10607 v. Registrar of Motor Vehicles, 2017 CanLII 22552

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2017-03-01

10607/MED

10607 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

-and-

Registrar of Motor Vehicles

Respondent

Katherine Whitehead, M.D., Member

For the Appellant:

Self-represented

For the Respondent:

Kyle Biel, Agent

Heard by teleconference:

February 15, 2017

DECISION

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” or “Ministry”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). For the reasons provided below, the Tribunal is confirming the decision of the Registrar.

FACTS

On December 24, 2016, Dr. H., an emergency room physician filled a Medical Condition Report stating that the Appellant had “Alcohol Dependence” and “Mental or Emotional Illness – Unstable”. In the comment section, Dr. H. wrote that the Appellant had been depressed for one and a half years and that she consumed one litre of wine per day for 3 years. The rest of the comments in that section were illegible.

On December 28, 2016, the Ministry sent the Appellant a letter stating that her licence would be suspended for reasons of “Alcohol dependence” and “Psychiatric Condition”. The Ministry requested more information from the Appellant’s medical practitioner including the completion of a Substance Use Assessment Form and a Mental Health Assessment Form. The suspension was effective January 7, 2017.

The Ministry informed the Appellant that if alcohol dependence was confirmed, a period of abstinence for 12 months would be required before a reinstatement of her licence, and that this period could be reduced if she completed a treatment program and if her physician was supportive of her driving privilege being reinstated.

On February 4, 2017, Dr. R., the Appellant’s family physician of 19 years filled the Substance Use Assessment and Mental Health Assessment Forms.

The Substance Use Assessment Form contained the following information:

The diagnoses were Alcohol Dependence, Alcohol Misuse, and Drug Misuse.
The Appellant had not abstained from alcohol.
The Appellant was not dependant on prescription medication.
The Appellant had not completed a formal addictions program.
On question 9 (a question about drug misuse), Dr. R. wrote, “Took overdose of prescription medication – once only on Dec. 24/16 – went to Emerg Dept {illegible} report sent”.
The GGT and ALT (liver enzyme tests which are sometimes elevated in alcoholic liver disease) were elevated and possible reasons were checked as “alcohol use” and “Diseases Affecting the Liver” (after this box Dr. R. hand wrote “has fatty liver”).
There was an abnormal physical finding of “Obesity”. In the additional comments section, Dr. R. wrote “Pt has been overweight significantly past 7-8 yrs.”.
The Appellant had been prescribed medication and was adherent to her treatment plan.

The Mental Health Assessment Form contained the following information:

The diagnoses were Depression/Dysthymia, Anxiety Disorder, Situational Stress/Crisis and Severe Grief Reaction.
The status of the condition was “deteriorating”.
Dr. R. wrote: “Maximum low occurred Dec 24, 2016. Since early January has moderately improved.”
The current symptoms were “Anxiety Symptoms”, “Depressive Symptoms”, and “Suicide Attempt”.
There were no difficulties with cognition, attention, memory, or judgement.
The Appellant had experienced substance dependence, abuse, or misuse within the last 12 months.
The Appellant had been prescribed medication, adhered to the recommended treatment regimen, and the medication did not have side effects that would interfere with driving.
The Appellant is supervised monthly by her health care practitioner.
An independent functional driving assessment was not required.

In the comment section, Dr. R. wrote:

“Patient has had a long history of general anxiety disorder with panic attacks. Has been on prescriptions on and off for many years. With the [gives details of tragic life event] she developed severe grief reaction, depression, and re-exacerbation of anxiety. Had been referred to counselling [names place] due to work could not complete it. Did continue with grief counselling. Presently seeing a psychologist. ”

The Ministry reviewed these reports but the licence remained suspended.

On February 7, 2017, the Ministry sent a letter to the Appellant reiterating the previous requirements for licence reinstatement for alcohol dependence and additionally asked for recent lab results for liver function and also a supportive assessment which confirms a three month period of mental and emotional stability.

SUBMISSIONS OF THE PARTIES

The Appellant told the Tribunal that she had suffered a tragic life event and that she does suffer from grief, depression, and anxiety.

On December 24, 2016, many things had conspired (grief, increased business demands, and a fight with a family member) to make her sufficiently upset that she drank 3-4 glasses of wine and attempted to overdose on sleeping medication.

The Appellant told the Tribunal that she did not drive at this time but rather had gone for a walk and hoped to end her life.

The Appellant’s assessment is that this was a one time episode.

The Appellant does not consider herself to be alcohol dependant.

Prior to the December 24, 2016 episode, she described her usual alcohol intake as having wine with dinner 3 times a week and “maybe a couple of more glasses”. She stated that “that night was the extreme” (referring to December 24, 2016) and that she has only had a drink on 2 occasions since then.

The Appellant stated that she has had a fatty liver due to obesity for over 10 years.

The Appellant’s husband gave testimony at the hearing. He stated that he had mentioned the Appellant’s drinking to Dr. R. as he was concerned about her drinking and he “didn’t want it to get any worse”.

The Appellant’s husband said he does not consider her to be dependent on alcohol due to the fact that she is able to maintain her job and maintain her household, she never craves alcohol, and she has not escalated the amount that she drinks.

He said “she is a casual drinker and not even that right now.”

The Appellant said that she is now seeing a psychologist which she finds helpful.

The Respondent asked the Appellant if Dr. R. had asked her questions about her alcohol consumption when he filled the Substance Use Assessment Form. The Appellant confirmed that he had.

The Respondent asked the Appellant if Dr. R. had access to the emergency department records at the time of his assessment. The Appellant confirmed that he had.

The Appellant said that she thought the reason Dr. R. had assessed her mental health status as “deteriorating” was in reference to the events of December 24, 2016 and did not apply to her current state of mental health.

The Appellant’s emergency department records were not submitted at the hearing.

The Respondent referenced the CCMTA Medical Standards for Drivers 15.6.3:

Substance Abuse or Dependence – All drivers

“All drivers eligible for a licence if

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 recognized by the licensing authority and the successful completion of a drug rehabilitation program.”

The Respondent argued that the Appellant had been diagnosed by two physicians who had assessed her alcohol use and seen fit to report alcohol dependence to the Ministry.

The Respondent said that the concern of the Appellant’s husband (who had been compelled to mention the Appellant’s alcohol intake to Dr. R.), was supportive of a history of alcohol dependency.

The Respondent noted that the Appellant has not been abstinent from alcohol by her own admission and so does not meet the minimum standard for reinstatement.

The Respondent noted that a diagnosis of mental illness, especially that which was labelled severe and deteriorating by Dr. R., was also concerning both independently and in the context of alcohol addiction.

The Respondent asked that the decision of the Registrar be confirmed.

ISSUES

Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?

In particular:

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 (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 CCMTA Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met.

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.”

APPLICATION OF THE LAW TO FACTS

Alcoholism can interfere with a person’s ability to safely drive if it increases their probability of driving while impaired or causes other mental or physical changes that occur even when a person is not impaired.

Given the impairment in judgment and insight that can result from being addicted to alcohol or illicit substances, people who are addicted to these substances may also be impaired in their ability to decide when it is safe to drive.

Driving while impaired by alcohol causes deficits in consciousness, awareness, judgement and reflexes (among other things). This makes driving while impaired dangerous to drivers and the public.

The CCMTA Medical Standards for Drivers recommend that, before licence reinstatement, people who are found to be addicted to drugs or alcohol should demonstrate a period of abstinence of 12 months, or undergo a treatment program and obtain the support of their health care professionals to shorten the abstinence recommendation. The Tribunal is not bound by these Guidelines but may consider them.

The Tribunal finds that a diagnosis of alcohol addiction has been proven in this case, based on the diagnosis of Dr. R. (who asked the Appellant about her alcohol consumption when he met with her in person) and Dr. H. (who assessed the Appellant in the emergency room). The Tribunal relies on these assessments and gives them more weight than the Appellant’s self-report of alcohol use and the assessment of her spouse.

The fact that the Appellant’s spouse was concerned enough to discuss the Appellant’s alcohol use with Dr. R. also supports the diagnosis. There is no other medical information available to challenge the diagnosis made by Drs. R. and H. and as such, the Tribunal finds that, on the balance of probabilities, the Appellant is addicted to alcohol.

The Tribunal does not give weight to the liver function tests as there are multiple reasons they may be elevated.

The Tribunal finds that the circumstances of this case do not justify departing from the CCMTA guidelines regarding when a driver who is addicted to alcohol should have their licence reinstated. The Appellant has not been abstinent for at least 12 months; nor has she been abstinent for a shorter period of time after completing a treatment program and obtaining her doctor’s support for her driving privilege being reinstated.

For these reasons, the Tribunal finds that the Ministry has proven alcohol dependence which is likely to significantly interfere with the Appellant’s ability to drive safely. This alone would be sufficient to confirm the licence suspension.

The second issue is the Appellant’s psychiatric condition (“Anxiety Symptoms”, “Depressive Symptoms”, “Severe Grief Reaction” and “Suicide Attempt”).

Anxiety, depression, and grief reaction are common diagnoses and, if they are stable and controlled, can be consistent with safe driving.

When anxiety and depression are uncontrolled or severe, they can lead to impairments in planning and judgement that can be a barrier to safe driving.

The Tribunal notes that Dr. H. reported that there were no difficulties with cognition, attention, memory, or judgement on the Mental Health Assessment Form.

The Tribunal finds that this assessment does not apply to future risk of these deficits as the condition was noted to be deteriorating or at least was not confirmed to be stable (see below).

Dr. R.’s assessment was that the Appellant’s psychiatric condition is deteriorating. The Appellant questioned this assessment.

The Tribunal finds that there is enough evidence to support a continued risk even if that aspect or Dr. R.’s assessment is disregarded.

The recent suicide attempt supports impairment in judgement that could also impair safe driving.

After a significant event like a suicide attempt, it is reasonable to wait for a demonstrated period of stability and improvement in psychiatric symptoms before concluding that the psychiatric illness has stabilized.

In his report, Dr. R. describes the Appellant’s condition as “moderately improved”. The Tribunal finds this assessment to be guarded and falls short of saying that the condition has stabilized or resolved.

The Tribunal finds that on the balance of probabilities, the Appellant suffers from an unstable psychiatric illness.

The Tribunal finds that the Appellant suffers from two conditions (alcohol addiction and psychiatric illness) that are likely to significantly impair her ability to drive safely.

Either of those conditions in isolation is sufficient to meet the statutory test per section 14 (1)(a) of the Regulation.

DECISION

Upon the appeal of the Registrar’s decision effective January 7, 2017, to suspend the Appellant’s driver’s licence pursuant to section 47(1) of the Act, and having considered the evidence provided to 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

Katherine Whitehead, M.D., Member

Released: March 1, 2017