Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act
Between:
P.C.
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Kevin Flynn M.D., Member
Luisa Ritacca, Member
Appearances:
For the Appellant: P.C., Self-represented
For the Respondent: Sanjay Kapur, Agent
Place and dates of hearing: By teleconference
October 4, 2017
November 15, 2017
REASONS FOR DECISION AND ORDER:
A. OVERVIEW
1This is an appeal from a decision of the Registrar for Motor Vehicles to suspend the appellant’s licence to drive, effective September 18, 2015. The appellant is a 68-year-old female. The Registrar made this decision following the receipt of a medical condition report of alcohol dependence and withdrawal seizure.
2Section 203 of the Highway Traffic Act, (the Act) requires every qualified medical practitioner in Ontario to notify the Registrar of the name, address and medical condition of every patient age sixteen or over attending upon the medical practitioner for medical services who, in the opinion of the medical practitioner, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle.
3As stated above, the condition reported to the Registrar was alcohol dependence and suspected alcohol withdrawal seizures. The report also noted that the appellant had previous intracerebral hemorrhage.
4The appellant filed her Notice of Appeal on August 10, 2017. In her reasons for the appeal she stated that she suffered an intracranial hemorrhage in March 2015, believed to be due to a metastatic lesion which was treated by craniotomy. A primary source was identified as a squamous cell carcinoma in the left lower lobe of the lung. She was treated with Keppra, an anti-seizure medication and amlodipine for hypertension.
5When she collapsed with a grand mal seizure in September 2015 her liver enzymes were elevated. The emergency room (E.R.) physician attributed this event to alcohol withdrawal.
6For reasons that follow, we find that on the evidence available, the appellant suffers from addiction to alcohol to an extent likely to significantly affect her ability to operate a motor vehicle safely.
Issues to be determined are as follows:
(a) Does the appellant suffer from addiction to alcohol?
(b) If so, is she addicted to the use of alcohol to an extent likely to significantly interfere with her ability to drive a motor vehicle safely?
(c) Does she suffer from any mental, emotional, nervous or physical condition likely to significantly interfere with her ability to drive a motor vehicle safely?
7The appellant submitted a letter from her neurologist, Dr. R., to her family physician, Dr. K., dated December 8, 2015. The letter indicated that the appellant was doing well on Keppra and that she could be allowed to drive. The neurologist did not refer to the issue of alcohol use. The Panel applies less weight to this statement than the abnormal laboratory test results provided in evidence.
8Mr. Kapur, for the Registrar, informed the Panel that seizure was no longer an issue.
B. EVIDENCE
9Mr. Kapur took the Panel through the appellant’s medical records in the Registrar’s possession. The appellant was admitted to hospital QCH on September 4, 2015 and discharged on September 9, 2015. The discharge diagnoses were: Seizures –thought to be alcoholic withdrawal seizures and Alcoholism.
10The attending physician noted that the appellant was brought to the E.R. after bystanders witnessed her seizure outside a liquor store and that a second seizure occurred after paramedics arrived. She recovered after a day or two. She denied recent alcohol use. Her daughter, who was not a witness at the hearing, informed the physician that her mother drank one or two glasses of wine daily as well as gin and tonics. According to the medical records, the daughter also informed the doctor that her mother had alcohol withdrawal symptoms post-operatively after the craniotomy in March 2015.
11The doctor also noted evidence of acetaminophen overuse which was treated in hospital. She was seen by a neurologist, Dr. R., who initiated anti-seizure medication, Keppra, in light of her recent craniotomy.
12Prior to her suspension, she was seen at a hospital, TOH, on May 14, 2015 for a lung infection. The attending physician’s notes indicate a recent history of alcohol intoxication, with ‘frequent episodes of binge drinking’.
13The appellant was admitted on a voluntary basis to the psychiatry unit at hospital TOH on November 18, 2015 and was discharged on November 24, 2015. It was reported that the appellant’s admission was due to suicidal thoughts and preoccupation with concerns over her driver’s licence.
14The records indicate that the appellant responded well to treatment. She was diagnosed with chronic depression, mild cognitive impairment, and possible alcohol use disorder. She was advised to reduce or stop her intake of alcohol and she was aware of addiction services in the community.
15During her stay at TOH, the appellant received a neuropsychological assessment by Dr. M. The report stated that while the appellant stated that she drinks two glasses of wine daily, her daughter suspects she is drinking ‘much more than this’. Also, while she reported having quit smoking, the daughter reported continuous smoking.
16Also during her stay at TOH, the appellant met with Dr. S., a psychiatrist, who also met with the appellant’s daughter. Dr. S. diagnosed the appellant as having, ‘major depressive disorder with anxious features and Alcohol Use Disorder’.
17On May 3, 2016, the appellant was assessed by Dr. C., the psychogeriatric specialist at TOH, at the request of Dr. S. She denied that she had a drinking problem as stated by her daughter, and also denied that she ever had abused or misused alcohol.
18The history of her past profession as an intensive care nurse, the sudden loss of her husband, living alone, the craniotomy, the seizures, the loss of her driver’s licence and depression were reviewed. Her main focus was the loss of driving privilege and familial tension.
19Dr. K., the family physician, completed a substance use assessment on April 4, 2016 in which he stated that the appellant’s alcohol use was within the low risk guideline according to the Alcohol Use Glossary provided with the assessment form. He also indicated that her MCV and GGT were elevated in September 2015. He stated that since he does not have a long term relationship with the appellant, he does “not know precisely how she is doing with use of alcohol”. Dr. K. also completed a cognitive assessment requested by the Ministry on August 31, 2016. He stated that ‘if she is to drive again she needs a road test’.
20On May 26, 2016, Dr. K., in a message to his patient, the appellant, referred to the significant rise in her liver enzymes compared to September 2015. He informed her that with liver enzymes this high she should not be consuming any alcohol.
21Between September 2015 and May 2016, her liver enzymes were as follows (normal levels in brackets):
September 2015 November 2015 May 2016
ALK PHOS (35-122) 146 234
GGT (<36) 205 309 876
ALT (<36) 21 74
22On July 21, 2016, the appellant’s biochemical markers were reported as follows (GGT levels are bolded for ease of comparison):
MCV (80-99) 102
ALK PHOS (<36) 131
AST (<31) 34
GGT (<36) 327
ALT (<36) 29
23Further biochemical markers reported in 2016 as follows (normal levels in brackets):
August 31, 2016 October 11, 2016
AST (<31) 31 41
ALT (<36) 22 26
GGT (<36) 253 284
24Biochemical markers for alcohol use are recognised measurable means of indicating the effects of alcohol use on liver function. Of these, the most significant is GGT and a rise or fall in this test is evidence of the level of alcohol use, unless there is clinical explanation for results outside the laboratory values. GGT (Gamma-glutamyl transferase) is used to screen patients for suspected liver damage or suspected alcohol abuse. An elevated result does not determine the cause.
25A cognitive assessment performed at hospital TOH on January 12, 2017 showed that the appellant had a Montreal Cognitive Assessment (“MoCA”) score of 29/30. MoCA is a tool used for cognitive assessment; a score of 26/30 or above is normal.
26Mr. Kapur reviewed the various correspondence delivered to the appellant from September 2015 to August 2017. In the respondent’s various letters, the appellant was advised that the Ministry required results of recent biochemical markers, with a clinical explanation for any levels outside of the normal laboratory range.
27The appellant confirmed to the Panel that she had received the respondent’s correspondence, but that she did not intend to provide any further test results. The appellant explained that in her view she had already provided the Ministry and this Panel with sufficient information to show that she did not suffer from alcohol dependence.
28The appellant testified that while she did drink more following the untimely death of her husband, she was no longer drinking excessively, and that as such she should be provided with her driver’s licence.
29Further, the appellant testified that she was or is currently on several different medications, which she believed caused the increased levels in her test results back in 2016.
30The appellant did not present the panel with any evidence to confirm her belief about her medications or any clinical evidence as to updated test results.
C. LAW
31The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) relate to misconduct, convictions and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f)”.
32One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or disability likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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;
33According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the CCMTA Medical Standards for Drivers, which are published by the Canadian Council of Motor Transport Administrators. Similarly, this Panel may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.
34Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.
35The Registrar has the burden to establish the ground for suspending the licence on a balance of probabilities.
36Pursuant to section 50(2) of the HTA, following a hearing, this Panel may confirm, modify or set aside the decision or order of the Registrar.
D. ANALYSIS
Does the appellant suffer from addiction to alcohol?
37The Panel has carefully considered the evidence and submissions of the parties and the documentary record. The Panel has also carefully considered the following CCMTA Guideline:
CCMTA Guideline 15.6.3 applies to all drivers under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines etc.:
The STANDARD is that all drivers are eligible for a licence if
Meets the criteria for a remission and/has abstained from the substance for 12 months.
Earlier relicensing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognised by the licensing authority, and the successful completion of a drug rehabilitation program.
The functional abilities necessary for driving are not impaired.
Where required, a road test or other functional assessment shows that the functional abilities for driving are not impaired.
38The Panel has significant evidence of persistently elevated levels of biochemical markers for alcoholism in the appellant’s test results. This is particularly true of her GGT test results. The appellant has failed to and in fact refuses to provide the respondent or this Panel with updated tests after October 11, 2016. In the circumstances, and in the absence of any clinical explanation for the elevated GGT results, the Panel concludes that these results are indicative of addiction and/or dependence on alcohol. Further, in the absence of any updated test results, the Panel concludes that while not claiming to abstain from alcohol, the appellant has failed to establish that she has abstained from alcohol to an extent that would not affect her ability to operate a motor vehicle safely or for a period of twelve months, as set out in the CCMTA Guideline. A trend of reducing GGT results after October 2016 has not been submitted as evidence for a reduction of her use of alcohol.
39While the Panel is not bound by the CCMTA Guidelines, in the absence of evidence of significant reduction of use of alcohol by the appellant, we agree with the Registrar’s position that the requirements as set out in Guideline 15.6.3 should apply in this case.
40Chapter 6 of the CCMTA Guidelines, page 201 states:
Alcohol is a depressant drug that has both sedative and disinhibitory effects. It also impairs a driver’s judgement, reflex control and behaviour towards others. People who are regular users of alcohol, withdrawal from alcohol may trigger seizures.
Alcohol can cause other health problems such as liver disease, cancer, heart disease, and diabetes or neurological complications.
41The appellant is fixated on the suspension of her licence. She believes she is entitled to the return of her licence given that more than 12 months have passed since the suspension. Unfortunately, she failed to provide any evidence to contradict the medical evidence presented by the Registrar that she is addicted to alcohol. She refused to provide updated test results, failed to provide an explanation for the elevated levels in the results that are before the Panel, and appeared unwilling to acknowledge any significant alcohol consumption at present. Dr. K., the family physician, in the Substance Use Assessment on April 4, 2016, stated, “I do not know precisely how she is doing with use of alcohol”. In his answer to question #1 of the same document, he stated that his diagnosis is, “Alcohol Use within low drinking guidelines”, and under question #5, he stated, “She is not an abstainer”. In part 4, he stated, ’It might be best to have a driver’s retest to be more certain that she can now resume driving”. We note that the appellant’s GGT on August 31, 2016 was 253 and on October 11, 2016 it was 284, suggesting increasing alcohol consumption over that period
42The Panel notes that during several of the appellant’s hospital admissions, the treating physicians note high levels of alcohol use, and in one instance, the appellant was diagnosed with alcohol withdrawal seizures. This is further evidence that the appellant has not abstained from use of alcohol for a period of twelve months. Progressive increase or decrease in the GGT results after October 11, 2016 would assist the Panel in determining the level of risk to public safety, especially if accompanied by clinical confirmation by her physician. Dr. K., family physician, reported to the Registrar on January 11, 2017 that he is no longer the attending physician. This increases the Panel’s concern for consistent monitoring of the appellant’s use of alcohol in order to determine if she is safe to return to driving.
43Also there was no evidence before the Panel that the appellant has completed a treatment program for her addiction or that she is motivated to do so. She did, however, indicate a willingness to undergo a functional road test, if required.
Is the appellant addicted to the use of alcohol to an extent likely to significantly interfere with her ability to drive a motor vehicle safely?
44The Panel finds that the Appellant is addicted to the use of alcohol to an extent that is likely to significantly impair her ability to operate a motor vehicle safely. On the evidence before the Panel, there is serious concern that the appellant’s alcohol use may impact her judgement and reflex control as a driver. This calls into question whether she can operate a motor vehicle safely.
45As described above, without updated test results or an explanation for the elevated alcohol markers in the results available, the Panel must conclude that the appellant is addicted to the use of alcohol and that such addiction is likely to result in behaviour which will impact her ability to drive safely.
46In reaching this conclusion, the Panel relied on the reports in evidence from a number of physicians practising in the area of psychology, psychiatry and geriatrics. Dr. M., her psychologist, who spoke to the Appellant’s daughter, noted that while the appellant stated that she drinks two glasses of wine daily, the daughter suspects that she is drinking much more than that. Dr. M., a psychiatrist, who also met with the daughter, diagnosed major depressive disease and alcohol use disorder. A psychogeriatric specialist, Dr. C., noted on May 5, 2016, that although she is “very perseverative on two topics, the fact that she wants her driver’s licence back, and denying that she had ever abused or misused alcohol”, there was no evidence of mental illness.
47The psychologist and the psychiatrist recommended that the appellant reduce or discontinue using alcohol altogether. Further, the persistently high level of the liver enzyme GGT in the test results in evidence suggests a greater use of alcohol than that claimed by the appellant. The appellant has not produced up-to-date biochemical results that would support her claim that she is not abusing alcohol. The daughter has been interviewed by the psychiatrist and reported that her mother drinks more than she admitted.
Does the appellant suffer from any mental, emotional, nervous or physical condition likely to significantly interfere with her ability to drive a motor vehicle safely?
48The appellant has clearly been adversely affected by a number of stressors in her life. Her husband died unexpectedly and suddenly over ten years ago. This left her living alone and away from her children. Shortly after her own retirement, she had to deal with a life-threatening brain surgery, which resulted in a post-operative hemorrhage. The loss of her licence appears to have compounded these various stressors for the appellant. She feels, as a result, she has lost a significant amount of freedom and independence.
49The appellant scored 29/30 in a MoCA test that was conducted by Dr. B. in a memory clinic 12 months after her seizures, at the request of Dr. K., the family physician. The clinic reported that no evidence of functional impairment was found and that ‘cognitive function is not a concern for driving’.
50We find that the appellant does not suffer from cognitive impairment or mental illness alone to an extent that would likely impair her ability to operate a motor vehicle safely. The evidence clearly demonstrates that the loss of her driving privilege has made a significant impact on her sense of well-being and on her health in general, both physical and mental, and her goal of reinstatement can be enhanced by rehabilitation.
51The Panel finds that on the evidence before us, there is serious concern that her alcohol use may impact her judgement and reflex control as a driver. The appellant’s testimony lacks credibility when her estimation of the alcohol quantity consumed is not consistent with the daughter’s estimation as given by her to the hospital specialists, or with the progressively increasing biochemical marker, GGT up to October 11, 2016.
E. CONCLUSION
52For the reasons set out above, the Panel finds that on a balance of probabilities, the appellant is addicted to alcohol to an extent that impairs her ability to operate a motor vehicle safely.
ORDER
53For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Luisa Ritacca, Member
RELEASED: December 14, 2017