Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-05-16
FILE:
10155/MED
CASE NAME:
10155 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:
Sonia De Santis Agent
Heard by teleconference:
May 4, 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”).
OVERVIEW
The Appellant had a seizure in February 2015, two days after she consumed a large quantity of alcohol combined with simultaneous discontinuation of her prescription drug, temazepam, without medical advice.
Three medical reports by physicians diagnosed a seizure related to alcohol dependence. The medical evidence also supported a finding of addiction to temazepam. The Appellant has not completed any rehabilitation program. Although she has apparently been seizure-free for over one year, the combination of her alcohol dependence with her addiction to temazepam, which the Appellant has relied upon to treat her depression and anxiety, supports a finding that she continues to be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with her ability to drive a motor vehicle safely.
FACTS
Evidence by the Respondent
The Appellant’s first seizure occurred on June 26, 1997, with no known cause, and was reported by a physician in compliance with the Highway Traffic Act, (the Act) on July 4, 1997. This resulted in suspension of her driving privilege under section 47(1) of the Act due to seizure, together with a diagnosis of depression.
The Appellant had a thorough neurological assessment, and psychiatric assessment and a report by her family physician in December 1999 that confirmed that she remained seizure-free since June 1997, and also recovered from her depression. Her licence was reinstated on January 20, 2000.
On February 2, 2015, a Medical Condition Report was completed by an Emergency Room physician, Dr. S., in compliance with section 203 of the Act. The condition(s) reported were:
Seizure(s) – cerebral
Seizure(s) – Alcohol related ??
On February 19, 2015, the Registrar informed the Appellant that her driving licence was suspended under section 47(1) of the Act. She was requested to take the letter of suspension to her physician, specialist or nurse practitioner for completion of an Epilepsy and Seizure Assessment.
The letter indicated that if the physician confirms a diagnosis of alcohol dependence and/or an alcohol withdrawal/related seizure, the Ministry will require confirmation that she has remained seizure-free and alcohol-free for a period of one year. This period may be reduced to six months if her physician confirms that she has successfully completed an alcohol treatment program and is supportive of reinstatement. The Tribunal notes that these requirements from the Ministry follow the guidelines of the Canadian Council of Motor Transport Administrators (CCMTA).
The Ministry received a related Medical Condition Report from a neurologist, Dr. M., completed on February 13, 2015. The condition reported was
Seizure(s) – alcohol related
Told not to drive
An Epilepsy and Seizure Assessment was completed on March 4, 2015 by Dr. Z., the Appellant’s family physician since 1992.
The Assessment is summarized as follows:
Primary medical condition: Seizure(s)- alcohol related, less that 3 months ago; generalised tonic-clonic or Grand Mal
Previous seizure 26 years ago, different than the current seizure.
No EEG in the past 12 months
Imaging test in the past 12 months was normal
Etiology of the seizure was Alcohol/Drug Withdrawal or Use
Has been referred for substance dependence: (not performed).
Has not abstained from drugs/alcohol
Has not successfully completed a supervised addictions treatment program, or attending counselling for addiction treatment, or relapse prevention program, e.g. AA.
Biochemical markers (MCV) on February 12, 2015=104.6 (normal 80-99)
Mental Health Assessment: Anxiety Disorder and Major depressive Disorder
Current condition: Mild and stable
No continuation of pseudoseizures
Anti-seizure medication not prescribed
Patient reports adherence to treatment regimen
The provoking factor has not stabilised, resolved or been corrected
Current medication may cause sedation or psychomotor slowing that may affect patient’s ability to safely operate a motor vehicle
A Substance Use Assessment was also completed by Dr. Z on March 4, 2015. This Assessment is summarized as follows:
Diagnosis: Alcohol dependence, and prescribed medication
Seizure as documented above
Physically dependent on prescription medication on prescribed dosage for at least six months.
Has not been reported for drug abuse, misuse or dependence
MCV elevated due to alcohol use
Medications prescribed: Librium prescribed by Neurologist; On Temazepam, Cymbalta, Mirtazepine, Synthroid.
Leeds Dependence Questionnaire:
Score 4. (5-9 = Mild)
Alcohol Use Disorder Identification Test (AUDIT)
Alcohol one or two drinks a day; Five or more less than once monthly;
Never not able to stop once started.
Never needed a first drink in the morning
Feeling of guilt or remorse after drinking less than monthly.
Sometimes drinks morning. afternoon and evening
Sometimes difficult to cope with life without alcohol
On May 13, 2015, the Registrar informed the Appellant that following review of the above reports it had been decided that her driving privilege should remain under suspension, due to the reported diagnoses of Alcohol Dependence, Anxiety Disorder and Major Depressive Disorder.
She was requested to submit a physician’s report that confirms that she has remained seizure-free and abstinent from alcohol for a period of one year, which may be reduced to six months if her physician confirms that she has successfully completed an alcohol treatment program and is supportive of reinstatement.
Results of recent biochemical markers (MCV, GGT, AST & ALT) are also required with an explanation for levels outside the normal range.
For Anxiety Disorder and Major Depressive Disorder, the Ministry indicated a requirement for a Mental Health Assessment. On February 10, 2016, her family physician, Dr. Z. completed this form.
In summary, this assessment stated:
Primary mental illness is Major Depressive Disorder, mild and stable for more than 12 months.
Current symptoms are Anxiety and Depression with no impairment of cognition, attention or memory and no difficulty with judgement
She is adherent to recommended treatment regimen of her condition under medical supervision
She has sufficient understanding of her condition and impact on her functional ability to drive
She is hard working and requires her licence for employment. She was admitted on February 12, 2015 for seizure, her second seizure in 26 years.
No seizure since then and not on anticonvulsants.
Etiology of seizure uncertain – neurology suspected alcohol withdrawal; Patient suspects temazepam withdrawal.
Has not consumed alcohol for over six months
Current medications: temazepam 15 mg at bedtime; mirtazepine 30 mg daily.
Evidence by the Appellant
The Appellant stated that the report by the neurologist was done in haste, and that he did not have her full history. She stated that she was asked to remain in the E.R. until the neurologist arrived but she left after a prolonged wait. She returned the following day for the last appointment of the day. She stated that the neurologist assumed that the seizure was due to alcohol withdrawal. She insisted that the seizure was due to temazepam withdrawal. She had been taking temazepam, which had been prescribed for over 15 years to address her chronic anxiety.
She decided on February 10, 2015 that she was going to holistic medicine and to stop the temazepam and other drugs. She stated that she consumed all the alcohol in the home, less than 26 ounces of liquor. She stated that her weekly consumption was 26 ounces a week.
On February 12, 2015, while in a store, she felt nausea and went outside to the parking lot to vomit, and she collapsed with a seizure. She was not incontinent and did not bite her tongue. She was taken to the E.R. by ambulance and was seen by a physician. She waited for hours to be seen by the neurologist and left without medical advice.
Under cross-examination, she stated that she did not consume illicit drugs. She had been on the prescribed anti-anxiety medications for 15-18 years, and on February 10, 2015, she decided that she would be healthier without the drugs. She did not discuss her decision with her physician, but following February 12, 2015 she discussed this with her physician who informed her that stopping temazepam suddenly could trigger a seizure. She restarted temazepam two days after the seizure and she slowly reduced her alcohol consumption. Her last drink was in September 2015, eight months after the seizure. She stated that she has only been once at an Alcoholics Anonymous meeting, in support of a friend.
SUBMISSIONS
Ms. De Santis, for the Respondent, submitted that the Registrar was authorized to issue a suspension of the Appellant’s driving privilege upon receipt of a Medical Condition Report of alcohol-related seizure from a physician on February 12, 2015, in compliance with section 203 of the Act.
The Substance Abuse Assessment by the Appellant’s physician stated a diagnosis of alcohol dependence and this diagnosis is supported by an elevated MCV above the normal range. The elevated blood test is a marker for alcoholism.
The Appellant discontinued the anti-anxiety medication, temazepam, suddenly two days before the reported seizure, and at the same time she consumed a large quantity of alcohol in a short space of time.
Following her admission to the Emergency Room, the Appellant left without medical advice before a neurological consultation. When seen next day, the neurologist diagnosed alcohol-related seizure.
The Appellant continued to consume alcohol until September 2015.
A Mental Health Assessment in February 2016 confirmed that the Appellant suffers from anxiety and depression, and is dependent on anti-anxiety medication for this condition.
The Canadian Council of Motor Transport Administrators (CCMTA) Guideline 15.6.3 is directed to All Drivers with Substance Abuse Dependence. The Appellant is eligible if:
She meets the criteria for remission and/or has abstained from the substance for 12 months.
Earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician
Successful completion of a drug rehabilitation program recognised by the licencing authority.
The Registrar requests confirmation of the suspension on the grounds of alcohol dependence, and chronic anxiety and depression, and withdrawal seizure. She has failed to submit medical confirmation of completion of a program for alcohol dependence and relapse prevention, and abstinence from alcohol and being seizure-free for a period of one year, along with a recommendation for reinstatement.
The Appellant submits that the seizure on February 12, 2015 was not due to alcohol withdrawal but to temazepam withdrawal. She submits that the neurologist who saw her on February 13, 2015 did not have her medical history and spent insufficient time with her in order to make a diagnosis of alcohol withdrawal seizure.
She submits that she has remained seizure-free in excess of 12 months, but acknowledges that she has not been abstinent from alcohol for 12 months. She stated that her consumption of one or two glasses of wine a day is common in her culture.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
Does the Appellant suffer from a 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
Is the Appellant addicted to the use of alcohol or a drug to an extent 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
The Tribunal finds that the Registrar was authorized to issue a suspension of the Appellant’s driving privilege under section 47(1)(g) of the Act upon receipt of a Medical Condition Report of seizure on February 12, 2015, in compliance with section 203 of the Act. The medical assessments submitted confirmed a diagnosis of alcohol dependence and chronic anxiety depression for which she had required medication for approximately 15 years. The Appellant made a conscious decision on February 10, 2015, not only to stop this medication but at the same time consumed a significant quantity of alcohol.
Temazepam belongs to the benzodiazepine group of sedatives. When combined with chronic ingestion of alcohol, the sudden cessation of these two substances increased the susceptibility of the Appellant to a seizure. This is especially likely following an episode of binge drinking which was admitted in testimony by the Appellant. The Appellant’s earlier seizure in 1997, with an unknown cause, also leads to concerns about the Appellant’s propensity for seizures.
In the Glossary of Substance Abuse Terms for the Purpose of Assessing Driver Fitness, contained in the disclosure prepared by the Respondent, Alcohol Withdrawal Seizure is defined as:
Occurs 12-72 hours after cessation of drinking or significantly reduced alcohol consumption. The seizure may be delayed until the 7th or 10th day of withdrawal.
Alcohol Dependence is defined as:
The repetitive inappropriate use of alcohol associated with loss of control, inability to abstain, a preoccupation to obtaining alcohol and withdrawal symptoms.
Drug dependence (addiction) is defined as:
The repetitive inappropriate use of any psychoactive substance associated with loss of control, inability to abstain, a pre-occupation to obtaining the substance and withdrawal symptoms.
The medical evidence in this appeal supports a finding by the Tribunal that the Appellant is addicted to the use of temazepam, prescribed for her chronic anxiety and depression, and also addicted to the use of alcohol. The Substance Use Assessment from the Appellant’s family physician, dated March 4, 2015, presents a diagnosis of alcohol dependence, as well as physical dependence on prescribed medication. The fact that the Appellant suffered a seizure upon stopping her temazepam without medical advice, and at the same time attempted to stop alcohol after binge drinking her remaining alcohol, is indicative of her addiction to each substance, and the impact that can have on her judgment or on triggering a possible seizure.
The Appellant has apparently not had another seizure in over a year. However, this is a not a case where the only concern is about the risk of another seizure. There are also the issues of the Appellant’s addiction to both alcohol and a prescription drug which, as noted in the Epilepsy and Seizure Assessment dated March 4, 2015, “may cause sedation or psychomotor slowing that may affect patient’s ability to safely operate a motor vehicle.”
That Mental Health Assessment notes that Dr. Z has no concerns about the Appellant’s anxiety or depression causing an impairment in her cognition, attention, memory or judgment in terms of her driving. After all, there is no presumption that persons with anxiety or depression are unsafe drivers. However, in the context of this case, the Appellant’s mental condition is related to her dependence on temazepam.
As for the Appellant’s dependence on alcohol, the concerns about this are partly addressed by Dr. Z’s Mental Health Assessment, dated February 10, 2016, that notes the Appellant has not consumed alcohol for over six months. But there is no evidence of the Appellant having completed any alcohol or drug rehabilitation program. The Tribunal finds that the Appellant is not motivated to complete a program of relapse prevention, which could have supported reinstating her licence without waiting for a full year of being alcohol-free, and nor has she submitted medical support for her reinstatement and return to safe operation of a motor vehicle.
And again, the concerns about the Appellant’s use of alcohol must be considered as part of the totality of other medical concerns that have been raised in this case – the risk of seizures, the dependence on a prescription medication that can affect driving, and the Appellant’s anxiety and depression that is being treated with that medication.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is addicted to the use of alcohol or a drug to an extent 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 March 1, 2015 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 confirmed.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: May 16, 2016