Tribunal File Number: 13312//MED
Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Minister of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of the Act.
Between:
S.B.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Constantine Petrou, M.D., Member Laura Hodgson, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Stephen Grootenboer, Agent
Heard by teleconference: June 4, 2021
REASONS FOR DECISION AND ORDER
Overview:
1This is an appeal from the decision of the respondent Registrar of Motor Vehicles to suspend the appellant’s motor vehicle licence on medical grounds. The decision to suspend was made following receipt of a medical report indicating the appellant’s ability to safely drive a vehicle was impacted by a substance use disorder and a psychiatric condition.
Confidentiality Order
2At the outset of the hearing we considered whether, given the nature of this matter, a confidentiality order would be appropriate. Normally, the Tribunal’s decisions include the names of the parties to the proceeding in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586.
3As public access to tribunal proceedings is protected by s. 2(b) of the Charter of Rights and Freedoms, the Tribunal will only exceptionally restrict public access to the identity of parties by anonymizing or initializing their names in its decisions. Before doing so, the Tribunal must be satisfied that the interest in safeguarding personal privacy in a particular case outweighs the public interest in including that information in the publicly accessible decision.
4Section 2(2) of the Tribunal Adjudicative Records Act, 2019 allows a tribunal to make a confidentiality order on its own motion if it determines that:
a. matters involving public security may be disclosed; or
b. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.
5In this case, the details of the appellant’s medical records are of such an intimate and personal nature that the desirability of a confidentiality order outweighs the desirability of adhering to the open court principle. Failure of the Tribunal to protect such personal and intimate medical details would likely have a chilling effect on participation in the Tribunal’s processes. If persons believed that their names and intensely personal medical information would be published on a publicly available database, they may decide not to exercise their right to participate as parties before the Tribunal. This would pose a serious risk to the administration of justice.
The Tribunal must choose an order that intrudes on the open court principle as minimally as possible. As a result, we order that the appellant be referred to in this decision using her initials.
ISSUE
6The issue in this appeal is whether the appellant has a medical condition that is likely to significantly interfere with her ability to safely drive a motor vehicle. It is not in dispute that the appellant suffers from a medical condition, bipolar disorder. The issue to be determined is whether this condition is likely to significantly interfere with her ability to drive safely. There is also an issue as to whether the appellant has a substance use disorder that significantly interfere with her ability to drive safely.
RESULT
7For the reasons that follow, we find that the appellant does not suffer from a medical condition and/or substance use disorder that is likely to significantly interfere with her ability to drive a motor vehicle safely. We set aside the Registrar’s decision and direct the Registrar to reinstate the appellant’s licence.
LAW
8The Registrar has the power under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) to suspend or cancel a driver’s licence. A driver’s licence can be suspended if, among other things, the driver suffers from a medical condition or addiction that is likely to significantly interfere with their ability to drive safely. Subsection 14(1) of O. Reg. 340/94 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;
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.
9Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may consider the CCMTA Standards. They are not, however, binding.
10The Registrar has the burden of establishing the ground for suspending a driver’s licence on a balance of probabilities. The Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.
EvidenCe and ANALYSIS:
11The Registrar received a Medical Condition Report on April 21, 2021, from the appellant’s psychiatrist indicating that appellant suffered from an alcohol and marijuana use disorder, was ‘resistant to changing behaviour’ and there was ‘evidence of aggression/poor judgement/poor impulse control’. The psychiatrist also noted that the appellant was “distressed with suicidal ideation, but not involving cars”.
12The appellant’s licence was suspended on April 30, 2021, because of the reported conditions of alcohol use disorder and mental health condition. The Registrar requested the completion of a Mental Health Assessment before reinstatement could be considered. The appellant appealed the suspension on May 14, 2021.
13The appellant was hospitalized from April 24 to May 10, 2021, because of an emotional breakdown. The appellant’s attending psychiatrist at the hospital sent the Registrar a letter dated May 12, 2021. The letter detailed the appellant’s condition and its impact on her ability to drive. It included the following:
I am writing this letter in support of a return of [S.B.’s] driving license. I understand that her community physician was concerned about risk of driving while under the influence of drugs and/or alcohol. This physician also noted [S.B.] to be struggling mentally and sent her to hospital, where she admitted under my care from April 24 - May 10, 2021.
During this time, [S.B's] medication was adjusted and her mental health improved. We spoke several times about her driving risks. She did admit to alcohol and cannabis use but adamantly denied that she drives once she has used these substances. She is very aware of the risks to herself and the community at large if she engaged in this behavior. She stated that she may have done so in her earlier years but certainly does not do so now and will attend to appointments, chores and so on before she chooses to partake of cannabis or alcohol. It should also be noted that she did not have symptoms of withdrawal from alcohol or cannabis while she was admitted and certainly did not have access to either of these during the 3 weeks she was admitted.
Her symptoms of the mental health condition for which she was admitted also did not convey any great risk to driving safety.
In short, I do not view [S.B] as a person in a high risk category for dangerous driving and I would actually be concerned that, given her living situation (lives alone and a fair distance from supports), that her health may deteriorate without her license as she would not be able to attend appointments or other activities of daily living easily (such as get groceries).
14On May 26, 2021, this same psychiatrist completed the Mental Health Assessment form. The psychiatrist indicated the following by checking the applicable boxes:
The appellant’s primary mental illnesses are “Bipolar Disorder” and “Personality Disorder”;
The onset of the most recent illness episode was less than 3 months ago;
The appellant’s condition is stable with ongoing moderate symptoms;
Current symptoms are anxiety, depressive symptoms and thoughts of self harm –‘no active plan’ noted;
The appellant has no issues with cognition, attention or memory;
The appellant has no difficulty with judgement;
The appellant does not have an active substance use disorder, noting ‘she does use alcohol and cannabis, but no active disorder’;
The appellant is prescribed medication, the medication does not impair ability to safely drive;
The appellant is under monthly medical supervision, adheres to recommended treatment and has demonstrated no pattern of non-adherence;
The appellant has the appropriate insight/sufficient understanding of medical condition and the impact on the functional ability to drive; and
The appellant does not require an independent functional assessment.
15On May 26, 2021, the Registrar confirmed that the appellant’s licence remained suspended and requested that the appellant’s treating physician provide the following information:
Confirmation of a three-month period of mental and emotional stability
Confirmation of adherence with treatment and/or insight to condition
Confirmation that condition successfully treated/resolved
Confirm improvement in condition and in judgement
16At the hearing, the respondent reviewed the materials and indicated that the appellant’s licence was suspended because of both substance abuse and mental health conditions. In the respondent’s view, the appellant should not be permitted to drive a motor vehicle until she establishes a three-month period of mental stability. The respondent noted that the most recent medical assessments were written two days and two weeks after the appellant’s release from hospital. The respondent relies, in part, on guidelines in the CCMTA Standards with respect to psychiatric disorder (chapter 14). The respondent is not requesting any period of abstinence with respect to substance use.
17In her evidence, the appellant candidly acknowledged that she consumes alcohol and cannabis and noted that she has been diagnosed with bipolar disorder. She, however, adamantly denied that either her substance use or mental health condition impacts her ability to drive safely. The appellant noted that she is 56 years old, has been driving since she was 18 and has no infractions on her driving record, let alone any alcohol or impaired-related infractions.
18The appellant explained that she has suffered mental health challenges since she was a child but was not diagnosed with bipolar disorder until she was an adult. The appellant described having an acute mental health crisis in April when she was struggling with the death of her father and the impact of the pandemic. The appellant told us that, because of the pandemic, she did not want to attend the hospital as requested by her psychiatrist. She acknowledges that she had suicidal ideation at this time but had no intention to drive (as confirmed by her psychiatrist at the time). The appellant states that because she refused to attend the hospital, she was removed from her home by police and admitted to hospital on April 24, 2021. She acknowledges that, at that time she was in a depressive state.
19The appellant told us that she has spent her entire life dealing with mental health issues. She noted the cyclical nature of the disorder, its impact on her work, self-esteem, and poor judgement with respect to relationships. She repeatedly emphasized, however, that it does not impact her driving. The appellant was angered by any suggestion that she could demonstrate in three months that her bipolar disorder was resolved. She also noted that she has struggled with suicidal ideation since a young age but noted that it is wholly unrelated to driving and is not something that will “go away”.
20Since her release from hospital, the appellant has relocated to a smaller community. The hospital psychiatrist has referred her to community mental health services which the appellant has attended monthly. She has indicated that her medications have been stabilized and she is making plans to obtain a support dog.
21With respect to substance use, the appellant testified that her alcohol consumption varies. In the past, when depressed she would drink three to four bottles of wine a week. Currently, the appellant states that she is drinking far less regularly. She stated that, while she does not get high, she consumes cannabis daily via a vape pen to help decrease her anxiety. The appellant repeatedly stressed that she does not consume and drive and only ever uses after she is “in for the day”. The appellant correctly noted, “what I do in my home is up to me”. In the appellant’s view, her prior psychiatrist who was older, “was conservative” and did not approve of any substance use.
22We have thoroughly reviewed the documentary evidence and extensive oral testimony. At the hearing, the appellant presented as angry, sometimes confrontational, but also credible with respect to her substance use and the implications of her mental health condition on her driving.
23We note that the most recent and most detailed medical evidence available indicates that the appellant does not have a substance use disorder and her mental health condition does not impact her driving safely. The appellant’s treating psychiatrist notes that she adheres to recommended treatment and demonstrates appropriate insight into her medical condition and any impact it may have on her driving. There is nothing to indicate that the appellant’s mental health event in April, her hospitalization or her ongoing struggle to manage symptoms associated with bipolar disorder impacts her ability to drive safely.
24The Tribunal recognizes that the appellant’s community psychiatrist submitted an unsolicited Medical Condition Report noting the Appellant had a substance use disorder. The appellant’s treating psychiatrist at the hospital disagreed with this assessment. In her letter to the Registrar and the completed medical assessment, the hospital psychiatrist indicates that the appellant showed no evidence of a substance use disorder. We accept the appellant’s testimony that, while she consumes both alcohol and cannabis, she does so in the comfort of her home. There is simply insufficient evidence to establish, on a balance of probabilities, that the appellant has a substance use disorder that is likely to significantly interfere with her ability to drive safely. We also note that the appellant, who candidly admitted to alcohol and cannabis use, has zero infractions on her driving record.
25The initial Medical Condition Report also noted that the appellant was resistant to making changes and was suicidal, though her ideation was not with respect to driving. We accept the appellant’s evidence that she was experiencing an acute mental health crisis at the time of that report. As she explained, there were various events in her life that made her unable to cope and resistant to attending the hospital at that time. In the more recent assessment of the treating hospital physician, the mental health condition for which the appellant was admitted “did not convey any great risk to driving safely”.
26The CCMTA Guideline 14.6.1 states that individuals with psychiatric disorder are eligible for a licence if:
the condition is stable
the driver has sufficient insight to stop driving if 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
conditions for maintaining a licence are met.
27Based on this standard, the appellant is eligible for a licence. While she suffered an acute episode requiring hospitalization in April, she is now stable and has a treatment plan. Her treating physician has indicated that the symptoms for which she was hospitalized did not impact driving. An acute mental health crisis requiring hospitalization does not, on its own, justify maintaining a licence suspension. The treating physician fully supports a return to driving and, in fact, notes the detrimental impact that licence suspension has on the appellant.
28The most recent medical information and the evidence presented at the hearing all indicate that the appellant has the necessary insight into her medical condition and any potential impact on her driving. We find that the respondent has failed to establish, on a balance of probabilities, that the appellant suffers from a medical condition that is likely to significantly interfere with her ability to drive safely.
ORDER:
29For the reasons set out above, we set aside the Registrar’s April 30, 2021, decision to suspend the appellant’s licence.
LICENCE APPEAL TRIBUNAL
Constantine Petrou, MD., Member
Laura Hodgson, Member
Released: June 17, 2021