Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-11-18
FILE:
9818/MED
CASE NAME:
9818 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:
Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sonia De Santis
Heard by teleconference:
October 27, 2015
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”).
FACTS
On March 7, 2014, the Appellant’s driver’s licence was suspended for the reason of opioid dependence. The Appellant is appealing this suspension.
On February 25, 2014, a physician from a mental health and addictions centre sent an unsolicited medical condition report to the Registrar. The reason for that report was drug dependence. The comments from the physician were:
The patient was assessed and found to have a severe opioid dependence. He is consuming large quantities of opioids in an aberrant fashion that likely impair his ability to drive a motor vehicle.
On March 7, 2014, the Registrar asked the Appellant to provide a “substance use assessment” (filled by his physician), confirmation that he had been abstinent from drug use for a period of one year, and confirmation from the physician that he had been taking medication prescribed for six months.
The Registrar stated that the period of one year may be reduced if the Appellant’s physician confirmed that the Appellant had undertaken a drug treatment program and also was supportive of reinstating his driving privilege.
The substance use assessment was completed by the Appellant’s physician on February 4, 2015. It indicated that the Appellant had used cocaine, but noted no other street drug use.
The medications prescribed were: (1) Suboxone (a drug used to treat narcotic addiction and chronic pain), (2) Lyrica (a non-narcotic pain medication); and (3) Amitriptyline (a non-narcotic medication sometimes used to treat pain).
It was noted that the Appellant required ongoing pain management and that Suboxone provided partial, but sufficient, pain relief.
It was noted that the Appellant had completed an addiction treatment program over a period of one month and the certificate of completion was provided.
The LEEDS dependence score (a ten-item self-completion questionnaire designed to measure the severity of dependence on any drug) was 7, which indicates low dependence.
The Drug Abuse Screening Test (DAST) score was 8, which indicates intermediate dependence. On the DAST score, it was noted that the Appellant had abused prescription drugs and had illegally purchased Percocet. A urine drug screen from February 4, 2015, was positive for Oxycodone (the narcotic component of the drug Percocet).
On September 28, 2015, the Appellant’s physician wrote a letter to the Registrar noting three negative urine drug screen tests on August 7, 14, and 21, 2015. The physician said:
I appreciate the review of attached documents in context of “The National Medial Standard” for the purpose of reinstating his driver’s license privilege. Please review and inform the patient with your decision.
The Registrar sent a letter to the Appellant on October 6, 2015, asking that he provide confirmation that he had remained abstinent from addictive substances for a period of one year (which may be reduced to six months with a report from his physician supportive of his driving privilege), reference to the positive drug test from February 4, 2015, for Oxycodone, and results for repeat urine drug screening.
On October 14, 2015, a physician from the same office as the Appellant’s regular physician sent a letter to say that a drug test on September 23, 2015, had been negative.
The Appellant told the Tribunal that he suffers from a condition called “Arachnoiditis” and that this is the cause of his back pain. It is for that reason that he takes pain medication. He had previously been taking 400 mg of Oxycodone per day. He said that at this “high dose” of medication, he had been able to perform his complex tasks as a manager at his work and also to drive unimpaired.
After several years of treatment, he found his medication to be ineffective and so consulted a treatment facility for advice. On consultation, the Appellant stated that “they immediately stopped all pain medications and took my licence away”.
The Appellant testified that he had used cocaine briefly as he “freaked out” when he was taken off of narcotics and had used cocaine to “mask the pain”. He said that he thought the drug screens in February 2015 were to illustrate that he was no longer taking cocaine. He admitted to taking occasional Percocet when his pain got bad but he was not under the impression that he had to totally come off of narcotic medications. He said that he had Percocet tablets left over from previous back surgeries and had taken them.
He said that he had never had an accident or been intoxicated while driving and felt that his licence was not suspended due to his actually having a problem driving, but rather because of the amount of drugs he had been prescribed.
He testified that he no longer takes Percocet and does not consider himself to be narcotic dependent. He stated that he no longer takes cocaine or other illicit substances.
The Appellant said that the physician had told him that the reason for suspending the licence was actually his illicit drug use. The Appellant said that since he was no longer using illicit drugs, he should be able to drive.
The Appellant said that he thought he had actually fulfilled the requirements of the Registrar with his recent negative drug tests, his certificate of completion from the addictions program, and the letter from his doctor.
The Registrar asked the Appellant to account for the apparent gap in the medical records from June 2014 (when he completed the addiction program) and February 2015 (when his physician filled the substance use assessment and ordered the urine drug test (which was positive for Oxycodone).
The Appellant testified that after his addiction treatment course he had needed some time to be able to apply the techniques he had learned.
He noted that he had had some difficulties making it to the pharmacy in person as was required for his Suboxone treatment. The pharmacy was 10 km from his house and it was sometimes difficult to arrange transportation.
He said that he had used Oxycodone occasionally during that time for pain that could not be treated with his regular pain medications. He said that during that time, his Suboxone treatment had been interrupted due to the difficulties he faced with treatment compliance.
The Registrar said that the issues still outstanding were: (1) comment from the physician on whether the positive drug screen for February 2015 represented a prescribed treatment or whether it was an indication of abuse; (2) comment from the prescribing physician about the Suboxone and an explanation for why the Appellant was on and off the treatment; and (3) confirmation from the physician that the Appellant is not drug dependent.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
Is the Appellant addicted to the use of alcohol or a drug to an extent 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
It is clear from the evidence that the Appellant has: (1) used narcotics at high doses for pain management, (2) used illicit substances (cocaine) to mask pain; and (3) continues to use medications for pain control. The matter that the Tribunal needs to consider is whether he meets the criteria for addiction, and if so, to what extent, if any, this addiction to these drugs significantly interferes with his ability to drive safely.
The reason the licence was suspended originally was “drug dependence”.
The central issue in this case is the Appellant’s drug use, which is covered by s. 14(1)(b) of the Regulation, and not his actual condition of chronic pain, or any other condition or disability, which is addressed under s. 14(1)(a) of the Regulation. Under s. 14(1)(b), the legislative test requires a finding of addiction to the use of alcohol or drugs, not just abuse of drugs. The occasional (but not addicted) use of illicit drugs is not sufficient reason for the Registrar to suspend a licence. There is a distinction between addiction and recreational or intermittent use of substances. Addiction involves dependence on and compulsive/pathological use of the drug and implies use that is beyond the person’s control.
Use of illicit substances like cocaine can impair drivers by interfering with judgment and cognition. Illegally obtained substances do not utilize standard doses and their effects can be difficult to predict. For these reasons, people who use illicit drugs like cocaine can pose a risk if they drive while under the influence.
The Appellant testified that his use of cocaine was occasional and that he did not drive while under the influence. He testified that he no longer takes cocaine and his urine drug screens from February 2015 forward support this. The Tribunal accepts this evidence, and concludes that the Appellant’s cocaine use does not meet the criteria for addiction.
The other drug class in question is narcotics (Hydromorphone and Oxycodone). Narcotic medications can cause sedation and changes in cognition that can impair ability to drive safely. It can be possible, on stable doses of narcotics, to drive safely, but caution must be taken when doses are changing, escalating, or erratic (as is often the case in addiction). If a person is addicted to narcotics and uses them in a pathological manner, this will create an unacceptable risk to safe driving.
The Appellant is to be commended for his efforts to treat his pain safely. He has taken many positive steps toward achieving this goal (i.e., completion of an addictions program, undertaking Suboxone therapy, and providing recent negative urine drug screens).
In assessing the Appellant’s degree of current addiction, it is crucial to consider his response to medication, the stability of that response over time, and his likelihood to relapse into previous patterns of drug addiction.
The physician at the addiction and mental health centre who filled the original medical condition report diagnosed “severe” opioid dependence and “aberrant” use, that was “likely to impair” his ability to drive.
This description supports the finding of drug addiction, which is defined as a dependence on a legal or illegal drug or medication. The terms dependence and addiction are frequently used interchangeably in the medical community.
The Registrar’s decision to suspend the Appellant’s licence is reasonably based on the medical evidence available at that time. To succeed in this appeal, the Appellant needs to show that this medical evidence was wrong or show that his current condition does not fit the criteria for suspension because he is not, or is no longer, addicted to the use of drugs.
Documentation of stable and low risk use of pain medications is important when considering the Appellant’s potential to abuse narcotics or whether the Appellant is still addicted. One marker of a stable treatment program is adherence to that program. Drug testing is used to demonstrate that patients are taking their prescribed medications and to ensure they are not taking other drugs outside the treatment plan.
Oxycodone is not noted on the medication list from the Appellant’s physician from February 4, 2015; yet a drug test from that day was positive for Oxycodone. This indicates a deviation from the treatment plan, a possible aberrant use of narcotics, and a red flag for ongoing addiction.
The Appellant told the Tribunal that, at the time of his February 2015 drug screen, he was not aware that he was expected to be strictly abstaining from Oxycodone. He thought that the drug test on that date was to demonstrate his abstinence from cocaine. His interpretation of the treatment plan was that he was able to take occasional Oxycodone for severe pain. It is possible that there was a misunderstanding in the treatment plan, but if the Oxycodone was not prescribed it must have been misused.
The Appellant has access to Oxycodone without a prescription. He was noted (in the DAST test) to have illegally purchased it in the past and also told the Tribunal that he had some left over from previous prescriptions.
The Appellant told the Tribunal that he no longer takes Oxycodone. From the evidence available, his abstinence can only be confirmed as of August 7, 2015. This is a period of less than three months. A longer period of documented abstinence would better demonstrate his stable adherence to his treatment plan and proof that he is no longer addicted.
Another marker of a stable treatment program is the treating physician’s clinical impression of the response and adherence to treatment. Treating physicians who have regular contact with their patients can assess things like side effects (i.e., sedation), and factors that may encourage or hinder compliance to treatment, and efficacy of treatment.
The Appellant’s physician outlined the treatment plan and reported the results of drug testing, but fell short of stating actual support for reinstating the Appellant’s driving privilege or stating that he is no longer drug dependent. The Tribunal does not interpret the letter from the Appellant’s physician of being supportive or unsupportive. It is neutral and thus does not clarify the question of his drug addiction.
The Appellant stated that he did not feel he was impaired when the report was initially filled. That is his opinion based on how he self-assessed his own abilities. His physician felt otherwise. The Appellant’s response to the treatment that followed showed the validity of the physician’s initial concerns.
Regardless of his level of initial impairment, the Appellant agreed to change his treatment plan. There is evidence that he struggled with that plan and, at times, deviated from it in that:
He used Oxycodone when it appears it was not part of the treatment plan.
He purchased Oxycodone illegally.
He used illicit drugs (cocaine) to mask the pain.
His Suboxone treatment was interrupted due to challenges with compliance.
This presents the picture of someone who may struggle to maintain a stable treatment plan in future. At a minimum, points1 and 4 noted above occurred after he went through his addictions program, and this raises doubts about this program’s long term ability to change the Appellant’s behaviour.
When his treatment plan was not completely effective or interrupted, the Appellant demonstrated a willingness to pursue his own plan which involved non-prescribed medications.
Given the past evidence of his drug addiction and unreliable adherence to his treatment plan, the evidence supports a finding that the Appellant is, and continues to be, addicted to the use of a drug to an extent likely to significantly interfere with his ability to drive a motor vehicle safely
DECISION
Upon the application by the Appellant to appeal the decision dated August 14, 2015, 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
Katherine Whitehead M.D., Member
Released: November 18, 2015