10250 v. Registrar of Motor Vehicles, 2016 CanLII 50098

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-07-14

FILE:

10250/MED

CASE NAME:

10250 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:

Kevin Flynn, M.D., Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Kyle M Biel, Agent

Heard by teleconference:

June 29,

July 6, 2016

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

Evidence for the Respondent

A Medical Condition Report was completed on December 30, 2015 by Dr. S., a psychiatrist at a mental health facility, in compliance with Section 203 of the Act based on an examination on that date.

The condition was reported as follows:

Drug Dependence

Mental or Emotional Illness-Unstable

Patient has well documented history of Bipolar Disorder & crystal meth.

Concern regarding driving erratically (undecipherable) prior to this current admission.

Patient under care of Dr. S. for one week. Patient is aware of this report.

On January 6, 2016, the Registrar informed the Appellant that pursuant to a medical report of Substance Abuse and Psychiatric Condition, her licence privilege was suspended under section 47(1) of the Act.

In order to be considered for reinstatement, she was advised that she must take the letter of suspension to her physician or nurse practitioner and if the diagnosis of substance abuse is confirmed, the Ministry will require confirmation of abstinence for a period one year. This period may be reduced upon confirmation of successful completion of a drug treatment program and support for reinstatement.

A Mental Health Assessment was also required to be completed and returned to the Medical Review Section

The Mental Health Assessment was completed by Dr. A.S., a family physician, on March 7, 2016. He has been the Appellant’s physician since December 2013.

In summary, the Assessment stated as follows:

• Diagnosis: Bipolar Disorder

• Most recent illness less than 3 months ago

• Currently stable and symptoms have resolved

• No impairment of cognition, attention, judgment or memory

• In the past 12 months admitted to hospital 2 or more times

• Substance dependence, abuse, or misuse in the past 12 months

• Medication prescribed has no adverse effects

• Adherent to recommended treatment with no pattern of non-adherence and under medical supervision monthly

• Has appropriate insight on impact on functional ability to drive

• Does not require functional road assessment

Patient is responding well and adhering to treatment regimen.

The Substance Abuse Assessment was also completed on March 9, 2016 by Dr. A.S.

In summary, this Assessment stated as follows:

• Diagnosis is Drug misuse

• Drug misused was marijuana

• Never had seizure

• Abstained from alcohol for 6-12 months

• Has not abstained from drug use

• Has been taking prescribed medication at prescribed dosage for at least 6 months

• Has not completed a formal addiction treatment program

• Has not been reported for drug misuse

• Laboratory biochemical markers MCV and ALT within normal limits

• No abnormalities on physical examination

• No side effects from prescribed medication

Patient is adhering to treatment regimen but does admit to occasional marijuana usage.

On April 19, 2016, the Registrar sent a letter to the Appellant following review of the reports. The Appellant was informed that it had been decided that a three month period of mental and emotional stability was required with results of a recent urine drug toxicology screen. Mr. Biel informed the Tribunal that the 3 month requirement was an oversight and that this was corrected to 6 months in a later letter.

On May 5, 2016, Dr. .A.S. submitted a letter to the Registrar in response to the letter of April 19, 2016. He stated as follows:

Regarding mental and emotional stability for a period of three months, I do not feel that she (Appellant) has been mentally or emotionally stable for a period of three months at this time, based on the reports from her attending psychiatrist and her visits with me.

Regarding urine toxicology screening, see attached report with a recent positive test for cannabinoids.

Urine screen test dated April 19, 2016 shows cannabinoids detected.

Following an adjournment of the hearing on June 29, 2016, in order to allow the Appellant to submit a medical report, the Appellant’s psychiatrist, Dr. B. submitted a report dated June 29, 2016. This report stated as follows:

(Appellant) has been under my care for approximately 10-12 months.

There has been an overall improvement in her condition through 2016. She is manifesting a level of consistent clinical improvement/stability- particularly in the last 3-6 months- with improved recognition and ability to address many of her clinical risk factors related to potential decompensation.

She will continue to be followed by myself for the next 6 months or so.

I would thus opine that her recent / current psychiatric condition is congruent with a reinstatement of driving privilege (through your standard process) at this time.

On July 4, 2016 following review of the above report, the Registrar informed the Appellant that a longer period of stability is required to ensure that her condition has been adequately controlled.

She was requested to take the letter to her physician and have the following information forwarded to the Medical Review Section:

• Confirmation of a minimum six month period of mental and emotional stability
• Confirmation of compliance with treatment and/or insight into her condition.

Mr. Biel cited the relevant Guideline 14.6.1 by the Canadian Council of Motor Transport Administrators, (CCMTA) for Psychiatric disorder – All drivers.

This Standard states that the 6 months requirement has been dropped in the current edition.

The standard provides that all drivers are eligible if:

• The condition is stable

• The driver has sufficient insight to stop driving if condition becomes acute

• The functional abilities necessary for driving are not impaired

• A treating physician supports a return to driving, for drivers who have stopped driving due to a psychiatric disorder, and

• The conditions for maintaining a licence are met.

The conditions for maintaining a licence are:

• Stop driving and report to the authority is hospitalized due to a psychiatric disorder

• Remain under regular medical supervision and comply with prescribed psychotropic medication regime or other recommended

Evidence by the Appellant

The Appellant informed the Tribunal she does not know how she was taken to the mental health facility in December 2015. She suggested that she was probably taken there by police under the Mental Health Act. She was not in restraints.

She was not able to confirm if she was admitted on a Form 3 under the Mental Health Act and does not remember the name of an advocate. She remembers being interviewed by a doctor. She was discharged with medical permission in January 2016 in care of her boyfriend.

Under cross-examination, the Appellant stated that she was brought up as a “wild child” and that she had been admitted to the mental health facility two months prior to the December 2015 admission. She stated that she had a poor relationship with her neighbours, but has been getting along better with them recently.

She acknowledged that her memory is poor. She has a degree in social sciences and anthropology.

She stated that she has been on anti-psychotic medication, Valproic Acid for Bipolar Disorder for two years and she admitted that her admissions to the mental health facility have been as a result of stopping that medication without medical advice. She is required to have regular drug level monitoring. Her last test was two weeks ago. She stated that she last stopped her medication six months ago prior to her admission. Her medication was adjusted by her psychiatrist in March 2016.

She is seen every one or two weeks by her case manager and is seeing her family physician and her psychiatrist, Dr. B. regularly on an ‘as needed basis’.

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, 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

Mr. Biel stated that the Registrar relies on the following:

1. The unsolicited Medical Condition Report of a psychiatric condition with note of erratic driving and drug misuse by a psychiatrist, in compliance with section 203 of the Act, authorized the suspension of driving privilege.

2. Ontario Regulation 340/94 section 14(a) states that a driver must not 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

3. CMTA Guideline 14.6.1 requires that the treating physician supports a return to driving and that the conditions for maintaining a licence require that the driver remain under medical supervision and complies with the prescribed psychotropic medication. Testimony by the Appellant shows that she has stopped her medication several times with subsequent relapses of her psychosis.

4. Her medication was adjusted by her psychiatrist in March 2016 and she sees her psychiatrist, Dr. B. on ‘as needed’ basis.

5. The Appellant is a poor historian and does not remember when she was last seen by her psychiatrist.

6. Confirmation of stability of her condition for a period of six months is reasonable and is requested.

The Appellant submits that her condition has been stable since January 2016 and that her medication has been monitored and was last adjusted in March.

Her boyfriend ensures that she takes her medication and she also sees her family physician and her psychiatrist regularly and follows the drug monitoring routine.

She feels that her family physician, Dr. A.S. has less insight into her condition than her psychiatrist Dr. B.

There has been no unusual change in her behaviour for six months, and her incentive to return to her regular work is helping to keep her from relapse.

After considering the evidence and submissions of the parties, the Tribunal finds as follows:

1. The Registrar was justified in issuing a suspension of driving privilege under section 47(1) of the Act upon receipt of a medical report of an unstable psychiatric condition with erratic driving and drug misuse made in compliance with section 203.

2. The Mental Health Assessment completed in March 2016, shows that the condition of Bipolar Disorder was stable at that time for less than three months, that the Appellant was responding well and adhering to the treatment regimen and that she was under monthly medical supervision.

3. The Substance Abuse Assessment by Dr. A.S. in March 2016 shows that the Appellant used marijuana on an occasional basis. There was no evidence suggesting use of crystal meth, and no evidence of erratic driving by the Appellant.

4. The family physician, Dr. A.S., on May 3, 2016 states that the Appellant’s condition at that time was not stable for a period of three months. This letter followed the letter by the Registrar on April 19, 2016 requesting confirmation of stability for a period of three months, later corrected to six months.

5. On June 29, 2016 her psychiatrist, Dr. B. states that the Appellant is:

“maintaining a level of clinical improvement/stability particularly in the last 3-4 months with improved recognition and ability to address many of her clinical risk factors related to potential decompensation”. Also, that she will continue to be followed by him for the next six months or so.

Dr. B. also stated that:

“her recent /current psychiatric condition is congruent with a reinstatement of driving privilege at this time”.

The Tribunal finds that there is every likelihood that the Appellant’s pattern of relapses following discontinuation of her anti-psychotic medication, without medical supervision, is known to her psychiatrist and also to her family physician. The report by her psychiatrist, Dr. B. indicates that she is now compliant and adhering to the treatment regimen and has been sufficiently stable for almost six months.

The Tribunal finds that the Appellant meets the CCMTA Guideline 14.6.1.

The Tribunal finds that there is no evidence that the Appellant is addicted to the use of a drug to an extent likely to significantly interfere with her ability to drive a motor vehicle safely.

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 application by the Appellant to appeal the decision effective January 14, 2016 of the Registrar to suspend her 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: July 14, 2016