least unstable and near the top and almost home free”. She emphatically stated that she is more stable than many others who are driving. “I am a good driver”.

ISSUES

Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?

Does the Applicant no longer suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his or her ability to drive a motor vehicle safely?

LAW

O. Reg. 340/94, Section 14 states:

(1) An applicant for or a holder of a driver’s licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.

(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,

(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and

(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information.

(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.

(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.

Section 47(1) states:

Subject to section 47.1, the Registrar may suspend or cancel,

(b) a driver’s licence; …

on the grounds of,

(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;

(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);

(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or

(g) any other sufficient reason not referred to in clause (d), (e) or (f).

Section 50 of the Act states:

50 (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.

(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.

APPLICATION OF THE LAW TO FACTS

The Applicant is a very intelligent well educated person with a career requiring considerable strength and stability which she is able to demonstrate most of the time, but not always. She was admitted to a regional psychiatric centre in April and again in August of this year and this resulted in mental health reports to the Ministry which determined that the Applicant should be suspended until a longer period of stability was documented. Mr. Biel was supportive of her situation at the hearing, but also noted that the Ministry must act responsibly and that this case requires a documented interval of stability of six months.

The Ministry leans very hard on the fact that there have been two hospitalizations regarding the Applicant’s mental difficulties (borderline personality disorder with depression and anxiety), but in fact this has been clarified somewhat because the Applicant lives in a remote part of the province, access to skilled psychiatric care on an outpatient basis is not possible. It requires her to be transported over a very significant distance where admission to the treatment centre is required but then a delay inevitably occurs before a psychiatrist becomes available. This has been unfair to the Applicant. She is very compliant, with good insight and doing her very best to cope with her occasional infirmities. Also, it should be noted that she is careful to take her psychotropic drugs as prescribed and also if her mood dictates, then she does not drive.

At the present time the M.T.O. is asking for a six month period of stability (well documented). In fact, she has gone through an excellent interval of four months during the fall when she is managing quite well. This includes the serious setback that was dealt to her by the Ministry’s letter stating that her driving privilege would be suspended. Despite that, she has continued to measure up quite well.

It is also important to note that her family physician and her psychiatrist, both of longstanding, have taken pains to send recent letters to the Ministry indicating that they are very pleased with her progress and at no time has either one of these doctors considered her to be risk to the highway.

While the Ministry has acted responsibly at first instance, the Tribunal finds, on the evidence, that the Applicant’s mental health issues do not significantly interfere with her ability to drive a motor vehicle safely. In this case, common sense should prevail. Clearly the Applicant presents no more risk on the highway than any other licensed driver.

DECISION

Upon the application by the Applicant to appeal the decision dated October 30th, 2012 of the Registrar to suspend her driver’s licence pursuant to Section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Applicant;

IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar be set aside.

LICENCE APPEAL TRIBUNAL

D.W. Hurst, M.D., Presiding Member

RELEASED: December 31, 2012