Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-03-11
FILE:
7900/MED
CASE NAME:
7900 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 Appeal a Suspended Licence
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Kevin Flynn, Member
APPEARANCES:
For the Applicant:
Sheila Quirk, Agent
For the Respondent:
Russell McKnight, Agent
Heard in Belleville
March 6, 2013
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
Ms. Quirk requested permission to enter three documents as additional exhibits. Permission was granted with agreement by the Agent for the Respondent.
Exhibit #3 is a Cognitive Assessment that was conducted at the office of the Applicant’s family physician, Dr. W. on February 22, 2013.
Exhibit #4 is a MOCA Cognitive Assessment conducted at the office of Dr. W. on January 24, 2013.
Exhibit #5 is the report of a CT scan conducted on February 20, 2013 at the request of Dr. W.
FACTS
Respondent’s Evidence
On January 24, 2013, an unsolicited Medical Condition Report was completed by Dr. W., the Applicant’s family physician for five years, pursuant to Section 203 of the Act. The Report was based on examination on January 24, 2013.
The condition was identified as:
Dementia or Alzheimers
Scored a MOCA of 16/30. Has been advised not to drive. Patient has been referred to neurology for further assessment.
Patient is aware of this report.
On January 30, 2013 the Registrar wrote to the Applicant to inform him that as a result of the receipt of the report of Cognitive Impairment it had been decided to suspend his driving privilege under Section 47(1) of the Highway Traffic Act.
He was informed that in order to be considered for reinstatement he must take the Registrar’s letter to his physician when his condition improves, and have a Cognitive Assessment Form completed. A blank form was provided.
Upon receipt of the completed form, the information would be reviewed against the national medical standards in order to determine if his licence can be reinstated.
The Cognitive Assessment form was returned to the Registrar not completed, with a written comment that the original copy was at the doctor’s office.
Prior to commencement of the Tribunal hearing, no additional medical information was provided.
Applicant’s Evidence
The Applicant’s evidence was that he had been seeing his family physician, Dr. W. for high blood pressure and headaches. Since his father died twelve months ago, his headaches became worse and in December 2012 a referral was made to a neurologist. A CT Scan of the brain was also ordered. The CT report (Exhibit #5) stated:
Clinical indication: Cognitive decline. Rule out structural reason for dementia
Impression: No acute intracranial pathology was identified. Mild generalised atrophy, slightly more prominent infratentorial than supratentorial, stable when compared to the previous study on June 3, 2011.
He stated that on January 24, 2013, he attended the doctor’s office regarding his headache. A Montreal Cognitive Assessment (MoCA) was conducted. (Exhibit #4).
The total score was 16/30. The test was administered by a Resident, Dr. H.. The report was countersigned by Dr. W.
Dr. W. informed him on that date that he should not drive and stated:
“I would not want to be on the same road with you”
The Applicant stated that he was not aware that a report was being sent to the Ministry and that he was upset by the doctor’s comment.
Exhibit #3 is a Cognitive Assessment form completed on February 22, 2013 also by Dr. H. at Dr. W.’s office.
Patient’s primary condition: Moderate cognitive impairment-dementia (CMA-Determining fitness to operate a motor vehicle, 7th Edition, defined as “the inability to independently perform two or more instrumental activities of daily living (including medication management, banking, telephone use, cooking) or any basic activity (eating, dressing, bathing. toileting, transferring).
Cognitive impairment due to: cognitive Impairment Not Yet Determined.
Patient’s condition expected to be: Unknown
Current status: Deteriorating
Is the patient taking any prescribed medication (for any condition)? yes
(Incomplete)
Is the patient compliant with recommended treatment regimen? yes
Does the patient have appropriate insight of his medical condition and the impact on their functional ability to drive? No
Has the patient been referred for an independent driving assessment? No
Has the patient completed an independent driving assessment? No
The Applicant informed the Tribunal that sometime in December 2012 he stopped taking medication prescribed by Dr. W. for high blood pressure and depression. He did not inform Dr. W. of his decision. He began to see a homeopathic physician, Dr. K. who advised him that the medication dosage was too high. He informed the Tribunal that he feels that he has improved since stopping medication and that his blood pressure is lower than when he was taking medication.
An appointment with a neurologist is pending and is delayed by the lack of neurological service in his area.
The Applicant is 48 years old and works in a factory where he is not exposed to heavy machinery. He stated that he does not suffer from any chronic illness such as diabetes.
ISSUES
Does the Applicant 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.
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
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 Registrar’s Agent relies on:
Section 47(1) of the Act that justified suspension of the Applicant’s driving privilege upon receipt of an unsolicited Medical Condition Report of Cognitive Impairment, completed by a physician in compliance with Section 203 of the Act.
The Cognitive Assessment form completed by the Applicant’s physician in January 2013 indicates moderate impairment, using the standards of the Canadian Medical Association’s Standards for Determining Fitness to Drive (7th Edition).The Cognitive Assessment administered on February 22, 2013 confirmed the Cognitive Impairment and also stated that a cause has not been determined.
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.
The cause of the impairment has not been determined and a treatment plan has not commenced.
Until the condition is diagnosed and treated and resolved there is no medical support for reinstatement.
The Agent for the Registrar informed the Tribunal that it is unlikely that a temporary licence for the purpose of an on-road driving assessment would be issued without identification of a cause and response to treatment of the condition.
The Applicant’s Agent stated that the MoCA score of 16/30 constitutes a pass mark and she questioned the qualifications of the Resident who administered the test. She submitted that the CT Scan report of February 22, 2013 was not consistent with Cognitive Impairment.
The Tribunal finds as follows;:
The Registrar was justified in suspending the Applicant’s driving privilege upon receipt of a Medical Condition Report of Cognitive Impairment, from a physician in compliance with section 203 of the Act
A recognised Cognitive Assessment tool called the Montreal Cognitive Assessment (MoCA) administered on January 24, 2013 resulted in a score of 16 out of 30. A score of 26 or more out of 30 is normal. MoCA tests the Applicant for executive function, ability to name three common animal figures, memory, attention, language, abstraction, delayed recall, and orientation. (www.mocatest.org)
The CT Scan performed by the family physician on February 20, 2013 showed mild generalised atrophy but is not intended to diagnose or rule out cognitive impairment, but ruled out intracranial pathology. Reference was made in that report to a previous CT Scan performed in June 2011. The Tribunal was not provided with the particulars of that test.
The Cognitive Assessment Form completed by the family physician on February 22, 2013 indicates that the cause of the impairment has not been established and that the condition is deteriorating. It was also noted that the Applicant lacked appropriate insight into his condition and the impact on his ability to drive. It is noted that the family physician has treated the Applicant for five years and after assessment has clearly indicated that the Applicant should not drive.
The Tribunal finds that the Applicant suffers from a mental condition likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
The Tribunal encourages the Applicant to continue to seek a cause for the impairment considering his relatively young age of 48.
DECISION
Upon the application by the Applicant to appeal the decision dated February 9, 2013 of the Registrar to suspend his 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 confirmed.
LICENCE APPEAL TRIBUNAL
KEVIN FLYNN M.D., Presiding Member
RELEASED: March 11, 2013