Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8416/MED
CASE NAME: 8416 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
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard in Ottawa: May 6, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant 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
Six additional exhibits were added to the Tribunal’s Exhibit list (1-8) with the consent of both parties.
FACTS
The Appellant is a 73-year-old recently retired professional who had a minor involvement with a police officer while driving with his wife on September 2, 2013.
On September 3, 2013, they attended their family physician of 35 years because the Appellant’s wife needed a disability form completed.
The doctor asked the Appellant how he was doing in retirement, and he replied, "I feel very depressed as I have not been doing anything meaningful or productive".
The Appellant’s wife stated her husband was getting extremely impatient and easily upset. In June 2013, she had him assessed by a psychologist. She continued "he was sometimes driving erratically, sometimes crossing the centre line".
The physician then asked the Appellant some quick cognitive questions and immediately diagnosed “mild cognitive impairment (MCI)” (Exhibit 5).
After the doctor told the Appellant he could take his licence away, the Appellant challenged him, asking for proof that his MCI affected his driving ability.
According to the Appellant, the doctor immediately wrote the requisition to the Registrar to stop him from driving. The doctor’s note (Exhibit 3, Tab 1) stated "problems concentrating while driving. He is awaiting for dementia work-up. He was stopped by the police on
When they left the family doctor’s office, the couple understood that he would refer the Appellant for a driving test.
In a letter dated September 9, 2013 (Exhibit 3, Tab 2), the Registrar wrote to the Appellant stating his reported condition was "Cognitive Impairment", and asked him to complete the "Cognitive Assessment" form, attached, with a physician who had knowledge of his medical condition.
The Registrar's form was completed by a geriatrician on September 17, 2013 (Exhibit 3, Tab 3a) and sent to the Ministry of Transportation (“MTO”). The report stated:
- patient's primary condition - mild cognitive impairment (“MCI”) or mild dementia
- has decreased insight into cognitive and behavioural deficits
- family reporting behavioural changes of:
(a) increased impulsivity
(b) angry outbursts
(c) poor decision making
- which raise concerns with respect to driving safely
The geriatrician's report did not recommend a functional driving assessment.
In a letter dated October 9, 2013 (Exhibit 3, Tab 4), having reviewed the geriatrician's completed Cognitive Assessment Report, the Registrar suspended the Appellant's driving privileges, effective October 19, 2013 (Exhibit 1).
The letter also stated that following a supportive letter from the Appellant’s physician regarding his cognitive function, the Registrar would require a driving evaluation (functional assessment) from a rehabilitation centre.
The Appellant and his wife submitted a Notice of Appeal dated October 23, 2013 (Exhibit 2), which stated the geriatrician "was very angry from the moment she walked into the office, before she ever spoke to the Appellant, and in her moments of anger - she filled in the (Cognitive Assessment) form about my insight with regard to driving". The Appellant took issue with the geriatrician’s report and challenged her "for the statistical evidence to support the correlation between one’s ability to drive and the test she was administering".
In the Appellant’s Notice of Appeal, his wife challenges the Montreal Cognitive Assessment (“MoCA”) test administered by the geriatrician on September 17, 2013. The geriatrician administered the MoCA test twice, and the results of the second test were "improved" but no scores for either test are available.
Their daughter accessed the MoCA website since her father had initially done poorly on the segment that tested judgement. The website states:
The MoCA does not evaluate judgement and insight.
It is not a test for decision making capacity.
The Appellant's wife's conclusion is "therefore, no general practitioner or geriatrician should even be using the MoCA test to evaluate a person's insight and judgement, relevant to the skills needed to safely drive a car".
The Appellant's wife wonders "why does the Ontario Ministry of Transport not immediately allow the patient/client an opportunity to undergo a driving test to determine his/her ability to drive". She continues "imposing a cost of $600 to take a driver test to establish eligibility to drive is a major hardship for many seniors".
In summary, she states "the entire process of assessing a senior's ability to drive using the MoCA test is unfair and inappropriate". The Tribunal notes that the MoCA test has been widely used and accepted by many jurisdictions as a rapid screening test for mild cognitive impairment since 1996.
In a letter dated October 18, 2013 (Exhibit 3, Tab 5a), the Appellant's family doctor wrote a Driver Rehabilitation Centre stating "the Appellant requires a driving evaluation to reinstate his driving licence".
In a letter dated November 5, 2013 (Exhibit 3, Tab 6), the Registrar wrote to the Appellant stating that a satisfactory driving evaluation had to be completed with a rehabilitation centre and attached a “Fact Sheet” from its Medical Review Section (“MRS”) outlining the steps to be taken (and including 10 pages of approved rehabilitation centres in the province).
The January 7, 2014 driving assessment (Exhibit 6) concluded:
- "driving cessation is strongly recommended".
- the "DriveABLE Cognitive Assessment (DCAT) Outcome stated prediction score for road test - failure 87%.
- The Appellant's overall performance outcome indicates cognitive abilities have declined and driving performance may be compromised.
An attached Driving Assessment Report states:
the significant driving errors made by the Appellant are listed on the following page.
On-Road test aborted due to safety concerns because the Appellant was unable to follow the examiner's instructions.
The Appellant's request for another driver's evaluation included a note dated January 23, 2014 (Exhibit 4) from the Appellant's family doctor stating "recent diagnosis of dementia. Requires a driver's assessment for fitness to drive".
The second driving evaluation (April 15, 2014) at a different rehabilitation centre concluded "the Appellant was found to be unsafe to drive". In Section 6 of the Functional Driving Assessment – Medical form, the Occupational Therapist states "he demonstrated unsafe driving skills that appear to be related to his medical diagnosis. These errors were significant and it is not expected that his skills would improve with lessons".
In a letter dated April 15, 2014 (Exhibit 7) from the Appellant addressed "To whom it may concern", he offers his explanation to the allegations about the mistakes he made during his road test. He requests forgiveness for his minor errors, saying he was nervous at the test times. The Appellant believes (Exhibit 5, Page 1 of 3) their family doctor reported him to the Registrar based solely on "a simple complaint that my wife made about my driving".
The Appellant's wife submits a draft letter (Exhibit 8) dated January 28, 2014 to her local MPP, regarding "major flaws in the process to remove the drivers’ licences of seniors who are declared to have medical problems" -- "but which are not being properly tested by the MoCA test”.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
Does the Appellant 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 grounds set out in section 14(1) of the Regulation set out above.
Section 50 of the Act states:
- (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 Appellant's driving privileges should remain suspended pursuant to section 47(1) of the Act.
Weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant is suffering from a condition (impaired cognitive function) which is likely to significantly interfere with his ability to operate a motor vehicle safely.
The Registrar was correct in sending the letter dated September 9, 2013, enclosing a Cognitive Assessment form to be filled out by the Appellant's physician (following receipt of the Appellant's family physician’s report of September 3, 2013, pursuant to section 203 of the Act).
Upon receipt of the Cognitive Assessment form, dated September 17, 2013, completed by a geriatrician, the Registrar was correct in suspending the Appellant's driver's licence in a letter dated October 9, 2013 (Exhibit 3, Tab 4). The letter stated that for consideration of re-instatement of his driving privileges, the Appellant was to take the letter to his physician when his condition improved, and provide the following:
Confirmation there has been an improvement in his cognitive functions and improvement in insight with a supportive opinion from his physician with respect to participating in a driving evaluation; and
Once this report has been approved by the Registrar, completion of a driving evaluation from a rehabilitation centre.
The Appellant's first driving evaluation was January 7, 2014. The rehabilitation centre's letter of January 7, 2014 stated "driving cessation is strongly recommended". The Appellant was immediately told of the result, which was copied to the Registrar and the Appellant's family physician the same day.
The second evaluation was done on April 15, 2014 and in a letter dated April 24, 2014 (Exhibit 6), a letter to the Registrar stated "Unfortunately, he was found to be unsafe to drive".
In the Appellant's direct testimony, he found fault with virtually every professional he has come into contact with since his interaction with a police officer on September 2, 2013.
The Appellant stated his family doctor had warned him that the driver's test "was difficult to pass". He had been told repeatedly that "these people will never pass you". He had an hour of practice with the driving instructor prior to the initial evaluation because he had not driven in three months. He stated the report from the January 7, 2014 evaluation is "hogwash".
He was bothered by the "tone" at the rehabilitation centre, saying "everything negative”, and "very sombre". The Appellant believed the decision to fail him "had been determined in advance".
The Appellant stated the rehabilitation centres do not have a positive approach, and he sees no evidence of attempted rehabilitation. He further stated "they are only after your money", citing fees of $148 for a single driving lesson at one centre, and $450 for a single driving lesson at another.
The Registrar's Agent stated the Driving Evaluation Centres are approved by the Registrar, and are staffed by independent and experienced professionals who evaluate who is safe and unsafe to drive in Ontario. The Registrar's Agent stated further that "if these centres were really only after the Appellant's money, why would he be told after the second functional assessment that lessons would not help and that he would be wasting his money?".
The Appellant continually repeated his explanation of the faults found in his driving evaluations. The Appellant submitted a letter dated March 29, 2014 (Exhibit 5) supplying background information regarding his driver's licence suspension. He questions whether the evaluation (rehabilitation centre) is of any value because "the language is so negative". He claims their statistics pertain to "average" only and do not take individuals into account, and they are “rehabilitation centres in name only”.
In support, his wife states she has spent hours on the phone and computer trying to identify the process which she states "is not laid out".
The Appellant states the “additional comments (Part 5) of the geriatrician's Cognitive Assessment form are false”, but, his wife acknowledges she is the “family member" reporting behavioural changes of: increased impulsivity, angry outbursts and poor decision-making, which raises concerns with respect to driving safely.
The Registrar relies on the Canadian Council of Motor Transport Administrators (“CCMTA”) guidelines, Chapter 6 - Cognitive Impairment, including dementia, and specifically Page 157, Section 6.6.1:
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.
In closing remarks, the Appellant repeated that the original functional assessment is "hogwash" because it wasn't faxed to the Registrar for four months (Exhibit 6). The Registrar's record proves it was faxed to the Registrar on the date of the evaluation (January 7, 2014). He complains about the testing procedure stating that "everybody goes by the book" and that the Registrar "has to see the individual".
He is planning to have another (third) driving evaluation at another functional assessment centre. He has had no driving lessons in the interim.
The Tribunal finds that the Appellant has no insight into the findings of the two independent driving assessments. Describing the findings as "minor errors" and "being nervous at the time" does not discount the following evaluation summaries:
January 7, 2014 - "on-road test aborted due to safety concerns". "Driving cessation is strongly recommended", and
April 15, 2014 - “he demonstrated unsafe driving skills that appear to be related to his medical diagnosis", and based on the experience and opinion of the occupational therapist and instructor, the Appellant would not improve with (driving) lessons".
The Tribunal is mindful of both the safety of the Appellant and the motoring public and refers to Regulation 340/94, section 14(a) which 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…
Currently, there is no “complete medical assessment from his physician indicating that the cognitive skills necessary for driving are not impaired”, which is the CCMTA Standard.
DECISION
Upon the application by the Appellant to appeal the Registrar’s decision, effective October 19, 2013, 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 Appellant;
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: May 23, 2014