Licence Appeal Tribunal
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
FILE: 10159/MED
CASE NAME: 10159 v. Registrar of Motor Vehicles
10159 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 Biel, Agent
Heard by teleconference: May 11, 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”).
PRELIMINARY MATTER
The Appellant drew attention to the Medical Condition Report that was completed by Dr. S. on March 16, 2016 based on examination on January 16, 2016, a date on which he did not attend at the physician’s office.
The Tribunal ruled that this was a typographical error.
OVERVIEW
In his Reasons for Appeal, the Appellant, a retired police officer, stated that he attended a Ministry of Transportation (MTO) location for Senior Drivers on January 25, 2016 for the purpose of renewing his driver’s licence, required every two years after age 80. He had a vision test and tests for cognitive function and was issued a document that entitled him to renew his driver’s licence for two years.
On March 16, 2016, he attended the office of his family physician, Dr. S. for a blood pressure check and mentioned that he had renewed his driver’s licence following the above tests for the MTO. Dr. S. then asked him to have a vision test which was normal and a memory test on which he scored 19/30. This test was not administered by Dr. S. but by an unnamed assistant in the doctor’s office.
Dr. S. then informed the Appellant that he was not qualified to drive pending a CT scan of the brain and a referral to a neurologist, which he declined. Dr. S. then sent a Medical Condition Report to the Ministry pursuant to section 203 of the Act, whereupon his licence to drive was suspended.
The Tribunal finds that the Appellant passed the standard Ministry of Transportation test for his age which was administered by a trained employee of the Ministry. The test was administered in the physician’s office by an unnamed assistant whose qualifications are unknown, two months later, cannot be relied on without corroboration.
The Tribunal therefore sets aside the suspension.
FACTS
The Registrar received an unsolicited Medical Condition Report completed by Dr. S. a family physician, on March 17, 2016.
The condition reported was:
Dementia or Alzheimer’s Disease.
(The Appellant), in my opinion, is showing signs of early dementia with respect to his memory of conversations/events about his medical condition/recommendations. He scored 19/30 on MOCA testing today with very poor short term memory testing. Due to these signs, I advised (the Appellant) that I wanted to have his memory further explored at this time with reference to a neurologist and CT of his head. I further advised that due to signs of possible mild dementia, I asked him to refrain from driving until we had more information available to us. I advised that I would be reporting my concerns to the MTO. At this time, (the Appellant) declined referral and CT imaging as I suggested as a plan and has left my office.
The Registrar informed the Appellant on March 17, 2016 that following a report of cognitive impairment, it had been decided to suspend his driving privilege under section 47(1) of the Act.
In order to be considered for reinstatement, he was requested to take the letter of suspension to his physician, specialist or nurse practitioner and have a Cognitive Assessment Form completed.
The Cognitive Assessment Form was completed by Dr. S. on March 24, 2016.
In summary, this stated:
- Cognitive screening has been conducted.
- Primary condition is possible mild cognitive impairment or mild dementia and
- Possible moderate cognitive impairment or moderate dementia.
- CMA(Canadian Medical Association)-Determining medical fitness to operate a motor vehicle, 7th edition defined as:
“The inability to independently perform two or more instrumental activities of daily living (including medication management, banking, shopping, telephone use, cooking), or any basic activity (eating, toileting, transferring). (Emphasis added)
- Patient’s condition is expected to be: unknown
- No medication has been prescribed
- Does the patient require an independent functional assessment: yes
- Has not been referred for an independent functional assessment
As previously outlined on MOCA tests (the Appellant) had a score of 19/30 which could indicate mild to moderate dementia. It was recommended that he have a CT head and neurological assessment to explore further.
On April 20, 2016, the Registrar informed the Appellant that the suspension should remain. He was informed that he should take the letter of suspension to his physician when the condition improves and for confirmation that there has been a significant improvement in his cognitive function. A functional assessment may be required.
Mr. Biel referred to the Canadian Council of Motor Transport Administrators, (CCMTA), Guideline 6.6.1.
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
- Conditions for maintaining a licence are met
- Reassessment annually or as required.
Information from health care providers
- Nature of 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 a licence.
Evidence by the Appellant
The Appellant described the process for Senior Driver screening which he attended on January 25, 2016. He was in a room with 20 other people and after vision tests, the Ministry official gave a short presentation on safe driving by seniors and distributed a paper that included a clock drawing test and a test for recognition of a specific letter of the alphabet in two lines of mixed letters. The process took about two hours.
After completion, those that passed were given a certificate to be presented to a licence office. He did so the following day and obtained a licence for two years.
He attended the office of Dr. S. on three occasions in March 2016, for blood pressure monitoring, laboratory tests and prescription renewals. He described the practice of Dr. S. as a teaching practice where he has been a patient for nine years. He described her as being very brisk and “of few words”. He also acknowledged that he has a short temper.
During one of these visits, he informed the doctor about the MTO tests for licence renewal. She told him that these tests can be performed at her office and she then arranged for a young assistant to administer the MOCA test. This included the clock drawing test and some memory tests. When she advised him of the low score, she asked him to have a CT brain scan and also requested a referral to a neurologist.
He refused to have a CT scan and a referral to a neurologist and left the office. He has not been to the office of Dr. S. since. He has been searching for a new family physician but so far has not been successful.
He advised the Tribunal that he is on a number of medications: Tecta for his stomach, arthritis medication, and Omega XL and Aspirin. He stated that he does not take a tranquiliser. He manages his medications himself. He had a hip replacement in the past and has never had a head injury. He does not know why Dr. S. arranged the MOCA test or how she arrived at the diagnosis of dementia other aside from the MOCA test that she did not conduct.
He stated that other than avoiding driving on the expressway due to heavy traffic, he had not restricted his driving prior to the suspension. He manages his own finances, home affairs and activities of daily living
He stated that he was a traffic officer with the police service for 30 years without any absenteeism or lateness. He lives alone and is a member of his condominium board, founding member of a community chess club, member of international federation of chess arbiters, and is a volunteer at a community lodge. He has a clean driving record and he believes he is a safe driver.
He advised the Tribunal that in February 2015, he had an episode of weakness in the physician’s office and was taken to a hospital where he was examined, including an MRI of his head. No abnormality was found.
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 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.
In submissions, Mr. Biel stated that the Registrar was justified in issuing a suspension under section 47(1)(g) of the Act upon receipt of a Medical Condition Report of cognitive impairment from a physician in compliance with section 203 of the Act.
The reporting physician stated the condition to be Dementia or Alzheimer’s Disease which she qualified as her opinion after a MOCA test at her office showed a score of 19/30 with very poor short term memory testing. She also stated the Appellant refused to have a CT scan and neurological consultation.
He submitted that there is no medical support for reinstatement and submitted that under Ontario Regulation 340/94 (14)(a) the Appellant suffers from a physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
He also stated that the CCMTA Guideline 6.6.1 for assessment of cognitive impairment applies, but at present the Registrar does not require a functional driving assessment.
In order to be considered for reinstatement, the Appellant is required to submit improvement in his condition by MOCA or equivalent score.
The Appellant submits that by passing the Ministry’s own test in January which showed no evidence of cognitive impairment, he does not require further testing to show that he is not a safety risk when driving. He stated that he would consider returning to Dr. S. in order to have the tests she recommended if this is required for reinstatement.
APPLICATION OF THE LAW TO FACTS
The Tribunal takes particular note of the fact that the Appellant successfully passed the Ministry’s test for Senior Drivers which enabled him to continue to drive for two months before the family physician conducted a MOCA test that resulted in a failing score and suspension of his driving privilege. The Ministry test contains two of the screening elements of the MOCA test, namely clock drawing and recognition of a specific letter of the alphabet from a jumbled list, with a lecture on safe driving by seniors and a vision test.
Recognizing that the MOCA test is a screening tool and not a diagnostic tool, and that there is no evidence that the physician performed a complete physical examination prior to submitting the result of the MOCA test, and did not provide details of the failed sections of the test, or of specific concerns that led to the MOCA test in her office, the Tribunal finds that there are insufficient grounds for a diagnosis of dementia. The Appellant appeared to have a normal MRI of his head in February 2015. The family physician may not have been aware of this or the medical reason for the MRI or if so, did not take it into consideration.
The Tribunal finds that the CMA definition of moderate dementia as quoted by the physician in the Cognitive Assessment does not apply to this case, as the Appellant lives an independent existence, is able to manage his own affairs and his medication, does his own shopping, cooking and contributes as a volunteer to his community. He had no difficulty logging into the Tribunal teleconference hearing and he conducted his own evidence and cross examination with no problem communicating. He recognized an important typographical error in the physician’s Medical Condition Report and drew it to the attention of the Tribunal.
If there is mild cognitive impairment it was not apparent to the Tribunal.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant does not suffer from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
Nevertheless, the Tribunal finds that the Registrar has the option of requesting an annual reassessment of the Appellant as recommended in the CCMTA Guideline 6.6.1.
DECISION
Upon the application by the Appellant to appeal the decision effective March 27, 2016 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 set aside.
LICENCE APPEAL TRIBUNAL
KEVIN FLYNN, M.D., Member
Released: May 24, 2016