LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-04-10

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:

10686 Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Kevin Flynn M.D.

Appearances: For the Appellant: Self Represented For the Respondent: Sonia De Santis, Agent for the Respondent

Place and date(s) of hearing: By teleconference April 3, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1This is an appeal of the decision of the Registrar of Motor Vehicles (the “Registrar”) to suspend the Appellant’s driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). The Appellant has a Class AM licence with an air break endorsement, permitting him to drive commercial trucks. He first suffered from mental illness in 2016, when he was diagnosed with schizophrenia.

2The Registrar decided to suspend the Appellant’s driver’s licence after receiving a report from a physician dated November 30, 2016 that the Appellant had an unstable mental or emotional illness and that the Appellant believed that people were harming him on the road, creating a potential for aggression. The physician’s report was submitted to the HTA in compliance with section 203 of the HTA, which requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive.

3The Appellant appeals the suspension of his driver’s licence on the basis that his condition has been stable since December 2016, he is now on the right medication, and he is unlikely to experience a relapse.

4For the reasons that follow, I conclude that the Appellant’s medical condition is not likely to significantly interfere with his ability to drive safely. Accordingly, I set aside the decision of the Registrar to suspend the Appellant’s licence.

B. ISSUES:

5The issue in this appeal is whether the Appellant suffers from a medical condition or disability likely to significantly interfere with his ability to drive a motor vehicle safely. It is not in dispute that the Appellant suffers from schizophrenia. The issue to be determined is whether that condition is likely to significantly interfere with his ability to drive safely.

C. EVIDENCE:

Evidence of the Registrar

6The Registrar received a Medical Condition Report dated November 30, 2016 from a physician, Dr. A, who saw the Appellant in the emergency room. The reported condition was “Mental or Emotional Illness-Unstable”. Dr. A included the following additional comment on the form:

He believes that people are harming him on the road, high beaming him, cutting him off. Potential for aggression.

7Upon receiving the Medical Condition Report, the Registrar notified the Appellant on December 1, 2016 of its decision to suspend his driver’s licence under section 47(1) of the HTA. The letter enclosed a blank Mental Health Assessment Form and stated that in order to have his licence reinstated, the Appellant should have the form completed in full by his treating physician, specialist or nurse practitioner.

8The Appellant had the Mental Health Assessment completed by a psychiatrist, Dr. K, on February 2, 2017. Dr. K had been involved in the ongoing management of the Appellant since December 2016. Dr. K indicated the following information on the Mental Health Assessment by checking the applicable boxes:

• The Appellant’s primary mental illness is “Schizophrenia or other Psychotic Disorder”;
• The onset of the most recent illness episode was between 3 and 6 months ago;
• The Appellant’s condition is stable, and this has been the case for less than three months;
• The Appellant has no current symptoms;
• The Appellant has no difficulties with judgment;
• The Appellant has been admitted to hospital 2 or more times in the last 12 months due to his psychiatric illness;
• The Appellant has been prescribed medication for his condition and is adhering to his recommended treatment regimen;
• The Appellant is under monthly medical supervision;
• The Appellant has appropriate insight and sufficient understanding of his medical condition and the impact on his functional ability to drive; and
• The Appellant requires an independent functional assessment but he has not been referred for and completed the assessment.

9Dr. K also included the following additional comments on the form:

[The Appellant] has recently started with Assertive Community Treatment Team (ACTT). Since Dec 16, 2016 his mother is his substitute decision maker. He is on long acting injection (LAI) to ensure compliance.

10No evidence was presented at the hearing with respect to why the Appellant’s mother became his substitute decision maker or whether this continues to be the case today.

11The Registrar notified the Appellant by letter dated February 10, 2017 that it had reviewed the Mental Health Assessment filed on his behalf and it has been determined that his driving privilege should remain under suspension. This letter stated the Registrar required confirmation of a six-month period of mental and emotional stability in order to have his licence reinstated. It further stated that once this report has been approved, the Appellant may be required to complete a functional assessment. A functional assessment includes an on-road evaluation and must be completed at an approved assessment centre.

Evidence of the Appellant

12The Appellant testified that he has never suffered from mental illness prior to 2016. Leading up to June of 2016, the Appellant was suffering from anxiety and depression following the loss of his job and his girlfriend. He stated that everything went downhill from there and his anxiety led to delusion and psychosis.

13The Appellant testified that his symptoms included delusions with respect to the behaviour of other drivers on the road, and specifically that drivers were blinding him with bright lights and cutting him off. He stated that this made him aggravated, but that he never “did anything stupid” as a result of this. However, because of these delusions, he went to the hospital and admitted himself. He testified on cross-examination that he did not pull over or stop driving when he had delusions on the road. Rather, he slowed down and did deep breathing in order to calm himself down.

14The Appellant stated that he had three hospital stays as a result of his psychiatric condition. The first commenced on June 13, 2016, the second in September 2016 and the third on November 29, 2016. Each time, the Appellant went to the hospital on his own initiative because he was having a hard time coping or his medication was not working. His mother drove him to the hospital at the Appellant’s request. Each stay lasted for approximately two weeks.

15The Appellant testified that when Dr. A sent in the Medical Condition Report on November 30, 2016, this was the first time that the Appellant had seen Dr. A. Dr. A subsequently became one of the psychiatrists who the Appellant sees on a regular basis.

16Since the Appellant’s first hospital visit in June 2016, the Appellant tried various medications that did not work for him. It was only when he started taking Risperdal in December 2016 that, as the Appellant describes it, “everything started to come back to reality”. The Appellant has since started taking a monthly injection of Invega, rather than Risperdal, which is an oral medication. The Appellant visits his physician once a month for his injection and does not need to worry about his medication for the rest of the month.

17The Appellant stated that everything has been fine since he left the hospital in December 2016. He has since been seeing two psychiatrists – Dr. K and Dr. A – who are part of a program called the Assertive Community Treatment Team (“ACTT”). The Appellant visits either Dr. K or Dr. A on a monthly basis for a counselling appointment and his injection of Invega.

18After he left the hospital in December 2016, a social worker who is part of the ACCT team came to his house every day in order to touch base and make sure that he is stable. Approximately one month ago, these daily visits were reduced to once a week.

19The Appellant testified that he is now doing volunteer work and working out on a regular basis. He has also recently secured full-time employment.

20On cross-examination, the Appellant was asked about his discussion with Dr. K regarding the requirement for a functional assessment, as Dr. K marked on the Mental Health Assessment that the Appellant requires an independent functional assessment but did not refer him for one. The Appellant stated that he will complete a functional assessment if he is referred for one.

D. LAW:

21The 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) are not applicable to this appeal as they 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).”

22One 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 addiction 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;

23Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers when determining whether the requirements of 14(1) are met. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

24Under 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.

25The Registrar has the burden to establish the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

E. Submissions:

Registrar’s Submissions

26The Registrar submits that the suspension should be confirmed, and that a six-month period of stability should be required before the Appellant’s licence is reinstated. The Registrar indicated that a functional driving assessment may be required once the Appellant has achieved six months of stability. The Registrar accepted that the Appellant’s condition has been stable since he left the hospital in December 2016.

27The Registrar relies on section 14.6.1 of the CCMTA Medical Standards for Drivers, which states that all drivers with a psychiatric disorder are eligible for a licence 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.

28The Registrar submits that a six-month period of stability is appropriate, considering the fact that the Appellant has had three two-week hospital admissions since June 2016. Further, the Registrar is concerned that the symptoms of the Appellant’s condition related to his driving and the safety of other road users.

Appellant’s Submissions

29The Appellant’s mother made the Appellant’s closing submissions on his behalf. She argued that the Appellant required three hospital visits because he did not get on the right medication after the first two visits. He was ambitious enough to go to the hospital and make sure that his mental health was looked after. She submits that the Medical Condition Report was completed too hastily, as the Appellant’s medication started to work soon after that report was completed.

30The Appellant’s mother notes that the Appellant experienced a mental health issue for the first time in his life and that the Appellant’s doctor says that he is unlikely to have another similar incident if he continues to take his medication. She also notes that Dr. K reported that the Appellant’s condition is stable.

31She submits that the Appellant is a success. He has found a full-time job. However, in order to get him to his job, she would need to drive him for 2 hours to the job site. She emphasizes how important it is for him to get his licence back. She states that she has a background in psychology and can give her professional opinion that he is stable. In reaching my decision, I have placed no weight on the professional opinion provided by the Appellant’s mother.

F. ANALYSIS:

32The Registrar has not established that the Appellant has a medical condition likely to significantly interfere with his ability to drive safely. While it is not in dispute that the Appellant suffers from schizophrenia, I am not satisfied that the Appellant’s condition is likely to significantly interfere with his ability to drive a vehicle of the applicable class safely.

33The evidence establishes that the Appellant has experienced symptoms in the past that interfered with his ability to drive safely. The Appellant has experienced delusions while on the road with respect to the conduct of other drivers. I accept the opinion of Dr. A that this has the potential to cause aggression. The Appellant testified that he did not pull off the road when he experienced such delusions but rather slowed down and attempted to use breathing techniques to calm down. I find that the Appellant did not show sufficient insight into his condition at the time he was experiencing delusions, and that his ability to drive safely was impaired.

34However, I accept the Appellant’s evidence that since he started a new medication in December 2016, he does not experience any of the delusional symptoms that he experienced earlier in 2016. The Appellant’s testimony is confirmed by the Mental Health Assessment form completed by Dr. K in February 2016, which states that the Appellant’s condition is stable and that he currently has no symptoms. According to Dr. K’s report, the Appellant is adherent to the recommended treatment regimen, and that he receives a monthly Long Acting Injection in order to ensure compliance. The Appellant receives weekly home visits from a social worker in the ACTT team and visits a psychiatrist once a month. I am confident based on this evidence that the Appellant will continue to take his medication as prescribed.

35With respect to the Registrar’s submission that a six-month period of stability is required in light of the Appellant’s three hospital visits in 2016, I accept the evidence of the Appellant that the three hospital visits were necessary because an effective medication was not prescribed until the third visit. The Appellant has been stable and symptom-free for approximately four months. In the circumstances, I find that this to be sufficient.

36Although Dr. K. in his Mental Health Assessment stated that the Appellant required a Functional Road Assessment, there is no evidence of why a Functional Road Assessment would be appropriate in this case. Dr. K indicated that the Appellant currently has no symptoms, has no difficulty with judgment and has the appropriate insight and sufficient understanding of his medical condition and the impacts on his functional ability to drive. Accordingly, I place little weight on the fact that the Appellant has not completed a Functional Road Assessment.

37Upon consideration of all the evidence heard by the Tribunal, the Registrar has not established that the Appellant has a medical condition likely to significantly interfere with his ability to drive safely.

ORDER:

38For 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 set aside.