LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards
Tribunals Ontario
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:
Appellant
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Kevin Flynn, M.D., Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Place and dates of hearing: By teleconference:
March 15, 2017, April 12, 2017 and
April 28, 2017
REASONS FOR DECISION AND ORDER
A. Overview:
1The Appellant appeals a decision by the Registrar for Motor Vehicles under section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “HTA”) to suspend his driver’s licence effective February 3, 2017.The Registrar suspended the Appellant’s licence after receiving a report of uncontrolled diabetes and alcohol dependence. The report was sent to the Registrar in compliance with section 203 of the HTA, which requires all physicians in the Province of Ontario to report to the Registrar the name, address and clinical condition of any patient 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.
2The Respondent submits that the Appellant’s failure to comply with his physician’s recommendations to control his diabetes, as well as his alcohol dependence, significantly interfere with his ability to drive safely. The Appellant submits that his licence should be reinstated, as he has had poorly controlled diabetes and heavy alcohol use for decades, and that nothing has changed that would interfere with his ability to drive safely.
3For the reasons that follow, the Tribunal confirms the decision by the Registrar to suspend the Appellant’s driving privilege.
ISSUES:
4The issue in this appeal is whether the Appellant suffers from a medical condition or addiction likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, I will address the following issues:
Is the Appellant’s diabetes likely to significantly interfere with his ability to drive safely?
Does the Appellant have alcohol dependence, and, if so, is it likely to significantly interfere with his ability to drive safely?
B. EVIDENCE:
Respondent’s Evidence
5On January 12, 2017, the Appellant’s endocrinologist, Dr. M., filled out a Medical Condition Report and sent it to the Registrar in compliance with s. 203 of the HTA. The report indicated that the Appellant’s medical conditions were “Alcohol Dependence” and “Diabetes – Uncontrolled”. The report included the following additional information:
Patient has uncontrolled type 2 diabetes mellitus and is not testing glucose levels despite numerous discussions with health professionals at our diabetes centre. He knows that he needs to test before driving. He also has alcohol dependence, however, he tells me he never drives after consuming alcohol.
6On January 24, 2017, the Registrar advised the Appellant by letter that, based on his reported conditions of “Alcohol Dependence and Diabetes”, his driver’s licence was being suspended pursuant to s. 47(1) of the HTA. The letter enclosed two forms to be completed by the Appellant’s medical practitioner: a Substance Use Assessment Form and a Diabetes Assessment Form. Two questionnaires on alcohol use were attached to the Substance Abuse Assessment Form: one called the Alcohol Use Disorders Identification Test (“AUDIT”) and the Leeds Dependence Questionnaire (“Leeds”). The licence suspension took effect February 3, 2017.
7The Appellant had laboratory results taken on March 3, 2017. These results show that the Appellant’s glucose, keytones and hemoglobin A1C levels are high. The A1C is a blood test that reflects glucose levels over the previous three months. These results indicate that the Appellant’s diabetes is not being adequately managed.
8The Registrar advised the Appellant by a letter dated March 24, 2017 that the information previously requested had not been received, enclosing the Diabetes Assessment and Substance Use Assessment Forms for the Appellant to have completed by his medical practitioner. The Appellant had both forms completed by his family physician, Dr. A., on March 30, 2017.
9The completed Substance Use Assessment Form does not include completed AUDIT or Leeds questionnaires. It indicates that the Appellant has both alcohol dependence and alcohol abuse. It further states:
He has never had a seizure;
He has not abstained from alcohol;
He has not successfully completed a formal addiction treatment program;
His biochemical markers are all within the normal range;
There are abnormal physical findings or underlying medical conditions (but these are not specified on the form);
The Appellant has been prescribed medication; and
He does not report adherence to the recommended treatment regimen and demonstrates a pattern of non-adherence.
10The Diabetes Assessment Form includes the following information:
The Appellant has Type 2 diabetes;
His diabetes is treated with insulin and oral medications;
The most recent A1C results are between 8.1 and 11.9%;
The Appellant has not been checking his blood sugar at home;
He has an adequate understanding of diabetes;
He is not compliant with respect to diet, self-monitoring, attendance at the doctor’s office, lifestyle, exercise/rest;
He is aware of the early symptoms of hypoglycemia;
There have been no episodes of hypoglycemia in the past 3 months;
The Appellant has not regained adequate glycemic control;
He has the following complications: retinopathy, cardiovascular disease, and hypertension that is not treated and controlled;
He had a stroke in 2007;
He has been prescribed medications but is not adherent to the recommended treatment regimen and demonstrates a pattern of non-compliance.
11By a letter dated April 18, 2017, the Registrar advised the Appellant that his licence would remain under suspension. With respect to the diagnosis of alcohol dependence, the Registrar stated that, in order to have his licence reinstated, he would need confirmation of abstinence from alcohol for one year, which may be reduced upon successful completion of an alcohol treatment program and support for reinstatement from his physician. He would also have to provide the Registrar with the results of his bio-chemical markers, along with an explanation of any results outside the normal range. With respect to the Appellant’s diabetes, the Registrar stated that the Appellant would need confirmation that his A1C results are consistent with blood logs, that his hypertension is treated and controlled, and that he is compliant with self-monitoring.
Appellant’s Evidence
12The Appellant gave oral evidence and also relies on his written statement in his Notice of Appeal. He states that both diabetes and alcohol use have been features of his life for the past 15 years, but nothing has changed to make them a concern for the safe operation of a motor vehicle.
Diabetes
13The Appellant states that he was first diagnosed with diabetes almost 20 years ago and that he started taking insulin about 17 years ago. He states that he has attended several educational programs for diabetes since then, the last time being approximately a decade ago.
14The Appellant states that he is currently not testing his glucose levels at home. He explains that when he was first diagnosed with diabetes, he tested his glucose levels fairly regularly. However, as his doctor at the time did not even look at the glucose logs, he stopped testing at home. He explained that the testing is inconvenient and expensive. He believes that he tested his glucose levels at home most recently in January 2017, but he had not done so for years before that.
15The Appellant states that he is aware of the early warning signs of hypoglycemia and what measures to take. However, he has not had any warning signs since he started taking Januvia. Januvia is an oral medication used to control blood sugar levels. He states in his Notice of Appeal that his A1C for the past decade has been in the range of 8.1-11.9%. He testified that his A1C is usually below 10.
16The Appellant testified that his endocrinologist, Dr. M., has a handout that she provides patients with respect to safe driving for patients with diabetes, in which it is recommended that patients test their glucose within one hour before driving and every four hours while driving. However, the Appellant states that Dr. M. is expecting him to monitor his glucose as often as commercial drivers do, despite the fact that he only has a Class G licence. The Appellant testified that Dr. M. has known since the time that she met him two years ago that he is not testing his glucose levels. He believes that she reported him to the Registrar now in order to gain leverage against him.
17The Appellant admitted that he was aware that elevated levels of blood sugar for a certain period of time can harm his body, but that he nevertheless does not want to change his habits.
Alcohol use
18The Appellant states that he has been a heavy drinker for many years, but has been able to abstain on several occasions with no effect. He states that he drinks in the evening after he puts his car away for the night; if he is unsure about whether he will have to drive, he abstains until he is sure.
19The Appellant states that Dr. M. has no evidence of alcohol dependence, as she would only have the information that he has told her. He feels that the diagnosis of alcohol dependence came out of nowhere. He also does not know why Dr. A. indicated that he has alcohol dependence. He testifies that he took the AUDIT and Leeds Questionnaires and that he had a score of 0 on each test.
20On cross-examination, the Appellant stated that he consumes alcohol daily, that his doctor has recommended reducing his alcohol consumption and that he has been warned about the effects of alcohol with diabetes. However, the Appellant says that he feels he does not need to reduce his alcohol consumption.
C. 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; 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.
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.
D. SUBMISSIONS:
Respondent’s Submissions
26The Respondent submits that the suspension should be confirmed based on the Appellant’s uncontrolled diabetes, his failure to test his blood sugars, and the diagnosis of alcohol dependence. The Respondent submits that both conditions, whether independently or combined, will significantly interfere with the Appellant’s ability to drive safely.
27The Respondent relies on Section 7.6.1 of the CCMTA Medical Standards for Drivers (the “Standards”) with respect to diabetes and Section 15.6.3 with respect to alcohol dependence.
28Section 7.6.1 of the Standards states that a driver with Type 2 diabetes is eligible for a licence if he or she:
has good understanding of their condition
routinely follows their physicians instructions about diet, medication, glucose monitoring and hypoglycaemia prevention
conditions for maintaining a licence are met.
29The Respondent submits that this standard is not met, as the Appellant seems to rationalize his condition more than understand it, and he does not follow his doctor’s direction to test his glucose levels.
30Section 15.6.3 of the Standards states that a driver with alcohol dependence is eligible for a licence if he or 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 recognized 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.
31The Respondent submits that Standard 15.6.3 is not met as the Appellant is drinking on a daily basis, has not completed a treatment program and does not have a favourable recommendation from a physician.
32The Respondent submits that the Appellant is suffering from two active, uncontrolled medical conditions that will significantly interfere with safe driving, and that the Appellant lacks the insight into his conditions necessary for safe driving.
Appellant’s submissions
33The Appellant submits that his alcohol use and poorly monitored diabetes have been unchanged for the past fifteen years and none of his doctors have previously raised concern about his ability to drive safely.
34He submits that he does not have “uncontrolled” diabetes, but rather “poorly controlled” diabetes; the Ministry defines “uncontrolled” diabetes as having an A1C above 12, whereas the Appellant’s A1C is below 10. He submits that he is aware of the warning signs of hypoglycemia, and has not had any of those warning signs since he was started on Januvia. He has stopped testing his glucose levels, as when he used to keep log books, his family doctor at the time did not review them. He submits that his physician’s recommendation for glucose testing is based on the standard for commercial drivers.
35He submits that he is not dependent on alcohol, although he has been a heavy drinker for years. He is able to abstain from alcohol without any effects. He submits there was no evidence of alcohol dependence. He also submits that Dr. A. was careless in completing the Substance Use Assessment Form, as he checked both “alcohol dependence” and “alcohol abuse” on the form, when those two terms are mutually exclusive, and he checked the box to indicate that there are abnormal physical findings or underlying medical conditions without providing the explanation required in section 4 the form.
E. ANALYSIS:
Diabetes
36It is not in dispute that the Appellant has diabetes. The question is whether the Appellant’s diabetes is likely to significantly interfere with his ability to drive safely.
37The risk factors with respect to driving and diabetes are set out in the Ombudsman Report ‘Better Safe Than Sorry’, as well as in Chapter 7 of the CCMTA Medical Standards for Drivers. Diabetes is a chronic and progressive disease characterized by high blood glucose, or hyperglycemia. Individuals who are treated with insulin are also often at risk of low blood sugar, or hypoglycemia. Either hypoglycemia or hyperglycemia can impair the ability to drive safely. Hypoglycemia can significantly impair the sensory, motor and cognitive functions required for driving. Severe hypoglycemia can cause sudden incapacitation. Hyperglycemia may cause blurred vision, confusion and eventually a diabetic coma. The chronic complications of diabetes over time may go unrecognized for years and can also impair the ability to drive safely. The Appellant is treated with insulin and is at risk of both hyperglycemia and hypoglycemia if not managed appropriately.
38The medical evidence is sufficient to establish that the Appellant does not have adequate control of his diabetes. In my view, nothing turns on whether the Appellant’s diabetes is “uncontrolled” or “poorly controlled”. The laboratory results of March 3, 2017 show that the Appellant’s glucose, keytones and hemoglobin A1C levels are elevated. Dr. A. indicates that the Appellant has not regained glycemic control. Both Dr. M. and Dr. A. indicate that the Appellant is not compliant with the recommended monitoring regime. Dr. A. indicates that the Appellant knows he needs to test his glucose levels before driving but does not do so. The persistently high glucose levels and the Appellant’s failure to monitor his levels before driving or otherwise greatly increase the risk that the Appellant will experience symptoms of diabetes that interfere with the ability to drive safely.
39I find it appropriate in this case to consider Section 7.6.1 of the CCMTA Medical Standards for Drivers, which requires that drivers “routinely [follow] their physicians instructions about diet, medication, glucose, glucose monitoring and hypoglycaemia prevention.” Although the Appellant may have a good understanding of his condition, he has chosen not to follow his physician’s instructions, and accordingly puts himself at risk of diabetes symptoms that will interfere with safe driving.
40Based on the Appellant’s failure to self-monitor as medically recommended, combined with his persistently high glucose levels, as measured by the A1C, I find that the Appellant’s diabetes is likely to significantly interfere with his ability to drive safely.
Alcohol Use
41I am satisfied that the Appellant is dependent on alcohol. He admits that he is a “heavy drinker”, although he says that he is capable of abstaining without effect. Both Dr. M. and Dr. A. have diagnosed him with alcohol dependence, and I find their diagnoses to be reliable. The Appellant states that he received a score of “zero” on the AUDIT and Leeds questionnaires, which were attached to the Substance Use Assessment Form; however, he did not provide a copy of those results to the Registrar or the Tribunal. In the absence of that evidence, I place little weight on the Appellant’s oral evidence of his scores on those unverified questionnaires.
42Further, I do not agree with the Appellant’s submission that “alcohol dependence” and “alcohol abuse” are mutually exclusive. The Appendix to the Alcohol Use Assessment states that a person who abuses alcohol is “not necessarily” addicted or dependent. It is possible to have both. I also place no weight on the fact that Dr. A. did not complete section 4 of the Alcohol Use Assessment Form.
43The Registrar has not led evidence that the Appellant’s alcohol use, alone, will significantly interfere with his ability to drive safely. I accept the Appellant’s testimony that he does not start drinking until he knows for sure that he will not have to drive. However, the Appellant has been warned by his physician that excessive alcohol consumption may have a negative effect on his diabetes control and that he was advised to reduce his daily consumption. The Appellant has not reduced his alcohol consumption in accordance with his physician’s recommendation. I find that the Appellant’s heavy use of alcohol increases the risk that his diabetes will significantly interfere with his ability to drive safely
Conclusion
44After considering the evidence and submissions of both parties, I am satisfied that the Appellant’s diabetes is likely to significantly interfere with his ability to drive a motor vehicle safety. I find that the Appellant’s alcohol dependence, alone, is not likely to significantly interfere with his ability to drive safely, but that his heavy alcohol use increases the risk to road safety caused by his diabetes.
F. ORDER:
45Pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the Appellant’s licence.
Released: May 31, 2017
LICENCE APPEAL TRIBUNAL
____________________________ Kevin Flynn, M.D., Member