Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Minister of Transportation pursuant to section 47(1) of the Act to suspend a Driver’s Licence
Between:
Y.P.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Erica Weinberg, M.D., Member Stephen Scharbach, Member
Appearances:
For the Appellant: Y.P., Self-represented For the Respondent: Sonia De Santis, Agent
Place and Date of Hearing: By Teleconference September 24, 2018
REASONS FOR DECISION AND ORDER:
A. Overview
1This is an appeal from a decision of the Registrar of Motor Vehicles (“Registrar”), effective June 15, 2018, to suspend the appellant’s driver’s licence on two medical grounds: substance use disorder/drug dependence (addiction) and a psychiatric condition (depression).
2The appellant states that she does not suffer from depression and her substance use disorder has been, and continues to be, successfully treated.
3She states that she no longer suffers from substance use disorder to the extent that it interferes with her ability to drive safely and she asks this Tribunal to set aside the Registrar’s decision and re-instate her licence.
B. ISSUE
4Does the appellant now suffer from depression and/or a substance abuse disorder likely to significantly interfere with her ability to drive a motor vehicle safely?
C. DECISION
5There is insufficient evidence to conclude that the appellant suffers from depression to the extent that it is likely to significantly interfere with her ability to drive safely.
6The evidence does establish that the appellant suffers from the condition of substance use disorder/drug dependence and that condition is likely to significantly interfere with her ability to drive safely. The appellant’s licence shall remain under suspension until the following information is provided to and assessed by the Ministry’s Medical Review Section:
a. Confirmation that the appellant has been abstinent from all addictive substances for a period of one year
b. Confirmation that the appellant is both clinically and functionally stable
c. Confirmation that the appellant is complaint with the rules and expectations of the Suboxone program
D. THE LAW
7The Registrar has the power under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) to suspend or cancel a driver’s licence on various grounds including any mental or emotional condition, or addiction to the use alcohol or a drug, “…likely to significantly interfere with his or her ability to operate a motor vehicle safely” (Ontario Regulation 340/90 (“Regulation”) s. 14(1)).
8In determining whether an individual suffers from a condition or addiction that may disqualify him/her for a driver’s licence, the Regulation allows the Minister of Transportation to consider the medical standards set out in the Canadian Council of Motor Transport Administrator’s Medical Standards for Drivers (“CCMTA Standards”). Those standards have been developed and published in order to establish consistent medical standards for assessing driving eligibility.
9Two CCMTA Standards are relevant in this case - section 15.6.3 which deals with eligibility for licencing of people who suffer from a substance use disorder, and section 14.6.1 which deals with eligibility of people who have psychiatric disorders including mood disorders such as depression.
10Section 15.6.3 states that a person who suffers from a substance use disorder such as drug dependency will be eligible for licencing if he/she:
meets the criteria for remission and has abstained from the substance for a period of 12 months
earlier re-licensing may be considered upon favorable 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
11Section 14.6.1 of the CCMTA Medical Standards states that person who suffers from a psychiatric condition such depression will be eligible for driving if:
the condition is stable
the driver has sufficient insight to stop driving if the 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.
12The Regulation also permits the Minister to require a driver to provide satisfactory medical evidence of his or her ability to drive safely.
13Any person whose licence is suspended by the Minister under s. 47 of the Act may appeal that decision to this Tribunal.
14On an appeal, the Registrar of Motor Vehicles (“Registrar”) has the burden of establishing, on a balance of probabilities, that appropriate grounds for suspension exist.
15Following a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar (Act, s. 50(2)).
E. Analysis
(a) Basis for the Suspension
16In a letter dated June 5, 2018, the Registrar informed the appellant that a decision had been made to suspend her driver’s licence on medical grounds.
17That decision was made after the Registrar reviewed medical reports that the Registrar required the appellant to submit after she was involved in a single car collision.
18Based on those reports, the Registrar concluded that the appellant had two conditions that affected her ability to drive safely, described in the Registrar’s letter as - “substance use/abuse” and, “psychiatric condition”. The reported psychiatric condition was depression.
19The Registrar stated that in order to have her licence reinstated, the appellant would have to submit:
Confirmation that she has remained abstinent from alcohol and drugs for one year
This period may be reduced to six months if her physician confirms that she successfully completed an alcohol/drug treatment program and is supportive of re-instatement
This assessment must be supported by lab test results confirming abstinence.
20In addition, because of the reported condition of depression, the Registrar required confirmation of a three-month period of mental and emotional stability and confirmation of compliance with treatment and/or insight into her condition.
21The appellant appeals the Registrar’s decision. With respect to her psychiatric condition, the appellant denies that she suffers from depression although in the past she was prescribed an antidepressant, as needed, for an eating disorder.
22With respect to substance use, the appellant states that she was addicted to an opioid drug originally prescribed to her after a surgery two years ago. However, she has been abstinent of illicit opioids since successfully completing a 5-day withdrawal program at the Center for Addiction and Mental Health (“CAMH”), almost 5 months ago. The appellant denied any issues with alcohol, only occasionally drinking an alcoholic beverage on special occasions.
23The appellant states that her substance use issue continues to be treated with Suboxone (opioid substitution therapy for addiction) under the supervision of an addiction physician, Dr. D. She attends a Suboxone treatment clinic weekly for prescription renewal and urine testing. All urine testing confirm that she has been abstinent from illicit opioids since completing the CAMH program.
24After the appellant filed her appeal on July 25, 2018 she submitted to the Registrar a second substance use assessment signed by her addiction physician on September 4, 2018. That assessment confirmed the appellant’s diagnosis of drug dependence, her admission to CAMH, and the fact that all urine tests have been clean since release from CAMH.
25The Registrar responded to this new information in a letter dated September 24, 2018. The Registrar stated that the appellants’ suspension will continue and that in order to be reinstated the Registrar will require:
Confirmation that she has been abstinent from all addictive substances for a period of one year
Confirmation that she is clinically and functionally stable
Confirmation that she is complaint with the rules and expectations of the Suboxone program
Confirmation of a three-month period of mental and emotional stability
26The conditions for reinstatement contained in the September 24, 2018 letter appear to be more restrictive than those contained in the original suspension letter of June 25, 2018.
27In the June letter the Registrar stated that a one-year suspension may be reduced to 6 months if the appellant’s physician confirms successful completion of an alcohol/drug treatment program. In the September letter the Registrar states that reinstatement will only be considered after a confirmed one-year period of abstinence. There is no mention of the possibility of a reduction to a six-month suspension.
28At the hearing the Registrar’s agent stated that this more restrictive requirement was imposed because the second substance abuse assessment made it clear that the appellant had been addicted to an opiate and was in a Suboxone program to treat that addiction. In those circumstances, the Registrar required a one-year period of abstinence regardless of a completion of a drug treatment program.
(b) Should the Suspension Continue?
29The Registrar’s original suspension (June 25, 2018) and the decision to continue the suspension (September 24, 2018) are based on two reported conditions – depression and substance abuse. The onus is on the Registrar to establish that the appellant suffers from those conditions and that those conditions those are likely to significantly interfere with her ability to drive a motor vehicle safely.
30With respect to the reported condition of depression we find that the evidence is insufficient to establish on a balance of probabilities that the appellant suffers from depression to an extent likely to significantly interfere with her ability to drive.
31With respect to the reported condition of substance abuse, we find that the evidence does establish that the appellant suffers from that condition to an extent likely to significantly interfere with her ability to drive safely.
(i) Psychiatric Condition – Depression
32The Registrar obtained two reports from another examining physician (Dr. S) stating that the appellant suffered from depression.
33The first report, dated March 26, 2018, was obtained at the Registrar’s request after the appellant’s collision. Among other things, that report stated that the appellant had a “H/O [history of] depression”. No further details of the condition were provided.
34After reviewing that report, the Registrar requested more detailed assessments including a mental health assessment which was completed and signed by the same physician on May 16, 2018.
35In that report the physician stated that the appellant’s primary mental illness was “depression/dysthymia” and substance abuse. The physician indicated that those conditions were stable and the appellant was currently experiencing no symptoms and having no difficulty in cognition, attention, memory, or judgement.
36In both the June 25, 2018 decision letter and the September 24, 2018 letter, the Registrar stated that in connection with the reported condition of depression, reinstatement would require confirmation of a three-month period of mental and emotional stability.
37We disagree with that requirement. Except for the physician’s two references to depression described above, there is no information about the severity of the appellant’s condition or that her depression impacted her ability to drive.
38We note that depression is a common condition that ranges in severity from mild to severe. Many individuals drive safely who experience depression either episodically or chronically. Suspension is warranted only when that condition is present to an extent likely to interfere with a person’s ability to drive safely.
39The appellant stated that she has never been diagnosed or sought treatment for depression, and no treatment for that condition has ever been recommended to her. Except for the references to depression in the two medical reports, there is no information that contradicts her sworn testimony in that regard.
40In this case, the appellant’s physician has stated, without further detail, that the appellant suffers from depression. Without some further information about the severity of the condition from which an inference can be drawn that the condition would likely significantly interfere with the appellant’s ability to drive, we are unable to conclude that suspension of the appellant’s licence on the basis of depression is warranted.
(ii) Substance Use
41We conclude that in the circumstances of this case, the Registrar’s decision to require (among other things) a one-year period of abstinence should be confirmed. In coming to that conclusion, we consider the nature and extent of the appellants’ condition as well as the CCMTA standard to be particularly relevant.
Nature and Extent of the Condition
42The appellant candidly admits to a substance use problem but states that she has been, and continues to be, successfully treated as confirmed by her addiction physician and urine test results. She has now been abstinent for almost 5 months and feels that the condition is no longer likely to significantly affect her ability to drive safely.
43The appellant states that currently she must take taxis to get to the clinic on a weekly basis – an expense that she cannot afford. There are support groups in the surrounding area but without a vehicle it is difficult or impossible to attend them. She feels that her recovery is going well but without access to a vehicle she is isolated and reinstatement of her licence would assist her recovery.
44According to the appellant, she became addicted to opioids about two years ago after being prescribed an opioid after a surgery. When her prescriptions ran out, she obtained the drug on the street for 1-2 months. On her own, she gradually reduced, and eventually discontinued her use of illicit opioids.
45On December 20, 2017, the appellant learned that her best friend had a terminal illness. She then resumed the use of illicit opioids to cope with that stress.
46During that second period of active addiction the appellant admits to being involved in a collision. She stated that tests run at the hospital the night of the collision showed the presence of ‘drugs/substances’ still in her system.
47By March 2018, the appellant’s opioid use had escalated to the point of buying heroin. She admitted to snorting, but never injecting the heroin. The appellant stated that the use of heroin frightened her to the point where she contacted CAMH for help. She was self-admitted to CAMH on April 24, 2018 for 5 days, for medically supervised opioid withdrawal (detoxification) and transitioned to high dose Suboxone (opioid substitution therapy for addiction).
48The appellant stated that following the initiation of Suboxone at CAMH, she continued follow-up in the community with Dr. D (about 20 km from her home). Under Dr. D’s supervision, the appellant has been substantially weaned down on her Suboxone dose (1 mg/0.5 mg daily as of September 24, 2018 from 20 mg/10 mg on discharge from CAMH). She attends Dr. D’s addiction clinic weekly for urine drug screens and support. The appellant testified that she currently has no urge and no desire to use other opioids.
49The appellant stated that she has a choice whether to stay on low dose Suboxone or to come off Suboxone. She stated that she feels ‘secure’ at the clinic, and that going for weekly visits gives her someone to talk to and something to ‘show’ in her road to recovery.
50When asked about any other changes the appellant has made in her life recently, she stated that she has ‘discarded’ friends with negative influences in her life and lives with a friend who is supportive. The appellant admitted that she has yet to look for any outside counselling/support services (although she has been given a list of places) and has not gone back to meditation, which she used to find helpful. The appellant does not see her family more than once per year, and has not yet told them the full story.
51In deciding whether a longer or shorter period of abstinence is appropriate before reinstatement is considered, the nature and extent of the appellant’s addiction suggests that a longer period is appropriate - the appellant has twice been actively addicted to a drug that is difficult to quit. Relapse is common especially in the early months of recovery. The appellant’s recovery process is still evolving and other than the Suboxone treatment program, she does not appear to have a strong support network. Without that support, if the appellant decides to leave the Suboxone program her chances of relapse will increase. In light of the appellant’s earlier collision while drugs were in her system, there is a risk to the public.
(iii) The CCMTA Standards
52The Registrar’s June 25, 2018 decision is generally consistent with the medical standards for drivers set out in the CCMTA Standards.
53The relevant CCMTA standard states that a person who suffers from a substance use disorder such as drug dependency will be eligible for licencing if he/she:
meets the criteria for remission and has abstained from the substance for a period of 12 months
earlier re-licensing may be considered upon favorable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program.
54In the June 25, 2018 suspension letter, the Registrar stated that re-instatement would be considered after a year of abstinence which may be reduced to six months if her physician confirms completion of an alcohol/drug treatment program.
55The appellant submitted a further substance abuse assessment in September, 2018 in which her physician confirmed her abstinence, her adherence to the Suboxone program, and her illicit drug free status as confirmed by weekly test results.
56The Registrar responded to that assessment in the letter of September 24, 2018. The Registrar essentially stated that reinstatement will only be considered after a confirmed one-year period of abstinence. The possibility that the suspension may be reduced to six months upon the successful completion of an alcohol/drug treatment program was not mentioned.
57We acknowledge the appellant’s frustration that the requirement for reinstatement was made more restrictive after she submitted a positive substance use assessment that confirmed her continued abstinence and her adherence to the Suboxone program.
58However, upon a review of the two substance abuse assessments provided to the Registrar, it appears that the assessment submitted to the Registrar before the June 25, 2018 suspension letter was issued did not make it clear that the substance involved was an opioid or that the appellant was on a Suboxone treatment program. That only became clear after the September assessment was submitted to the Registrar.
59Once that additional information about the nature of the appellant’s substance abuse problem was made clear, the Registrar apparently concluded that a one-year period of confirmed abstinence was required to ensure the condition had been effectively treated through the Suboxone program and the risk of relapse would be minimised.
60Given the nature of the appellant’s condition, the fact that a relapse occurred when the appellant was under stress, her current limited recovery support network, and the potential risk to the public as demonstrated by the appellant’s earlier collision while in active addiction, we agree with the Registrar’s decision. In our view, that decision appropriately balanced the appellant’s interest in restoring her driving privileges with the public interest in ensuring that the appellant is safe to operate a motor vehicle on public roads.
61The appellant fairly pointed out that she should be given some credit for voluntarily seeking treatment, successfully completing the CAMH withdrawal program, adhering to the requirements of the Suboxone program, and remaining abstinent for almost 5 months.
62We do not minimise the appellant’s success in dealing with this difficult condition and we acknowledge her responsibility and courage in taking the appropriate steps to deal with it. We wish her continued success. However, our primary concern is the safety of the public and in the circumstances of this case we confirm the Registrar’s decision to continue the suspension on the basis of substance abuse.
DECISION
63Under s. 50(2) of the Highway Traffic Act, the Tribunal may confirm, modify or set aside a decision of the Register made under s. 47 of the Act.
64In this case we have decided to modify the requirements for reinstatement of the appellant’s licence that were contained in the Registrar’s decision on June 25, 2018 (and amended in the Registrar’s letter of September 24, 2018) to eliminate any requirement relating to the reported condition of depression.
ORDER
65The appellant’s licence shall remain under suspension until the following information is sent to and assessed by the Ministry’s Medical Review Section:
a. Confirmation that the appellant has been abstinent from all addictive substances for a period of one year
b. Confirmation that the appellant is both clinically and functionally stable
c. Confirmation that the appellant is compliant with the rules and expectations of the Suboxone program
LICENCE APPEAL TRIBUNAL
Erica Weinberg, M.D. Member
Stephen Scharbach, Member
Released: October 15, 2018