Date: 2019-05-27

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 pursuant to Section 47(1) of the Act.

Between:

N.M.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Erica Weinberg, Member Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sonia De Santis, Agent

Heard by Teleconference on: May 10, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant, N.M., appeals the suspension of her driver’s licence. It was suspended by the respondent on March 6, 2018 following the receipt of a physician’s medical condition report indicating a diagnosis of seizure. The appellant appeals the suspension to the Licence Appeal Tribunal.

2For the reasons that follow, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ISSUE

3The issue is whether the appellant suffers from a medical condition that it is likely to significantly interfere with her ability to drive safely.

LAW

4The respondent has the burden of establishing the ground for suspending the licence on a balance of probabilities.

5The respondent has the power under s. 47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to suspend a driver’s licence for a sufficient reason. Subsection 14(1) of O. Reg. 340/94 (the Regulation) of the HTA states that a holder of a driver’s licence must not suffer from any physical condition likely to significantly interfere with their ability to drive safely.

6Section 14(2)(a) of the Regulation allows the respondent to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (CCMTA Standard) when determining whether the requirements of s. 14(1) are met. The CCMTA Standard at s.17.6.6 states that a non-commercial driver who suffers from epilepsy can have their licence reinstated if they follow certain requirements including:

a. It has been 6 months since the seizure occurred with or without medication; and

b. The subject routinely follows treatment regime and physician’s advice regarding prevention of seizures.

7We may take the CCMTA Standard into consideration, although it is not binding on us.

EVIDENCE

Uncontested Evidence

8It was uncontested that the appellant suffered a seizure while shopping at a grocery store. The seizure was a witnessed generalized tonic/clonic seizure lasting about two minutes. The appellant had an altered state of consciousness for about 45 minutes after the seizure. The appellant has no recollection of the seizure and only remembers becoming self-aware again at the hospital.

9At the hospital, on the day of the seizure, the appellant had a CT scan and blood tests done which all came back normal. She was also given a prescription for phenytoin, an anti-seizure medication, by the emergency room (E.R.) doctor in attendance.

10The appellant underwent a MRI scan on March 14, 2018 that found a 1mm frontal white matter hypertense lesion which is nonspecific. The report recommended a clinical follow-up neurology consultation.

11She also underwent an electroencephalogram (EEG) on May 29, 2018. An EEG is a test that shows the electrical activity occurring at the surface of the brain. This activity appears as waves which are classified according to their frequency, amplitude, shape, and position. The appellant’s test results showed the “presence of frequent paroxysms of 4 Hz generalized spike and wave discharges.” Spikes are fast waves named for their shape on EEG, and are usually followed by a slow wave. Spike and wave complexes are abnormal findings on an EEG. The appellant test results indicated idiopathic generalized epilepsy.

Respondent’s Evidence

12The respondent relied on the CCMTA Standard which recommends that a person with epilepsy may return to driving after a seizure-free period of six months and confirmation they are following physician’s advice. The evidence shows that the appellant has been seizure free for more than six months, however, the respondent states she is not following her physician’s advice.

13The respondent relies on three physician recommendations that the appellant take anti-seizure medication:

a. The E.R. doctor who treated her on the day of the seizure;

b. The internal medicine specialist who saw her on March 10, 2018;

c. Her family doctor who saw her following the MRI and EEG tests she completed.

14The internal medicine specialist, who reviewed her case with a neurologist, wrote a report that stated that the appellant had the option of not starting antiepileptic medications yet, but noted upcoming MRI and EEG tests. The report states “if any abnormalities are noted…then antiepileptic medication should be initiated.”

15The appellant’s family doctor completed a seizure and epilepsy form on September 9, 2018. The doctor writes that the appellant’s EEG was abnormal and showed epileptiform activity, anti-seizure medicine was prescribed, that the patient is not adhering to the recommended treatment regime, and that the provoking factor has not stabilized. The doctor writes “patient feels medication at this time is not necessary or appropriate.”

16The respondent submitted that it would consider lifting the licence suspension if confirmation is received that the appellant is adhering to the medication, there is confirmation of no missed appointments, and the recommended treatment regime is being followed.

Appellant’s Evidence

17The appellant believes that she has medical support not to take medication. She states that the E.R. doctor who treated her advised that if she went on the prescribed anti-seizure medication she would need to be tested regularly to ensure that the levels of medicine in her system do not reach a toxic level. This greatly disturbed the appellant. She states that the internal medicine specialist advised her she did not need to begin taking anti-seizure medication. She states that her family doctor is insisting on the medication and has offered no alternative.

18The appellant states that her family doctor has been treating her for many years and that this is the first time she has had a disagreement with him. She reported that her family doctor has belittled her as a result of her stance on the medication such that the doctor-patient relationship has been eroded. She says that she feels penalized for caring about her health. She testified that she researched the prescribed medicine and as a result does not wish to take it. She states she is open to an alternative medicine, but none has been provided.

19The appellant believes her seizure was a one-off incident. She states that every day she remains seizure-free is another day that affirms her belief that this was a one-time occurrence. She does not consider the MRI result to be significant as no doctor has explained to her the significance of the white dot seen and whether or not it is related to the seizure.

20In response to questioning, she agreed that at the time the seizure occurred it was a significant issue. She agreed that her internal medicine specialist only recommended not taking medication if her MRI and EEG came back normal. She further agreed that he would have recommended medication based on the abnormal test results. Nevertheless, the appellant believes she does not have epilepsy and she feels fine.

ANALYSIs

21The appellant has a serious medical condition. The testing she has had done since her seizure strongly suggests epilepsy. In particular, the EEG test is highly suggestive of epilepsy.

22Although not binding on us, the CCMTA Standard provide guidance as to when a person who has suffered a seizure can return to driving. The respondent relies on the CCMTA Standard to provide evidence regarding the appropriate treatment of seizure and the risks of seizure reoccurrence.

23With regard to treatment, the CCMTA Standard requires the appellant to have completed six months without a seizure, which she has done. It also requires that she be compliant with her physician’s treatment regime, which she has not done.

24The CCMTA Standard provides information on the chance of seizure reoccurrence after an initial unprovoked seizure. The reoccurrence rate ranges from 23% to 71% with an average risk of reoccurrence of 43%. It states that in a person with a normal EEG, the chance of recurrence is reduced. With an abnormal EEG, the chance of a second seizure is increased.

25We find the CCMTA Standard evidence persuasive that the appellant has a raised risk of seizure reoccurrence due to her abnormal test results and lack of medication.

26The appellant is in the unfortunate situation that the professional relationship she has with her family doctor has broken down. She is no longer able to get the guidance she needs. She also lacks the ability to find another family doctor due to the few in her location. It is possible, however, that the appellant may be able to ask her family doctor for a referral back to the internal medicine specialist who first treated her. He may be able to provide her with a prescription for a different medication that would then be supported by her family doctor.

27Unfortunately, due to the abnormal test results that show the appellant has a higher chance of seizure re-occurrence, and her current refusal to take anti-seizure medication as recommended by three doctors, the appellant presents with a medical condition that is significantly likely to affect her ability to drive safely.

28The appellant is not required to take medication. However, as driving is a privilege, not a right, in order to keep the roads safe for everyone, it is important that the appellant appropriately treat her condition before she returns to driving.

CONCLUSION

29The respondent has met its burden to prove on a balance of probabilities that the appellant has a medical condition likely to affect her ability to drive safely. Although she has not had a seizure in over six months, she needs to be compliant with her physicians’ treatment recommendation prior to returning to driving.

ORDER

30For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the Appellant’s driver’s licence is confirmed.