LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-05-18

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:

10645 Appellant

and

Registrar of Motor Vehicles Respondent

Panel: Katherine Whitehead, M.D., Member

Appearances:

For the Appellant: Self-Represented and G.S., Agent For the Respondent: Sonia De Santis

Place and date(s) of hearing:

In writing and by teleconference March 13, 2017 April 19, 2017

REASONS FOR DECISION AND ORDER

A. Overview

1The Appellant is an 81-year-old woman whose G class licence was suspended by the Registrar of Motor Vehicles (the “Registrar”) pursuant to s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, based on a medical report that raised concerns about her cognitive function. The Appellant appeals the suspension. She believes that the physician who reported her medical condition to the Registrar did not have the authority to do so since that doctor was not the Appellant’s regular physician. The Appellant also relies on the report of another physician who felt that it was not yet necessary to report her to the Registrar.

2For the reasons that follow, I am satisfied that the Appellant has a cognitive impairment which is likely to significantly interfere with her ability to drive safely. Accordingly, I confirm the suspension of her driver’s licence.

B. Preliminary issues

3This matter first came up for a hearing by teleconference on March 13, 2017 before a different member of the Tribunal. The Appellant’s spouse, G.C., attended the hearing as her representative, but the Appellant was not present. G.C. stated that the Appellant had the flu. The hearing was adjourned to April 19, 2017. The Tribunal ordered that G.C. not appear as the Appellant’s agent due to the “conduct displayed by G.C.” at the teleconference.

4The Appellant and G.C. subsequently requested that the member presiding over this matter recuse himself. The Appellant’s request was granted, and I was assigned to hear this matter. The Appellant also requested that the Respondent’s agent recuse herself. The Respondent’s agent declined to recuse herself and I see no reason why she should have.

5Further to the Tribunal’s order on March 13, 2017, the hearing recommenced by teleconference on April 19, 2017. Despite the Tribunal’s order that G.C. not appear as the Appellant’s representative in this appeal, G.C. attended the teleconference. Again, the Appellant herself was not in attendance. G.C. explained the Appellant broke her hearing aid and had a hard time hearing on the telephone and, thus, would not attend.

6G.C. frequently interrupted the hearing. He made numerous comments including a number of statements to me that I was in breach of my duties as a physician by conducting the hearing instead of looking after my patients. Due to this disruption, I was unable to complete my opening remarks at the outset of the hearing.

7G.C. appeared frustrated by the fact that I had not yet rendered my decision. He stated:

If you have the file, render a decision and send it…You have all the information that you need. I sent it all in….I asked you to render a decision and you haven’t done it….You haven’t even looked at the file yet. You just send me your decision and I’ll take care of it at the Human Rights Commission.

8In order to complete the hearing, I proposed that I would make my decision based on the written submissions of both parties. G.C. advised me that I should look at two documents in particular: a medical report by Dr. F. and a medical report by Dr. K. I have considered those documents, along with the other documents filed in this appeal.

9In the difficult circumstances of this case, I am of the view that the most fair and efficient manner to provide the Appellant with the opportunity to have her appeal decided on its merits is to proceed with a written hearing pursuant to s. 5.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and Rule 12.1 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016).

C. ISSUES

10The issue in this appeal is whether the Appellant suffers from a medical condition likely to significantly interfere with her ability to drive a motor vehicle safely. In order to answer that question, I will address the following issues:

1. Does the Appellant have cognitive impairment?
2. Is the Appellant’s cognitive impairment, if any, likely to significantly interfere with her ability to drive safely?

D. EVIDENCE:

11On May 4, 2016, a Nurse Practitioner (“NP”) conducted an assessment of the Appellant in her home. The Appellant was referred to the NP by her family physician, Dr. A., for a possible diagnosis of dementia. Dr. A. stated on the referral a concern because the Appellant was currently driving. The NP noted in her report:

Although subjectively [the Appellant] denies any concerns with her cognition, clinically and objectively she does have deficits in amnestic, non-amnestic, visual spatial, as well as executive functioning, especially judgement and insight to her medications. Said this also raises a concern with regards to her driving even though she has stated passing her Driving Test last in September 2015, and would benefit [from] a repeat which would be hard to pursue with the resistance to any suggestions for [assistance] at this time.

I do suggest a follow-up with Dr. A. for deliberation of her driving as well as acquiring recent blood work to rule out any medical causes initially.

12The Appellant visited the office of her family physician, Dr. A., around June 15, 2016. As Dr. A. was on maternity leave, the Appellant met with Dr. A.’s replacement, Dr. S., who wrote a letter to the Appellant referring her to a driver assessment clinic, stating:

A referral has been sent to [a] Driver Assessment Clinic for a consult with the occupational therapist for an assessment. Repeat driver’s testing was suggested as a result of the geriatric assessment that was completed on May 4, 2016. If you do not follow through with the assessment, our office may need to write a letter to the Ministry of Transportation of Ontario.

13A geriatric specialist, Dr. K., conducted an assessment of the Appellant on June 22, 2016. The report included the following under the heading “impression”:

1. ON COGNITIVE ASSESSMENT: Based on formal tests, collateral information from her husband, and clinical assessment. She does have cognitive impairment, though at this point I am not sure of whether this is amnestic and non-amnestic type of mild cognitive impairment together with hearing impairment and personality issues versus mild form of dementia. Collateral information is somewhat conflicting. Her husband stated that she is pretty functional and safe as a driver but at the same time he notices a lot of small changes. At this point I want to reserve my judgment until I further reassess her in a couple of months, and prior to this I also want to get blood work, including extended electrolytes, TSH and B12, and to get a brain scan to assess her brain for atrophy and the presence of cerebrovascular disease.

2. IN TERMS OF DRIVING. I do not see any reasons at this point to report her to the Ministry of Transportation yet. She had a Driving Assessment at the end of last year. We may need to refer her an On-Road Test with Progressive Driving School, but I will defer it until her next appointment.

14The Appellant attended a follow-up visit with the NP on July 4, 2016 with respect to her blood pressure. Although the NP did not directly assess the Appellant’s cognitive function at this visit, it was noted in the report that the Appellant:

initially presented calm but during mid-conversation got agitated and [had] word exchanges with husband as was trying to recollected the chain of events for presenting to the Emergency Department and Family Doctor’s visit, resulting in [her husband] stepping out of the room for a few minutes. Alert and attentive. [The Appellant] did exhibit word finding difficulty and was highly circumstantial in her speech.

15The NP indicated in her report that the Appellant insisted she had an upcoming appointment in a week or two, but the NP subsequently confirmed it was actually scheduled for November 2016.

16The Appellant had a CT Scan performed on July 13, 2016. The results of the scan were summarized on a diagnostic imagine report signed by Dr. F. The report stated that the Appellant had “mild supratentorial brain atrophy” and “no significant intracranial pathology is identified.”

17On August 31, 2016, the Driver Assessment facility wrote to Dr. A. to advise that the Appellant had been referred for a driving assessment but had not attended the facility.

18On September 9, 2016, Dr. S. (who was still Dr. A.’s replacement) completed a Medical Condition Report and sent it to the Registrar in compliance with s. 203 of the HTA, which requires all legally qualified medication practitioners to report to the Registrar if any person sixteen years of age or older who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle. The reported condition was “concern with cognitive function”. Dr. S. indicated on the report:

Concerns with cognitive function noted on exam in clinic, as well has been noted by the Geriatric Assessment Team from St. Joseph’s Care Group (SJCG). Patient was asked to complete a driving assessment through SJCG in June 2016, and has failed to follow through with completing this.

19On September 12, 2016, the Registrar advised the Appellant that her driver’s licence was being suspended under s. 47(1) of the HTA based on the reported condition of cognitive impairment. The letter enclosed a Cognitive Assessment form. The letter stated that in order to have her licence reinstated she should have that form completed by her medical practitioner.

20The Appellant has sent a number of pieces of written correspondence to the Ministry of Transportation (the “Ministry”). The Appellant’s correspondence indicates that she does not believe that Dr. S had the authority to send the Medical Condition report to the Ministry, as Dr. S. did not have the authority to act as the Appellant’s physician or review the Appellant’s medical file. The Appellant also questions how the report of Dr. K., a geriatrics specialist, could be superceded by that of Dr. S., who was not even her doctor. The Appellant states that the report by Dr. F. of the CT Scan conducted on July 13, 2016 seems to contradict the Ministry’s reasoning for suspending her driver’s licence. The Appellant also alleges that a number of statements in the various medical reports are untrue.

21There is also a letter from Dr. S. dated December 15, 2016, which appears to be in response to a complaint made by the Appellant and her husband. Dr. S. states in that letter that she decided to report the Appellant to the Ministry based on the May 4, 2016 report from the NP and the Appellant’s presentation at her clinic on June 15, 2016. She stated that she first made a referral for a driving assessment, but when she received notice that the Appellant did not attend the offered assessment appointment, she sent the Medical Condition Report to the Ministry. Dr. S.’s concern with the Appellant’s cognitive function was based on clinical assessment and notes received from the Geriatrics Assessment team. She also explained that although Dr. K. indicated on June 22, 2016 that he did not feel he needed to report the Appellant to the MTO “yet”, he also indicated that he intended to follow up with the Appellant and consider retesting her driving safety. Dr. S.’s understanding was that the Appellant did not complete this follow-up, which added to her concern about the Appellant’s driving safety.

E. LAW:

22The 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).”

23One 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; 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.

24Section 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.

25Under 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.

26A decision of the Registrar to suspend a licence may be appealed to the Tribunal under s. 50(1) of the HTA. Section 4(4) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G, requires this appeal to be heard by a panel that includes a legally qualified medical practitioner. A “legally qualified medical practitioner” is defined as a member of the College of Physicians and Surgeons of Ontario, as stated in s. 87 of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F.

27The 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.

F. ANALYSIS:

28Below, I address the following questions:

1. Does the Appellant have cognitive impairment?
2. Is the Appellant’s cognitive impairment, if any, likely to significantly interfere with her ability to drive safely?

Does the Appellant suffer from cognitive impairment?

29I am satisfied that the Appellant suffers from cognitive impairment, based on the following medical evidence:

• The report of the NP dated May 4, 2016 states that the Appellant has “deficits in amnestic, non-amnestic, visual spatial, as well as executive functioning, especially judgement and insight to her medications”.
• The medical report of Dr. K. dated June 22, 2016 states that the Appellant has cognitive impairment, although Dr. K. was not sure of the type of cognitive impairment.
• The report the NP dated July 4, 2016 stated that the Appellant got agitated mid-conversation, seemed to have memory difficulties, word finding difficulties and circumstantial speech, which can be features of cognitive impairment.
• The Medical Condition Report of Dr. S. dated September 8, 2016 states that there is a “concern with cognitive function noted on exam in clinic,” which Dr. S. has explained in a letter dated December 15, 2016 is based both on the NP’s report and on her own assessment of the Appellant.
• Dr. A. also had some concern about the Appellant’s cognition, having referred her to Dr. K. in the first place for a possible diagnosis of dementia.

30I find that the report of a CT Scan conducted by Dr. F. on July 13, 2016 is not persuasive one way or the other. The report states that the Appellant has mild brain atrophy but otherwise no brain abnormalities were revealed. I find neither the existence of mild brain atrophy nor the absence of other brain abnormalities on the CT Scan to be relevant to determining whether the Appellant has a cognitive impairment.

31I also place no weight on the fact that Dr. S. was not the Appellant’s regular physician. A physician’s duty under s. 203 of the HTA to report a person who suffers from a condition that may make it dangerous to drive applies with respect to a person “attending upon the medical practitioner for medical services”. There is no requirement that the physician be the person’s regular physician. In fact, many drivers are reported to the MTO upon their first visit with a physician.

Is the Appellant’s cognitive impairment likely to significantly interfere with her ability to drive safely

32I find that the Appellant’s cognitive impairment is likely to significantly interfere with her ability to drive safely.

33The NP, Dr. K. and Dr. S. all raised concerns with respect to the Appellant’s ability to drive safely.

34The NP stated in the May 4, 2016 report that the Appellant had “deficits in amnestic, non-amnestic, visual spatial, as well as executive functioning, especially judgement and insight to her medications,” that this raised concerns for her driving and that she would benefit from repeating her driving test. The NP suggested that the Appellant follow up with Dr. A. for deliberation of her driving.

35Dr. A.’s replacement, Dr. S., met with the Appellant on June 15, 2016, which resulted in Dr. S referring the Appellant for a driving assessment. I accept the explanation provided by Dr. S. in her letter dated December 15, 2016 that she made this referral based on the Appellant’s presentation at Dr. S.’s clinic on June 15, 2016 and the report of the NP. When the Appellant did not attend for a driving assessment, Dr. S. reported her to the Ministry due to “concerns with cognitive function”.

36Although Dr. K. was of the view that a functional driving assessment was not necessary yet, he nevertheless indicated that this might be necessary and deferred his decision until the next assessment. I note that Dr. K. appeared to rely on the Appellant’s self-assessment and that of her husband in concluding that it was not yet necessary to order a driving assessment. However he did note that the information from her husband was “conflicting”. I also note that the NP found the Appellant’s self-assessment to be unreliable on the May 4, 2016 report. In any event, Dr. K.’s view that a driving assessment might be necessary does not directly contradict Dr. S.’s view, based on her clinical assessment and the report of the NP, that a driving assessment was required.

37I accept the medical opinion of Dr. S. that a functional driving assessment was necessary in order to determine whether the Appellant’s ability to drive safely was significantly impaired.

38There is medical evidence of specific deficits in judgment, visual spatial skills, executive function, and memory, all of which are required to be intact for safe driving. The Appellant was provided with an opportunity to attend a driving assessment, which would have provided her with the opportunity to rebut the evidence that her cognitive impairment significantly interferes with the ability to drive safely. The Appellant also had the opportunity to have the Cognitive Assessment form filled out by a medical practitioner, which she did not do. Nor is there any evidence that the Appellant followed up with Dr. K. with respect to his opinion of whether her condition may affect her ability to drive safely.

39In consideration of the Appellant’s diagnosis of cognitive impairment, the concern of several medical professionals about her ability to drive safely, the fact that specific functions necessary for driving are impaired, and the fact that she did not attend a functional driving assessment despite being provided with the opportunity to do so, I find that the Appellant suffers from a medical condition likely to significantly interfere with her ability to drive safely.

G. order:

40Upon considering the evidence and submissions filed with the Tribunal, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the Appellant’s licence.

Released: May 18, 2017

____________________________

Katherine Whitehead M.D., Member