Karysa Mackay v. Registrar of Motor Vehicles, 2019 CanLII 101651

Licence Appeal Tribunal

Date: 2019-09-04

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 licence

Between:

Karysa Mackay

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

Panel: Dr. Isla McPherson, Member Patricia Conway, Member

Appearances: For the Appellant: Karysa Mackay For the Respondent: Kyle Biel, agent

Place and date of hearing: By Teleconference August 8, 2019

Court reporter: Layla Butt

A. OVERVIEW

1The appellant appeals the Registrar of Motor Vehicles (the Registrar)’s decision of July 9, 2019 to suspend her driver’s licence. The licence was suspended under s. 47(1) of the Highway Traffic Act, RSO 1990 c. H 8 (the “Act”) because the appellant was reported as having a major depressive disorder during a hospital admission on July 6, 2019.

2The Registrar’s decision states that it is a prerequisite to the Registrar’s considering lifting the driver’s licence suspension that the appellant provide a report from her medical practitioner stating that she has been stable for 3 months together with a recommendation that her licence be reinstated.

3The appellant asks for immediate reinstatement of her licence. She says that she has experienced anxiety and depression since childhood and has managed this condition well with medication and counselling, as well as by seeking help from her family and friends. She states that the incident in question resulted from a quarrel with her sister together with extreme fatigue. These caused a “flare up” of her mental health conditions. She was admitted to hospital and felt much better the next day. She states that not having her licence means she cannot go to one of her two part-time jobs and will have trouble paying her tuition for her last year of a 4-year Registered Nurse degree.

RESULT

4After considering all the evidence we find that the Registrar has not proved on the balance of probabilities that the appellant suffers from a mental condition that is likely to significantly interfere with her ability to drive safely. We set aside the decision of the Registrar.

ISSUES

5The issue for determination is whether the appellant’s mental condition significantly interferes with her ability to drive safely.

LAW

6Section 47 of the Act gives the Registrar the power to suspend a licence for “any sufficient reason”.

7Section 14 (1) of Ontario Regulation 340/94 of the Act states :

a. the holder of a driver’s licence must not suffer from any mental emotional nervous or physical condition likely to significantly interfere with his ability to drive a motor vehicle 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.

8Section 14(2) allows the Minister to

a. consider the relevant CCMTA Medical Standards for Drivers in determining whether a person meets the qualifications set out in (a) or (b) above, and

b. require a person to provide evidence satisfactory to the Minister that he can drive safely, including reports of examinations and additional medical information.

9Section 203 of the HTA allows a “prescribed person” – which in this case would include a physician – to report to the Registrar, by completing a Medical Condition Report (“MCR”), a person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a medical condition that may make it dangerous for the person to operate a motor vehicle.

10Section 204 of the HTA says that such a report must include:

b. The condition or impairment diagnosed or identified by the person making the report, and a brief description of the condition or impairment.

EVIDENCE AND ANALYSIS

11The Registrar submitted in evidence the July 6, 2019 MCR that alerted it to the appellant’s condition and led to the decision to suspend the appellant’s driving licence. The MCR was written by Dr. R. Mitchell, a psychiatrist who works at Sunnybrook Hospital in Toronto. She was apparently working in Emergency at Thunder Bay Hospital on July 6, 2019. The MCR is a form. Dr. Mitchell wrote on the form that the appellant has a major depressive disorder. She checked a box on the form which included three options, one of them being a suicide plan involving a vehicle or an intent to use a vehicle to harm others. She underlined the words ”suicide plan”. She did not underline the rest of the statement, “involving a vehicle or an intent to use a vehicle to harm others. She offered no further explanation, although there was ample space to write an explanation on the form. The Registrar’s position is that the MCR reports that the appellant had a suicide plan involving a vehicle or an intent to use a vehicle to harm others.

12On receipt of the MCR, the Registrar suspended the appellant’s driving licence. The Registrar wrote to the appellant on July 9 advising her of the suspension and requesting a medical assessment from her physician on the Registrar’s Medical Assessment Form, in order to consider whether the licence should be reinstated.

13The appellant’s family doctor completed and submitted the form to the Registrar 11 days later. The Registrar relies on this form to justify its decision to continue the suspension of the appellant’s driving licence.

14In the form, the appellant’s family physician has checked boxes indicating that the appellant’s psychiatric condition, described as mild anxiety and depression for which she receives pharmaceutical and counselling treatment, is stable. The physician says the appellant had a “flare up”, but her symptoms have resolved. The physician also says that she believes that the appellant has no difficulty with judgment. She notes that the appellant has appropriate insight and sufficient understanding of her medical condition and the impact it has on her functional ability to drive. In response to a question on the form, the physician indicates that the appellant was hospitalized a year earlier for similar symptoms.

15The Registrar’s position after receiving this medical assessment report was that it will not consider reinstating the appellant’s licence until she provides another report from a physician stating that she has been stable for a period of three months and recommending that her licence be reinstated. The Registrar takes the position that three months is a minimal amount of time to determine whether the appellant is indeed stable and can safely drive. The Registrar notes that this was a second hospitalization, the first having occurred only last year. The Registrar takes the position that the family doctor’s assessment that the appellant was stable should not be accorded much weight given the severity of the “flare up” and the short period of time since it had occurred.

16The panel found the appellant candid and credible in giving her evidence. She explained the circumstances that led to her hospitalization as follows. She was working very hard and long hours at two part-time jobs, both caring for elderly patients. On the evening of July 6, 2019, she quarreled with her sister, then drove out to meet friends at a restaurant. As the evening progressed, she grew more and more distressed about the quarrel. This spiralled into crying. She felt she should not drive in this condition so called her mother who drove her home. She continued to grow more upset at home, resulting in her mother’s call to a Crisis Response Team composed of mental health clinicians. On their recommendation, she went with the Crisis Response Team to hospital and was admitted.

17The appellant stated that she did not know Dr. Mitchell, the author of the MCR. She did not have any recollection of meeting her or talking to her. She met only with one doctor, Dr. Turner, her treating psychiatrist while in hospital, and this was on the day following her admission. With reference to Dr. Mitchell’s MCR, the appellant stated that she has never been diagnosed with a major depressive disorder, and she has never had a suicide plan

18This evidence raised the question at the hearing whether Dr. Mitchell was qualified to complete the MCR, for this form must be completed by a physician who has treated the subject. After discussion, the appellant agreed that the MCR should be taken “at face value”, meaning that the panel should accept that Dr. Mitchell did at some point see the appellant and did complete the MCR as a result. We accept therefore that Dr. Mitchell is a psychiatrist who had some level of interaction with the appellant while she was in the emergency ward at the hospital and this resulted in the MCR. The appellant stated that she may have said something regarding suicide to the Crisis Response Team who took her to hospital. She stated that she may well have said that she “didn’t want to be here” but this was not a statement regarding suicide but a statement that she did not like her present mental and emotional feelings.

19We note that Dr. Mitchell can only have had one contact with the appellant. The MCR she prepared and submitted includes minimal information. It offers no observations that led to her conclusion regarding the diagnosis. The diagnosis is indicated by marking “x” beside a box as we have noted earlier. Given that Dr. Mitchell underlined the words “suicide plan” only, and not the rest of the statement “involving a vehicle or an intent to use a vehicle to harm others”, we find that there is insufficient evidence to satisfy the panel that Dr. Mitchell thought the appellant had a suicide plan involving a vehicle. There is nothing else in the evidence before the panel to suggest this is what Dr. Mitchell meant, nor that the appellant had such a plan.

20The appellant indicates that she never had a suicide plan of any kind. The panel finds her credible on this point.

21The appellant testified that the day after her admission to hospital, she already felt much better. She used the time to study and prepare for the fall term of her nursing program. She met with Dr. Turner. She reported she is motivated to be healthy, and as a result stayed in hospital for an addition two days voluntarily to address a digestive problem she was having.

22As the panel has already stated, at the Registrar’s request, the appellant’s GP, Dr. Shepard submitted a completed Mental Health Assessment to the Registrar, stating: “flare up of symptoms now under much better control. Back to baseline. Mild Anxiety & Depression”. The panel finds that this assessment means that the appellant is back to her normal state of mind and mood. In this condition, she has driven a car for 4 years without any incident related to her medical condition.

23Although Dr. Shepard’s medical assessment report would appear to comply with section 14.6.1 of the CCMTA Medical standards for Drivers applicable to psychiatric disorders (including major depressive disorder) for reinstatement of the appellant’s licence, the Registrar imposed a three-month period of stability before it would consider reinstatement. The CCMTA does not impose a 3-month waiting period. In addition, the Registrar provides no evidence for its rationale for requiring a 3-month period of stability.

24The appellant’s evidence was that she has never experienced any difficulty with judging whether or not she is able to drive safely. She points to the fact that on July 6, 2019, she felt fine while driving to the restaurant but as her mood darkened, she decided not to drive home and called her mother. This indicates that even as she was approaching or in crisis, she had enough insight not to drive. The panel finds that this is a significant piece of evidence in the context of the decision we must make. It speaks directly to her judgment regarding her ability to drive safely and demonstrates that it is sound.

25The appellant’s testimony, although not related directly to driving, gave the panel ample evidence of her judgment and stability. The appellant told the panel that despite her recent hospitalization, one of her employers, a physician, trusts her to take care of her mother including administering medications. This indicates complete faith in the appellant’s skills and abilities in caring for a vulnerable individual. To support her testimony, the appellant submitted as evidence a letter from a Registered Health Care Provider who is also her employer. The letter was a narrative indicating the family has no concerns about the appellant’s mental health. The family has witnessed the appellant going beyond her duties and demonstrating her capabilities on July 18, 2019 when a visiting small child was injured. The appellant responded quickly and appropriately to establish control over the situation and resolve it, keeping everyone safe and restoring calm.

26The appellant told the panel that not having her licence means she must rely on her mother, who works, to drive her to school. She is also unable to attend to a second patient for whom she provides care on a part-time basis. The suspension of her licence is imperiling her position with her second patient, and the loss of income means that she will have difficulty paying her tuition.

27The appellant advised us that she has many support groups to whom she can and does turn to, including her family, her extended family (grandparents and aunt) friends at nursing school and the counselling services offered at nursing school. She has her pediatric doctor who has attended on her since she was a child. The doctor has recently increased her medication to help her with mood control. Dr. Shepard, the appellant’s long-standing family physician will also continue to follow the patient with appointments every couple of months and on an as-needed basis, as indicated on the Mental Health Assessment form. On that form Dr. Shepard also states that the appellant is compliant with the recommended treatment regime including medications and appointments. The panel finds that adherence with all prescribed treatments will facilitate ongoing mental stability. The panel also accepts Dr. Shepard’s opinion that the prescribed medication does not result in any side effects that might impair the appellant’s ability to operate a motor vehicle. She will also start dialectical behaviour therapy on September 4, 2019. She believes that this will be a helpful adjunct to the one-on-one counselling she receives every month or couple of months, as she feels the need.

28The appellant testified that she has continued to maintain a very high level of functioning and to bear significant responsibilities without difficulty since her discharge from hospital. In addition to her work with her elderly clients, she informed the panel that as part of her RN program she is currently completing a clinical rotation working with vulnerable post-operative neurosurgical patients. She reports she has fully disclosed her recent hospitalization to her clinical supervisor and still works as a nursing student in her full clinical capacity. She reports there have been no restrictions imposed on her scope of practice or training as a result of her recent hospital admission. The panel accepts this as indication of mental stability. She is able to function at a high level in a caregiver capacity.

29The appellant’s mother and her aunt both gave evidence on the appellant’s behalf. Both stressed how hard-working and how conscientious the appellant is. They both noted that during her hospitalization, the appellant was working constantly at her studies. The panel accepts this as an indication that she was not withdrawn but was continuing her active interest and work on her nursing studies and planned career during her hospitalization. This evidence does not directly assist the panel to assess the appellant’s ability to drive safely, but it does corroborate the appellant’s testimony that even while hospitalized she was feeling much better. It also supports Dr. Shepard’s statement in her medical assessment report that the appellant had “returned to baseline” 11 days later. Neither the appellant’s mother nor aunt reported any concerns with the appellant’s ability to drive safely, and both were in favour of the reinstatement of her driving privileges.

30In addition, based on her account of her behaviour in general and during her short crisis, i.e. her decision not to drive, her willingness to seek and accept help from others, her adherence to the recommendations of her health provider, as well as that her family physician reports she has appropriate insight into her psychiatric condition and the impact it has on driving, the panel is satisfied that the appellant has good insight into her condition. Therefore, we are not satisfied that the appellant’s mental condition is likely to significantly interfere with her ability to drive safely.

ORDER

31For the reasons set out above, pursuant to subsection 50(2) of the Act, we overturn the decision of the Registrar.