Fitness-to-drive reports: Will Ontario doctors soon breathe easier?
CMAJ 1998;159:132
© 1998 Canadian Medical Association
The statutory duty to report "unfit" drivers and the resulting potential liability for failing to report them has long been a sore point among physicians. Now Ontario appears ready to respond by relaxing the law. It has little choice, because it is facing complaints from 3 groups:
- Doctors, who are uncertain about the extent of their responsibilities;
- Patients, who believe they have been unfairly singled out by the duty-to-report legislation; and
- Provincial officials, who recognize the unworkable nature of the current requirements.
Recent case law such as Wasserman v. Spillane (see CMAJ 1994;150:988-90) and Toms v. Foster (see CMAJ 1994;151:667) emphasized the mandatory nature of the reporting requirement in Ontario and most other provinces and territories. The cases upholding the legislation have made it clear that patient confidentiality does not take precedence over the statutory requirement to report conditions that physicians think may make it dangerous for a patient to drive.
The Wasserman case involved a man with a long history of epileptic seizures who was involved in a traffic accident. The ruling against 2 physicians who had treated him endorsed a finding of civil liability because of their failure to report the man's condition. The judgement in the Toms case, in which a man with cervical spondylosis struck and injured a motorcycle driver, stated that "the duty of doctors to report is a duty owed to members of the public and not just to the patient." The court rejected the physicians' argument that it was not the practice to report all incidents and responded that if the "burden is too onerous, it should be amended by the legislature."
Recent reports indicate that the Ontario government is now willing to consider amending the Highway Traffic Act's mandatory reporting requirement so that a distinction will be made between medical conditions that must be reported and conditions that, at physicians' discretion, may be reported. This would provide physicians with a list of reportable conditions, such as seizures and unpredictable loss of consciousness, which must always be reported to the Ministry of Transportation. They would also receive guidelines to assist in determining whether to report patients who have other types of conditions, including temporary or long-term ones, on a discretionary basis.
For now, however, Ontario's doctors are still obliged to report all cases where a patient may be unfit to drive. Legislation in all parts of Canada imposes the duty to report by placing the onus on physicians to determine which medical conditions are "dangerous" when a patient is operating a motor vehicle. Existing guidelines that are available through medical licensing authorities and the CMA's Physicians' Guide to Driver Examination will help physicians comply with this statutory requirement.
(In the Wasserman case, the 2 physicians involved were initially found 40% liable for the accident. In an appeal heard last month, the Court of Appeal decided that the physicians were only 5% liable, in part because Wasserman had failed to take his medication and had falsified his licence application renewal.) — Karen Capen
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