Imagine this scenario:
Your patient recently had a seizure for which he saw a neurologist. He was diagnosed with epilepsy. He sees you, his physician, nurse practitioner or optometrist, for a routine check-up, at which point he discloses his recent diagnosis and the fact that, despite treatment, the seizures are likely to reoccur. You are worried about his continued driving.
Does this trigger a particular obligation on your part to report your patient’s condition if, in your opinion it makes it dangerous for him to drive?
Physicians, optometrists and nurse practitioners (the “health professional”) have the difficult and uncomfortable tasks of assessing their patients’ fitness to drive and making a mandatory report to the Ministry of Transportation when necessary.
Under Ontario’s Highway Traffic Act, the health professional must report to the Ministry of Transportation (the “Ministry”) any person 16 years and older, who, in their opinion, “has or appears to have a prescribed medical condition, functional impairment or visual impairment” that makes it dangerous to drive (regardless of whether they have a valid driver’s license). The Ministry of Transportation’s Medical Condition Report form was updated on July 1, 2018 to reflect the detail surrounding the types of medical conditions and impairments that require the kind of reporting found in the legislation.
In addition to mandatory reporting obligations, the health professional also has discretion to report other medical conditions, as well as functional and visual impairments that make it dangerous for a patient to drive and which are not contained in the prescribed list of conditions or impairments for mandatory reporting.
While health professionals have a reporting obligation, it is important to appreciate that they are not the ones who actually decide whether or not someone should be driving. They are not in a position to restrict a person’s driver’s licence. The decision of whether to restrict a person’s driving privileges is ultimately made by the Ministry.
Duty to Report
The duty to report is one that the health professional owes to the patients and to the public. The purpose of mandatory reporting is to protect patients from harm they may cause to themselves and other people if, as in this case, they are permitted to drive when it is unsafe for them to do so. The health professional must make this report even if, for instance, the patient has promised to stop driving.
Every treating health professional has a duty to report, including a patient’s family physician and specialist and this duty applies even if someone else may have the same duty. For example, if a patient’s cardiologist believes he or she has a reason to make a mandatory report to the Ministry, he or she cannot defer making the report in the hopes that the patient’s family physician will make the report. Similarly, a patient’s family physician cannot withhold or defer reporting to the patient’s specialist. It is also not enough for the health professional to simply report that the patient is suffering from a condition that may make it unsafe to drive. Rather, the health professional must specify the clinical condition that the patient has that, in their opinion precludes them from driving safely.
The Canadian Medical Association’s Driver’s Guide provides some guidance for physicians (and other care providers) on conditions that must be reported and the circumstances when a patient’s cognitive or functional status justifies a report.
Health Professional Liability
The Ontario Medical Association warns physicians that failing to report patients whose condition falls under the mandatory reporting category may leave physicians open to liability. This applies equally to other health professionals, as health professionals have been sued in cases where no report was made and the patient was involved in a motor vehicle accident where a person was severely or fatally injured. The Highway Traffic Act can protect health professionals from civil actions. It is also important to note that the requirement to report is an exception to the normal duty health professionals have to maintain patient confidentiality if the mandatory report is made in good faith.
However, the legislation cannot protect health professionals from patients who file complaints with the College. Often, patients who believe the health professional’s report should not have been made to the Ministry will file a complaint with the College. They may challenge the accuracy of the diagnosis and the evidence to justify a mandatory report. Patients may also complain that the health professional did not advise them of their obligation to report or of their medical condition that precipitated the report. Accordingly, while the threat of a complaint does not alleviate health professionals of their obligations to make a report, it means that the report should be done professionally and carefully.
Challenges Faced by Health Professionals and Risk Management
Assessing a patient’s fitness to drive can be a difficult task for health professionals. The decision to report may introduce conflict or distrust in the health professional/physician-patient relationship. To minimize conflict, the discussion with patients should go beyond advising them that it is unsafe for them to drive. Health professionals should explain to patients their statutory and legal obligation to make a report and that there are objective medical reasons for making such a report. Health professionals should be transparent and honest with their patients. It may be helpful to point out that the ultimate decision to suspend or revoke a patient’s driving license is made by the Ministry and not solely on the basis of the health professional’s report. This conversation should be documented.
While health professionals should get legal advice if they are not certain about their obligations or whether there is a need to make the report, health professionals can also minimize or manage their risk through the following recommendations:
- Base reports on a comprehensive assessment of the patient’s symptoms, diagnosis, and recommended treatment plan;
- Consult medical organizations, (for example, Diabetes Canada or the Alzheimer Society of Canada), for information on the medical conditions that pose a danger to operating a motor vehicle;
- Report only the information required and only in the circumstances specified in the legislation or guidelines, including the CMA Driver’s Guide (9th ed) and the Canadian Council of Motor Transport Administrators, Determining Driver Fitness in Canada;
- Consider scheduling a follow-up appointment within a reasonable time to reassess the patient, where the health professional is unsure about the patient’s prognosis or recovery time (but note that the report must be made when the diagnosis was made);
- Warn patients not to drive in the interim. It may take time for the Ministry to make a decision;
- Do not assume another health professional or physician made a report. Every treating physician or health professional must report; and
- If a patient asks to assist with having his or her license reinstated, consider whether the clinical condition that led to the restriction has improved enough to alleviate earlier concerns.
If you have any questions about this topic please contact us.
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