Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 9024/MED
CASE NAME: 9024 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) - to Suspend a Licence
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: His daughter
For the Respondent: Kyle M. Biel, Agent
Heard by teleconference: September 26, 2014
REASONS FOR DECISION and ORDER
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant respecting a decision of the Registrar of Motor Vehicles pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Respondent’s Evidence
An unsolicited Medical Condition report was completed on March 28, 2014, by a neurologist, Dr. L., based on examination on the same date.
The condition was checked as Dementia or Alzheimer’s:
As seen several months ago for chorea. DNA testing reveals that he suffers from Huntington’s Disease. He reports no family history. He scored 19/30 on the Montreal Cognitive Assessment however there is a language barrier that may influence the result on road driver’s test and has been recommended. Unfortunately with time he is expected to deteriorate.
Has been my patient for several months. Patient is aware of this report
The Ministry informed the Appellant on April 10, 2014, that his driving privilege was suspended under section 47(1) of the Act.
He was requested to have a Cognitive Assessment completed, and also to have a Functional Driver Assessment completed, in order to determine if his licence could be reinstated.
On April 16, 2014, his family physician since 2010, Dr. S., completed a Cognitive Assessment.
Dr. S. diagnosed Mild Cognitive Impairment and Huntington’s Chorea.
Scored 23/30 on SLUMS testing in my office. 19/30 MOCA by Dr. L.
Condition is likely to progress. Stable with ongoing symptoms.
No medication. Is compliant with recommended treatment.
Unclear if he has appropriate insight of his condition and the impacts on ability to drive.
Referred for an independent driving assessment.
Was sent to Driveable by Dr. L. but has not gone yet, - will go if requested by DoT.
My testing memory of objects was 5/5. By Dr. L. 0/5 objects, so some inconsistencies.
A Functional Driving Assessment was completed by St. Elizabeth Driver Assessment and Training on May 23, 2014.
Relevant Diagnoses were described as Huntington’sChorea and Mild Cognitive Impairment. Visual acuity was 20/20 on the left and restricted on the right. No visual field defect.
The following were the assessment findings:
60 year old man referred for fitness to drive subsequent to a diagnosis of Huntington’s and mild cognitive impairment. Client reported to live alone and previously drove on a daily basis and on all roadways prior to suspension.
Denied history of collision or tickets in the past 5 years.
Past medical history includes high blood pressure, cholesterol, and gastric reflux, (all managed
by medication, no list of medications provided. Reports no side effects.)
DriveABLE cognitive assessment findings revealed “some evidence of impaired cognitive abilities for driving” but not yet exceeding criterion for a “no driving” recommendation based on non cognitive findings alone.
Only ID of driving scenarios was “well below average while speed of attention shifting was “below average” and all other components (spatial judgement and decision making, executive function, motor speed/control, and span of attentional field) were “within average”.
However physical coordination deficits were identified during assessment including involuntary movement of lower limbs during upper extremity gross motor coordination task and during tasks requiring increased concentration/focus.
Was aware of assessment conducted by OT and Driving Instructor.
Not aware of straddling lanes
Evidence of medical impairment/coordination deficit in today’s drive
Fail on-road due to number and type of errors.
Recommendations: Defects in Functional Driving Skills-Driving not recommended.
Adaptive equipment not required.
Additional comments were as follows:
During DriveABLE road evaluation, (Appellant) made driving errors that were primarily attributed to coordination deficits, however cognitive impairment may also have factored into the errors including (but not limited to) hard braking/acceleration throughout, jerky steering, straddling lanes, late braking resulting in stopping over the line or too close to vehicle ahead.
The more complex the intersection, the jerkier the gas/brake pedal operation observed. As client’s condition is considered to be progressive, training is not recommended.
The on-road performance demonstrated may jeopardise driver and road safety. Client disagreed with findings and recommendation of driving cessation. He was provided with handout on alternative methods of transportation.
Significant driving errors
Inadequate check for safety before lane change
Turned from or into an inappropriate road position or lane
Turned from or into an inappropriate road position or lane
Drove too close to curb, parked vehicle, or roadside objects for safety
Unsteady control when turning corner or on curve
Very inadequate check for safety before a lane change
Unsteady control when turning corner or on curve
Drove on extreme edge of driving lane for ½ block or more
Turned from or into an inappropriate road position or lane.
On May 26, 2014, Dr. S.,, following review of the on-road assessment wrote to the Ministry and stated:
(Appellant) feels that there is a window during which he would be safe to drive.
On further testing here his cognitive deficits were not as severe as Dr. L. found. On review of the results of the DriveABLE assessment, the patient feels that he failed due to lack of familiarity with the car and he would like to be offered a repeat assessment.
The Appellant wrote to the Ministry on July 19, 2014 as follows.
I was not prepared for the scope of the test and had I been told what the test would entail I would not have been as overwhelmed as I was.
The initial medical review of my condition as reported by Dr. L. was very unfair as his very informal evaluation of my condition was done precisely two minutes after he told me the obviously traumatic news that I was diagnosed with Huntington’s Chorea.
I believe that I should be offered another chance at a drive test.
The Ministry informed the Appellant on August 11, 2014 that in order to be considered for a Class ‘G’ licence he should submit a satisfactory evaluation from a rehabilitation center.
The Appellant’s Evidence
The Appellant stated that he has been driving for 40 years without an accident and was driving up to the day he was informed by Dr. L. that he has Huntington’s Chorea.
He was referred by Dr. L. to a specialty clinic for Huntington’s disease and was seen there on July 16, 2014.
The Tribunal requested and received a copy of the report by that clinic to Dr. L. It states as follows.
In summary the abnormal movements began three years ago following the death of his wife. He was upset by the cognitive assessment of 19/30 by Dr. L. and he subsequently failed the on-road assessment. He was very upset with the result.
This clinic did not repeat the MoCA test. Physical examination was essentially normal.
Given the fact that he failed the MoCA cognitive test and the road test I cannot say that he is safe to drive.
MRI of the brain was normal.
The Appellant has not ruled out the possibility of repeating the on-road assessment.
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 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 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.
Section 47(1) states:
Subject to section 47(1) the Registrar my suspend or cancel,
(b) a driver’s licence
On the grounds of (g) any other sufficient reason not referred on clause (d), (e) or (f)
APPLICATION OF THE LAW TO FACTS
The Respondent relies on:
Section 47(1) of the Act authorises the Registrar to issue a suspension of the driver’s licence upon receipt of a Medical Condition Report of cognitive impairment, by a physician in compliance with section 203 of the Act.
An on-road assessment performed by an authorised Driver Assessment Centre on May 23, 2014 recommended cessation of driving due to a number of errors that impact road safety.
Suspension is supported by Regulation 340/94 (14):
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;
The specialty clinic reported that they were unable to write a letter of support in favour of reinstatement.
The Registrar requires satisfactory completion of another on-road assessment before consideration can be given to reinstatement.
The Registrar is satisfied that the Appellant has submitted confirmation of improved cognitive assessment.
The Appellant relies on:
His driving record of forty years of safe driving without any infraction.
The diagnosis of Huntington’;s Chorea on March 28, 2014 was a traumatic event. The MoCA test (scoring 19/30) was administered within minutes of receiving this diagnosis and this had a negative effect on his memory test..
Subsequent decisions by the Ministry and the on-road assessor were based on that misleading cognitive test.
A cognitive assessment performed at the family physician’s office on April 16, 2014 was significantly better (score 23/30)
His condition is classified as early onset and has not deteriorated since the diagnosis was made.
Research by the Appellant and his family suggests that many people diagnosed with Huntington’s continue to drive until their condition deteriorates which can take years
A decision to undertake a repeat on-road assessment is pending the outcome of the appeal.
The Tribunal finds that the Registrar was justified in issuing a licence suspension under section 47(1) upon receipt of a Medical Condition report of cognitive impairment and was authorised by Regulation 340/94 in requesting completion of an on-road assessment in view of the diagnosis of Huntington’s Chorea.
In view of the rarity of this progressive neuromuscular disease, the Tribunal is concerned that adequate accommodation by the on-road assessor should have included a recommendation for remedial training prior to repeat assessment.
The specialty clinic attended by the Appellant should be made aware that the Appellant’s cognitive assessment by his family physician showed a significantly higher score than that reported by the Appellant’s referring neurologist.
The level of cognitive impairment was not deemed significant by the on-road assessor and should not disqualify the Appellant from attempting another evaluation in the near future. The Tribunal recommends that the Appellant receive remedial driver training prior to a repeat on-road assessment.
However, based on the evidence before it at this time, and in particular, that the Appellant is suffering from an uncommon progressive neuromuscular disease and he does not have, at this stage, medical support for reinstatement of his licence, the Tribunal finds that the Appellant does, on the balance of probabilities, suffer from a physical condition likely to significantly affect his ability to drive a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision 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 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
Kevin Flynn, M.D., Member
Released: October 1, 2014