10489 v. Registrar of Motor Vehicles, 2016 CanLII 102727

Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2016-12-21

FILE: 10489/MED

CASE NAME: 10489 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

10489 Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Kevin Flynn, M.D., Member

APPEARANCES:

For the Appellant: Family member, Agent

For the Respondent: Steve Grootenboer, Agent

Heard by teleconference: December 7, 2016

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 (the “Registrar”) to suspend the Appellant’s driver’s licence pursuant to Section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

For the following reasons, the Tribunal sets aside the decision of the Registrar.

FACTS

A Medical Condition Report was completed on May 9, 2016 by Dr. B., geriatrician, in compliance with section 203 of the Act, based on an examination that same date. The condition reported was: Dementia or Alzheimer’s.

Section 203 of the Act requires that all legally qualified medical practitioners must report to the Registrar the name, address and clinical condition of any patient who, in the opinion of the practitioner, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle.

The Registrar wrote to the Appellant on May 25, 2016, to inform her that a report was received of cognitive impairment, and that after considering all relevant facts available, it had been decided to suspend her driving privilege under section 47(1) of the Act.

In order to be considered for reinstatement, she was requested to take the letter of suspension to her physician, specialist or nurse practitioner when the condition improves, and have the attached Cognitive Assessment completed and sent to the Medical Review Section.

A report by a nurse practitioner, Ms. A., on behalf of Dr. B., was completed on May 13, 2016, and sent to the Appellant’s family physician, Dr. H.

In summary, this report stated the following relevant facts:

• Referred re concerns about cognitive impairment deterioration over the last two years;
• Previously diagnosed with dementia in 2005;
• Recent MOCA score 15/30;
• Spouse reported the Appellant’s gradual decline of cognitive ability over 2 years, with short term memory loss, word difficulties, trouble operating common technologies, and would get lost in unfamiliar surroundings;
• Past medical history: atrial fibrillation, impaired glucose intolerance, hypothyroidism, anxiety diagnosed in 2005;
• Osteoporosis, cataract surgery 2005, osteoarthritis left hip;
• Non-smoker and non-drinker;
• Current medications: bisoprolol, rosuvastatin, rivaroxaban, l-thyroxin, sertraline;
• Independent Activities of Daily Living, (ADLs) but occasional difficulties in kitchen activities;
• Spouse worries about her driving;
• Independent mobility with normal gait;
• Some sleep disturbance;
• MoCA (Montreal Cognitive Assessment) indicative of moderate level of impairment;
• Lacks insight into cognitive deficit;
• Advised to stop driving and given referral for driving assessment.

The Appellant’s husband wrote a letter to the nurse practitioner Ms. A. on June 16, 2016, which is summarized as follows:

• The Appellant thought that she would only need a driving test and was shocked when the memory test resulted in the licence suspension;
• Her ability in handling stress may have affected her test results;
• She had no problems driving 4 or 5 times a week to various appointments;
• She realizes that she has a problem with short term memory loss and has always had a poor sense of direction;
• She does not always know where some things are kept in the kitchen;
• Medication prescribed has helped her condition and should show an improvement in re-testing.

On July 14, 2016, a letter signed by the Appellant was sent to Dr. H., her family physician. In summary, the letter stated:

• Due to a number of incorrect items in the report by Ms. A. on behalf of Dr. B., on May 13, 2016, a reassessment should be made of the severity of her condition and of her driving ability;
• The assessment concerns are contained in a letter written by her husband on June 18, 2016 concerning her short term memory loss;
• Her problems were related to a painful condition in her left leg due to osteoporosis;
• The painful condition was subsequently improved by a course of acupuncture.

The Cognitive Assessment was completed on July 25, 2016 by Dr. H., the Appellant’s family physician since 2000. A summary of the Assessment stated:

• Condition: Moderate cognitive impairment, expected to deteriorate, and stable with on-going symptoms;
• Medication prescribed has not resulted in side effects that may impair ability to drive safely;
• She is adherent to recommended treatment and has not demonstrated any pattern of non-adherence;
• Requires an independent functional assessment and has not been referred for functional assessment;
• Requires temporary driving licence so she can complete the independent in-car assessment.

On July 29, 2016, the Registrar informed the Appellant that following a review of reports received, it had been determined that a satisfactory driving evaluation from a rehabilitation centre is required before consideration to remove the suspension.

On July 31, 2016, the Appellant wrote to the Medical Review Section stating that she wished to appeal the suspension on the grounds that the memory tests were adversely affected by the painful leg condition and age-related memory lapses. She also stated that her memory has improved since starting the prescribed medication.

On August 4, 2016, her husband wrote a letter to the Ministry in support of the Appellant’s request for an appeal. He stated that the memory tests performed at the office of the family physician were performed at a time when the Appellant was in a state of stress due to her leg pain and that the cognitive assessment performed on the Appellant contained misinterpretations of information that he had provided.

On August 12, 2016, the Registrar wrote to the Appellant acknowledging the correspondence submitted and provided her with information on Administrative Review and the Licence Appeal Tribunal. She was also informed that a functional driving assessment was required, and a list of approved assessment centres was attached.

On August 25, 2016, the Appellant attached a letter to the Notice of Appeal requesting an Administrative Review. She also stated that the family physician, Dr. H., had slightly modified Dr. B’s cognitive assessment, but the conclusion was identical, and that she, the Appellant, wished to avoid the functional assessment due to the effect of stress.

On September 6, 2016, the Registrar acknowledged the request for an Administrative Review and advised that the Review is not the appeal. She was advised to contact the Licence Appeal Tribunal.

On September 30, 2016, the Appellant’s husband reiterated his support for the Appellant’s appeal of the suspension. He stated that the family physician, Dr. H., had supported the cognitive assessment by Dr. B., suggesting that it reflects her true situation. He submitted that his wife is suffering from increased stress by the possibility of a functional road assessment.

On October 11, 2016, the Tribunal received the Notice of Appeal, dated September 30, 2016.

On October 31, 2016, Dr. B., geriatrician, on whose behalf the nurse practitioner completed the report dated May 13, 2016, completed a Cognitive Assessment. In summary, this assessment stated as follows:

• Cognitive screening test has been conducted
• Primary condition is Mild cognitive impairment or mild dementia
• Prognosis is unknown
• Current status is: Stable with ongoing symptoms
• Medication has been prescribed and has no side effect that may impair driving ability
• Adherent to recommended treatment and no pattern of non-adherence
• Does not require an independent functional assessment
• The MTO Driver’s test should not be required due to the significant improvement since her first assessment and her excellent driving record.

Another Cognitive Assessment was completed on November 7, 2016 by Dr. H., the Appellant’s family physician since April 2008. That assessment form repeated the same points made in Dr. B’s assessment form, summarized above.

Evidence by the Appellant

The Notice of Appeal states the reasons for appeal as follows:

The latest medical cognitive assessment submitted by Dr. H. is a better indication of my mental abilities to drive a car safely. I feel I have been wronged and misdiagnosed. I have done nothing wrong except do poorly on the cognitive ability tests which is typical of me because of the extreme stress I feel doing tests.

My driver’s licence was suspended based on my first test when I was suffering from extreme pain. I did much better on my second test after the pain was stopped by treatment. I have a perfect driving record and have not become lost going anywhere including various homes to play bridge even though I only use maps and do not use GPS. I can easily park my car in the garage within the inches required to clear the door and the steps to the house.

Currently, I only occasionally experience memory lapses, typical of any person.

If ever I have any doubts about my ability to drive safely or get any concerns from the people who know me, I will stop driving.

In testimony, the Appellant stated that when she was tested at the family physician’s office she was not well, due to shoulder pain since the start of 2015. This affected her both physically and mentally. And she was at her worst when the first cognitive assessment was performed. Her symptoms improved after the acupuncture treatment and prescription medication.

At present, she takes medication for thyroid, atrial fibrillation, cholesterol and memory. She was advised by Dr. B. to continue the memory medication for six months.

She stated that she drove with her husband part of the way to Florida in 2015 without any problem.

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 her ability to drive a motor vehicle safely?

LAW

O. Reg. 340/94 (the “Regulation”), section 14(1), 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.

Section 47(1)(g) of the Act gives the Registrar the power to suspend or cancel a driver’s licence for any “sufficient reason” not referred to elsewhere in s. 47(1), which would include section 14(1) of the Regulation, cited above.

Section 14(2) of the Regulation permits the Minister to take into consideration the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal has taken the CCMTA Medical Standards for Drivers into consideration.

Section 50 of the Act permits the driver to appeal the Registrar’s section 47 decision to the Tribunal, and the Tribunal “may confirm, modify or set aside the decision of the Minister or the Registrar.”

Submissions by the Parties

Mr. Grootenboer, on behalf of the Registrar, submitted that the report of cognitive impairment by a physician in compliance with section 203 of the Act authorized the Registrar to issue a suspension of the Appellant’s driving privilege under section 47(1)(g) of the Act.

Cognitive Assessment reports, by the nurse practitioner on May 13, 2016 and by Dr. H. family physician on July 5, 2016, recommended a functional driving assessment. Dr. H. stated that the Appellant scored 15/30 on the MoCA scale and indicated the condition is likely to deteriorate.

Mr. Grootenboer, cited the Canadian Council of Motor Transport Administrators (CCMTA), Medical Standards for Drivers, section 6.6.1 regarding cognitive impairment or dementia. He stated that CCMTA has established guidelines that may be applied across Canada to drivers who have medical conditions that may affect road safety.

The Standard under 6.6.1 states:

Drivers are 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 assessment, 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 Registrar requests that the Tribunal confirm the suspension.

On behalf of the Appellant, her husband submitted that the medical reports that were received by the Registrar leading to the licence suspension failed to take into account that the Appellant was in pain and under stress at the time of the initial assessments.

Subsequent reassessments by Dr. B. and by Dr. H. showed significant improvement, and both physicians stated that functional road assessments are not necessary.

APPLICATION OF THE LAW TO FACTS

The Tribunal has carefully reviewed the evidence provided by both parties, the exhibits and submissions, and the relevant legislation and CCMTA’s national standards for road safety.

The Registrar’s initial suspension of the licence appeared to be a responsible approach to the situation of an older driver with cognitive impairment indicated by the medical reports provided to the Ministry. The CCMTA’s national standards assist the Registrar in applying the relevant CCMTA guideline that provides the basis for requiring further assessments.

In this case, the two physicians, Dr. H. and Dr. B. through his nurse practitioner, initiated the medical reports that recommended a functional road assessment and led to the suspension of the Appellant’s driving privilege, but both then revised their assessments several months following those reports and following treatment.

The later assessments by the geriatric specialist and the family physician stated that the Appellant’s condition has significantly improved and that functional road assessments are not necessary. The Tribunal notes that these later medical reports did not include an up-to-date MoCA scale.

The relevant CCMTA Standard, section 6.6.1, states that ”where 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”, the Appellant is eligible for a licence. The guideline also advises reassessment annually or as required.

The Tribunal finds that the more recent medical evidence shows that a functional driving assessment is not required. Both Dr. B. and Dr. H. provided updated reports (on October 31 and November 7, 2016, respectively) that were consistent with each other and supported the Appellant’s case. These reports confirm that the Appellant’s cognitive impairment and dementia were mild, her current symptoms were stable, her medication did not affect her driving, no functional assessment was needed, and she had significantly improved since her first assessment.

Therefore, weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is not suffering from a condition which is likely to significantly interfere with her ability to operate a motor vehicle safely.

DECISION

Upon the appeal of the Registrar’s decision effective June 4, 2016 to suspend the Appellant’s 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 set aside.

LICENCE APPEAL TRIBUNAL

Kevin Flynn, M.D., Member

Released: December 21, 2016