Licence Appeal Tribunal
FILE: 8696/MED
CASE NAME: 8696 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
8696, Applicant -and- Registrar of Motor Vehicles, Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Applicant: Self-Represented
For the Respondent: Kyle M. Biel, Agent
Heard in Ottawa: April 17, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “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”).
BACKGROUND
The Registrar received an unsolicited Medical Condition Report (MCR) dated January 30, 2014 (Exhibit 3, Tab 1) from a walk-in clinic practitioner who had seen the Applicant briefly for chest pain over three years ago.
Having not seen this physician since then, the Applicant was surprised to receive a letter from him following his wife's death in the spring of 2013, stating the Applicant should not be driving because he was still grieving. The Applicant did not produce the letter and was uncertain of its date.
In the MCR, the physician checked two boxes:
[X] Dementia or Alzheimer's
[X] Other - MCI (mild cognitive impairment) vs early dementia, MOCA (Montreal Cognitive Assessment) - 21/30
The option "Doctor's Comments" reads as follows:
- Short-term memory impairment
- Patient cancelled two appointments for a geriatric assessment with respect to cognitive mood and driving safety
- Family (daughter) voiced concerns about driving safely
The Registrar suspended the Applicant's driving privileges in a letter dated February 3, 2014 (Exhibit 3, Tab 2), effective February 10, 2014. The Medical Review Section (MRS) mistakenly interpreted the MCR as a psychiatric condition and attached a Medical Health Assessment Form (Exhibit 3, Tab 2a) for the Applicant to complete with his physician.
The Applicant filed a Notice of Appeal dated March 9, 2014 (Exhibit 2) received by the Registrar and by the Tribunal on March 20, 2014.
When the Registrar's error was discovered on March 20, 2014, the Registrar sent the Applicant a letter dated March 21, 2014 (Exhibit 3, Tab 3) asking the Applicant to disregard the Mental Health Assessment Form, but to complete the Cognitive Assessment Form with his physician (Exhibit 3, Tab 3a) and forward the form to the MRS of the Registrar.
FACTS
The Applicant is an 85-year-old retired professional who only wants his driving privileges restored to do grocery shopping. He has a new car which sits in his garage.
The Applicant's wife of over 50 years died a year ago. She had a progressive and incurable illness, and the Applicant provided personal nursing care for the last two years of her life.
Over three years ago, the Applicant attended a walk-in clinic because of chest pain. According to the Applicant, the physician, without examining him, dismissed his complaint as a “digestive problem.” Not satisfied, the Applicant immediately proceeded to a hospital Emergency Department where he was diagnosed with a heart attack, and admitted. He was discharged a week later, having had a stent placed in one of his coronary arteries.
He repeatedly and adamantly re-states that the walk-in-clinic physician who sent in the MCR is not his doctor. The Applicant states the physician "has never examined him, never taken his pulse, taken his blood pressure, listened to his chest, never suggested that he should have tests."
The Applicant denies cancelling two appointments for a geriatric assessment. He states he never received a request to attend the walk-in-clinic physician for such an evaluation.
The Applicant re-states two reasons for his Notice of Appeal (Exhibit 2).
First and foremost is his contention that the walk-in-clinic physician never examined him and secondly, "who thought that because of the death of his wife, he should not be driving?"
The Applicant has not completed the Registrar's Cognitive Assessment Form (Exhibit 3, Tab 3a) with his new family doctor. The Applicant has another appointment with this physician in July 2014.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular:
Does the Applicant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his 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.
Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.
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 has made the case that the Applicant's driving privileges should remain suspended.
The Registrar was correct in suspending the Applicant's driving privileges following receipt of the MCR from the walk-in-clinic physician dated January 30, 2014, pursuant to Section 203 of the HTA. The MCR states the Applicant's daughter raised concern about the Applicant driving safely.
Despite an initial misstep by the Registrar in sending the psychiatric form, the Applicant had not yet completed the Cognitive Assessment Form (Exhibit 3, Tab 3a) with his new family doctor.
The Tribunal deduces from the evidence and exhibits the most likely sequence of events is as follows. The Applicant wanted no more to do with the walk-in-clinic physician after he misdiagnosed his heart attack over three years ago. His daughter appears to have contacted the same physician after her mother's death in the spring of 2013, expressing her concerns over the father being able to drive safely.
The physician then wrote the Applicant stating he should not drive anymore because he was still grieving his wife's death. At the same time, the physician tried to have the Applicant visit him for an evaluation of cognitive function. After two failed attempts, the physician submitted the MCR dated January 30, 2014.
The Registrar relies on the Canadian Council of Motor Transport Administration (CCMTA), dated August 2013, Version, Edition 13 (Exhibit 3, Tab 5), specifically Page 157 in Chapter 6: Cognitive Impairment, Including Dementia.
6.6.1 Cognitive Impairment or dementia
STANDARD
Eligible for any class licence if
- Complete medical assessment indicates cognitive functions necessary for driving are not impaired, or
- where required, functional driving assessment shows condition does not affect ability to drive
- Conditions for maintaining a licence are met
Conditions for Maintaining Licence
Reassessment annually or as required
Reassessment
- Reassess annually if a driver has dementia or a cognitive impairment that is progressive
- Otherwise, routine
Information from Health care providers
- Nature or cause of the cognitive impairment
- Opinion of treating physician whether the cognitive impairment is progressive
- Various tools such as OT driving assessments, cognitive screens and road tests may be helpful in assessing whether an individual with cognitive impairment is eligible to hold licence.
Rationale
Functional assessment is required to determine if individual can drive safely.
The Applicant should have a functional driving assessment before consideration of his driving privileges. The Applicant could be eligible for such an independent driving assessment only upon receiving a supportive letter from the Applicant's new physician.
The Cognitive Assessment Form must be completed and evaluated by the MRS of the Registrar. If the MRS report is favourable, the Applicant may be granted a temporary driver's licence for the sole purpose of an independent driving assessment at a certified rehabilitation centre.
Until that information has been provided to the Registrar by the Applicant, the Tribunal must consider Ontario Regulation 340/94, 14(a).
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;
Mindful of the safety of both the Applicant and the motoring public, until the Applicant's cognitive status has been assessed and evaluated, the Tribunal must conclude that it is appropriate, on these facts, to continue the suspension of the Applicant's driving privileges under Section 47(1) of the Highway Traffic Act.
DECISION
Upon the application by the Applicant to appeal the decision effective February 3, 2014 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
D. Ian Turnbull, M.D., Member
Released: April 25, 2014