Date: 2021-09-29

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:

Sharon Bursey

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: Sharon Bursey, Self-represented

For the Respondent: Sonia De Santis, Agent

Heard by Teleconference: September 15, 2021

A. Overview:

1The appellant appeals the June 26, 2021 suspension of her Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2On June 14, 2021, the Registrar of Motor Vehicles (the “Registrar”) received an unsolicited Medical Condition Report (“MCR”) from psychiatrist, Dr. U., indicating that the appellant was suffering from alcohol use disorder (“AUD”) and a mental health condition that may make it dangerous for her to operate a motor vehicle.

3Having considered the evidence and for the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

4The issue in this appeal is whether the appellant is a person living with the medical conditions, specifically AUD and/or an additional mental health condition, which is or are likely to significantly interfere with her ability to drive a vehicle safely.

5To answer that question, I will address the following issues:

a. Is the appellant a person living with AUD and/or an additional mental health condition?

b. If the appellant is a person living with AUD and/or an additional mental health condition, is or are these conditions likely to significantly interfere with her ability to drive a vehicle safely?

C. LAW:

6Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

7Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely.

8Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

9A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

10On appeal, the Registrar has the burden of establishing on a balance of probabilities that the licence should remain suspended.

11Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

D. PRELIMINARY ISSUES:

12At the outset of the hearing, the respondent indicated that following the case conference, the appellant sent additional submissions directly to the Medical Review section of the Ministry of Transportation (the “Ministry”) and not to the agent herself, as requested. As a result, the submissions and the Registrar’s response to these submissions were sent directly to the appellant on September 8, 2021, and not to the Tribunal or the agent. The appellant acknowledged the receipt of the Registrar’s September 8, 2021 response. I acknowledged receipt of the additional submissions and the Registrar’s response just prior to the hearing.

13Following a discussion between the parties regarding whether to proceed with the hearing with the evidence available, or to adjourn the hearing to a later date in an effort to allow the appellant to obtain further medical information, the appellant elected to proceed with the hearing as scheduled.

E. EVIDENCE AND ANALYSIS:

a. Is the appellant a person living with AUD and/or an additional mental health condition?

14I find, on a balance of probabilities, that the appellant is a person living with AUD and an additional mental health condition, specifically bipolar disorder.

15The appellant testified that she has never been diagnosed with a mental health problem or condition.

16The appellant stated that she has never been diagnosed with bipolar disorder, does not know what mania or being manic means, has never been depressed, has never been prescribed medications for her mental health and that she was given a “clean bill of mental health” on her release from a psychiatric unit of a hospital in June 2021. In her Notice of Appeal (“NOA”), in the section regarding her “Mental Health Condition”, the appellant stated, “I am harmless to myself and others” and “jubilation …will never be a mental health condition to me and I will never accept that label.”

17However, when further questioned, the appellant acknowledged that approximately 30 years ago, at age 19 or 20 years old, she had a “nervous breakdown”, spent a week in hospital, was treated with Lithium and continued on Lithium treatment “for a while” following discharge. She further acknowledged that she decided on her own volition to stop taking the Lithium. The appellant stated that during this hospital admission she was diagnosed with bipolar disorder; however, she further stated that the diagnosis was later changed to seasonal affective disorder. Later during the hearing, the appellant stated that this hospital admission was not due to her mental health, but was rather due to stress and the consumption of, and bad reaction to, ecstasy, which she did not disclose to her health care professionals at that time.

18The respondent referred to a previous unsolicited MCR submitted by psychiatrist Dr. B., with the examination date of May 23, 2019. In the 2019 MCR, Dr. B. indicated that he was of the opinion that the appellant was suffering from uncontrolled substance use disorder – alcohol (AUD) and bipolar disorder. He also indicated that the appellant was “impulsive, erratic” and had “poor judgment”.

19The appellant recalled her consultation with Dr. B., stating that she went to the appointment with her mother, that Dr. B. insulted her and that she left his office before the consultation was complete. The appellant also stated that her driver’s licence suspension for medical reasons in 2019 was “water under the bridge”.

20According to a Mental Health Assessment form (“MH form”), dated June 18, 2019 and completed by the appellant’s family doctor since 2003, Dr. M., the appellant “has been assessed for ? [query] Bipolar Affective disorder in the past”, but the diagnosis was “not made as the patient did not follow-up”. Dr. M. indicated that the appellant’s symptoms at that time were impulsive or reckless behaviour, emotional control and euphoric mood. Dr. M. further indicated that the appellant has difficulties with judgment and does not have appropriate insight/sufficient understanding of her medical condition.

21Following the review of a subsequent letter from Dr. M. to the Registrar, stating that the patient’s mental health and AUD had been stable for three months, the appellant’s driver’s licence was reinstated, effective October 1, 2019, with a proviso that a follow-up medical report be filed on February 29, 2020. Dr. C., another physician at the same medical clinic, submitted such a letter.

22On June 14, 2021 the Registrar received the unsolicited MCR from in-patient psychiatrist, Dr. U. In the 2021 MCR, Dr. U. indicated that he was of the opinion that the appellant had a diagnosis of AUD and that she was admitted to hospital from June 10-14, 2021 due to mental health concerns.

23By letter dated June 16, 2021, the Registrar suspended the appellant’s driver’s licence, effective June 26, 2021, with the reported conditions of “Mental Health Condition” and AUD. The Registrar requested that the appellant have her treating physician, specialist or nurse practitioner complete both a MH form and a Substance Use Assessment form (“SUA” form), when her condition improved.

24The appellant was questioned about the events leading up to her hospitalization in a psychiatric unit from June 10-14, 2021. The appellant stated that: she and her mother live in a townhome and that they each have some separate areas; she has a difficult relationship with her mother; her mother “overreacts” especially with respect to the appellant’s alcohol consumption; and her mother gets angry and is controlling because her mother feels neglected when the appellant goes out. The appellant further stated that in the afternoon of June 10, 2021 when the appellant attempted to walk out the door, her mother called 911 and that her mother made up stories and was not truthful to the police when they arrived. The appellant stated that she, herself, was not manic and did not have erratic behaviour that afternoon but was “upset” and “angry” when the police handcuffed her and took her to the hospital “against her will”.

25The appellant’s testimony regarding the remainder of the events of June 10, 2021 through her discharge from the psychiatric unit of the hospital on June 14, 2021 was vague. However, when specifically questioned whether she was assessed in the emergency department, was placed on one or more “Forms” under the Mental Health Act (“the MHA”), and whether she was offered “Rights Advice”, she answered affirmatively.

26Based on my knowledge as a licenced and duly qualified physician in the province of Ontario¹, I am aware of the provisions of the MHA². Specifically, in s. 17 of the MHA, where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe the person,

a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

c) has shown or is showing a lack of competence to care for himself or herself,

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

d) serious bodily harm to the person;

e) serious bodily harm to another person; or

f) serious physical impairment of the person,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

27Furthermore, as per my knowledge of the hospital system in Ontario and the provisions of the MHA, I find on a balance of probabilities that the appellant was initially assessed by a physician in the emergency department at the hospital and placed on a “Form 1” (Application by Physician for Psychiatric Assessment), and that on June 11, 2021, Dr. U. assessed the appellant and placed her on a “Form 3” (Certificate of Involuntary Admission). The appellant submitted as part of her NOA, the second page of what appears to be a “Form 30” (Notice to patient under s. 38(1) of the MHA) signed by Dr. U. on June 11, 2021. As per s.38(1) of the MHA, “an attending physician who completes a certificate of involuntary admission…shall promptly give the patient a written notice…and shall also promptly notify a rights adviser.”

28In addition, the appellant submitted a copy of the “Discharge Summary, Mental Health and Addictions” for her June 10-14, 2021 hospitalization in her NOA. The Discharge Summary stated that the reason for admission was “mania” and that in follow-up she would be contacted by both a regional out-patient mental health clinic and a RAAM (Rapid Access Addiction Medicine) clinic. The appellant denied having received calls or messages from either out-patient clinic since discharge. Although the appellant testified that she only received sleeping medication while hospitalized, the “Medication Reconciliation Discharge Prescription” signed by Dr. U. on June 14, 2021 and submitted by the appellant as part of her NOA, lists five mental health prescriptions, including three prescriptions for haloperidol (different strengths/modes of intake) and two prescriptions of lorazepam (different strengths/modes of intake). At the hearing, I also took note of the fact that the copy of these prescriptions received by the Tribunal had several diagonal lines drawn through it. The appellant stated that Dr. U. had drawn these lines through the prescriptions on the original copy, a nurse told her she had no discharge prescriptions, yet the nurse gave her the Medication Reconciliation Discharge Prescription. When questioned about taking any prescribed or recommended medications, the appellant stated that she is “totally against pharmaceuticals” and is “pure in her attitude”. During the hearing the appellant initially called herself a Naturopath, but later, when questioned about this, clarified that this title was not official as she only did one year of schooling in this discipline and did not graduate.

29In her NOA, the appellant wrote that she uses beer and wine to socially lubricate herself and lower her inhibitions. At the hearing the appellant initially testified that she is “not a drinker” and that her mother exaggerates her drinking. Later, the appellant admitted that, prior to her June 2021 hospitalization, she would go out to a restaurant or patio 2-4 times per week and have 3-4 beers over three hours or so on these occasions. Based on my knowledge, I am aware that Canada’s Low-Risk Drinking Guidelines recommend that women consume no more than 10 drinks a week, with no more than two drinks a day most days. The appellant admitted that following her recent discharge from hospital on June 14, 2021 she continued to consume alcohol, but since approximately the end of June 2021 she has abstained from alcohol. The appellant admitted that in the past, her family would have said that she had a problem with alcohol, but now (since she has abstained) they would no longer say this. She denied ever being a “heavy drinker”.

30In a 2019 Substance Use Assessment form (“SUA” form) completed by Dr. M. on June 13, 2019, Dr. M. indicated that the appellant had the diagnosis of moderate AUD and that out-patient intensive counselling was recommended for this medical condition. Dr. M. also documented that the history from the appellant’s family suggests that AUD is a problem and that the appellant: has not agreed to the treatment plan; denies alcohol abuse; and has presented to the office having had alcohol (but did not drive herself).

31By letter dated August 30, 2019, Dr. M. indicated that the appellant had not consumed alcohol for three months (corroborated by her mother with whom she lives). By letter dated February 13, 2020, Dr. C. indicated that the appellant had been abstinent from alcohol for the past eight months.

32In the 2021 MCR, Dr. U. wrote in the discretionary section, “history of suspected AUD; police found empty bottles [of] alcohol in apartment; mother reports 1-2 bottles of wine daily; often intoxicated; and still driving.”

33The appellant stated that she refills wine bottles with her homemade herbal Chaga tea.

34As per the Preliminary Issues section, the Medical Review section at the Ministry received additional medical submissions for the appellant’s appeal, specifically completed MH and SUA forms, dated August 20, 2021. According to the respondent, it was apparent to the Medical Review section (as per Part 6 – Practitioner’s Information) that not only did the appellant complete these forms herself, but she indicated on these forms that she was a physician. At the hearing, the appellant admitted that it was a mistake identifying herself as a physician and filling out these forms on her own. The appellant stated that at that point in time she had not yet called for an appointment at her family practice clinic to have the Ministry forms completed. Furthermore, when she did call the clinic approximately two weeks prior to the hearing, she was told that Dr. M. had retired, the physician replacing Dr. M. was on maternity leave and that Dr. C. would not see her to fill out the forms until the end of October 2021.

35I note that both the August 2021 MH and SUA forms completed by the appellant herself, contain written evidence which is inconsistent with the oral evidence heard. For instance, in the SUA form, the appellant indicated that she had been abstinent from alcohol for greater than or equal to 12 months. In the MH form, the appellant answered the question “How many times has the patient been admitted to the hospital in the last 12 months due to their psychiatric illness” as “NA” (not applicable) and answered “No” to “Has the patient been prescribed any medication/treatment for any condition”.

36I prefer the opinions of Dr. M., Dr. B and Dr. U. over that of the appellant with regards to the appellant’s mental health including her AUD. I am of the opinion that these qualified health care professions, two of whom are psychiatrists, are in a better position to objectively form a medical opinion of the appellant’s mental health. In addition, based on my knowledge, I am aware that the mental health condition of AUD frequently relapses. Furthermore, based on my knowledge I am aware that Lithium is a drug prescribed for bipolar disorder, haloperidol is an anti-psychotic medication that can be used to treat mania, and that bipolar disorder and mania are mental health conditions. Furthermore, based on the June 2021 hospital Discharge Summary, including the recommended out-patient follow-up, the appellant was not given a “clean bill of mental health”. Moreover, it is clear that there were many inconsistencies in the testimony heard plus many inconsistencies between the oral and written evidence before me.

37After a careful consideration of all the evidence available to me, I find on a balance of probabilities that the appellant is a person living with the mental health conditions of AUD and bipolar disorder.

b. If the appellant is a person living with mental health conditions of AUD and bipolar disorder, is or are this/these condition(s) likely to significantly interfere with her ability to drive a vehicle safely?

38The Registrar has the burden of establishing that the appellant’s mental health condition is likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

39As per its September 8, 2021 letter to the appellant, the Registrar is of the opinion that in order to reinstate the appellant’s driver’s licence, it requires further information from the appellant’s treating physician, specialist or nurse practitioner. This requested additional information includes completed MH and SUA forms and confirmation: that the appellant’s mental and emotional health is stable; she is adherent with recommended treatment and/or has insight into her condition; her condition has improved or has been successfully treated or resolved; she has improvement in judgment; of the reasons for admittance to hospital in June 2021; and that she has remained abstinent from alcohol for a period of one year (this period may be reduced to six months if her practitioner confirms that she has successfully completed an alcohol treatment program and is supportive of her driving privilege).

40The respondent specifically referred to sections 14.6.1 (Psychiatric Disorder - All drivers) and 15.6.3 (Substance Use Disorder – All drivers) of the CCMTA Standards in support of their case.

41The appellant is of the opinion that: she does not have a mental health condition or will not accept the label of a mental health condition, and if she doesn’t “feel comfortable driving”, she doesn’t drive. She stated that she would never drive under the influence (“DUI”) of alcohol and said she has not driven a vehicle while under suspension. I note that the appellant’s “Extended Driver Record Search For Criminal Code Convictions” shows no evidence of any DUIs.

42Although I am not bound by the CCMTA Standards, I find them persuasive. I note that Chapters 14 (Psychiatric Disorders) and 15 (Drugs, alcohol and driving) describe important considerations when making a driver fitness evaluation in persons living with mental health conditions. Specifically, s. 14.6.1 states under “Standard” that all drivers [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
• the conditions for maintaining a licence are met.

In addition, s. 15.6.3 states under “Standard” that all drivers [are] eligible for a licence if:

• meets the criteria for remission and/or has abstained from the substance for 12 months;
• earlier re-licensing may be considered upon favourable 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; and
• where required, a road test or other functional assessment shows that the functional abilities for driving are not impaired.

43I acknowledge that the appellant feels that she does not suffer from any mental health condition or that she cannot “accept that label” or diagnosis, feels she was given a “clean bill of mental health” following her discharge from hospital in June 2021 and feels “harmless to [herself] and others”.

44However, the evidence before me from trained regulated health care practitioners indicates that the appellant has suffered from and continues to suffer from significant mental health challenges.

45In the 2019 MCR, Dr. B. indicated that the appellant was impulsive, erratic and had poor judgment. In the 2019 MH form, Dr. M. indicated that the appellant is not under regular medical supervision from a regulated health practitioner, has difficulties with judgment, and does not have appropriate insight/sufficient understanding of her medical condition and the impacts on her functional ability to drive. Furthermore, the evidence before me also indicates that the appellant continues to be unwilling to comply with treatment regimes or programs recommended by her treating health care providers. Since 2019, at least three physicians (Drs. B., M. and U.), have recommended out-patient treatment for the appellant’s AUD. In addition, Dr. U. recently recommended follow-up for the appellant’s bipolar disorder at an out-patient mental health clinic. Furthermore, as per my knowledge, bipolar disorder and AUD each can worsen the symptoms and severity of the other condition.

46I find, on a balance of probabilities, that the totality of the evidence before me indicates that the appellant continues to lack insight into her mental health. As per the CCMTA Standards, in the context of a driver with a medical condition, insight means that a driver: is aware of their medical condition; understands how the condition may impair their functional ability to drive; and has the judgment and willingness to comply with their treatment regime and any conditions of licensing. An individual’s level of insight is a critical consideration when assessing the risk of an episodic impairment of functional ability due to a mental health condition and an individual cannot compensate for an episodic impairment. For example, in medical terms, an episode of mania would be an acute mental health event, which may result in episodic impairment as per the CCMTA Standards.

47I also acknowledge that the appellant believes that if she does not “feel comfortable driving”, she would not drive. Furthermore, I also acknowledge that when questioned about consuming alcohol if and when her driver’s licence was reinstated, the appellant stated that alcohol is “not worth the hassle”.

48Although the appellant self-declared that she currently has been abstinent from alcohol for slightly less than three months, I find that this length of time of abstinence is insufficient. Based on my knowledge, I am aware that, as in the appellant’s case, AUD is often a relapsing disorder. Dr. C. in February 2020 indicated that, at that time, the appellant had been abstinent from alcohol for eight months. Furthermore, based on my knowledge, I am aware that AUD can worsen the symptoms and severity of bipolar disorder (and vice versa). In addition, the appellant has never attended the recommended out-patient treatment for her AUD and no treating qualified health care provider has supported the appellant’s return to driving at this time.

49In addition, I find, based on the evidence above, including the fact that the appellant recently filled in her own Ministry forms and mispresented herself as a physician on the forms, that the appellant continues to have difficulties with judgment.

50Furthermore, I find that the appellant also currently lacks sufficient judgment and insight to stop driving if either of her mental health conditions becomes acute or to stop driving and report to the authority if hospitalized due to either of her mental health conditions. By letter dated March 5, 2020 (following a review of Dr. C.’s letter indicating eight months of abstinence from alcohol and stability from a mental health perspective) the Registrar stated, “Should there be any changes in your medical condition, please advise this office immediately.” There is no evidence before me indicating that the appellant, herself, notified the Registrar of any changes in her medical condition prior to or after her June 2021 hospitalization for mental health reasons.

51Moreover, the appellant does not currently have support from a treating qualified health care provider for a return to driving for either of her mental health conditions. In addition, no treating qualified health care provider has recently indicated that either or both of the appellant’s mental health conditions is/are currently stable or resolved, or that she has improvement in judgment or appropriate insight/sufficient understanding of her mental health conditions. An individual’s level of insight is a critical consideration when assessing the risk of an episodic impairment of functional ability due to a mental health condition and an individual cannot compensate for an episodic impairment.

52Based on the totality of the evidence before me and after careful consideration, I find based on the above that the Registrar has discharged its onus of establishing that the appellant’s mental health conditions individually or combined are likely to significantly interfere with her ability to drive a vehicle safely.

53I acknowledge the burden that the lack of a driver’s licence may be having on the appellant. However, driving a motor vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

54I encourage the appellant to reach out to Dr. C. in late October 2021 as already planned. I note that the Discharge Summary from the appellant’s June 2021 hospital admission did not list any family physician’s name. With the appellant’s permission, Dr. C. should be able obtain a copy of Dr. U.’s formal Discharge Summary. I further encourage the appellant to remain under regular medical supervision.

F. ORDER:

55For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

LICENCE APPEAL TRIBUNAL

_______________________

Dr. Erica Weinberg, Member

Footnotes

1. 1Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.
2. 2Mental Health Act, R.S.O. 1990, Chapter M.7