Better Safe Than Sorry

Figure 4: Excerpt from Report on Applicant with a Medical History form. A full copy of this form can be found at Appendix C.

 

74           If an applicant has not had an insulin reaction in the past year, the Service Ontario office or DriveTest centre can process his or her application. Otherwise, the form is sent to the Ministry’s Medical Review Section and the licence or renewal is delayed pending this review.

75           The Medical Review Section can ask the driver for more information to assess his or her medical condition. Staff in the Medical Review Section may also consult the Ministry’s Driver Improvement Policy Manual 2010, which contains tables showing what steps should be taken if certain medical conditions are identified, depending on the class of licence involved.

76           In the case of an application or renewal of a standard “G-class” driver’s licence, no further action is required. The assumption is that the driver’s condition is under control unless a physician reports otherwise. In the case of a commercial licence, the Ministry requires a specialist report be provided for review. If a commercial licence is granted or renewed, cyclical medical reporting is also instituted.

77           The Ministry recently announced plans to introduce online licence renewal. We were told that under this proposed system, people who indicate they have any of the listed medical conditions will not be able to have their applications processed online, but will be directed to go to a Service Ontario office or DriveTest centre instead.

 
 

Review and Appeals

78          If a driver’s licence is suspended for medical reasons, he or she can request an administrative review through the Medical Review Section or appeal the suspension to the external Licence Appeal Tribunal.
 

 

Mr. Maki’s Licence History

79           It was revealed during Mr. Maki’s trial that his type 1 diabetes was diagnosed in 2000. Ministry records show his first driver’s licence renewal application on which he reported having one of the listed medical conditions was in December 2002.

80          In November 2007, when he renewed his licence again at a Service Ontario office, Mr. Maki noted he had diabetes. However, the form he was given was out of date, and it did not refer specifically to “diabetes requiring insulin to control.” The Ministry took no further action.

81           Mr. Maki should have filled out the proper 2007 form, and should have identified that he had insulin-dependent diabetes. He would then have been asked to fill out a “Report on Applicant with a Medical History” form. If he had then reported having had an insulin reaction within the past year, the form would have been sent to the Ministry’s Medical Review Section for review. However, it is unclear whether Mr. Maki experienced any incidents of insulin reaction around that time, and normal Ministry procedure would not have required follow-up for a general licence.

82           In his decision, Justice Ramsay noted that Mr. Maki had experienced four serious episodes of hypoglycemia in 2002, 2003, 2004 and 2005, and he had apparently experienced hypoglycemia unawareness as well.

83           But the Ministry’s records indicate that none of Mr. Maki’s treating physicians ever reported that his medical condition put his driving ability at risk. The Ministry does not have access to Mr. Maki’s detailed medical history, and was not in a position to give an opinion on whether it should have received medical reporting under s. 203 of the Highway Traffic Act. An expert report prepared in connection with Mr. Maki’s criminal prosecution noted that his home glucose testing log book – dating back about five months prior to the June 2009 accident – showed frequent episodes of both mild and severe hypoglycemia. However, it also said it was unclear whether his physicians were aware of the frequency and severity of his hypoglycemia at that time.
 

 

Delayed Licence Suspension

84           The day after the accident, Mr. Maki was released from custody and prohibited from driving as a condition of his bail. Remarkably, the Ministry did not suspend his driver’s licence until January 7, 2011. Our investigation looked at the reasons for this delay.

85           If the reporting system had worked as intended, the emergency room doctor would have alerted the Ministry about Mr. Maki’s uncontrolled hypoglycemia. The police would also have notified the Ministry about the fatal accident and Mr. Maki’s medical condition. These steps would likely have led to immediate licence suspension after review by the Medical Review Section.

86           However, in Mr. Maki’s case, the system clearly broke down.

 

Initial Police Notification

87           Hamilton police did file a motor vehicle accident report with the Ministry the day after the accident. The section on the report form where police can make note of a driver’s medical or physical condition was marked as “unknown.” The Ministry told us that unless police have specific information about an individual’s medical history, it is common for this section to be marked in this manner. However, if Mr. Maki’s hypoglycemia had been mentioned, the Ministry would likely have required further medical information from Mr. Maki and suspended his licence.

88           Police did not submit a Driver Information/Request for Driver’s Licence review form to the Ministry, which could have alerted the Ministry to Mr. Maki’s medical condition. However, a police officer told us that he wrote to the Ministry on police service letterhead about Mr. Maki on July 1, 2009. He said he indicated in the letter that Mr. Maki had been involved in a fatal accident while experiencing diabetic shock, and asked that Mr. Maki’s licence be suspended. However, the Ministry has no record of ever receiving the letter.

 

Medical Condition Report

89           The emergency room doctor who treated Mr. Maki on the day of the accident prepared a medical condition report, stating that he had “diabetes or hypoglycemia or other metabolic diseases – uncontrolled.” This report was entered into evidence at Mr. Maki’s trial. It should have been submitted to the Ministry in accordance with s. 203 of the Highway Traffic Act. Normally, once it receives such a report, the Ministry automatically suspends the driver’s licence. The Ministry has no record of ever receiving the report.

 

Additional Police Contact

90           From April 10 to August 11, 2010, the police were in contact with the Ministry, requesting information about Mr. Maki’s driving record in connection with the criminal charges against him. The Ministry responded to these requests. However, given the nature of the inquiries, they were dealt with by a policy advisor in the Program Management Section who was not connected with the Medical Review Section. These communications did not trigger a licence suspension.

91           The Ministry’s records also show that it received a letter from the police dated October 21, 2010, asking that Mr. Maki’s licence be suspended, given the fatal accident and his medical condition. On November 4, the police followed up with an email, asking how the Ministry would be responding to their request. They also referred to evidence from Mr. Maki’s preliminary hearing, indicating that the emergency room doctor had notified the Ministry about Mr. Maki’s condition.

92           According to emails we reviewed, in November 8, 2010, the Ministry responded that police reports are logged in as “correspondence” and are given lower priority than medical reports. A Ministry official also told the police it might be difficult for the Ministry to suspend Mr. Maki’s licence, given that the incident had occurred more than a year earlier. The Ministry also confirmed it had nothing on file from the emergency room doctor. Later the same day, the Ministry told the police that the most it could do was request an up-to-date assessment from Mr. Maki’s diabetes specialist.

93           On November 8, 2010, the Ministry sent Mr. Maki a letter, asking him to have a Diabetic Assessment form completed and returned within a month and warning that if he failed to do so his licence would be suspended. The Ministry did not receive the requested medical information, and on December 29, 2010, it sent Mr. Maki a notice of suspension effective January 7, 2011.

94           Given that Mr. Maki was already prohibited from driving as a condition of his bail, the impact of the delay in formally suspending his licence is unclear. However, I have concerns about what occurred in his case.

 

Using Outdated Forms

95           The Ministry was unable to explain why Mr. Maki was given an outdated form, which had not been in use for three years, when he renewed his driver’s licence in 2007. The Service Ontario office Mr. Maki visited to renew his licence was privately operated. However, the Ministry should ensure that all offices that issue driver’s licences use up-to-date forms and are familiar with the protocols relating to medical conditions that can affect driving ability.

   

Asking the Right Questions of Drivers

96           Even if Mr. Maki had been provided with the correct licence renewal application and asked to complete a medical history form, there is no guarantee that he would have disclosed sufficient information to enable the Ministry to accurately assess any risk he might have posed. The Ministry relies to a large degree on self-reporting of medical conditions by drivers. The form that the Ministry requires applicants to fill out once they indicate they are insulin-dependent diabetics refers to “insulin reaction.” If they indicate on the form that they have had an insulin reaction within a year of the date of the application, the form is sent to the Medical Review Section.

97           Unfortunately, the term “insulin reaction” is not defined. Unless someone applying for a G-class licence happens to provide expanded information on the form, specifically stating that he or she has uncontrolled diabetes or hypoglycemic unawareness, the form is simply filed once it reaches the Medical Review Section and no further action is taken.

98           The Ministry’s explanation for this practice is that if a driver’s medical condition is serious, his or her treating physician is obligated to give notice under the Highway Traffic Act. At the same time, some Ministry officials acknowledged to us that physicians do not always file reports on their patients as required by the Act. Physicians may also have incomplete or outdated information about the medical status of their patients.

99           Under the circumstances, the Ministry should clarify the instructions on its “Report on Applicant with a Medical History” form with regard to drivers’ insulin reactions. For example, it would be helpful to include descriptions and/or examples of insulin reactions, and such terms as “uncontrolled diabetes/hypoglycemia” and “hypoglycemia unawareness.” The form should also require applicants to provide details about the nature of the “insulin reaction” they have experienced.

   

100        The Medical Review Section should also carefully review the medical history forms forwarded to them. If the nature of the insulin reaction an individual has experienced is not apparent, further information should be obtained and reviewed.

   

Filing of Medical and Police Reports

101        It is regrettable that the Ministry does not appear to have received the medical and police communications about Mr. Maki, which would have led to more timely suspension of his licence. We were unable to confirm what happened to these reports. However, the Ministry’s new e-filing system for medical reports and e-collision system for police accident reports may help reduce the potential in future for such reports to go astray due to human error.
 

 

Communication Lapses

102        By April 2010, the Ministry was aware that Mr. Maki had been involved in a fatal accident. Despite this, it did nothing to suspend his licence for another seven months. This lapse arose because information did not flow from the Ministry’s Program Management Section to the Medical Review Section. The Program Management Section focused narrowly on issues in its purview and failed to recognize the seriousness of the situation in terms of driver safety. The Ministry assured us that police reports relating to driver safety issues are given equal priority to medical reports. However, it is disturbing, given the facts of the Maki case, that a Ministry official would suggest that the Ministry assigned lower priority to police reports.

103        The Ministry should ensure that in future its staff members do not function in silos. There should be greater co-ordination and communication between the Medical Review Section and other operational areas. The Ministry should also educate staff on the importance of acting swiftly when information about driver safety is raised, regardless of whether it comes from police or a medical practitioner.

   

Further Systemic Observations

104        Our review of the Ministry’s processes for obtaining and assessing information about medical conditions that might affect a driver’s capacity also identified several additional areas of concern.
 

 

Knowledge of Driving Standards

105        Despite the fact that the Canadian Council of Motor Transport Administrators standards were updated in August 2011, the Ministry initially sent us the old 2009 standards in response to our request for documentation relevant to this investigation. In addition, during our interviews, Ministry staff in the Medical Review Section provided conflicting answers about the standards that were currently in use. It is important for the Ministry to apply the latest standards consistently when assessing the safety of drivers in Ontario.

   

106        One Ministry official also told us the Ministry was considering linking to the Council’s standards from its website. The driving public as well as medical practitioners should have easy access to the standards. This would assist the public and physicians in understanding the reasoning behind licence suspension and reinstatement on medical grounds. As well, given that the standards are relatively complex, it would be useful for the Ministry to provide an explanation of the standards and their relevance to evaluation of driver safety, in addition to a link.

   

107        There are multiple resource documents that physicians and Ministry staff can consult when assessing how diabetes affects a person’s ability to drive safely. There are the standards developed by the Canadian Council of Motor Transport Administrators and the guide produced by the Canadian Medical Association. The Canadian Diabetic Association has also issued guidelines for drivers with diabetes.

108        The available reference materials differ in their level of detail as well as in their treatment of the subject. An endocrinologist on the Ministry’s Medical Advisory Committee told us there is considerable confusion in the medical community over what standards should be applied. It seems clear that physicians and Ministry staff would benefit from a single consolidated resource for assessing the safety risk of drivers with diabetes, based on recent medical studies. The Ministry should conduct research and consult the medical community and stakeholders, including the Canadian Diabetic Association, with a view to developing a current, clear, and consistent guideline for use in assessing driving risks associated with diabetes and hypoglycemia. This guide should be available to physicians and the public through the Ministry’s website and other means of distribution.

   

Duty to Report

109        Under the Highway Traffic Act medical practitioners are responsible for notifying the Ministry about patients whose medical conditions might adversely affect their ability to drive. Physicians who fail to comply with this obligation are not penalized under the Act, but could be subject to civil liability. In 1985, a cyclist was struck and killed in Etobicoke by a driver who had epilepsy. In ruling on the subsequent lawsuit, Justice Janet Lang Boland of the Ontario Court of Justice concluded that two of the driver’s physicians had been negligent in failing to notify the Ministry about the risk posed by his condition.[22]

110        Similarly, the Ontario Court of Appeal ruled in 1994 that two Hamilton-Niagara-area physicians were negligent for failing to report that a driver had cervical spondylosis, before he was involved in a 1983 motor vehicle accident that seriously injured others. The doctors led evidence at trial that it was not the prevailing practice for physicians to report every incident where a medical condition might impact driving. In dealing with this argument, the Ontario Court of Appeal observed:

The appellants argue that s. 177 (now 203) does not give rise to a cause of action and evidence was tendered by medical experts that it was not the practice to report all incidents. That is, that somehow the medical practice overcame the statutory requirement. … we cannot accept that argument. If the burden is too onerous, it should be amended by the Legislature. We also think it is clear that the duty of doctors to report is a duty owed to members of the public and not just to the patient. It is clearly designed to protect not only the patient but people he might harm if permitted to drive.[23]

The College of Physicians and Surgeons of Ontario told us that physicians are educated about their reporting obligations in medical school and information about reporting requirements is available on the College’s website. The Canadian Medical Association has also produced a guide for physicians entitled Determining Medical Fitness to Operate Motor Vehicles: CMA Driver’s Guide.

111        We interviewed Dr. Donald Redelmeier, a professor from the Faculty of Medicine at the University of Toronto, who has co-authored articles relating to fitness to drive, motor vehicle crashes involving people living with diabetes, and physician reporting.[24] He notes that a variety of factors contribute to physicians’ uncertainty about reporting patients, including concern about patient dissatisfaction, limited time and training, and lack of knowledge about patients’ driving habits. Dr. Redelmeier told us that underreporting of patients is not as prevalent today as it was years ago, given the change to the OHIP schedule allowing physicians to bill for reports. However, he said despite the Highway Traffic Act’s expansive language, only a tiny fraction of drivers – fewer than .5% – are reported to the Ministry, far below the prevalence rates of many diseases that can affect driving. He observed that intermittent disabilities present challenges for reporting, and that the sheer breadth of the reporting requirement makes it difficult for doctors to comply strictly with the law.

112        Representatives of the Ontario Medical Association also told us one of the biggest impediments to physician reporting under the Highway Traffic Act is the broad nature of the obligation and the lack of clear guidelines.

113        The government attempted to improve this in 2002 and 2003, through proposed amendments to the Act that would have provided for regulations to specify the conditions that must be reported by medical practitioners, including functional or visual impairments that might make it dangerous to drive. However, the bills promoting these changes never proceeded past first reading.[25] In 2009, the Ministry consulted with the Ontario Medical Association about once again amending the reporting requirements, but this initiative did not move forward.

114        The Ministry’s present view is that the reporting obligation should lie with physicians, who are best placed to assess the individual circumstances affecting their patients’ ability to drive. The physician’s obligation is to report the patient and the Ministry’s is to make the call on whether the licence should be suspended.

115        The Ministry has engaged in some outreach efforts in the medical community, primarily through submitting articles to the Ontario Medical Association’s Ontario Medical Journal and by providing information, upon request, to provincial medical schools about the duty to report under the Highway Traffic Act. However, senior officials at the Ministry acknowledged to us that physician underreporting of unsafe drivers is still an issue and that additional outreach would be useful. An endocrinologist on the Medical Advisory Committee echoed this sentiment. Given the Ministry’s significant reliance upon medical practitioners to bring concerns about drivers to its attention, it should take more proactive steps to ensure they know their obligations.

   

116        As several members of the medical community told us in interviews, the scope of the duty to report conditions that “may make it dangerous” to drive is far-reaching, open to considerable interpretation, and may be out of step with the realities of medical practice. It would be beneficial if additional and clearer guidance could be provided to medical practitioners about what their duty means in practical terms when they see patients with medical conditions such as uncontrolled diabetes and hypoglycemia. The Ministry should engage medical professionals in a dialogue about what measures might better assist them in meeting their reporting obligations, and consider amending the law to reflect these measures.

   

Expanding “Medical Practitioner” Definition

117        Along with requiring “legally qualified medical practitioners” to report patients, the Highway Traffic Act also protects them from being sued for doing so (s.203(2)). The phrase “legally qualified medical practitioner” is defined in the Legislation Act, 2006, as meaning a member of the College of Physicians and Surgeons of Ontario (s. 87).

118        Mr. Maki, like many patients these days, received some of his medical care from a nurse practitioner. According to the Nurse Practitioner Association of Ontario, nurse practitioners are primary care providers who see patients with diabetes and provide information relating to their condition. They diagnose, manage medication and monitor patients and can provide comprehensive care, promote patient self-management and educate patients about their obligations when driving.

119        Nurse practitioners are authorized to complete two Ministry forms on behalf of their patients: The standard medical form for commercial drivers or drivers wishing to upgrade their licence, and the substance abuse assessment form, which must be completed when physicians report substance abuse and/or dependence in connection with certain impaired driving offences. However, nurse practitioners are not required to report patients to the Ministry whose medical conditions may make it unsafe for them to drive.

120        In British Columbia, nurse practitioners as well as psychologists are required to report such drivers.

121        The Nurse Practitioners’ Association of Ontario told us that nurse practitioners occasionally report patients, with their knowledge, to the Ministry. However, this is done on an individual and ad hoc basis. An Association representative told us that they have been told by Ministry officials that nurse practitioners might incur liability for reporting patients unless they are expressly covered by the legislation.

122        As the involvement of nurse practitioners in patient care continues to increase in Ontario, their exclusion from the mandatory reporting requirement appears anachronistic. It is in the public interest to ensure that all qualified nurse practitioners have the same obligations and protection from liability as physicians when it comes to reporting patients who present a driving risk. The Ministry should also review the experience of other jurisdictions and expand the reporting requirement to other professionals who may have legitimate concerns about how patients’ conditions affect their capacity to drive.

   

Reports from Concerned Citizens

123        In addition to acting on medical professionals’ reports about patients, three provinces – Alberta, British Columbia and Saskatchewan – also consider information from concerned members of the public about potentially unsafe drivers. In these jurisdictions, information communicated by citizen whistleblowers can result in additional inquiries to confirm someone is fit to drive. In British Columbia, the Office of the Superintendent of Motor Vehicles receives and assesses unsolicited reports about drivers from paramedics, chiropractors, family members and private citizens. If deemed appropriate, the Office will contact the driver for more medical information.

124        Ministry officials in Ontario told us they do not act on citizen concerns about drivers, but refer them to local police services. The Ministry expressed reluctance to encourage citizens to come forward because such an approach would likely trigger frivolous and vexatious reports.

125        Family members, neighbours, colleagues, and health care providers other than physicians could have relevant information about the demonstrable impact of a medical condition on someone’s driving. Physicians might not have access to this information or might overlook their reporting obligation for various reasons. While it is conceivable that some people might misuse a citizen reporting system, this does not necessarily justify ignoring the concept altogether. Our Office has received complaints from people whose concerns about drivers have been disregarded by the Ministry. With proper planning, the Ministry should be able to implement a process for acting on citizen reports of at-risk drivers that balances the need to protect people from meritless inquiries with the broader interests of public safety. Accordingly, the Ministry should consult with other jurisdictions and review best practices with a view to developing procedures for receiving and acting on information about potentially unsafe drivers from members of the public.

   

Diabetes Education

126        When a physician reports to the Ministry that a patient has uncontrolled diabetes or hypoglycemia, the Ministry requires the physician to complete its Diabetic Assessment form. Usually, the driver’s licence is immediately suspended and the Medical Review Section reviews the completed form to assess whether it should be reinstated.

127        The Diabetic Assessment Form includes a section on “diabetic education,” where the physician must note when the patient completed this education and whether any further education is recommended. It also allows for a “certificate of completion of diabetic education” to be submitted with the form (Figure 5).