Canada: Do You Have A Duty To Report A Medically Unfit Driver? New Reporting Requirements In Effect

Last Updated: September 2 2018
Article by Kathryn Frelick and Alissa Raphael

After 40 years without change, amendments to the medical and vision reporting requirements under Ontario's Highway Traffic Act ("HTA") are in effect. The amendments are significant and have broad implications for health industry clients. Starting July 1, 2018, physicians and other specified healthcare practitioners are subject to mandatory and discretionary reporting requirements in situations where an individual may be medically unfit to drive. Key highlights include:

Expanded mandatory reporting authority: Previously, only a "legally qualified medical practitioner" or an optometrist had mandatory reporting obligations to the Registrar of Motor Vehicles ("Registrar"). The new provisions expand this obligation to include nurse practitioners as one of the "prescribed persons" who have a mandatory reporting obligation under the HTA.

A mandatory report will lead to licence suspension. There is a process of review as well as an appeal mechanism if a patient disagrees with a licence suspension.

Conditions and impairments prescribed in regulation: Historically, whether or not a mandatory reporting obligation existed was based on the subjective opinion of a physician or optometrist that a person was suffering from a "condition" or "eye condition", respectively, "that may make it dangerous for the person to operate a motor vehicle". The amendments remove this discretion and clearly list by regulation the "prescribed" medical conditions, functional impairments and visual impairments that must be reported since they make it dangerous for a person to drive. These conditions include cognitive impairment, sudden incapacitation, motor or sensory impairment, visual impairment, substance use disorder and psychiatric illnesses. Optometrists are only obligated to report visual impairment.

The healthcare practitioner does maintain some discretion as they must now determine whether a person is experiencing a prescribed condition or impairment to a degree that triggers a mandatory reporting obligation. When, in the opinion of the healthcare practitioner, a condition or impairment is distinctly transient or non-recurrent in nature, or the changes to the person's ability are modest or incremental as a result of the natural aging process, there is no mandatory obligation to make a report. Recommended resources for the healthcare practitioner to consider in making these decisions are also set out in regulation.

Discretionary reporting introduced: Even when a person does not meet the requirements for a mandatory report to be made to the Registrar, the amendments allow for discretionary reporting of other medical conditions that may make it dangerous for a patient to drive. Discretionary reporting is not a duty, that is, there is no legal requirement to do so, but prescribed healthcare practitioners have the authority to make a report in appropriate circumstances.

In addition to physicians, nurse practitioners and optometrists, occupational therapists are included on the list of healthcare practitioners who have authority to submit a discretionary report to the Registrar. This authority prevails over any duty of confidentiality, standard of practice, or rule of professional conduct that may be imposed on the healthcare practitioner in making the report. In deciding whether or not to make a report, the healthcare practitioner must consider whether a person has a "medical condition, functional impairment, or visual impairment that may make it difficult for the person to operate a motor vehicle." Discretionary reports received by the Registrar are assessed against national medical standards developed by the Canadian Council of Motor Transport Administrators and do not always result in a licence suspension.

Requirement to meet before making a report: The obligation to file a report with the Registrar (both mandatory and discretionary) only arises after the healthcare practitioner has personally met with the individual to examine them or provide them with medical or other services. While not required, healthcare practitioners are encouraged to speak with patients prior to submitting a report to let them know that a report is being made to the Registrar.

New standardized reporting forms: Standardized reporting forms were developed and released on July 1, 2018. Physicians, nurse practitioners and occupational therapists are required to use the Medical Condition Report to make mandatory or discretionary reports. Optometrists must submit reports using the Vision Report to the Registrar. There is protection from liability for healthcare practitioners who report and those who use their discretion will not be subject to liability. A healthcare practitioner could potentially be found liable for failing to report.

Even where the obligation to report a medical condition is not triggered, health industry clients ought to be cognisant of specific situations where it is unsafe for a patient to drive (i.e. when under the influence of anaesthetic or medication) and must ensure processes are in place to address these risks. With the broader obligations, the duty to report does not just rest on physicians and health industry clients need to ensure that they are meeting their obligations and have appropriate systems in place.

A complete version of the new medical and vision reporting requirements in sections 203 and 204 of the HTA and sections 14.1 and 14.2 of Ontario Regulation 340/94, can be found on elaws.

We invite you to contact us to discuss a specific situation or to discuss strategies to educate staff and patients about these new requirements, as well as policies and processes to meet your obligations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Kathryn Frelick
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