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:
D.W.S.
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Peter Savage, M.D., Member Laurie Sanford, Vice-Chair
Appearances:
For the Appellant: D.W.S., Self-represented
For the Respondent: Kyle M. Biel, Agent
Place and dates of hearing: By teleconference March 16, 2018
REASONS FOR DECISION AND ORDER:
A. OVERVIEW
1D.W.S. appeals to this Tribunal from a decision of the Deputy Registrar of Motor Vehicles (the “Registrar”) to suspend his driving licence, effective September 12, 2017. The decision was taken because a physician attending D.W.S. during a hospital stay had reported a condition of cognitive impairment to the Ministry of Transportation (“MTO”) and had expressed the belief that the condition made it dangerous for D.W.S. to drive. The Registrar required D.W.S. to have a Cognitive Assessment Form completed by his physician. This was done and on November 3, 2017, the Registrar advised D.W.S. that the MTO required that D.W.S. take and satisfactorily complete a driving evaluation from an approved centre to demonstrate that he could safely operate a motor vehicle. His driving privileges were to remain suspended until that occurred.
2D.W.S. asserts that the original attending physician who saw him at the hospital only saw him briefly and administered a cognitive function test after D.W.S. had been in the hospital for 10 days and after his medication regime had been changed by other attending physicians. He is of the view that any suggestion of cognitive impairment is as a result of the change in his medications. In the subsequent Cognitive Assessment Form, D.W.S.’s neurologist reported a mild cognitive impairment and expressed an opinion that D.W.S.’s medications may affect his ability to drive safely. D.W.S. believes that he functions well despite the cognitive limitations and can drive safely.
3D.W.S. has chosen not to undertake the driving evaluation required by the Registrar. He says the evaluation will cost a minimum of $650, which he cannot afford. D.W.S. does not think the test is necessary, given that he has driven for over 50 years, 15 of them while suffering from multiple sclerosis (“MS”) and has never had a problem. D.W.S. acknowledges that his neurologist found a mild cognitive impairment but he asserts that once he returned to his old medication schedule, he had no further cognitive issues.
B. ISSUE
4The issue for us to decide is whether D.W.S.’s cognitive impairment is likely to significantly interfere with his ability to drive a motor vehicle safely. For the reasons set out below, we conclude that the Registrar has demonstrated that D.W.S.’s cognitive impairment is likely to significantly interfere with his ability to drive a motor vehicle safely. We are directing that the suspension of D.W.S.’s driver’s licence be confirmed. We note that it remains open to D.W.S. to take an approved driving evaluation which, if successfully completed, may result in the Registrar reconsidering the suspension.
C. EVIDENCE AND SUBMISSIONS
5Mr. Biel, the Registrar’s agent, reviewed D.W.S.’s medical records and D.W.S. and his wife testified. Mr. and Ms. D.W.S.’ testimony was that D.W.S. is 70 years old and feels that he is very active for his age. He is on medication for diabetes, hypertension, thyroid, low iron and low B12. Additionally, D.W.S. takes: Baclofen for his MS, 7 to 8 tablets a day; Mogadon, a sleeping pill, and marijuana, which he takes every two or three days, smoking ½ a cigarette at a time. He also drinks one to two cans of apple cider with a 5.5% alcohol content each day.
6D.W.S. fell at his home on September 7, 2017. He suffered a broken toe and bumped his head. His wife testified that she called an ambulance and he was taken to the hospital. Her testimony was that at the hospital he was taken off his insulin and his other medications were changed. D.W.S.’s wife says for the first 7 days he was in the hospital he was fine. However, for the last three days of his 10-day hospital stay, he was confused at night. On his last day, a doctor who had not seen him previously administered a test consisting of 30 questions. D.W.S. testified that he believes he answered 27 of those questions correctly but, despite that, the doctor reported him to the MTO.
7Mr. Biel noted that under section 203 of the Highway Traffic Act (“HTA”) a doctor who is of the opinion that a person has a medical condition which may make it dangerous for that person to operate a motor vehicle is obligated to report this to the MTO. Mr. Biel reviewed the Medical Condition Report filed by the attending physician. The medical condition disclosed on the report is “Dementia or Alzheimer’s”.
8Mr. Biel referred to a letter from the Registrar to D.W.S. dated September 12, 2017. The letter advised that D.W.S.’s driving privileges were being suspended due to a reported condition of “cognitive impairment”. Mr. Biel advised that this was a reference to the Medical Condition Report filed by the attending physician. The Registrar directed D.W.S. to have a Cognitive Assessment Form completed by his treating physician.
9On October 18, 2017, D.W.S.’s neurologist completed the Cognitive Assessment Form. D.W.S. testified that when his medications were adjusted back to where they had been on admittance to the hospital, his condition improved. This conclusion seems borne out by the neurologist who referred to concerns raised during D.W.S.’s hospital stay and reported that there has been significant improvement since then. The neurologist indicated that the condition was “stable – symptoms resolved.” However, the neurologist diagnosed D.W.S. with “mild cognitive impairment or mild dementia” and gave his opinion that certain of D.W.S.’s medications might result in side effects, specifically sedation or psychomotor slowing and impairment of concentration/attention, to an extent that may impair D.W.S.’s ability to safely operate a motor vehicle.
10Based on this report, on November 3, 2017 the Registrar wrote to D.W.S. advising him that before a reinstatement of his driver’s licence could be considered, he would need to satisfactorily complete a driving evaluation at an authorised rehabilitation centre. D.W.S. was referred to a list of these approved centres. D.W.S. testified that when he called some of these centres, he found the cost of a driving evaluation ranged from $650 to well over $700. As a pensioner, it was his testimony that he could not afford to take the test. He is also of the view that the evaluation is unnecessary.
11D.W.S. testified that he was surprised by the diagnosis of mild cognitive impairment or mild dementia. He disputes the diagnosis. He referred to the March 2017 Medical Standards for Drivers of the Canadian Council of Motor Transport Administrators (“CCMTA Standards”). The CCMTA Standards list a number of cognitive functions which may be impaired. D.W.S. testified that of that list, only his memory might be affected and that could be a result of his MS. The CCMTA Standards note that symptoms of dementia may include “cognitive deficits [that] may interfere with independence in everyday activities (i.e. at a minimum, requiring assistance with complex instrumental activities of daily living such as paying bills or managing medications)”. D.W.S. testified that he pays the bills and manages his medication. Of the various symptoms identified by the CCMTA Standards in the diagnosis of Alzheimer’s disease, the only ones which D.W.S. has observed is a “little bit of depression” and trouble finding words. D.W.S. notes that the CCMTA Standards state “It is important to note that studies also indicate that many individuals with cognitive limitations show no deterioration of driving skills in the early stages of their illness.”
12D.W.S. submits that it would be unfair to accept the word of a hospital doctor who had seen him only briefly, or his neurologist who has treated him primarily for his MS, over his testimony that any confusion he suffered in the hospital was caused by the change in his medication and has since resolved itself. He also points to the fact that he has driven a motor vehicle for about 50 years, the last 15 of which were while he had MS.
13Mr. Biel referred to sections of the CCMTA Standards which provide that where cognitive issues are identified, whether due to medications or otherwise, a functional driving test can determine if a person can drive safely despite cognitive limitations. It is this functional driving test that the Registrar requires D.W.S. to take to regain his driving privileges, according to Mr. Biel.
14Mr. Biel also points to a Senior Care Planning Summary of a nurse practitioner and occupational therapist that D.W.S. saw on a visit to the Geriatric Assessment & Intervention Network Clinics. The Summary is dated November 11, 2017. It is not clear what tests, if any, were conducted by the nurse practitioner and occupational therapist. The report notes that the “main health concerns” were “memory – mild cognitive impairment, pain, mood and driving”. The summary recommends a series of actions, including a driving assessment. However, given that it is possible that the conditions listed were self-reported, we do not regard this Senior Care Planning Summary as corroborative of either the neurologist’s findings or the Registrar’s requirement for a driving evaluation.
D. LAW
15Section 31 of the HTA states that the purpose of the provisions of the HTA that concern the regulation driving licences is to protect the public by ensuring that the privilege of driving is given only to those persons who demonstrate that they are likely to drive safely. Thus, a driving licence is not an entitlement and persons wishing to drive must demonstrate that they are likely to drive safely.
16The Registrar has the jurisdiction under subsection 47(1) of the HTA to suspend or cancel a driver’s licence for a variety of reasons. One such reason is set out in subsection 14(1) of Ontario Regulation 340/90 under the HTA (“Regulation”). It provides that a holder of a driver’s licence must not “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”.
17It is open to the Tribunal to consider the CCMTA Standards, although they are not binding requirements. In this case, the relevant CCMTA Standards were in evidence before us and we have considered them.
18The Registrar has the burden to establish the ground for suspending the licence on a balance of probabilities.
19Under section 50(2) of the HTA, a person may appeal the suspension of a licence under subsection 47(1) and, following a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.
E. ANALYSIS
20There are three issues we must decide in this case. These are:
(a) Does D.W.S. suffer from mild cognitive impairment;
(b) Is there sufficient evidence to indicate that the medications that D.W.S. takes might impair his ability to drive safely; and
(c) Is the cognitive impairment, whether caused by the medications or otherwise, likely to significantly interfere with D.W.S.’s ability to operate a motor vehicle safely?
21Considering first the question of whether D.W.S. suffers from mild cognitive impairment, we have reviewed both the Medical Condition Report of the attending physician at the hospital and the Cognitive Assessment Form completed by D.W.S.’s neurologist. Both doctors diagnose D.W.S. with a cognitive impairment. The neurologist characterises it as mild impairment whereas the attending physician labels it dementia or Alzheimer’s. Given that the neurologist examined D.W.S. after his medications had been adjusted, we prefer the diagnosis of mild cognitive impairment. While we understand that the diagnosis surprised D.W.S., there is no medical evidence before us to suggest that the diagnosis is wrong. We conclude that D.W.S. suffers from mild cognitive impairment.
22The second issue is whether the medications that D.W.S. takes may be impairing his ability to drive safely. On the one hand, we have the neurologist’s opinion that the medications may be affecting D.W.S.’s alertness, his concentration and ability to focus. On the other hand, we have D.W.S.’s testimony that he has driven safely for the past 15 years while taking medication for his MS. What we do not know is whether D.W.S. has driven for an extended time on the other medications that he is taking, specifically the sleeping medications and the marijuana. For this reason, we prefer the opinion of the neurologist that the medication regime that D.W.S. is on results in side effects that may impair his ability to drive safely.
23The fundamental issue we must decide is whether the cognitive impairment, however caused or contributed to, is likely to significantly interfere with D.W.S.’s ability to operate a motor vehicle safely. The CCMTA Standards suggest that a mild cognitive impairment does not necessarily affect driver fitness. The CCMTA Standards notes that the term mild cognitive impairment “is a term that usually refers to a transitional state between the cognitive changes associated with normal aging and the fully developed clinical features of dementia…in general, it describes a cognitive decline that presents no significant functional impairment”. The CCMTA Standards conclude “Cognitive impairments of any nature may, or may not, affect driver fitness since there is no uniform range of effects. There is no standard set of limitations, and they can vary greatly from one person to the other. Hence, a functional driving assessment is usually the most appropriate means of assessing the effects of the cognitive limitations upon driving…”
24D.W.S.’s neurologist also reports that the various medications that D.W.S. takes result in side effects that may impair his ability to drive safely. We find that the presence of both a mild cognitive impairment and a possible loss of alertness, concentration and ability to focus as a side effects of his current medications is likely to significantly interfere with his ability to drive a motor vehicle safely.
25We note that if D.W.S. successfully completes the driving evaluation, that result will cause the Registrar to consider reinstatement of his driving privileges. It is unfortunate that D.W.S. feels that the evaluation is unnecessary and finds the cost prohibitive. However, he has advanced no medical evidence as to why the evaluation is unnecessary. We accept the recommendation in the CCMTA Standards that a driving evaluation is the most appropriate way to assess the risk to driving in cases of mild cognitive impairment.
F. CONCLUSION
26We conclude that there is persuasive evidence that the mild cognitive impairment suffered by D.W.S. and the side effects of the medicines he takes are likely to significantly interfere with his ability to drive a motor vehicle safely. Therefore we will confirm the Registrar’s decision to suspend D.W.S.’s driver’s licence. We also note that if D.W.S. satisfactorily completes the approved driver evaluation, then the Registrar will consider a reinstatement.
ORDER
27Pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend D.W.S.’s driver’s licence is confirmed.
LICENCE APPEAL TRIBUNAL
____________________________
Peter Savage, M.D., Member
____________________________
Laurie Sanford, Vice-Chair
Released: April 9, 2018